Greetings & Good Hello! I have been thinking a lot about my frustration with my attorney, who is 62 and who blew me off again this week. My particular frustration is with his views on and his failures to use and to understand digital communication. He, like many people of his generation, is very well trained to tolerate certain communication paradigms and to accept unnecessary and hidden assumptions without question. He is, in a nutshell, unaware of when he is being abused and manipulated – he is tolerant of a loss of agency. To a large extent the younger generations are as well, however their fundamental relationships with vendors and service providers are different – and their communications envelopes are so qualitatively different that I do not think they can be directly compared. Regardless, the issues which bother me, and which impact all of us, are the same – and the threats they pose are very real.
Let’s start with the image of an old analog telephone – when you would pick up the handset and ask the operator to connect you to a specific circuit. Let’s just imagine a local call involving one simple patch cable. This is an intensely personal, and a person intensive communication. There is quite a lot of humanity and human intimacy involved. This is the origin of our model of “ringing someone up”, although most of us probably don’t remember quite back that far. In fact, some of us might struggle even to remember land-lines and phones that were tethered to wall mounts with long cables. In those days, even before “caller ID”, there was a concept of telephone etiquette. One might call or answer a call with a ceremony that began with announcing your identity and your intent. “Dr. Franklin’s office. Janice speaking. How may I direct your call?” or any numerous variations on numerous themes, all containing the same skeleton. Again – this was part of the humanity, the human intimacy of phone communications – noting, specifically, that they were location-based.
If one did not wish to be bothered by calls they might simply ignore the ringing, or take the phone off the hook, or unplug the phone – although, in a household this might cause trouble because so doing would impact many people. And, as always, “what if it was an emergency?”. One could always imagine the need for some distant family member to reach out, or an urgent alert from a boyfriend or girlfriend if your home housed adolescents. This is when we started to see the first signs of intrusion as well, and the beginnings of both telemarketers and the start of telephone-based customer services. Technologies such as “caller ID” were just on the horizon.
The sea-change came over the next decade, and it came on two fronts. One front was the rise of mobile or cellular communications. The other was the rise of telephony-based services in the shadow of the shift towards the online world. The world was so focused on the new World Wide Web that we forgot that the telephony world was changing dramatically during the 1990s. The United States was so wrought with social impact that the Telephone Consumer Protection Act was passed in 1991 which established the first do-not-call list. This might be thought of as a useful demarcation point for when a third, inhuman, actor joined the communication party – the “organization” – be it corporation, church, political party, or any other institution.
This ability was powered by technology, and it was largely overlooked because these institutions were gathering the most attention with their new “online” or digital presences. Meanwhile they were developing voices and ears they had never had before – but only scarce attention was paid due to the costs associated with unwanted calls on expensive new mobile technologies and some mild unpleasantness due to interruptions of the erstwhile institution of the “family dinner”.
My attorney would have been in his 30’s at this time, and I was in my 20’s. We were just getting trained, by society at large, to “listen fully, as our menu has changed”. This is significant because, up until this point, when you “called someone back” you called a person back. A phone call was a human-to-human investment. When Bob calls Alice, in 1991, and Alice is not available – Alice can call Bob back. The game, or “phone-tag”, could be played until both parties were available – until the human connection was made. This game evolved with the advent of “voice-mail” and “answering-machines” – but both of these were small potatoes compared to the leviathan in the wings – the “customer service center”.
For the first time, personal phone communications could be broken into two categories – person-to-person and person-to-system. This asymmetry has a huge psychological impact. Where before, if someone called you, you could call them back, now that was no longer the case. The return call would get a phone-system, or a “call-center”, ultimately routing you to an agent who, in theory, had all the information they needed to deal with you but where the personal continuity was broken. This was by design – you, your relationship was not with the agent, it was with the company. In terms of automated calls for social or political organizations the concept is the same – you were being contacted by a movement, not a person. Your phone number was bound to you, but the originating caller’s number was no longer bound to a person.
The shift away from location-based phones, or land lines, has amplified this asymmetry. Personal phone numbers now are not only bound to you, but can reach you, globally, no matter where you are. Meanwhile, organizations which initiate calls provide a fully automated buffer blocking you from ever connecting with a person. This has led to websites like gethuman as well as a growing literature on the psychological frustration felt and experienced by people.
Unfortunately, for people of “legislative age” – around the age of my attorney, the cognitive models formed in their 20’s and 30’s still dominate. They appear “well trained” to tolerate the call centers. Younger consumers appear to engage call centers less often as they have a much richer engagement over other channels, although this should all be checked. One drawback of detention is the severe isolation from information! On the other hand, the lack of constant overload is also oddly peaceful – I have rediscovered “book technology” and now entertain myself with an advanced glucose-powered virtual reality system I forgot I had.
I believe that we do ourselves a disservice when we try to keep 30+ year old legislation like the TCPA in place to deal with a fundamentally different landscape of communications. In the United States, fixed telephone lines are being phased out entirely. The numbers portability act, which allowed people to “take their numbers” with them was a sign of the binding between these numbers and people or organizations. This almost fully “virtualizes” the phone system, which is increasingly one of the legacy communications systems.
Consider now how confused a “non-technical” person, like my attorney, must feel when dealing with a “smart-phone”. Having been raised in a world that started with location-to-location phones and person-to-person communications, he is now faced with a complete digital portal to an entire digital universe. Compare his experience to someone who was raised, from day one, expecting and experiencing and building their digital universe. The level of digital service integration is vastly different between the two – to the point that their dependence and withdrawal is physiologically measurable. This is an objective, empirical, observer-neutral reality.
Now we have to ask ourselves, in this ocean of communication – when two endpoints are communicating and one is a person while the other is a multi-billion dollar enterprise interested in “guiding” the behavior of that person – are we right to worry? Should we picture in our mind two people talking over the analog phone after the operator plugged in the patch cable – or is there something fundamentally different going on? The reality is that there is something very different going on – very, very different, and terrifyingly so. Unfortunately, the reality is such that it is so uncomfortable that people of “legislative age” and disposition, like my attorney, seem immediately disposed to retreat into the pleasantness of the cognitive models of their youth. They use the simplicity and naiveté of “virginal communications” to protect themselves from having to bother about an inconvenient truth. Americans, and a lot of us, are very good at this.
So what does all this mean? This means that we need to look seriously at the legislation surrounding the digital self. Moreover, we need to stop trying to build towers on ill-suited foundations. Modern communications are not based on the conceptual models of telephony. The Telephone Consumer Protection Act of 1991 should not be the roadmap for the 21st and 22nd centuries of AI-led, internet-driven, social and global digital transformation.
What I argue – here and in my case and work – is that a better foundation is the fullness of the 1st amendment. The key word here is fullness – because what is important is not the right to express unpopular opinions or criticize orthodoxy, although that has definite value – rather the value of fullness is in the right not to hear and to personally and collectively regulate, without restricting expression. In other words, you have the right to express your views and I have the right not to hear it. This, in effect, is the right to a do-not-call registry.
Looking at the TCPA you see that political organizations are exempt, but also exempt are calls to cellular numbers. This was done because incoming calls to location based networks were traditionally free, but not so for cellular networks, so calling someone cost the receiver money. This is a problem for communications based on presumptive consent – especially when you pit 800lb gorillas against small consumers. An aggressive campaign, for example, could “spend all the phone time” of its opponents supporters without the TCPA. In 2020 the Trump campaign violated the TCPA and attacked African-American voters, resulting in some $5M in fines – and that was old school, imagine what wasn’t prosecuted.
This is why I continue to be frustrated by people like my attorney – people who view this sort of social and information warfare through the lens of “an inconvenient call at dinner” rather than as inappropriately regulated vulnerabilities exposing the electorate to unparalleled abuse due to the rapid evolution of technology relative to increasing legislative dysfunction. Without substantial overhaul to our national personal communication law we imperil our democracy, and with it we endanger the world.
Eric Charles Welton
Prisoner #94911
Columbus County Detention Center
April 4, 2024