Scott Goodstein arrived at the American Association of Political Consultants conference last March suspecting he might have finally found his culprit. Clubby industry gatherings were not familiar turf for Goodstein, a goateed former music promoter who launched the Punk Voter political action committee and organized anti-Iraq War protests. But ever since Goodstein led the pioneering Obama Mobile program during the 2008 election, he has been much in demand by political operatives seeking to understand how the campaign used mobile downloads and text messages to engage supporters on their smartphones and cellular devices. He was invited to appear on a panel at the AAPC conference to discuss “the newest in third screen technologies from the campaigns that used them and the operatives who developed them.” The morning of his panel, Goodstein set out for Washington’s Fairmont Hotel with two different PowerPoint presentations: one with a straightforward account of the uses of mobile communications in politics today, and another that would accuse the man sitting next to him of committing a federal crime.
The crime, as Goodstein saw it, was sending unsolicited text messages to voters. Goodstein had been investigating the case ever since he read a press account of a Democrat in upstate New York who received an unwanted appeal on her phone in 2009 from a Republican congressional candidate. Before the 2010 midterms, Goodstein catalogued other examples of similar contact in congressional races. But he was never certain of which of his rival vendors was behind them. Now his co-panelist, the president of the firm ccAdvertising, was explaining how the firm was able to market such services, by using the email addresses the major mobile carriers maintain as an alternative method of sending texts. Software would pair all the various combinations of listed numbers and mobile carrier emails—like firstname.lastname@example.org or email@example.com. When a phone number and email address corresponding to a real user was found, a message would go through, arriving in the user’s phone as a text. Using this method, Gabriel S. Joseph III claimed, he was able to send one-third of the people on a California voter file an individually targeted text message. And because ccAdvertising sent the messages through an email gateway, instead of a text-messaging platform, they could be delivered in bulk at almost no cost. Joseph boasted that he had sent “millions” of such messages. “As soon as he put that slide up, I said ‘that was the same crap I was seeing in all these congressional races,’ ” says Goodstein. “He clearly was the guy.”
Goodstein decided to present his case against Joseph and other consultants who used similar tactics at the AAPC panel. He noted that the 1991 Telecommunications Consumer Protection Act, which aimed to prevent people from being charged for unwanted calls, prohibited using an automatic dialer to reach cell phones and pagers—and that regulators had since confirmed that the law included SMS text messages under its definition of calls. Only by getting their targets to opt-in to receive messages from a clearly identified sender could political organizations blast messages to cell phones. Joseph had justified his practice by explaining that he was sending emails, a medium in which other laws clearly protected political speech. But Goodstein displayed statements from the industry groups that set best practices for mobile carriers. He lingered on one quotation, from a CTIA-The Wireless Association official: “Whether the message is delivered over the Internet, or as an SMS message, spam is spam no matter how it goes.” Goodstein concluded by trying to shame Joseph with a passage from the AAPC code of ethics that, without irony, requires members to “not indulge in any activity which would corrupt or degrade the practice of political consulting.”
For Goodstein, the attempt to hold Joseph accountable in front of his peers proved quixotic. Their conversation quickly disintegrated from edgy countercharges into sheer awkwardness until the moderator, former Michigan Republican Party boss Saul Anuzis, directed his speakers onto less contentious terrain. No one in the crowd appeared to write down the hotline number Goodstein had established to help people beseech their state attorneys general to “investigate text message spam.” (Most attendees appeared befuddled and bored by the exchange; many were there because they wanted a primer in the basics of mobile communications and couldn’t even follow the technical and legal arguments.) When, seven months later, Virginia voters were hit with unwanted text messages attacking a Democratic state senator seeking re-election, Goodstein encouraged the Democratic Party of Virginia to pursue an injunction against the communications. They never did. “I don’t think that the Democratic party understands a lot of this,” Goodstein laments.
But when, in the days before last week’s Michigan primary, voters across the state began receiving unwanted text messages under the title “Romney’s Poor Comments,” Goodstein grew more sanguine about the fight against mobile spam. For once, he was seeing a Republican victimized by the technique, but more important, Goodstein thought he was finally on his way to closing the loophole that Joseph and other vendors have used to justify their practice. In January, the Federal Communications Commission accepted a petition from Goodstein’s firm, Revolution Messaging, that asked regulators to clarify that provisions of the 1991 telemarketing law did not distinguish between emails that turned into text messages and those that started as text messages. “You're not allowed to use an auto-dialing device to call a cell phone without express consent,” argues Elizabeth Howard, a lawyer with the Washington firm Sandler Reiff Young & Lamb who drafted Revolution’s petition.
That Goodstein, who gives his employees the day off on May Day, has taken to the barricades over this issue appears at first a peculiar joining of rebel and cause. He is a critic of corporate consolidation who is attacking competitors for failing to follow industry standards, and along the way defending the prerogatives of telecom carriers he’s separately battling on issues like net neutrality. But Goodstein portrays his quest to beat back political text-spammers as a consumer-protection initiative. “If any other business could do this, they would,” he says. “There’s a reason why lower interest rates or buy a better sex drug—all these industries that do a lot of spam by email—don’t mess with the text gateway, and that’s because the end user pays for the communication."
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