Privacy & Information Security Law Blog

On May 27, 2011, a class action complaint was filed in the United States District Court for the Northern District of California against Google and its recently acquired subsidiary, Slide, alleging that they violated the Telephone Consumer Protection Act (“TCPA”) when they sent text messages to people’s cell phones without first obtaining their consent.

The complaint states that Google and Slide released a service called Disco, a “group texting” tool that allows an individual to send text messages to a large group of people simultaneously using one cell phone number provided by the defendants.  According to the complaint, a Disco customer does not need to demonstrate that he or she has the consent of group members to add them; rather, group members must opt out to stop receiving group messages.

Florida resident Bret Lusskin, the named plaintiff, allegedly received more than 100 SMS text messages in one day as a result of the Disco service.  The initial text message stated that it was from Disco and the subsequent messages were from confused group members whose responses were automatically sent to the entire group.  The putative class includes other persons who received a text message directly from Disco and persons who opted out of a Disco group.  The complaint, which seeks an injunction requiring Google and Slide to cease “all wireless spam activities,” actual and statutory damages, and costs and attorneys’ fees, alleges that the Disco service violates the TCPA, which prohibits companies from using automatic telephone dialing systems to make calls to cell phones unless the owners have consented.  In 2009, the Ninth Circuit ruled that a text message is a call within the meaning of the TCPA.

Also on May 27, the law firm representing the plaintiffs in the suit against Google and Slide filed a similar class action complaint against Twilio Cloud Communications and GroupMe.  The complaint alleges that GroupMe is another “group texting” tool, and that Twilio provides the application program interface, phone numbers and equipment that facilitates and transmits the text messages sent by GroupMe.  As with the Disco suit, the complaint alleges that GroupMe does not seek to obtain a person’s consent or require that group leaders demonstrate they have group members’ consent to receive texts, and that these practices violate the TCPA.  It may be possible for the group texting services to assert a defense under the Communications Decency Act, which protects providers of an “interactive computer service” from liability as the “publisher or speaker” of information if such information “is provided by another information content provider.”

In related news, as we reported earlier today, a pair of putative class action lawsuits alleging violations of the TCPA recently were filed in the Southern District of California against Twitter and American Express Centurion Bank.  The claims in those cases relate to the legality of sending a text message to confirm that a request to opt out of receiving further texts has been processed.