Roboscam Update

Tonight MP can report quite a bit of news on yesterday’s "roboscam" post: The calls are probably illegal, readers have emailed with reports of calls received in five more congressional districts and an academic call center named "USA Polling" convincingly denies any involvement. 

To review, some unknown entity has been placing a large number of "survey" calls into congressional districts across the country.  The calls share a common pattern:  All use an automated, recorded technology that asks respondents to enter their responses with the telephone key pad.  All ask just two questions.  The first asks whether the respondent supports President Bush’s wiretapping program after stating that the local member of Congress – whether Republican or Democrat – "supports" Bush’s program.  The second then asks whether the respondent supports their representative for reelection.  Those who can remember say the calls identify "USA Polling" as the sponsor. 

Here are the new details: 

• Ezra Reese, a Democratic election lawyer with the DC firm Perkins Coie, emailed me today to say the calls are probably illegal if because they do not appear to identify a sponsor and contact number as required of all automated calls by regulations associated with Telephone Consumer Protection Act of 1991. Reese sent the text of the relevant FCC regulations (copied below, on the jump).  The gist is that any automated call (a) must accurately identify who initiated the call and (b) must provide a phone number at the end so that people may request removal of their names from the caller’s lists.  None of those who have so far reported receiving the calls has reported hearing any telephone number at the end of the call. 

These regulations are distinct from the laws against "sugging" that I discussed yesterday.  Also, according to Reese, the content of the calls has no bearing on the identification requirement.  Although the FCC regulations expressly exempt non-profit organizations, Reese does not believe that political calls have any such out:  "There may be arguments for why this provision doesn’t apply to political calls, but I’ve yet to hear them."   [Correction:  Reese’s point is that while most FCC regulations exempt non-profits, this one does not.  All entities — including non profits — must comply with the identification requirements for automated calls].

Reese also points out that while the FCC has yet to actively "crack down" on violations of this rule, they could investigate if they receive complaint.  He also points out that the statute "includes a civil liability system and even a private right of action to sue the offenders."  In other words, a recipient of the calls has the standing to sue, provided they can identify the offender.

• As very alert reader RD (aka JunctionDailyBlog) discovered last week, the academic survey center at the University of South Alabama is named the USA Polling Group.  I spoke to an official there today who categorically denies making any automated calls.  They do all their survey work with live interviewers and have no ability to conduct automated interviews of any kind.  They also report having received 20 to 30 angry calls from recipients of the automated calls who went to look for "USA Polling" on the Internet.  Their report provides rather strong evidence that the calls are providing a false identification and do not provide a proper phone number as required by FCC regulations. 

• Based on new reports from alert readers, I can now expand the list of specific districts where calls have been received from two to seven (the source in parentheses): 

Republicans

John Sweeney, NY-20 (Glen Falls Post Star, Albany Times Union)

Bob Ney, OH-18 (reader JR, here and here)

Randy Kuhl, NY-29 (readers LJ and J)

Mike Rogers,  MI  (reader KM)

Don Sherwood, PA-10 (reader EM)

Democrats
John Salazar, CO-03 (Pueblo Chieftan and reader RD, blogged here)
Leonard Boswell, IA-03 (IowaTrueBlue)

I would again urge any readers who may have received calls fitting the pattern to please email me with details. 

• As noted yesterday, I also spoke to a Democratic pollster who requested
  anonymity but reported similar calls received in the districts of four more Democratic members of Congress.  Although I will say tonight that the four are not listed above,
  in order to honor my commitment to that source, I will need to refrain
  from further comment on these districts unless a reader in one reports independently having received one of these calls.

• Reader RD points out that Democrat John Salazar "has never supported the President’s wiretapping program, as the lead-in [question] suggested."  A Yesterday post noted the Radio Iowa report that Democrat Leonard Boswell also spoke out in opposition to the program, contrary to the assertion of the call question. 

• Well, one more comment:  All but one of districts either specifically named above or cited by my anonymous source appear on the Cook Political Report’s list of competitive races. The exception is Michigan’s Mike Rogers. 

• Not surprisingly, those who report receiving the calls disagree on some of the details.  For example, some report hearing a statement about former Vice President Al Gore’s opposition to the program, others do not.  Whether this discrepancy reflects memory lapses or systematic differences in the calls is anyone’s guess.  However, I can report that readers and others have reported the Gore references in both Democratic and Republican districts. 

The Gore references are certainly intriguing, and more than a few commenters see great significance in them.  But this "clue" is ultimately ambiguous.  "The stuff about Al Gore," concludes Democratic Iowa blogger Gordon Fischer, "could almost trick someone into thinking it’s a Democratic survey."  But a loyal Republican reader emails to suggest just that.  He believes the mention of Gore rather than another prominent Democrat "sets [Gore] up as the primary foil to (the struggling in the polls) George W. Bush."  He believes this is a Gore "push poll" because "it advertises that Gore is leading the opposition."  [Update, with his permission I can report that the GOP reader is blogger Gerry Daly of Dalythoughts  – see also his comments below].

Finally, two more points worth making in light of some of the comments to yesterday’s post.  Those of us following the issue need to keep in mind that we really cannot say for certain that we know the political leanings of those who are making the calls.  As explained yesterday, the entity involved seems to be conducting not survey research aimed at sampling public opinion, but  a large scale effort to "harvest data" under the guise of a survey, presumably to identify voters who appear persuadable on the wiretapping issue.  The sponsors are also misstating the positions of Democratic members of Congress in a way that matches the classic "push poll" pattern.  By always asserting that the Democratic representatives "support" Bush on wiretapping, they may be trying to pressure moderate Democrats to attack Bush more directly. 

Let me say it plainly.  The tactic seems to me to be more consistent with the current strategy of the Republicans for 2006 than the Democrats, but I certainly cannot rule out the possibility that someone on the far Left of the political spectrum — someone who wants to push moderate Democrats to more strident opposition to Bush — may be the sponsor.  We really cannot know for certain. 

Second, Mickey Kaus asked a reasonable question:  "Why is conducting an anonymous poll so much worse than, say, writing an anonymous blog?"  The answer is that anonymous blogs usually present themselves as just that.  They do not try to pass themselves off as a well known media brand in order to embellish their credibility.  Moreover, anonymous blogs do not typically ask readers to provide personal information that the blogger sells to a database vendor or political campaign.  The better analogy here is not the anonymous blog, but the website that secretly deposits spyware on your hard drive. 

I concede a pollster’s bias on this issue.  My sense of outrage comes mostly from the way the "data harvesters" abuse the trust among respondents that a "poll" or "survey" will protect their privacy.  This abuse, as AAPOR President Nancy Belden put it last year in an official statement condemning the collection of signatures under the guise of a survey, "exploits the legitimacy and credibility of the scientific research process."  Whether initiated by Republicans or Democrats, the "roboscam" tactic now in play is unethical, stupid and probably illegal.

Late update:  The Pueblo Chieftan reported last week that Colorado Democrat John Salazar personally received one of the calls:

"I got a call about this late last night and it made me angry," Salazar said
Wednesday. "I don’t support the wiretapping program because Congress set up a process for
getting court approval for these wiretaps and that process hasn’t been followed."

——-

Regulation 47 CFR 64.1200(b), promulgated by the FCC, enforcing the Telephone Consumer Protection Act of 1991, and specifically 47 USC 227: 

b) All artificial or prerecorded telephone messages shall: (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity that is responsible for initiating the call. If a business is responsible for initiating the call, the name under which the entity is registered to conduct business with the State Corporation Commission (or comparable regulatory authority) must be stated, and (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player that placed the call) of such business, other entity, or individual. The telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance transmission charges. For telemarketing messages to residential telephone subscribers, such telephone number must permit any individual to make a do-not-call request during regular business hours for the duration of the telemarketing campaign