Paranoid Androids: Free Speech Versus Privacy in America’s Resistance Against Intrusive Robocalls

Abstract

This article discusses attempts by the American government to regulate robocalls – the automated and often fraudulent messages that are sent to citizens' phones by the billions every year. The earliest regulations against uninvited telephone solicitations were positioned by Congress and regulatory agencies as content-neutral protections of privacy in the home. This perspective aroused little controversy for years, but it has recently been overtaken by misleading free speech analyses demanded by robocall purveyors, who in turn use such arguments to chip away at privacy protections. This article argues that regulations and statutes intended to restrict robocalls were enacted with the intent of protecting consumer privacy over the speech-related rights of telemarketers. However, telemarketers have adopted the argument that such restrictions are unconstitutional infringements on free speech. The judiciary has responded with tortured attempts to balance privacy and speech, when that sort of analysis should not be necessary if all parties revisited the privacy values of the relevant statutes and regulations.