[comp.org.eff.talk] computerized phone callers

pierrer@pike.ee.mcgill.ca (Pierre Racz) (04/01/91)

In article <5567@media-lab.MEDIA.MIT.EDU> fredm@media-lab.MEDIA.MIT.EDU (Fred Martin) writes:
>Do people know the laws in various U.S. states regarding the legality
>of computerized/recorded phone sales?  I've received the same taped
>message (trying to sell me a VISA/MC credit card) twice in as many
>weeks.  Once is bad enough, but twice is disgusting.
>
>Also, do people know any prosecuted cases of "reverse phone
>harassment" (!) ?  The recorded message left an 800 number that I'm
>tempted compete with in an autodialer war.
>
>Thanks for any comments!

>	- Fred Martin

Go right ahead with your autodialer.  Unless you threaten them or say
something obscene there is no way that the telemarketers can make a criminal
complaint.  So use your auto-dialer within reason (see below) and have it
call out in answer mode (gives a carrier first) :

atdt 1-800-555-1212a
		   ^ Puts modem in answer mode.

This leaves them with civil suits.  They would have to establish that
the calls where made from your phone.  This would require them to subpoena
the Phone Company's records.  Not as simple as you may think, but doable.

They then have to prove material damages.  The concept of moral damages
only exits in Civil Law jurisdictions : Quebec in Canada and Louisiana (I
think) in the USA.  So they will have to prove what their losses were.  You
cannot be sued for "Giving them an ulcer !".  The must prove that you cost
them money.  If you tie up their phone for weeks, then they MIGHT have some
kind of a case.  But if you let them have it for an hour they don't have
much of a chance.  Think of it this way.  Direct sales work on the principle
that if you make enough pitches, you are bound to sell.  They usually make a
sale in about 2% of the attempts if they are pitching a magazine
subscription.  If they are pitching Porches, that ratio goes down
dramatically.  How many calls can one line make in an hour ?  They will have
an EXTREMELY hard time establishing SERIOUS monetary damages.

In Civil Law jurisdictions, although they can try to claim moral damages,
they must proved that your actions deprived them of a fundamental
right.  They do have the right to commercial expression, but assuming that
you did not deny them this right, only made it a little more challenging
for them, they have no recourse.

On top of all this, Canadian law prevents the launching of frivolous
law suits, making it even more difficult for them to take action
against you.

You should restrict your counter offensive to their business hours.  
If they call you during the day, hit them during the day.  If they call
you after super, they are fair game after super.  Even though most of the 
'outgoing call' telemarketers are basement operations, it is unwise
to nail them at 3AM. 

This brings us to the next topic which is the cost of legal action.  As I
stated before, most of the 'outgoing call' telemarketers are rinky-dink
operations.  The big and respectable firms only operate 'incoming' 800
services and loath these second rate marketers.  I phoned all 33 numbers
listed in the 1990 Montreal Yellow pages under 'Telemarketing'.  Within the 9
months that the book had been printed, 13 of them had gone out of business.
Seven others were so small that they could not answer their phones during
business hours !  The others were split between the 'real McCoy'
professionals who are upset about telemarketing getting a bad name and the
'others'.  

My point is that the telemarketers that cause us all this grief, can't
even afford a decent answering service, how could the afford a decent
lawyer ?  With the odds stacked against them as they are, there
is very little chance that they can do anything in the case that
you, the activist computer professional, went TOO FAR in your assertion
of your right to privacy.

Now for the disclaimer.  You may be asking yourself : "How does he know
all this ?  Is he a lawyer ?"  Well I am not.  I am an annoyed engineering
grad student who is doing something about his frustrations.  I have contacted
legal council (my family is riddled with lawyers) to find out what MY
liability is for instigating and taking part in a "telemarketing revolt".

Well let me tell you that I am on pretty safe ground, as long as I tell you
to be reasonable with the same breath as I tell you to take action.
Furthermore, I practice what I preach and make no more than 10 calls a day
per line to an individual telemarketers, and this during business hours.  

I recommend that you also seek legal advice.  You can get FREE legal advice
from your local law faculty which probably runs a legal aide clinic.
Furthermore you can button-hole almost any lawyer with this topic since
telemarketers are universally hated, the entertainment value of your
question will outweigh any thoughts of billing you.  There is also Legal
Aide that can provide some information.  

One last thought.  Imagine yourself as a member of a jury in a case where this
computer professional is being sued by this telemarketer in a yellow suit
and matching green shoes and orange tie.  Which way would your vote go ?

I rest my case.


Pierre Racz

Internet:   pierrer@pike.ee.mcgill.ca
Fidonet:    Pierre Racz  (1:167/116.0)
-- 
Pierre Racz

Internet:   pierrer@pike.ee.mcgill.ca
Fidonet:    Pierre Racz  (1:167/116.0)