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Twitter May Face Trial for Alleged Tweet Spam

Mobile Apps iStock_000019512727LargeBy Daniel A. Johnson

Last month, Twitter was dealt a setback in a case where it is accused of sending unwanted texts with “recycled” phone numbers in violation of the Telephone Consumer Protection Act (TCPA).  The case is a putative class action titled Nunes, et al. v. Twitter Inc., No. 3:14cv02843 (N.D. Cal.), and on July 1, the court denied Twitter’s motion for summary judgment, and granted the plaintiff’s cross-motion. 

According to the court’s opinion, some Twitter users sign up to receive tweets via text message, but will later change phone numbers without bothering to inform Twitter.  This can be a problem because sometimes cell phone carriers “recycle” old discarded phone numbers, assigning them to new cell phone users, in which case the person with the recycled number may allegedly receive unwanted tweets.  The plaintiff in the case claims to have been in this position.  On that basis, she brought suit under the TCPA, which allegedly renders it unlawful to “make any call” —a phrase courts interpret as including texts—using an automatic telephone dialing system without the consent of the recipient. 

In its summary judgment motion, Twitter argued that it did not “make” a call when the owner of a recycled cell phone number received a text, so that it could not be liable.  The court disagreed, holding that some person or entity had to be considered as “making” the calls, and it was neither the tweeter nor the former owner of the phone number, so that Twitter had to be “making” the calls.  Moreover, the court reasoned that “if Twitter’s proposed interpretation of ‘make any call’ were to prevail, the owners of recycled numbers who receive unwanted tweets via text message would have no protection under the TCPA.”

The court also held that Twitter received no protection under the Communications Decency Act, which the court said generally immunized interactive computer services against liability arising from content created by third parties (e.g., because the content infringes intellectual property laws).  The court reasoned that the plaintiff’s claim did not seek to impose liability for the content of the tweet, but rather sought redress for the tweeting itself:  “if Twitter ends up being liable under the TCPA, it would be liable whether the content of the unwanted tweets is bad or good, harmful or harmless.  Either way, the unwanted tweet is a nuisance.”

In response to the court’s order, Twitter filed a motion for an interlocutory appeal, which the court denied on August 25.