“There oughtta be a law”. So say we all at certain moments. For years, owners of landline phones and cellphones in the U.S. have asked why it’s not illegal to make deceptive or outright fraudulent calls.
Legislators and regulators have sometimes responded with attempts to crack down on abuses, starting with the Do Not Call Registry, originally created in 2003. These are the kinds of histories that historians have trouble tracking fully because it becomes easy to forget changes that were profound at first and then were undone so thoroughly that no one can remember the original change. When the Do Not Call Registry was first pushed out, it was for a short time extremely effective at cutting what had become an endless barrage of unwanted calls. (You have to be old enough to remember also an era when almost all the calls you received on your phone were from real people you really knew that you needed to talk to. The only exceptions were often a small number of polls and the occasional crank caller.)
The DNC Registry failed pretty quickly. At first because of its exceptions. If you’d ever given any money ever to a charity or done business with a company, it had permission to robocall you going forward. Political organizations could call you. Pollsters could call you. Non-profits could call you. All of those turned out to be abusable exceptions.
So our phones fell under siege again. Regulators and legislators pointed to the difficulty of enforcing the laws when many calls were coming from disguised sources, often outside the United States. But it got bad enough—and affected regulators and legislators themselves—that there were renewed enforcement efforts and tightened regulations.
Sometimes the loopholes were a specific unintended consequence of good intentions. In Pennsylvania, we’ve gone through several waves of companies calling phones with deceptive messages claiming to be the major local utility company wanting to change something about our billing, usually referencing some desire to help consumers get a better deal on third-party clean energy credits or something along those lines. That’s been an attempt in the past to use a regulatory move to allow third-party sellers of renewable-produced energy to sell to utility customers who wanted to do some form of green energy consumption. At best, it was a greenwashing concept; at worst, it was just a cynical favor for a campaign contributor. But it laid Pennsylvania phone users open to some very brash scamming that claimed legal protection—I got into some pretty hot conversations with the scammers over the years because they would habitually craft language that made it sound like they were the utility itself. I’m thinking about this today because I’ve had three voice messages left for me on my cell phone from a very human sounding caller: “Nicole Adams saying that my PECO Customer Choice Supply Program had expired”. Same scam, new era.
These moments activate a kind of libertarian lizard brain for me: regulations are bad, they always have unintended consequences and don’t achieve their goals. But imagine that there are no regulations at all about who may call whom for what, or that we are all left as individuals to pursue civil remedies against fraudulent callers. Plainly it would be even worse—it was worse in the regulatory window after the break-up of Ma Bell before any attempt to step in on telemarketing.
The unspeakable causality as always is capitalism, which is treated as if it is the sun coming up in the sky, a force of nature. But even here there are really two capitalisms that push against or subvert regulatory constraint, and the scam callers are the thick kudzu that grows as fast as lightning everywhere. As soon as a law is passed, their ecosystem shifts, they move into the new niche and begin to swarm over it. These are the same people who were trying to sell millions of masks or cases of hand disinfectant to the federal government in May 2020 or landed in Iraq about two steps behind U.S. military forces in April 2004, looking for every petty bit of profiteering they could identify. Law and regulation to the capitalist kudzu is a signal, a ringing of the dinner bells.
But the kudzu is generally just a nuisance. It kills in its understory, true enough. For robocalling scams, the people dying in the stifling darkness are the elderly and the impaired, the millionth listener who falls for the latest bit of social engineering and loses their identity or their bank account. The rest of us just swear at the wasted labor involved in picking up the phone, at the invasion of a communicative channel we need to do our work and keep in touch.
The big corporate forest, on the other hand, is the really deadly thing when it is left off the hook of regulation: its rotting trees fall on whole neighborhoods and communities. The problem is that when laws and regulations fail to remove the kudzu (despite extravagant promises to do so), many of us come to believe that all regulations aren’t worth the effort. So not only do we end up helpless against a swarming nuisance, we end up crushed whenever there’s a storm. For at least some people in government, that’s precisely the way they want it: the Kochs and others have worked for decades to produce that sense of futility. For others who believe in some sense that good regulation is possible, however, their lack of attention to the afterlives of constraint has undercut the whole enterprise. If you’re going to go after telemarketers, robocallers and frauds, you better be ready to be relentless. The only way to cut back kudzu is to make that your life. If you’re just going to do it once in a while, you might as well spare the effort.
Image credit: By Scott Ehardt - Own work, Public Domain, https://commons.wikimedia.org/w/index.php?curid=702909
I'm one of the last holdouts who keeps a landline. (Really, landline-like service; it comes over FiOS, they wouldn't let us keep the POTS once we signed up for FiOS.) The strange thing is, for the past year and a half or so, the scam calls to the landline have really fallen off. There used to be several a day---annoying but Caller ID was the real counter-measure. That scammers are allowed to spoof caller ID is yet another scandal. But now, there are hardly any. We do get political polls, which I will pick up for, because I'd like my opinions to count for more.
If my interpretation of the wiring setup is correct, the family from whom we bought the house had at one point three land lines. That must have been quite the indulgence back in the '80s.
Interesting to read your explanation of why the DNC Registry failed so quickly.
I guess I signed up to registry just shortly after that early, short-lived period when it actually had been effective. When it didn't work for me, when the spam calls continued, I just shrugged it off as, "Eh, these regulations never work....but is there at least a better spam filter?" Not being a tech person, I hadn't quite grasped that I was hoping for spam filters from the very producers of the spam!...