I’ve often mused that one needs a higher level of consent to call that handsome stranger’s cell phone number than to engage in other forms of friendliness, at least per federal law.
While most activities between adults require only regular old consent–which can (in most states) be implied and never needs to be in writing (at least not yet)–the Telephone Consumer Protection Act (TCPA)–which governs calls to cell phones– and its implementing regulations often require EXPRESS consent and, in many contexts, WRITTEN express consent to call someone you just met on their cell phone.
So, quite literally, you might not be able to call your new friend 3 days later. Or is it 5 days now? I can’t keep track with all the inflation.
One of the contexts requiring the highest level of consent is telemarketing. And while YOU probably don’t plan to telemarket any of the lovely folks you meet online these days–I know the whole “online dating” thing is like “normal” now, but I still struggle with the concept because I’m a dinosaur– many companies are pleased to do just that; when you provide your phone number via a webform submission and accept appropriate disclosures businesses are free to send you the promotional materials you seek.
But–and this is where we get to the headline–what if the people providing consent on the webform are minors? Kids? Non-adults?
We all know the outcome in certain contexts where consent is required. The magic age of “18” holds tremendous power under the law. Things that are entirely out of reach one day, become completely tangible the next.
And that includes cell phone numbers. At least according to a new lawsuit filed in California yesterday.
In the suit, Kristen Hall–mother to a minor that received telemarketing calls from a regrettably-named company Smosh Dot Com– alleges that underage kids and teenagers simply lack the legal ability to consent to receive calls on their cell phones.
In Hall’s case, her kid was 13 at the time he consented to receive discount code text messages from Smosh.
That is pretty young to be giving any form of legal consent.
Interestingly, Plaintiff’s counsel allegedly reached out to Smosh–I’m already tired of that name–and received a response from Smosh’s counsel (make it stop) to the effect that Smosh had consent to send the messages. But the data Smosh (ugh) allegedly provided confirmed that Smosh knew the provider of the consent was 15, even though he was apparently really 13. (You just can’t trust what folks say on the internet people.)
I am unaware of any case law directly holding that TCPA consent can–or cannot–be provided by a minor. But if this theory gains legs this is a game changer for many businesses that rely on online consent forms to communicate with customers. And Smosh will be in a bunch of trouble–Plaintiff claims that much of Smosh’s business model turns on marketing to kids on their cell phones. So yeah, this could get ugly.
But its not just Smosh that should be worried. Given the phenomena of parents providing cell phones to their kids– and then not at all monitoring what they are doing with those phones–the risk to businesses of calling underage cell phone users seems remarkably high if this theory gains traction. This is especially true as you can’t effectively police age over the internet–although knowingly calling underage cell phones using regulated technology should probably come to a pause right about now.
I’ll keep a close eye on this one.
© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 302