Is It Legal For Mobile Operators To Ban Text Messages They Don't Like?

from the we're-about-to-find-out... dept

Mon, Sep 20th 2010 2:17pm — Mike Masnick

How would people feel if they found out that their ISP wouldn't let them send emails about a subject they didn't like? I'm sure most people would cry foul. Yet, what about with SMS text messaging? Apparently T-Mobile blocked a company, EZ Texting, from sending text messages for a client that were about legal medical marijuan dispensaries in California, and now there's a legal dispute over the issue. Of course, this isn't quite as cut and dried as either side would like it to be. Unlike email, the SMS system really isn't using the public internet, but the private networks of carriers, who have worked out deals with each other to exchange SMS messages across network barriers. So you can make an argument that they can do whatever they want. Of course, they're also using spectrum from the government, which comes with certain restrictions about how it can be used. Either way, perhaps the bigger question is why T-Mobile should even want to block some messages that people want? All it's going to do is drive away customers...

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Filed Under: neutrality, text messages
Companies: ex texting, t-mobile

33 Comments

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Anshar (profile), 20 Sep 2010 @ 2:32pm

It seems to me...
That providers can either choose to block content they don't like -OR- they can choose to be immune from prosecution for illegal uses of their network by its users. I don't see how they can make a case for both.
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dmeans (profile), 20 Sep 2010 @ 2:36pm

Public vs. Non-public
I don't think you can make an argument for or against this particular behavior regarding what is or is not 'public internet'. In either case, the infrastructure is owned by private companies. And in either case, they can do what they want, until a government agency steps in.
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out_of_the_blue, 20 Sep 2010 @ 2:40pm

It's cut and dried: common carriers must not censor traffic.
"So you can make an argument that they can do whatever they want." -- A surrender to corporatism. k
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interval (profile), 20 Sep 2010 @ 2:42pm

Re: Public vs. Non-public
Seems like a strange thing to block, but, ok. What if the discussion were between two researchers discussing the latest advances in stem cell technology, perhaps one researcher discoveries the missing steps to growing an new heart from a patient's node hair. The ISP sees "stem cell" and blocks a potential game-changing therapy. Now they may have the right to do it, but would you really want them to be making that call?
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Anonymous Coward, 20 Sep 2010 @ 2:43pm

Cox does this to cable modem subscribers. They filter outgoing email, email that goes through a Cox mail server. I sent a single, person-to-person email through Cox to my brother, it was about a bottle of wine. Cox filtered my outgoing email and returned it to me as spam. I no longer have Cox internet service.
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Anonymous Coward, 20 Sep 2010 @ 3:14pm

"Unlike email, the SMS system really isn't using the public internet, but the private networks of carriers, who have worked out deals with each other to exchange SMS messages across network barriers. So you can make an argument that they can do whatever they want."

This is kinda scary. Does this mean that, just because my message travels through a private medium, that gives them the authority to read and filter my message as they please? Does it also give them the authority to alter my message (for example, fit ads into it)? Good thing I always cipher my email then!
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ofb2632 (profile), 20 Sep 2010 @ 3:25pm

free our band waves
either give us unlimited, open text, calls and internet or give us back the bandwidth and we can resell it to a company that will.
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dmeans (profile), 20 Sep 2010 @ 3:26pm

Re: Re: Public vs. Non-public
The service provider should not be blocking any traffic, IMO. If one is paying for the service, then - in theory - one should be able to use what they have paid for, how ever they want to use it.

That being said, the question remains: what authority does the service provider have that enables them to alter said services once an illegal activity has been detected, such as the electric company discovering one is using electricity to grow marijuana in a rented house?

I don't have the answer, but it is an interesting problem.

If the service provider makes subjective decisions outside the rule of law, then there's problem.
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Anonymous Coward, 20 Sep 2010 @ 3:33pm

Re: It's cut and dried: common carriers must not censor traffic.
Indeed... I'm trying to figure out the statement that this is somehow different from the internet. Both involve transmitting data over a common network shared between providers. And based on the fact that it is a common network, I don't think messages sent within a single carrier should be exempt either.
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DCX2, 20 Sep 2010 @ 3:34pm

Re: It seems to me...
I agree entirely. Once you open the can of worms that is policing the content on your network, you have pretty much given up your safe harbor.

I can *almost* see the free-market point that a company should be able to do whatever they want, and if the customers don't like it they can go somewhere else. There are a few issues with this philosophy, though.

1) Not much competition in the wireless sector. Verizon was caught doing something like this a while ago with abortion texts. So if you drop T-Mobile...who do you go to? Virgin Mobile?

2) Spectrum is a scarce resource. The government should regulate in order to maximize the use of this public good.

3) Police need a warrant to read my text messages. This, to me, implies that there's a level of privacy in the communication. Scanning texts to get rid of unapproved messages sounds like a pretty serious privacy violation, whether it is a machine doing it or a human.
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DCX2, 20 Sep 2010 @ 3:38pm

Re: Re: Re: Public vs. Non-public
what authority does the service provider have that enables them to alter said services once an illegal activity has been detected, such as the electric company discovering one is using electricity to grow marijuana in a rented house?

This goes back to safe harbor. The electric company is not culpable for how a customer uses their electricity.

It is also not the electric company's responsibility to shut off your electricity if they detect an illegal activity. If they feel the need to address it, they can report it to the appropriate authorities, who can then get themselves a warrant. You know, due process 'n all that.
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iamtheky (profile), 20 Sep 2010 @ 3:47pm

This kind of clouds the issue, imho
They blocked ALL shortcode from EZ-texting, when it was found they did business with this entity. I would think that an improper shortcode being associated with the carrier would also bear weight in this instance, and rightfully so.
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Bryan (profile), 20 Sep 2010 @ 4:04pm

Read the article people, T-Mobile is not reading text messages
Everyone read the full article before commenting.

T-Mobile is not reading individual's text messages and blocking / filtering them. T-Mobile blocked a company that provided text alerts for a marijuana dispensary.

Since marijuana is an illegal substance under federal law (even if you live in California, possession, sale, and use is still a federal crime) T-Mobile acted within the terms and conditions of their service agreement and blocked this company.
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nasch (profile), 20 Sep 2010 @ 4:25pm

Re:
Good thing I always cipher my email then!

How do you do that if you're sending to someone who doesn't have a public key? Or do you just refuse to do that?
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ofb2632 (profile), 20 Sep 2010 @ 4:29pm

Re: Read the article people, T-Mobile is not reading text messages
if they are not reading text messages, how did they know the texts were marijuana related? That company could be texting about reform??
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Anonymous Coward, 20 Sep 2010 @ 4:57pm

Re: Re:
Ok, yeah, I would only be able to exchange ciphered email with people I trust ( people from whom I have the public key). That's the only problem with this plan.

Of course I am not 100% paranoid (yet), but I do cipher most of my email (since most of my email is going to colleagues and friends that have my key anyway).
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Anonymous Coward, 20 Sep 2010 @ 4:58pm

Re: Read the article people, T-Mobile is not reading text messages
"T-Mobile is not reading individual's text messages and blocking / filtering them."

and

"T-Mobile blocked a company that provided text alerts for a marijuana dispensary."

equals logical failure.
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Anonymous Coward, 20 Sep 2010 @ 5:08pm

"were about legal medical marijuana dispensaries in California,"

There are NO!legal medical marijuana dispensaries in the US. They ALL, including ALL in California, violate US Federal law.

And since California is a US state that makes what you are discussind "Does T Mobile have the legal right to ban and regulate, by reporting such activity to US criminal authorities, activity that violates US law
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Anonymous Coward, 20 Sep 2010 @ 5:22pm

Re:
"Does T Mobile have the legal right to ban and regulate, by reporting such activity to US criminal authorities, activity that violates US law"

Look Bub, every citizen has the duty of reporting any activity the deem suspicious or illegal. But the problem here is that, to know if the activity is illegal, you need to spy on people's communications.

What's being asked is: is this Ok? Should corporations be able to spy on their customers in an attempt to identify illegal activity?
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iamtheky (profile), 20 Sep 2010 @ 6:12pm

Re: Read the article people, T-Mobile is not reading text messages
Actually yalls inability click further than two links deep equals logic fail. lets do this slowly

the service that is blocked is for 'shortcodes'

T mobile terminated the arrangement with the shortcode service provider because of the 'shortcode' assigned to this vendor.

This vendor could absolutely still SMS everyone of his clients that gave him there phone number, they are just no longer allowed to use this entity to provide an automated message via opt in.
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Bryan, 20 Sep 2010 @ 6:28pm

Re: Re: Read the article people, T-Mobile is not reading text messages
Lets see if you can follow the logic, there are no leaps or gaps.

Company A: Marijuana dispensary hires, Company B: EzTxt whose purpose is to send text messages for company A to subscribers on Company C: T-Mobile.

In order to send text messages over T-mobile's network EzTxt signs an agreement with T-Mobile, and as part of that contract T-Mobile has access to the companies EzTxt is hired to send text messages for.
T-Mobile cancels EzTxt's contract due to violations of the terms of the contract (promoting an illegal activity).
At no point in this process is it necessary for T-Mobile to read individual text messages.
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Bryan, 20 Sep 2010 @ 6:35pm

Re: Re: Read the article people, T-Mobile is not reading text messages
Simple,
The company that was paying EzTxt to send text alerts was a MARIJUANA DISPENSARY.
T-Mobile's (and other carriers') agreements with these Text messaging aggregators provides them with access to the companies that they represent.
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Anonymous Coward, 21 Sep 2010 @ 4:44am

If it is it shouldn't.
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nasch (profile), 21 Sep 2010 @ 7:46am

Re: Re: Re: Read the article people, T-Mobile is not reading text messages
So they were just assuming the messages promoted illegal activity?
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Rose M. Welch (profile), 21 Sep 2010 @ 9:38am

I just spoke with T-Mobile, and they insisted that they're not censoring messages, not going to court, know nothing about this. I quoted the Wired article and was suddenly referred to their legal department, who can only be reached by U.S. Mail. Yeah.
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Anonymous Coward, 21 Sep 2010 @ 12:49pm

Re: Re: Re: Re: Read the article people, T-Mobile is not reading text messages
Since the company that was being promoted was a MARIJUANA DISPENSARY it is by definition illegal activity.

Posession, Sale, and Distribution of marijuana is illegal under federal law. California's state law is overridden by Federal Law due to the Supremacy clause (Article 6 IIRC) of the U.S. Constitution.
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Bryan, 21 Sep 2010 @ 12:51pm

Re:
Yep, standard front line response from any corporation. Did you expect some customer care rep to comment on a pending case?
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Anonymous Coward, 21 Sep 2010 @ 5:35pm

Re: Re:
"Look Bub, every citizen has the duty of reporting any activity the deem suspicious or illegal. "

im going to have to disagree, "any" is to strong a word, some stuff like murder or stealing(expensive stuff not candy) but not little stuff
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Michael Turk, 22 Sep 2010 @ 8:09am

Not cut and dry...
Of course, this isn't quite as cut and dried as either side would like it to be.

That's about the best way to say it, but even your coverage is slanted. This isn't necessarily about "messages they don't like", so much as it is about messages that could result in jail time.

Are there safe harbor provisions that protect wireless carriers from knowingly carrying illegal messages? Just because you and others call them "legal dispensaries" doesn't make it so.

Yes, they are legal under California law. However, the US Dept of Justice and the DEA consider them illegal. If you were a wireless operator, whose existence was regulated by the FCC, would you want to run afoul of the DOJ/DEA by allowing your network to be used to promote marijuana sales?

This has less to do with "messages they don't like" and more to do with messages promoting drug sales that are not undoubtedly legal.
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Rose M. Welch (profile), 22 Sep 2010 @ 5:10pm

Re: Re:
No. I expected them to take down my comment about it, and pass it on up. A communications company referring me to their legal department by way of the U.S. Postal service is completely absurd.
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Rose M. Welch (profile), 22 Sep 2010 @ 5:11pm

Re: Not cut and dry...
That's not correct. Communications companies have always been safe from that type of prosecution. That was settled when all we had were giant land lines.
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Martin LaBelle (profile), 24 Sep 2010 @ 11:27am

Its not illegal, for several reasons.
It is not illegal activity! The activity is in support of a notion that alot of peple take issue with. Many people believe that the federal government illegally regulates intrastate trade of marijuana. A substance that CA has seen fit to allow in their state market. This is a legitimate grievance, and and no law can be made that abridges the right of the people to petition (that is build support by sending messages among your peers) the government to fix it.
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Martin LaBelle (profile), 24 Sep 2010 @ 11:42am

Show me the Law
The constitution grants the governement the ability to regulate trade among the states, not within the states. That said, Medical care is a service to which medicine is incidental exchange.

Furthermore, growing produce for one's own use does not constitute trade;unless of course we are all the property of the society at large.

These are all reasons why many people believe the government has overstepped its enumerated powers.
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