Text and Multimedia Messaging: Emerging
Issues for Congress
Patricia Moloney Figliola
Specialist in Internet and Telecommunications Policy
July 20, 2010
Congressional Research Service
7-5700
www.crs.gov
RL34632
CRS Report for Congress
P
repared for Members and Committees of Congress
Text and Multimedia Messaging: Emerging Issues for Congress
Summary
The first text messages were sent during 1992 and 1993, although commercially, text messaging
was not widely offered or used until 2000. Even then, messages could only be sent between users
subscribed to the same wireless carrier, e.g., Sprint customers could only exchange messages with
other Sprint customers. In November 2001, however, wireless service providers began to connect
their networks for text messaging, allowing subscribers on different networks to exchange text
messages. Since then, the number of text messages in the United States has grown to over 48
billion messages every month. Additionally, text messages are no longer only sent as “point-to-
point” communications between two mobile device users. More specifically, messages are also
commonly sent from Web-based applications within a Web browser (e.g., from an Internet e-mail
address) and from instant messaging clients like AIM or MSN.
For Congressional policymakers, two major categories of issues have arisen: (1) “same problem,
different platform” and (2) issues stemming from the difficulty in applying existing technical
definitions to a new service, such as whether a text message is sent “phone-to-phone” or using the
phone’s associated email address. There are numerous examples of each. An example of the first
category would be consumer fraud and children’s accessing inappropriate content, which have
existed previously in the “wired world,” but have now found their way to the “wireless world.”
An example of the second category would be that spam sent between two phones or from one
phone to many phones does not fall under the definition of spam in the CAN-SPAM Act of 2003
(Controlling the Assault of Non-Solicited Pornography and Marketing Act, P.L. 108-187);
however, if that same message were to be sent from a phone or computer using the phone’s
associated e-mail address, it would.
The increasing use of text and multimedia messaging has raised several policy issues:
applicability of CAN-SPAM Act to unwanted wireless messages; refusal of some carriers to allow
users to disable text messaging; carrier blocking of Common Short Code messages; deceptive and
misleading Common Short Code programs; protecting children from inappropriate content on
wireless devices; “sexting”; mobile cyberbullying; and balancing user privacy with “Sunshine,”
Open Government, and Freedom of Information Laws.
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Contents
Introduction ................................................................................................................................ 1
Definitions .................................................................................................................................. 1
Short Message Service .......................................................................................................... 1
Enhanced and Multimedia Message Service .................................................................... 1
E-mail-to-SMS Messaging .............................................................................................. 2
Common Short Codes (CSCs) ............................................................................................... 2
Issues for Congress ..................................................................................................................... 3
Distracted Driving Caused By Texting .................................................................................. 4
Federal Activity .............................................................................................................. 4
State Activity .................................................................................................................. 5
SMS Spam............................................................................................................................ 5
Legislation in the 111th Congress ..................................................................................... 5
Inability of Consumers to Disable Text Messaging ................................................................ 6
Carrier Blocking of Common Short Code Messages .............................................................. 6
Deceptive and Misleading Common Short Code Programs .................................................... 7
Protecting Children from Inappropriate Content on Wireless Devices .................................... 7
“Sexting” .............................................................................................................................. 8
Mobile Cyberbullying ........................................................................................................... 9
Legislation in the 111th Congress ..................................................................................... 9
Privacy: Disclosure of Text Messages Under Freedom of Information Laws and the
Stored Communications Act ............................................................................................. 10
Using SMS to Support Law Enforcement and Emergency Response.................................... 11
Congressional and Industry Response to SMS-Related Issues.................................................... 13
Figures
Figure 1. Path of Intercarrier SMS Messages ............................................................................... 2
Figure 2. Path of Common Short Code Messages ........................................................................ 3
Appendixes
Appendix. Text Blocking with Selected Major Carriers—Information for Consumers................ 14
Contacts
Author Contact Information ...................................................................................................... 15
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Text and Multimedia Messaging: Emerging Issues for Congress
Introduction
The first text messages were sent during 1992 and 1993, although commercially, text messaging
was not widely offered or used until 2000. Even then, messages could only be sent between users
subscribed to the same wireless carrier, e.g., Sprint customers could only exchange messages with
other Sprint customers. In November 2001, however, wireless service providers began to connect
their networks for text messaging, allowing subscribers on different networks to exchange text
messages. Since then, the number of text messages in the United States has grown to over 48
billion messages every month. Additionally, text messages are no longer only sent as “point-to-
point” communications between two mobile device users. For example, messages are also
commonly sent from Web-based applications within a Web browser and from instant messaging
clients like AIM, MSN, or Google Chat.
Definitions
Short Message Service
Short Message Service (SMS) is a method of communication that sends text between cell phones,
or from a computer or handheld device to a cell phone. The “short” part refers to the maximum
size of the text messages: 160 characters.1 The term “SMS” is generally used interchangeably
with the term “text message.”
Even when not being used for a voice call, a mobile phone is constantly sending and receiving
information. It is communicating to its cell phone tower over a control channel. The reason for
this communication is so that the cell phone system knows which cell a phone is in, and so that
the phone can change cells as the user moves around. Every so often, a phone and a tower will
exchange a packet of data that lets both “know” that everything is working properly.
The control channel also provides the pathway for SMS messages. When someone sends an SMS
message, the message flows through the SMS Center (SMSC), then to the cell tower, and the
tower then sends the message to the recipient’s phone as a packet of data on the control channel.
Figure 1 illustrates how a SMS message is processed.
Enhanced and Multimedia Message Service
While SMS only allows plain text to be sent, two alternative messaging services allow for more
elaborate types of messages. With Enhanced Messaging Service (EMS), formatted text, sound
effects, small pictures, and icons can be sent. MMS (Multimedia Messaging Service) allows
animations, audio, and video files in addition to text to be sent.
1 For some alphabets, such as Chinese, the maximum SMS size is 70 characters.
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E-mail-to-SMS Messaging
As noted above, SMS messages may be sent between a computer and a mobile phone. However,
these messages are sent using the e-mail address associated with the mobile device, such as
2025551212@carrier.com. For that reason, these messages are classified as e-mail and therefore
are subject to different and more stringent regulation (see “SMS Spam”).
Figure 1. Path of Intercarrier SMS Messages
Source: Used with permission from Motorola. Definitions: The “Internet Protocol (IP) cloud” represents an
Internet Protocol network used to carry data traffic; HLR = Home Location Register (the central database that
contains details of each mobile phone subscriber); MAP = Mobile Application Part signaling protocol; MSC =
Mobile Switching Center; the “Public Switched Telephone Network (PSTN) cloud” is included to demonstrate
that SMS messages are not carried over it; SMS Aggregator = an intermediary between mobile service providers
providing SMS service; SMSC = SMS Center; SMPP = Short Message Peer-to-Peer Protocol.
Common Short Codes (CSCs)
Introduced in the U.S. market in October 2003, Common Short Codes (CSCs) are short numeric
codes of five or six digits, compatible across carriers, to which text messages can be sent from a
mobile phone. Wireless subscribers send text messages to short codes to access a wide variety of
mobile content, for example, to vote for contestants on American Idol. Many entities use CSCs to
communicate with interested parties: television stations; individual television shows; radio
stations; instant messaging services; political, advocacy, and other organizations; magazines, and
sports teams—among others. Users send a message to the CSC to subscribe to alerts or other
messages. Sometimes these messages are delivered for free by the originator, sometimes there is a
fee. Figure 2 illustrates how a CSC message is processed.
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Figure 2. Path of Common Short Code Messages
Source: Used with permission from Motorola. See Figure 1 for acronym definitions.
“Vanity” CSCs are also available (for a higher price)—these CSCs use letters on a mobile device
keypad to spell out words that are easy to remember and are chosen to reflect the service the short
code is being used to access.2 Furthermore, although CSCs can be “compatible” across all
carriers, some CSCs are established as business partnerships between a specific carrier and
another entity. For example, American Idol has an exclusive partnership with AT&T Wireless.3
Issues for Congress
For Congressional policymakers, the major issues that have arisen stem from what could be
called “same problem, different platform.” For example, issues such as consumer fraud and
children’s accessing inappropriate content, which have existed previously in the “wired world,”
have now found their way to the “wireless world.”
Other issues stem from the difficulty in applying technical definitions to a given service, such as
whether a text message is sent “phone-to-phone” or using the phone’s associated e-mail address.
For example, spam sent between two phones or from one phone to many phones does not fall
2 See https://www.usshortcodes.com/csc/search/publicsearchCSC.do?method=showVanity & group=all for examples
of such codes.
3 See http://www.americanidol.com/mobile/ for specific instructions.
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under the legal definition of spam; but if that same message is sent from a phone or computer
using the phone’s associated e-mail address, it does.
Distracted Driving Caused By Texting
According to the U.S. Department of Transportation, approximately 16% of fatal automobile
crashes and 80% of all crashes in 2008 were caused by distracted driving. While reading and
composing text messages while driving is only one of numerous factors that can lead to distracted
driving, such activity is a growing concern among safety and regulatory groups. In response to
this concern, there have been various actions taken at the federal and state levels.
Federal Activity
Both the Congress and the Executive have taken actions to mitigate distracted driving caused by
texting while driving.
Legislative Activity
S. 1536 and H.R. 3535, have been introduced in Congress that would amend Title 23 of the U.S.
Code to reduce the amount of federal highway funding available to states that do not enact laws
prohibiting texting while driving. Both are called the Avoiding Life-Endagering and Reckless
Texting by Drivers Act, or ALERT Drivers Act, of 2009. S. 1536 was introduced by Senator
Charles Schumer on July 29, 2009, and referred to the Committee on Environment and Public
Works; no further action has been taken. H.R. 3535 was introduced by Representative Carolyn
McCarthy on September 9, 2009, and referred to the Committee on Transportation and
Infrastructure Subcommittee on Highways and Transit; no further action has been taken.
A bill similar to those discussed above, H.R. 4153, would amend Title 23, United States Code, to
establish national standards to prevent distracted driving. This bill would require the Secretary of
Transportation to withhold specified graduated percentages of a state's apportionment of certain
federal-aid highway program funds for FY2012-FY2015. This bill was introduced by
Representative Todd Platts on November 9, 2009; on November 20, 2009, it was referred to the
Subcommittee on Highways and Transit. No further action has been taken.
Two companion bills, H.R. 3994 and S. 1938, both called the Distracted Driving Prevention Act
of 2009, were introduced by Representative Eliot Engel on November 3, 2009, and Senator John
Rockefeller on October 27, 2009, respectively. H.R. 3994 was referred to the Subcommittee on
Highways and Transit on November 4, 2009, and S. 1938 was ordered to be reported with an
amendment in the nature of a substitute on June 9, 2010. These bills take a multi-pronged
approach, involving the Secretary of Transportation, National Highway Traffic Safety
Administration, and the FCC, to reduce distracted driving.
Executive Activity
U.S. Department of Transportation held a Distracted Driving Summit on September 30 – October
1, 2009. Topics addressed included the definitions and data related to driver distractions and
inattention; quantifying the risks of distracted driving; technologies available to mitigate
distracted driving; legislation, regulation, and enforcement of distracted driving; and how to raise
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public awareness of the problem. In conjunction with the summit, on October 1, 2009, President
Obama signed an executive order banning federal employees from text messaging when they are
behind the wheel of government vehicles and from texting in their own cars if they use
government-issued phones or are on official business.
State Activity
Nineteen states and the District of Columbia have enacted a ban on texting while driving (some
states have partial bans on young drivers using the cellphone in any capacity while driving).
Additionally, 33 states debated 113 bills to curb driver distraction last year. A complete state-by-
state listing is available on the National Council of State Legislatures website.4
SMS Spam
The CAN-SPAM Act was and is intended to curb the amount of spam that consumers receive in
their e-mail accounts. At the time the act was being considered in 2003, text messaging was in its
infancy as a service. As discussed above, SMS messaging is not the same as messaging that uses
a mobile phone’s associated e-mail address (i.e., 2025551212@carrier.com). At this time, only the
latter type of message is covered by CAN-SPAM; messages that are sent “phone-to-phone”
through the SMSC are not.
There is no evident reason for messages that appear the same to a user and have the same effect
on a user (generally, annoyance) to be treated differently under CAN-SPAM (Controlling the
Assault of Non-Solicited Pornography and Marketing Act, P.L. 108-187). Resolving this
discrepancy in the treatment of these two types of messages would require a change to the statute.
Legislation in the 111th Congress
Representative Phil Gingrey introduced H.R. 1391, the Stop M-Spam Abuse as a Sales Industry
Habit—or “SMASH”—Act on March 9, 2009; the bill was referred to the House Committee on
Energy and Commerce. This bill would require the Federal Trade Commission (FTC) to revise
the Telemarketing Sales Rule to explicitly prohibit, as an abusive telemarketing act, the sending
of “any electronic commercial message containing an unsolicited advertisement” to a mobile
telephone number that is listed on the FTC’s do-not-call registry.
Senator Olympia Snowe introduced S. 788, the m-Spam Act, on April 2, 2009; the bill was
referred to the Senate Committee on Commerce, Science, and Transportation. This bill would (1)
exclude applicability of the law to certain classes of messages (e.g., to facilitate or confirm a
commercial transaction); (2) exempt from prohibition sending unwanted messages from one
wireless device to another or from a mobile service provider to its subscribers at no charge
(unless a subscriber has opted out); (3) requires the FTC to revise the TSR to consider messaging
practices that are costly or a nuisance to consumers; and explicitly prohibit, as an abusive
4 Cellular Phone Use While Driving Laws, National Council of State Legislatures, October 2, 2009,
http://www.ncsl.org/default.aspx?TabId=17057. See also, National summit to highlight state solutions to growing
traffic safety concern, National Council of State Legislatures, October 2, 2009, http://www.ncsl.org/PressRoom/
PressReleaseDistractedDrivingSummit/tabid/18643/Default.aspx.
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telemarketing act, the sending of any message to a mobile telephone number that is listed on the
do-not-call registry.
Inability of Consumers to Disable Text Messaging
Some mobile service customers have expressed frustration to their Congressional representatives
about unwanted text messages and the inability to selectively block or completely disable text
messaging on their phones. While carriers generally offer a range of text messaging packages, for
example, 500 messages for $10, some customers do not use text messaging and, therefore, pay a
small fee every time they receive a message. A number of user discussion sites contain posts from
users who are frustrated with the extra charges they incur from unwanted messages.5 In December
2007, a class-action lawsuit was filed against T-Mobile in this matter.6
Most carriers offer some form of text blocking to their customers. A June 12, 2008, article by
David Pogue in the New York Times7 outlined the various options being offered by different
carriers. The Appendix contains information from that article that may be helpful to consumers.
Given that carriers are beginning to offer various forms of text blocking to their customers, it may
be advantageous to consumers to wait to see what options the different carriers develop. In that
way, competition is given a chance to succeed in this area and carriers are offered the opportunity
to assess what their competitors are doing and perhaps improve their own services. Eventually,
however, Congress may wish to investigate whether customers are being offered the best possible
options to assure that they are not receiving unwanted text messages.
Carrier Blocking of Common Short Code Messages
In September 2007, Verizon notified NARAL Pro-Choice America that it would not participate in
its CSC program. NARAL does not charge for its messages and users may opt-in or opt-out as
desired, but Verizon stated that it does not accept programs from any group “that seeks to
promote an agenda or distribute content that, in its discretion, may be seen as controversial or
unsavory to any of [its] users.”8
This decision was immediately criticized by free-speech advocates, although communications
scholars pointed out that the company most likely, from a legal standpoint, did have the right to
refuse to participate in the program.9 Since text messages are not carried over the traditional
telephone network, such messages are not protected under common carrier regulation. The next
day, Verizon changed its decision and is now participating in NARAL’s CSC program, saying in a
statement that the decision had been “an incorrect interpretation of a dusty internal policy” that
5 See, for example, Mobiledia Forum at http://forums.mobiledia.com/topic35359-0-asc-10.html.
6 RCR Wireless News, “Class Action Nails T-Mobile USA Over Texting Services,” January 30, 2008, available online
at http://www.rcrnews.com/apps/pbcs.dll/article?AID=/20080130/FREE/927035123/1005/rss01.
7 New York Times, “How to Block Cellphone Spam,” by David Pogue, June 12, 2008, available online at
http://www.nytimes.com/2008/06/12/technology/personaltech/12pogue-email.html.
8 New York Times, “Verizon Blocks Messages of Abortion Rights Group,” by Adam Liptak, September 27, 2007,
available online at http://www.nytimes.com/2007/09/27/us/27verizon.html.
9 New York Times, “Verizon Blocks Messages of Abortion Rights Group,” by Adam Liptak, September 27, 2007,
available online at http://www.nytimes.com/2007/09/27/us/27verizon.html.
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“was designed to ward against communications such as anonymous hate messaging and adult
materials sent to children.” The policy had been developed “before text messaging protections
such as spam filters adequately protected customers from unwanted messages.”10
This issue highlights the difficulty in applying the current regulatory structure to new services.
While mobile providers appear to have the legal right to determine what information is available
through their CSC programs, Congress may wish to consider whether and how political and other
speech might be better protected in those programs.
Deceptive and Misleading Common Short Code Programs
Many third-party content providers use the CSC program and bill the usage through the mobile
service provider. For example, content providers can allow mobile device users to download
content (e.g., ringtones) or participate in SMS-based “chat.” While most of these content
providers are legitimate businesses, others use deceptive tactics to gain customers and run up
unexpected charges.11
For example, as reported by CBS News in February 2008, some customers have subscribed to
monthly services without reading the “fine print” and find that the charge is often difficult to
remove because it is an independent third party rather than the customer’s mobile service
provider.12
The Mobile Marketing Association has developed “Consumer Best Practices Guidelines”13 that it
expects its members to follow. This code includes limiting subscription periods to one month,
after which consumers must re-subscribe, and providing alerts to customers when their chat-
related charges reach $25 increments. Although the best practices have not eliminated all
misleading programs, over time the industry may bring its members into compliance. More
clarity on industry efforts might allow policymakers an opportunity to assess the efficacy of those
efforts.
Protecting Children from Inappropriate Content on Wireless
Devices
As more mobile devices become equipped to access the World Wide Web and additional content
services are made available via CSCs, the risk of children downloading inappropriate content will
likely increase. While carriers may follow a set of voluntary guidelines14 to promote wireless
10 New York Times, “Verizon Reverses Itself on Abortion Messages,” by Adam Liptak, September 28, 2007, available
online at http://www.nytimes.com/2007/09/28/business/28verizon.html.
11 See Class Action Connect online at http://www.classactionconnect.com/cell_phone_issues/category/complaints-in-
the-news/ for examples of these types of complaints.
12 CBS News, “Ringing Up Big Charges For ‘Free’ Tones,” February 22, 2008, available online at
http://www.cbsnews.com/stories/2008/02/22/eveningnews/main3867197.shtml.
13 This document is available online at http://www.mmaglobal.com/bestpractices.pdf.
14 CTIA—The Wireless Association® has voluntary guidelines for wireless carriers to use in classifying content that
they provide directly over wireless handsets. These voluntary guidelines apply only to content that you purchase from
your wireless carrier, either on a one-time use or download basis, or as part of a package with a monthly fee such as
ring tones, wallpaper, games, music, video clips, or TV shows. Content that is generated or owned by a wireless user,
such as text messages, instant messages, e-mail (through chat rooms, message boards, etc.) and picture mail is not
(continued...)
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safety for children, there is no way to guarantee that children will not be able to access
inappropriate content by circumventing carrier-implemented safeguards.
The following types of material can be downloaded on many wireless devices, and may include
content inappropriate for children.
• Images, such as background “wallpaper” for the phone screen.
• Games, including some games that are also available for gaming systems.
• Music and songs, including ring tones, ringback tones, and downloads of full
songs.
• Video, including certain television shows, movies, and music videos, as well as
video programming specially made for, and only available on, wireless devices.15
The wireless industry is working to ensure that children do not access inappropriate information
over their wireless devices, but there is no definitive research on the success of these efforts.
Whether current efforts to protect children from inappropriate content over wireless devices may
be an issue of interest to policymakers.
“Sexting”
Sexting is a term coined by the media that generally refers to youth writing sexually explicit
messages, taking sexually explicit photos of themselves or others in their peer group, and
transmitting those photos and/or messages to their peers.16 Sexting is not the same as a child
sending a sexually explicit photo to an adult, however, the ramifications can be extremely serious
because of how child pornography laws are written. In general, regardless of the age of the person
who takes the photograph and/or sends it, that photograph is considered child pornography. This
has led to situations in which underage girls have been charged with distributing child
pornography and others in which teenagers have been required to register as sex offenders.
Although no federal charges have been brought in these types of cases yet, it is conceivable that
they could. Congress may wish to consider whether children should be prosecuted under statutes
intended to prosecute child predators and pornographers and whether, in certain cases, such
prosecutions might be warranted.
(...continued)
included in the wireless carrier’s content classification system. Also, content that is accessed by surfing the Internet on
a wireless handset is not currently included in the classification system. The guidelines urge carriers to provide separate
Web filtering software for Web browsing services. Wireless carriers choosing to follow these voluntary guidelines
agree to use at least two content ratings: (1) Generally Accessible or available to consumers of all ages; and (2)
Restricted or accessible only to those age 18 and older or to those younger than 18 years old, when specifically
authorized by a parent or guardian. The Restricted ratings system generally is based on or uses criteria under existing
ratings systems for movies, television, music, and games. CTIA Guidelines are available online at http://www.ctia.org/
advocacy/policy_topics/topic.cfm/TID/36.
15 FCC Consumer Fact Sheet, “Protecting Children from Adult Content on Wireless Devices,” available online at
http://www.fcc.gov/cgb/consumerfacts/protectingchildren.html.
16 National Conference of State Legislatures, 2009 Legislation Related to “Sexting” http://www.ncsl.org/?tabid=17756.
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Mobile Cyberbullying
“Cyberbullying,” harassing communications sent, for example, via e-mail or text messages or
through social networking sites such as Facebook or MySpace, is a growing problem. The issue
made national headlines in November 2007 after the suicide of Megan Meier, a 13-year-old
Missouri girl. In that case, the mother of a former friend of Megan’s set up a fake MySpace page,
pretending to be a boy who had just moved to the area and was home-schooled. Within a few
weeks of becoming “friends” with “Josh,” on October 15, 2006, the tone of his messages changed
drastically, with “Josh” saying he no longer wanted to be friends with Megan, because “he” had
heard that she had been mean to some of her friends. On October 16, 2006, Megan hanged herself
in her closet.
Although, as in the case described above, much cyberbullying takes place in the “wired” world,
more recently, these sorts of messages are being sent from and to mobile devices. Since many
mobile devices are capable of performing the same tasks as computers, these messages are now
being sent via mobile instant messaging, the mobile websites of social networking sites, and text
messaging.
The subsequent public outcry over the Megan Meier case led to four bills being introduced in the
110th Congress, three by Representative Linda Sanchez and one by Senator John Kerry; each
contained language that would have included the use of wireless devices in the definition of
cyberbullying.17 All would have defined cyberbullying to include “verbal, visual, or written
psychological bullying or harassment by an individual or group, using an electronic device or
devices including e-mail, instant messaging, text messages, blogs, telephones, pagers, and
websites, to support deliberate, repeated, and hostile behavior that is intended to harm others.”
None of these bills were signed into law.
Legislation in the 111th Congress
Representative Adam Putnam introduced H.R. 780, the Student Internet Safety Act, on January
28, 2009; the bill was passed on June 17, 2009, and referred to the Senate Committee on Health,
Education, Labor, and Pensions. This bill would allow local educational agencies that receives
funds under Elementary and Secondary Education Act of 196518 to those funds to develop and
implement programs that promote the safe use of the Internet by students, including
cyberbullying awareness programs.
Representative Linda Sanchez introduced H.R. 1966, the Megan Meier Cyberbullying Prevention
Act, on April 2, 2009; the bill was referred to the House Committee on the Judiciary. A hearing on
this bill took place on September 30, 2009. This bill would amend the federal criminal code to
17 H.R. 3577 was introduced on September 17, 2007, and referred to the House Committee on Energy and Commerce
Subcommittee on Telecommunications and the Internet; no further action was taken. H.R. 4134 was introduced on
November 9, 2007; it was passed by the House on November 13, 2007, and referred to the Senate Committee on the
Judiciary on November 14, 2007. H.R. 6120 was introduced on May 21, 2007, and referred to the House Committee on
the Judiciary; no further action was taken. S. 3016 was introduced on May 14, 2007, and referred to the Senate
Committee on the Judiciary; no further action was taken. The bills were substantially similar. H.R. 3577, H.R. 4134,
and S. 3016 would have authorized $5,000,000 for educational grants to carry out Internet crime prevention education
programs from 2008 through 2012; H.R. 6120 would have authorized $10,000,000 for the time period 2009 through
2013.
18 U.S.C. 6751 et seq. and 20 U.S.C. 7101 et seq.
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impose criminal penalties on anyone who “transmits in interstate or foreign commerce a
communication intended to coerce, intimidate, harass, or cause substantial emotional distress to
another person, using electronic means to support severe, repeated, and hostile behavior.”
Privacy: Disclosure of Text Messages Under Freedom of
Information Laws and the Stored Communications Act19
Text messages are routinely used to conduct government business. As a result employers,
litigants, newspapers, and public interest groups are increasingly seeking access to the contents of
such communications in order to shed light on the workings of government. One of the arguments
against disclosure of text messages emerging from public officials is that certain delivery
platforms or technological devices should, by their very nature, be private because the official
owns them, or keeps them in her pocket. Because text messaging represents a relatively new form
of electronic communications, state and federal courts are considering requests for access to and
disclosure of text messages pursuant to freedom of information and privacy laws.
Courts have begun exploring ways to apply open government laws to text messages. In Texas, a
state judge ordered the City of Dallas to turn over e-mails and text messages sent by city officials
from personal accounts and personal hand-held devices to conduct city business, and held that the
e-mails and messages were subject to disclosure under the Texas Public Information Act.”20
In Detroit, Michigan, newspapers filed a Freedom of Information Act (FOIA) lawsuit against that
city seeking disclosure of text messages sent by Detroit elected officials on city-issued pagers that
related to the city’s $8.4 million settlement of two whistle-blower lawsuits brought by former
Detroit police officers.21 The city has argued that disclosure of the text messages would violate
the federal Stored Communications Act. A public records directive issued by the city states that
all electronic communications sent on city equipment “is not considered to be personal or
private.”22 Although the newspapers obtained the text messages through an anonymous source,
they continue to press for the release of additional information under public records law.23 A court
ruled part of the information the newspapers wanted was public, the Free Press published text
messages related to the cover-up and the Mayor and Chief of Staff were charged with eight
felonies.24 The newspapers are continuing to pursue additional information using the state FOIA.
19 Gina Marie Stevens, Legislative Attorney in the CRS American Law Division, contributed to this section.
20 Jennifer LaFleur, Dallas: City Must Provide Messages From Officials’ Personal Accounts, Dallas Morning News,
October 30, 2007, available at http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-
emails_30met.ART0.State.Edition1.421befa.html.
21 Detroit Free Press, Inc., et al. v. City of Detroit, No. 08-100214 CZ, Wayne County Circuit Court, MI, at
http://info.detnews.com/2008/0307motiontocompel.pdf.
22 On June 26, 2000, Mayor Kilpatrick signed a “Directive for the Use of the City of Detroit’s Electronic
Communications System.”
23 A “public record” under the Michigan Freedom of Information Act is a writing that is: (1) prepared; (2) owned; (3)
used; (4) in the possession of, or (5) retained by a public body in the performance of an official function….. MCL
15.232(e).
24 For an excellent chronology of developments, see Reporters Committee for Freedom of the Press, at
http://www.rcfp.org/newsitems/index.php?key=121&op=keyword.
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New York legislators worked to revise the state’s open records law to specifically add text
messages to the list of records covered.25 A new Freedom of Information Law became effective in
New York on August 7, 2008, and includes provisions which reflect a recognition of advances in
information technology, but does not include a provision on text messaging.26
Subject to certain exceptions, the Stored Communications Act (SCA), which is part of the
Electronic Communications Privacy Act, bars “a person or entity providing an electronic
communications service to the public” from knowingly divulging to any person or entity the
contents of a communication while in electronic storage by that service.” The SCA distinguishes
between two types of providers: “remote computing services” and “electronic communications
services.”
Courts have been examining whether the disclosure of text messages sent by employees on
employer-issued pagers violates the privacy rights of employees, and whether such disclosure is
barred by the SCA.27 The Supreme Court considered a lower court's decision that the city of
Ontario, CA, police department had violated the rights of Sgt. Jeff Quon by examining the text
messages he had sent and received on his department-issued pager. Quon had claimed that the
move was a violation of the Fourth Amendment's protection against unreasonable searches. The
Supreme Court, however, reversed the lower court’s findings and held that Quon should not have
assumed the messages “were in all circumstances immune from scrutiny” 28 and that Quon’s
Fourth Amendment rights had not been violated. The Court also held that the SCA had not been
violated.
Using SMS to Support Law Enforcement and Emergency Response
In April 2008, the FCC adopted rules for the Commercial Mobile Alert System (CMAS), which
will deliver emergency text messages to the public during emergencies and natural disasters,29
and recommended that the Federal Emergency Management Agency (FEMA) be the program’s
aggregator. The program was mandated by the Warning, Alert and Response Network Act that
was signed into law in 2006.30 Under this law, the FCC was required to develop plans for a
commercial mobile-alert system through which wireless carriers would voluntarily transmit text
25 “Battle Over Public Information Expands,” by Ledyard King, Federal Times, March 24, 2008, p. 14.
26 N.Y. Pub. Off. Law § 84 et seq. For a summary of the amendments to the Freedom of Information Law, see
http://www.dos.state.ny.us/coog/foilnews2.html.
27 18 U.S.C. § 2701 et seq.
28 The Court also found that Quon frequently exceeded the monthly limit on texting, and the department's search was
prompted by a desire to determine if the limit was too low. Instead, it found the vast majority of Quon's messages were
personal, including sexually explicit comments sent to his wife, his mistress and another officer.
29 Federal Communications Commission, In the Matter of the Commercial Mobile Alert System, First Report and
Order, FCC 08-99, PS Docket No. 07-287, April 9, 2008, available online at http://hraunfoss.fcc.gov/edocs_public/
attachmatch/FCC-08-99A1.pdf (“Commercial Mobile Alert System, First Report and Order”). See also, FCC Adopts
Rules for Delivery of Commerical Mobile Alerts to the Public During Emergencies (FCC 08-99), April 9, 2008,
available online at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-99A1.pdf. See also the FCC’s Consumer
Fact Sheet on CMAS at http://www.fcc.gov/cgb/consumerfacts/cmas.html.
30 Warning, Alert, and Response Network Act, Title VI of the Security and Accountability for Every Port Act of 2006,
P.L. 109-347, 120 Stat. 1884 (2006).
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messages sent out by the government. The FCC has divided the types of messages the
government will send out to mobile-phone users into three broad categories:31
• Presidential Alerts deal with national emergencies and will take precedence over
any other impending alerts
• Imminent Threat Alerts deal with emergencies that may pose an imminent risk to
people’s lives or well-being.
• Child Abduction Emergency/AMBER alerts will be related to missing or
abducted children.
In addition, the FCC says that all subscribers with roaming agreements will receive timely alerts
“provided the subscriber’s mobile device is configured for and technically capable of receiving
alert messages from the roamed upon network.”32
The architecture adopted by the FCC calls for a centralized alert-aggregator where federal and
state emergency-response agencies would send their warning messages to be authenticated and
dispersed to the appropriate participating commercial mobile services. Noting FEMA’s role in
developing the proposal for the adopted architecture, the FCC recommended the agency as its
first choice to serve as the alert aggregator and FEMA has accepted that role
The FCC has issued a Second Report and Further Notice of Proposed Rulemaking;33 an Order on
Reconsideration and Erratum;34 and a Third Report and Order.35 Of particular note, in the Third
Report and Order, the FCC—
• adopted notification requirements for wireless providers that elect not to
participate, or to participate only in part, with respect to new and existing
subscribers;
• adopted procedures by which wireless providers may elect to transmit emergency
alerts and to withdraw such elections;
• adopted a rule governing the provision of alert opt-out capabilities for
subscribers;
• allowed participating wireless providers to recover costs associated with the
development and maintenance of equipment supporting the transmission of
emergency alerts; and
31 Commercial Mobile Alert System, First Report and Order, paras. 26-32.
32 Commercial Mobile Alert System, First Report and Order, para. 79.
33 Federal Communications Commission, In the Matter of the Commercial Mobile Alert System, Second Report and
Further Notice of Proposed Rulemaking , FCC 08-164, PS Docket No. 07-287, July 8, 2008, available online at
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-164A1.pdf.
34 Federal Communications Commission, In the Matter of the Commercial Mobile Alert System, Order on
Reconsideration and Erratum, FCC 08-166, PS Docket No. 07-287, July 15, 2008, available online at
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-166A1.pdf.
35 Federal Communications Commission, In the Matter of the Commercial Mobile Alert System, Third Report and
Order, FCC 08-184, PS Docket No. 07-287, July 15, 2008, available online at http://hraunfoss.fcc.gov/edocs_public/
attachmatch/FCC-08-184A1.pdf.
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• adopted a compliance timeline under which participating wireless providers must
begin CMAS deployment.
At this time, the technical standardization process at FEMA is not yet complete and CMAS is,
therefore, not operational.
Congressional and Industry Response to
SMS-Related Issues
The issues discussed in this report have prompted different levels of response from Congress and
the wireless industry:
• Issues that are being addressed by industry, so policymakers may wish to wait
and see how those efforts play out;
• Issues that have not risen to a level of priority in Congress, but would require
statutory action to effect change; and
• Issues that have triggered a legislative response.
As wireless communications technologies, and the issues that accompany them, evolve over time,
so likely will the approaches that industry and Congress will take to ensure consumer safety and
satisfaction.
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Appendix. Text Blocking with Selected Major
Carriers—Information for Consumers
AT&T
Customers must log in at mymessages.wireless.att.com. Text-blocking and alias options are
available under “Preferences.” Messages from specific e-mail addresses or websites can also be
blocked from this page.
Verizon Wireless
Customers must log in at vtext.com. Text blocking options are available under “Text
Messaging”/”Preferences.” Select “Text Blocking.” Consumers may block text messages from e-
mail or from the Web, including blocking specific addresses or websites.
Sprint
Customers must log in at http://www.sprint.com. Sprint does not offer auto-blocking, but
consumers can block specific phone numbers and addresses. On the top navigation bar, select,
“My Online Tools”/”Communication Tools”/”Text Messaging.” On the Compose a Text Message
page, under Text Messaging Options, select “Settings & Preferences.” In the text box, customers
can enter a phone number, e-mail address, or domain name to block.
T-Mobile
Customers must log in at http://www.t-mobile.com and select “Communication Tools.” T-Mobile
doesn’t yet offer a “block text messages from the Internet” option. Customers can block all
messages sent by e-mail, though, or permit only messages sent to the phone’s e-mail address or
alias, or create filters that block text messages containing certain phrases.36
36 “How to Block Cellphone Spam,” NYTimes.com, Pogue’s Posts, June 12, 2008, available online at
http://pogue.blogs.nytimes.com/2008/06/12/how-to-block-cellphone-spam/?scp=1&sq=Text%20Blocking&st=cse.
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Author Contact Information
Patricia Moloney Figliola
Specialist in Internet and Telecommunications
Policy
pfigliola@crs.loc.gov, 7-2508
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