Texting for votes: How Clinton campaign uses legal loophole to reach mobile phones

Is Hillary Clinton's campaign skirting communications regulations to reach mobile-centric users? Once again, technology drives politics to the bleeding edge.
Written by David Gewirtz, Senior Contributing Editor

This isn't another email server controversy.


Once again, Hillary Clinton and messaging technology are both in the news. And once again, something Secretary Clinton is doing is being portrayed as skirting the edge of the law. While not quite at the "I didn't inhale level," a recent Bloomberg article implies her campaign is dancing around the spirit of the law.

I'll cut to the chase and tell you I don't see a smoking gun here. My analysis doesn't turn up any wrongdoing. This isn't another email server controversy.

This is, however, an interesting story about how innovative approaches to apps and mobile technology are solving some problems and campaign challenges that were, not coincidentally, introduced through our growing reliance on apps and mobile technology.

Let's start with the law. The Telephone Consumer Protection Act 47 U.S.C. § 227 of 1991 [PDF], among other things, places prohibitions against sending mass text messages to consumers. The premise of TCPA is that since (at least for a time) users paid per message, an unsolicited incoming message would cost consumers. Therefore texts would be given greater protections than email spam or calls to land-line phones.

The law was updated in 2013 to require prior written consent to send text messages from a business to a consumer. Basically, the purpose of this was to prevent anyone with a marketing agenda from spamming SMS messages to the planet.

The untapped voter market

The number of eligible voters who actually vote is quite low. Even though this most recent primary season had greater engagement than the 2012 presidential campaigns, at 25 percent of the population, it was still lower than the 30 percent of the eligible voting population who turned out in the 2008 primary contests.

In the actual November 2012 elections, only 57 percent of the US voting populace actually voted. If you think about that, it means that only one in four people determined the candidates. Almost half of us didn't participate in voting for president.

These numbers make campaign managers alternatively crazy and giddy. It makes them crazy because so many people don't participate. But it makes them giddy because there is an enormous untapped market. If they can increase voter participation by just a few percentage points, it can change the landscape of the entire election.

Obviously, then, one of the biggest challenges for campaigns is actually getting people to participate in the political process. That can range anywhere from recruiting volunteers, soliciting donations, all the way to the most important: getting people to vote.

Campaign outreach

Historically, phone banks were among the most effective ways to reach people. At one time, almost all households had a wired landline phone. Campaign volunteers supplied with huge lists of phone numbers would dial for dials, volunteers, and voter turnout.

But landlines are in huge decline. As of last year, the CDC determined that 47 percent of American families only have a mobile phone. Of the incredibly critical 24-34 year old demographic, about 70 percent only use mobile phones.

Then there's texting. Text messages get read by a phenomenal number of users - far more than read email or answer the phone. As the video at the end of this column shows, when a recent Sanders gathering asked how many people came because they'd gotten a text message, almost everyone in the room raised his or her hand.

Bulk texting is, understandably, the holy grail for campaign engagement. There's just the nasty little bit about the law that gets in the way.

Hustle and Megaphone

The Bloomberg article describes an app called Megaphone that's a locally-grown version of the Hustle app used by the Bernie Sanders campaign. (There's a video at the end of this article that gives a comprehensive training walkthrough of Hustle by a Sanders tech coordinator. It's worth watching.)

What Hustle (and by extension, Megaphone) does is manage the texting flow of volunteers to target contacts. We'll get to what makes up a target contact in a minute.

For now, though, the key thing to understand is that both Hustle and Megaphone queue up a series of outbound contacts that volunteers can send to. Rather than text messages being sent automatically from a central sending server, each volunteer individually sends each message from his or her phone.

The mechanics of that process are pretty brilliant. Volunteers sign up for a shift and when they connect to their phone, a series of contacts is queued up for them, along with some scripted templates. Each contact is displayed for an outgoing message, at which point the user hits send.

That's one message, individually sent. The volunteer doesn't have to look anything up or type in a phone number. Just hit send. And hit send. And hit send. Over and over and over, until about 200 messages are sent in a session.

This is where Hustle and Megaphone skirt texting regulations. Texting regulations govern "automatic telephone dialing systems" that have two specific characteristics: "The capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers."

Hustle and Megaphones aren't demon dialers. They're not just trundling down a sequential or random list of numbers. Instead, the campaigns bought lists with contact information. Whether those lists are of people who have asked to be contacted by the campaign, or dentists over the age of 50, doesn't matter.

The campaigns are not "calling using a random or sequential number generator." So they're not violating the first clause of the TCPA. The second clause is a bit dicey. That's because the app is dialing the numbers, rather than the volunteer.

That, however, is unlikely to cause too much outcry because many of rarely dial numbers any more. When I text or call my wife, I just say, "Siri, call my wife." I don't hit a keypad at all.

If that were an issue, it's not hard to assume that the app developers would have presented a set of numbers right above a dial pad and volunteers would have pressed the digits. But it's just not necessary. Volunteers pressing send hundreds of times are not automatic telephone dialing systems.

Hustle (and presumably Megaphone) have built-in engagement mechanisms. So if a recipient responds, that information is presented to the original volunteer who can reply, again using templates. If a recipient asks to never be contacted again, a single button tap can flag that recipient across the entire campaign's database.

Hustle also allows for tagging, so if a recipient can't make an event, but expresses interest, that recipient can be flagged for further recruitment efforts.

According to the Bloomberg article, Megaphone takes the app system a step farther, connecting the app to the overall information systems used by the campaign. This should allow the individual volunteers who are sending out texts to become feed nodes in a huge data acquisition vacuum that can feed into central analytics and scheduling systems.

It's actually pretty innovative. There is evidence that President Obama's Narwhal and Dreamcatcher big data operations optimized get-out-the-vote operations to a degree that it might have contributed to the President's winning a second term. While Governor Romney also had a big data operation, operation Orca apparently failed at the worst possible time.

If Secretary Clinton's campaign is taking a page from Senator Sanders in terms of grass roots activism over modern messaging technologies, that may prove to give her campaign a strategic advantage over what appears to be Mr. Trump's ad-hoc mix of mass media appearances and Twitter.

Only time will tell. Let's check back in November when we'll know more.

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