• by Wendy Davis  @wendyndavis, August 10, 2018

Facebook is asking a federal appellate court to rule that an anti-robotexting law unconstitutionally restricts the company's free speech rights.

In papers filed this week, the social networking service contends that the Telephone Consumer Protection Act violates the First Amendment because it exempts robo-texts aimed at collecting debts owed to the government. That law prohibits companies from using autodialers to send robo-texts to consumers without their consent.

Facebook argues in papers filed this week with the 9th Circuit Court of Appeals that the law unconstitutionally "draws distinctions on the basis of content, offering an exemption for calls placed 'to collect a debt owed to or guaranteed by the United States.'"

The company adds that the law's "sweeping proscription on an entire channel of speech is far from the least restrictive means of furthering the government’s purported interest in residential privacy."

Facebook's argument comes in response to papers filed by Montana resident Noah Duguid, who is seeking to revive a lawsuit alleging that the company repeatedly sent him unwanted text messages. Duguid, who apparently had been assigned a recycled phone number by his carrier, alleged in a 2014 class-action complaint that Facebook repeatedly sent him messages stating that his account had been accessed, even though he never had an account with the social networking service. Duguid said in court papers that he emailed Facebook with complaints about the texts, but that the company persisted in sending them.

U.S. District Court Judge Jon Tigar in the Northern District of California dismissed Duguid's lawsuit, ruling that Duguid's allegations didn't support the conclusion that Facebook used an automated dialer to send the messages.

Duguid recently asked the 9th Circuit Court of Appeals to reverse that ruling, arguing that Facebook's texting system meets the definition of an autodialer. "It is clearly Facebook itself that is robotically sending the text messages," he wrote in papers submitted to the 9th Circuit earlier this year. "No human intervention is occurring in the actual sending of the message."

Facebook is asking the appellate court to reject Duguid's argument for several reasons. The company disagrees that its system is an autodialer, arguing that the system didn't generate the numbers randomly, but in response to information about a potential security breach.

Judges across the country have struggled to figure out when texting systems are autodialers. The Telephone Consumer Protection Act defines autodialer as equipment that is capable of storing and dialing numbers using a random or sequential generator.

Facebook alternatively argues that the Telephone Consumer Protection Act is unconstitutional because it imposes different rules on companies engaged in debt collections than other types of speech.

"Under the statute, a private debt collector is barred from making an unconsented autodialed call to a cell phone to discuss a student loan owed to a private bank," Facebook writes. "But he is permitted to make an identical call if he changes the topic of the conversation and instead discusses collection of a government-backed student loan."

The company contends that the law therefore unconstitutionally restricts speech based on its content.

Duguid is expected to respond to Facebook's argument by the end of the month.