Greetings & Good Hello! I had a few minutes of access to the Code of Federal Regulations today. I am battling Sgt. C and the jail to get more access, and they are fighting tooth and nail to keep me hobbled – such is the way of innocence before proof of guilt! Nevertheless, in the few minutes I had I looked at Title 47 – Telecommunications, and then chapter/section 64.1200 – I can not recall how it was delineated and I am prohibited from checking again. Speed is of the essence when trying to work with the jack boots of freedom at your throat. I do recall that 64.1200 had several revisions, each with different “effective” dates, all very current.
Section 64.1200 is quite long and is about “Delivery” and blamo – not only did we get access to cleaning supplies today, we got surprise access to tablets. For the first time in over a month, or perhaps two, we are being granted access to the law library during waking hours! This is tremendous! And it changes the narrative a bit – let’s dive in to Title 47, Subchapter B – “Common Carrier Services”, which is a non-consecutive assembly of “Parts” 20-69. I say non-consecutive because we have 20, 22, 24, 25, 27, etc. – as you can see several are missing.
The first thing to note in this Subchapter – Secs 20.1 to 69.809, is the diversity of topics – “Upper Microwave Flexible Use Service” to “Numbering” to “Infrastructure Sharing” to “Preservation of Records”. Setting aside a “Part” to deal with a topic is clearly not a significant hurdle here. Creating specific legislation to deal with consent, explicitly, is not, prima facie, a show stopper. And, if it were, there is always Part 64, “Miscellaneous Rules Relating to Common Carriers” (Secs 64.1 to 64.6409) – that is 6409 sub-sections, or miscellaneous rules, spread out from subpart A to subpart Ii, with two appendices dealing with national emergency preparedness.
From a cursory inspection, the only restrictions on communication between parties comes from section 64.1200 – in Subpart L “Restrictions On Telemarketing, Telephone Solicitation, and Facsimile Advertising” – which spans sections 1200 to 1204. Section 1200 has four copies effective until 26-Mar-24, then rules effective for about 4 months, then rules up until 27-Jan-25, then rules after that. Section 1200 is titled “Delivery Restrictions”.
Section 1200, any one of the copies, immediately jumps out as exemplary of the kind of government legislation and regulation which actively damages our society. I have been hoping to get “The Death of Common Sense” in here to make a more erudite presentation about how such law damages our society, but Sheriff Rogers, Sgt. C, and “The Lieutenant” 1st Sgt Jenkins all feel that the security of the facility is best served if that book remains in personal property and safely away from my cell. In the interests of safety, here is how I think that section 1200 is damaging: it tries to micromanage. Specifically, it attempts to enumerate all specific conditions and technologies to which the law applies, rather than defining tests and conditions. It attempts to be the “source code” for a fully automated society, devoid of human interpretation – or common sense, to enable a society “governed by law” rather than a society “governed by people, guided by law”.
For example, 64.1200 (a) (1) (iii) – when fully assembled – reads
(a) No person or entity may
(1) Except as provided in paragraph (a)(2) of this section, initiate any telephone call (other than a call made for emergency purposes or is made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or pre-recorded voice;
(iii) To any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.
Now, later, in (a)(9), we find that
(a) No person or entity may…
(9) A person will not be liable for violating the prohibition in paragraph (a)(1)(iii) of this section for making any call exempted in this paragraph (a)(9), provided that the call is not charged to the called person or counted against the called person’s plan limits on minutes or texts. As used in this paragraph (a)(9), the term “call” includes a text message, including a short message service (SMS) call.
But note that
(a)(9)…
(iv) Calls made by, or on behalf of, healthcare providers, which include hospitals, emergency care centers, medical physician or service officers, poison control centers, and other healthcare professionals, provided all of the following conditions are met:
which then follows are conditions A-H, such as
(F) A health care provider may initiate only one message (whether by voice call or test message) per day to each patient, up to a maximum of three voice calls or text messages combined per week to each patient.
All of this complexity basically says “telephones are not a safe avenue for healthcare communications” given they could use an “unregulated” channel like facebook or twitter to get a health care message to you. Quite literally, using the above rules, any automated health care system may be prohibited from notifying a patient if that notification exceeds the 3 messages/week limit, unless the message is manually sent by a person – unless, of course, express consent is granted.
Notice how all of this complexity results entirely from the presumptive consent model and the fact that it is a poor fit for around 3/4s of the population (based on membership of the do-not-call registry).
Also, not to put to fine a point on it, but why the hell are my communications with my healthcare providers regulated in some corner of a law designed to regulate the abuse of fax machines? How much of my health care bill goes to paying to navigate this kind of legislative crap?
And why, in the entire section of FCC law, is 64.1200 the only section that appears to talk about consent – and then, only in the context of automated dialing systems? This is because we have old and out-dated mental models of the role of communications – the legislation of the pre-digital world is not suited to the post digital world. The first step in protecting our digital self is the establishment of a consent economy. The FCC needs a section on consent – and this, not fax machines, should champion us into the 22nd century.
Which brings us to the topic of e-mail. Email and non-telephony communications are apparently dealt with by the Federal Trade Commission. The CAN-SPAM Act is dealt with by CFR Title 16 “Commercial Practices”, under Subchapter C “Regulations Under Specific Acts of Congress” – in which Part 316 is titled “CAN-SPAM Rule”. The CFR section is very light, presumably because the CAN-SPAM act did not work. The law itself, which has all the details of opt-out mechanisms and content labeling, is in Title 15 of the United States Code, chapter 103, which has the whole thrust of the effort: “Controlling the Assault of Non-solicited Pornography and Marketing” (secs 7701-7713).
Of interest is that the first definition in sec. 7702 is “affirmative consent”, referring to an explicit act of consent, more or less. Consent plays a big role in the CAN-SPAM act as well, but consent is still not given primacy as a true communications primitive. Regardless, consent goes a long way towards breaking the claim of non-solicited communication. Unfortunately, revocation of consent is not matched by any counterpoint to solicitation – and this, is turns out, is a big, big problem.
As we can see, the big thrust of CAN-SPAM is sexually explicit material. The second current, which unifies it with the TCPA, the Telephone Consumer Protection Act behind the do-not-call registry, is unsolicited marketing. These are the only two mechanisms to control communications – and both leave open gaping holes for political or religious speech under the guise of the First Amendment. This is where it gets murky – the laws deal with unsolicited messages, or messages for which there is no explicit consent, and for anonymous political and religious speech. There simply is no coverage, at all, for unwanted non-anonymous speech, especially if it is political, and especially if it is during an election year. The law simply does not say anything about this case.
A political organization does not need to comply with the CAN-SPAM act, although they ought to if they want to seem nice. However, they have no obligation to honor it, and they have no obligation to avoid “dark patterns” such as causing your unsubscribe request to re-subscribe you immediately after unsubscribing you. As a political organization, they can email you as much as they want and it is your responsibility to block them.
In fact, you have no legal recourse, at all, to get them to stop. None. Even if the receipt – the simple fact of receipt of the mail is problematic, physiologically problematic for you – that is your problem, not the sender’s. The physiological or psychological damage done to you, by the sender, can not be a factor in any legal consideration because what they are doing – this very real act of violence, is completely legal. For this reason law enforcement is prohibited from protecting you from your assailant.
This can be changed by promoting the concept of consent, which is already at the foundation of both the FCC and FTC regulations, to play a primary role in communications legislation. If someone says no, the sender should be obliged to honor that. Think how much simpler our communication laws might become if we pivot and allow individuals, rather than regulators, to determine the conditions under which communication is appropriate.
This takes me back to the health care example earlier. The obscene complexity of 64.1200 is due to an effort to enumerate and render explicit every condition for every person – a sort of “legislated normalcy”. This is written out in terms like “2 seconds” after a personal greeting is completed or “160 characters” as a text message length, as well as the specific information which must be provided in specific segments of a call. I guarantee you that, for every specific rule there is a person with a valid life condition excluded by that rule. Humanity is too dynamic, our lives are too varied to be legislated like 64.1200. When we find our laws need long lists of exceptions so that “health care” can work because fax machines of the 1990’s are wagging the dog of the 21st century – then we are writing very, very bad legislation – legislation which is not superficially flawed but deeply, deeply flawed.
Another sign of flawed legislation is to invert the application. Instead of looking at 64.1200 as sculpting a world around a passive citizen – put the citizen in the driver’s seat. Try explaining the policy to your child or your neighbor saying “this is what your default messaging policy is” – then describe 64.1200 to them. I bet they would not tolerate it. This is a sign of very bad legislation.
The chances are very high that your child or neighbor would come back with “how about you contact me only if I agree to it”. The huge membership of the do-not-call registry would support that. This also, by triggering the consent clause at the very start of 64.1200, removes all of that legislation. As we transit from physical to digital communication envelopes the ability if not the necessity of a consent-driven communications policy is hard to ignore.
That is why I am here. I am not here because I am “quick to anger” and responded inappropriately to a random junk email – as AUSA Greg Radics asserts. Rather, I am here because I have a deep and unwavering belief that all entities, be they commercial, political, or religious – should respect the fullness of the First Amendment, which includes the obligation not to speak to me of I politely request that you do not. This does not abridge free speech – it does not threaten democracy. This protects my foundational constitutional right to life and places it ahead of your right to free speech only in so far as you are speaking to me alone.
My desire not to hear the utter bullshit spewing out of Trump’s face-anus in no way stoppers that shit nozzle. It just keeps my soul a little cleaner, and in so doing, I seek to be the change I wish to see in the world.
Eric Charles Welton
Prisoner #94911
Columbus County Detention Center
April 8, 2024