i think after marks it is clear that the original basis for the district court's dismissal of the complaint is no longer valid that as it is clear that a that the complaint sufficiently plea facebook here used a machine that stored numbers and then dial them without human intervention how do we know that well how do we know it's plausible the complaint says and  response of text messages will become illegal and i say well let's go back to the basics this is a consumer protection statute that protects people's privacy the law is clear for  century well little less than a century that you interpret them broadly statutes like this the law is clear that you interpret exceptions now really and then there is no law at all on the reading and exception like this statute and then interpret it interpret it to swallow the entire rope there is simply no nothing in the statute that would allow the court to read in a so called respons text spam exception into the telephone some protection act so that's the first use of this maybe falls into the category of no good deed goes unpunished because as i understand it the text message was generated here because of the possibility that someone with that number is contacting the facebook account correct we know from the complaint whether the telephone number that your client has was a number that someone else had before not from the complaint my client was never able to get any human from facebook to respond to him and adjust the situation but we don't know that for the record this one i mean from the complaint  we don't there is some suggestion that somebody's eroni asli entered that number in i guess and some of the briefing that remains factual development we don't know but let me just address the good deed goes unpunished suggestion i think a lot of telemarketers would say well geez people want our services they want us to reach out to them they want us to solve them shoes apples whatever and the answers sure you can do it the telephone consumer protection act is not proof or did automated text messages it allows them well i can send my point is you've probably moved it to a different platform it's not in the case of general telemarketers i'm saying with respect to the algorithm dual authentic ation to let people know all they have to do when the person says off as they themselves say as we say in the complaint they themselves some instructions you want the messages to stop type off the messages will stop but they don't the system is broken and they generate text message spam that we all hate and it falls within the statute there now the statute by the way answers your question i in the damages section it says if it's a willful violation you pay for it up to fifteen hundred dollars but if it's a statutory violation it's five hundred dollars so that is part of set sure scheme now onto the second basis for the for the district judges dismissal that is left here and then a so called suggestion that these are customized messages i say the district court ignored the standard here the standard the puts  twelve b six standard except what the plaintiff says is true and interpret the complaint than the light most favorable to the plaintiff the district court said no i don't believe you that one if it's not press two mr lemberg you know your student loan rates have never been lower we all get these messages it's implausible unbelievable that this kind of spam as customized it's a computer algorithm that alters one or two things your name or your last name and this case they browser and the time and then spits out spam so that basis for the dismissal of the complaint florists we thought that floor should have caused the district court to reconsider its decision the district judge stuck to his decision we just did not think that filing anything in the district court following marks case ought to be returned to the district court for a factual development thank you when i hear from the government may please the court lindsay powell for the united states there may be reasons not to reach the constitutional question in this case but if the court were to get there it should in fact if they reject the arguments advanced by facebook that the auto dialer restructure as amended in tw unconstitutional restriction itself is banned and in fact for almost thirty years now and it prevents millions of unwanted invasive phone calls made by the use of these automated technologies every single day this court has twice up held the restriction as it was originally enacted in both moser and gomez facebook now contends that a recent amendment and act in two thousand and fifteen which relates to conduct that has nothing to do with this case somehow renders the entire scheme unconstitutional and that's just not the case i would also note that the amendment itself post states the conduct alleged in this case so the text messages that issue were sent in two thousand and fourteen almost two years before the late two thousand and fifteen act many of the amendment issue and there's no basis for applying the amended version of the statute recto retroactively if you consider the example of a call to collect government back that for example which previously was not allowed under the amendment certain of those calls will be allowed but we know that call made to collect government back that in two thousand and fourteen would not suddenly become lawful because of the twenty fifteen amendment and i just underscores the retroactivity analysis here the twenty fourteen conduct at analogous state schemes found that exceptions that issue were more based on the relationship between the parties rather than the content of the call itself and of course this exception is a little bit different it's not necessarily a relationship between the caller and the person being called but it is a relationship it doesn't it doesn't matter what the problem is it's not really the government it's somebody else collecting for government right right but on the government's behalf but that dispositive thing is that it's not solely based on what's being said you could have two identical calls here following exactly the same script to collect a debt and whether or not they'll fall within the exception will depend on whether the debtor the person being called has this past due loan with the government and so there is this essential element that isn't tied up in the content of the message and that makes this unlike read unlike carrie where the court said in those quintessential cases of content based regulation  what is being said the subject matter of the speech is dispositive that's the the sole thing on which the regulation turns and that's not what we have here is the congress to actually do anything they said why this particular would appear to be an effort to get all of the student loans paid back is there any anything in the record that demonstrates why they put this it's very odd sort of thing to drop it so two things about that your honor in the exception was first introduced in the budget submitted the presidential budget submitted to congress and as out of that budget the estimate was that the exception would facilitate the collection of about ten million dollars a year for the government and so those would be money and that would otherwise be paid out of the public fast that would would not be lost by the government as a result of the exceptions so there is there's an important protection of the public f motivation but then there's also in this this gets sort of farther down the analysis into the tailoring but if you look at the privacy interests which ultimately of course is what the restriction itself is meant to prevent these really intrusive calls that had us any time of day in the most private places that the restriction itself prevents millions of these every single day and the narrow exception for government collect that does not make a meaningful inroad into that so this is about it wondering why i get those i didn't actually have any government school well that sounds like of violation of the act and we are always working on enforcement but in terms of the privacy interest that the act is meant to prevent the auto dialer research in itself still does a huge amount of work in preventing these calls not withstanding the addition of the government that exception so it does it does allow some additional calls that were not allowed previously to be sure those were calls the government could always make itself so the government has always been able to do this now you have people doing it on the government's behalf but you're still preventing millions of calls a day as a result of this it's i mean that is it is a little log that this big wide process is going on but we get to go after  these it looks like it's pretty much could be severed even if there's a fall if yes your honor certainly is that we don't think there is a fault but if there were it's one of the clearest cases of severability the touchstone of that analysis is congressional intent and given date no relationship to the government no bar or debt or relationship never the less you get mr wrecked it calls about efforts to collect government debt now under the current statute that is protected speech yet when facebook tries to reach someone even if it does it in error to warn them that someone right this moment is trying to hack into their account potentially and trying to take over their facebook account warning one of the users of its community of this that is supposedly banned speech and that is ask you though in the context of this case where the amendment was not in effect at the time of the allegations here which were two thousand and fourteen as i recall there how can you bring a facial challenge to the statute with that the date of the original complaint by the way the complaint was amended with the original complaint was dismissed the amended complaint was brought in two thousand and sixteen after the statute had been amended and if i may quote from land graph land graph itself the case that the government relies on to say that this retroactivity problem kills our case len graf notes even absent specific legislative authorization application of new statutes passed after the events in suit is unquestionably proper in many situations when the intervening statute authorizes or affects the propriety of perspective relief application of the new provision is not retroactive and the court goes on to explain that relief by injunction operates in the future oh and the plaintiff has no vested right in the defense entered by the trial court so even  graphic self recognizes particularly when you're looking at new exemptions that impede speech they cite by the way to a labor picketing case in support of this warning to not go overboard with  be the issue in our court and others have held that the statute leaving aside the government debt exception is constitutional and a lot of those cases were decided we didn't have the government debt why couldn't that just be sliced off and severed from the statute and would be right back into the arena of cases where the statute as it is was determined to be constituted first of all i think it would be one of the first instances were severability is used to further limit speech severability is rarely if ever certainly wasn't in the animal defense case that your honor recently decided where and exemption could have been just severed off but instead at the point of the exemptions from the point of exemptions as as courts have found it's not that they in themselves are a problem and that the under the of having the exemption means we should restrict even more speech the the problem with exemptions is they reveal what is the problem with that the so called or the supposedly true purpose of the statute that is there was not really a sufficiently compelling interest that justifies borrowing facebook for morning people are trying to warn people that it's accounts there counts maybe has i understand your heartfelt argument on them which is why i said beginning in certain leave is a bit of no good deed goes unpunished situation that maxim doesn't really solve your constitutional with respect binding really well the again the current statute does have a content based distinction there's no real serious dispute over that every court has found that the current statute prohibits from at least twenty fifteen from before the date that the first amended complaint was filed the speech that facebook would like to make using this content based distinction once there is an under inclusive of the problem that's revealed through a content based distinction as there is in this case once that happens what you do with that is you use that to consider whether the so called compelling purpose really mother measures up and the question is if we as as appellant said go back to basics here if we go back to basics this is a world plaintiff's world is world in which a statute is supposedly narrowly tailored even though it as applied prohibits this kind of speech that is nothing like th telemarketing that congress originally sought to stop is nothing like getting a even getting a telephone call where you're asked about a debt or asked to buy anything and counsel talked about those calls that everyone is used to receiving where you're asked to purchase something or you're get a mass generic marketing to join a sweepstakes or to get a vacation home that's nothing like this message which is very narrowly and specifically targeted and if i may your honor kind of hoping it was that way because i get so many of those calls but unfortunately that's not going to save my telephone answering no and there and there would be ways  content neutral way to make top pro pria time manner place restrictions on those calls i think we'd all welcome them for example a very simple way to do that would be to actually ban the use of random sequential on mass on mass telemarketing calls to individuals with a generic message a generic pre recorded message that was the original clearly the original evil that was being targeted but what's happened with the statute the way it has now been interpreted and the way plaintiffs would have you take the body of all of the constitutional precedent even want you to declare it unconstitutional all nor does the government nor do you have to because there are two very simple ways to avoid the constitutional issue and that is really what this court should do and that's what this court must start with the very simplest way is a way that the district court did not bother to look at because of the ruling on a t d s and this is an issue that you didn't even hear anything about because it's so clearly within the bounds of the statute these text messages fall within the so called emergency exception there is already an exception built into the statute for these kinds of calls which allows any call made for emergency purposes and the f c c has to find emergency purposes to mean calls made necessary in any situation affecting the health and safety of consumers  that's for things like school institutions like that well the f c c has said that the term emergency should be interpreted broadly rather than narrowly and includes all situations in which it is in the public interest to convey information to consumers concerning health or safety now that i'm having i know you're looking for a way to save the constitutionality yet there but i just was having a really hard trouble to say that a potential hacking advice relates to health and safety do you have what it what is your best support for that well i think the this  decision chaz broke the best buy but simply says liability under the t c p a should be approached with a measure of common sense the kind of i think the statute i mean we'll get to that in a minute because we have to deal with marks also but the statute says what it says and to infuse certain common sense into it as you do it we would have to rewrite the statute to me i don't think so your honor because when urgency isn't specifically defined by the statute what courts do all the time is look to adopt a dictionary definition and i call nine one one because someone's hacking my computer at an emergency under your definition so i better call nine one one you also can't call nine one one if the water might be out for three hours in your whole neighborhood correct and yet that kind of message has been found to be and satisfy the emergency exception even when text message is sent to the entire neighborhood including people who might be on vacation might not be there might face no threat whatsoever but because it's perceived as a potential emergency even if it's not actually an emergency the f c c has found that to satisfy the exception here if you were to learn right if you were in the middle of a meeting not probably in the middle of court but if i walk out of court and as i look at my cell phone i see that oh my gosh somebody right this moment is trying to hack into my facebook account and may impersonate me or do anything else that they're going to do with my personal information i sure might believe that's an emergency meeting it needs to be told to me instantaneously and that's the dictionary definition the touchstone of emergency is something that needs to get the information needs to get you right away immediately so i can immediately take countermeasures  media i'm not trying to expand as i say social media sure look i think i think these days somebody trying to get unauthorized access to many different accounts whether it's bank accounts or or other accounts could cause at least as much damage as a thief trying to jimmy into your car you know if you had one of those phones automatically on your car that sense would text message if somebody touched it or got near it or looked like they were going to break into it for many kinds of accounts whether it's banks or other places where people have sensitive information or for some users perhaps information that they keep in their own personal accounts the notif messages to to judge mchugh and even though she has no relationship because the statute allows it the statute also allows an emergency exception when you're doing it for purposes of an emergency if you sent an unmasked message to everyone who lived in the neighborhood but two folks had just moved out of the neighborhood last week they would clearly fall under the emergency exception and facebook is doing nothing different and again let me just try to understand the practical scope of the issue because under the facebook terms and conditions if someone is facebook customer i don't know what it says regarding former facebook customers but if you were presumably in the terms and conditions you consented to receive communications from space correct presumably so that's the hugely vast majority of the people that would be involved here i take it that you have other instances where facebook is sending would say they're seeking damages for allegedly millions of calls with two billion customers and people moving or changing their cell phones that it can be expected to happen quite a bit and that's why this case is being brought because it does have a significant potential liability if a safe harbor isn't there an f c c safe harbor or reassign numbers for example they're working through new statutes and that the d c circuit just struck down a last effort and they ca and so that's an open situation right now but your daughter if i may very briefly again even with marc so we spent no time on this and it really has not been rebutted at all if you if you take the interpretation plaintiffs would have you say which marks means and a t s is any device that stores a number and then automatically dials them if that's what marks means that every single i phone qualifies as an  s because every single i phone at least since two thousand and seventeen automatically sends messages if you set it that way it has a built in feature and it does and the statute doesn't just stop you well i agree that it could be read that way but you had a second way besides the emergency exception that you thought the statute would be able to be saved what's a second and the second way is to read marx very carefully because marx very carefully the court in that case paired up stored with to be called and in marks they looked at this text communication system which was a device that was specifically designed for telemarketing its whole purpose was telemarketing it sends out thousands and thousands of automatic say messages for telemarketing and with those facts and with the interpretation of the statute that links stored to be called and the finding that it issue and marks was designed for a whole bunch of numbers hundreds of thousands to be called that's very different here where there is no allegation that facebook unmasks sent  out these messages or intended to but just that it would wait for the good deed and when a good deed was required because of a very specific event at a specific time with a specific browser and it would be to recall and in other words why it may be that marks of course the most expansive approach to storage not being linked to anything else but there are obviously databases that groups have where they are not really meant to be cobbling just customer databases or you punch in your groceries or preferred customer id they're going to call you up but you just tell  and then you get five cents off your oranges what is the purpose of facebook's doing these numbers if at all other than to be called when it's s someone tries to log into your count you can set it up so you get a code on your cell phone and then you can immediately take action and the plaintiffs plead that in their complaint they pled themselves out of this being the kind of system that was issue at marks and i would paragraphs twenty three to twenty seven of the complaint because it is not pled that facebook sent random generic messages like the ones that issue it marks to the contrary it's very specifically pled that even though the messages follow the template they were extremely specific not not even the same they want to know that i under again that goes back to the good intention of wanting to let people know that an account associated with this number might being accessed but how does that targeting get you out of the marks definition because if there's no allegation that all those numbers that are in that system are there to be called any more than all the numbers in my cell phone  there to be called in both cases they may be called from my cell phone if i'm driving and if you would have the whole case boiled down and to be called is different than might or maybe it's the only way you can reconcile marks without sweepingly bringing in it basically every single call that i ever make even manually with my cell phone or these kinds of messages that so clearly we're not the evil the congress is was trying to prevent if not then this statute will fall under lance graff perspectively because the exception reveals that is not merely tailored but instead it is restricting virtually all speech by facebook to its own users even with not trying to sell them anything but it's trying to do a good deed thank you thank you here the complaint please was an automatic system that fall squarely within mark's point number two they emergency exception which much time was spent there is case law in this district court case law and there's a decision in the northern district and there's a decision in the call pappa versus c v s in the eastern district of pennsylvania the basic premise is this plaintiff says i got a bunch of calls from c v s they were calling me because for somebody else's prescription i told them stop calling they kept calling c v s comes in and says emergency we were delivering medication district judges say not once  consumer tells you who ordered repealed nothing in the court of appeals on that but the logic a sound once the consumer tells you stop calling it's not made them urgency evaporates there is no longer an emergency  at least two decisions there may be three but the two that i know of because they were by my firm and according the complaint communicated that electronically using facebook's specific instructions and the messages continued that's on that the idea broadly speaking of course is that facebook here is using an automated system sent text messages yes it's a different kind of automated system that is used to to transmit other types of text message spam nonetheless it falls within the statute it falls within the it's a regulated system they are allowed to use it i cannot emphasize this enough it's not a statute death for bids facebook from using the system they are free to use it the reason they are being sued here is not because they were using the system it's because they were miss using the system and the system was generating text message spam to my client to others like ken and there was no way no way to turn it off they'd have you cannot turn it off by saying off you cannot turn off by e mailing facebook there's just nothing to be done except going to court which is what mr ducat did here  all right thank you thank you things to all counsel for your argument this morning the case of do good versus facebook with the united states is intervene or is submitted