Is political text message spam legal?

Voters in Virginia are the latest to get a taste of an increasingly popular type of political attack: the anonymous text message.

“Tim Kaine calls for radical new tax on all Americans,” reads a text message attacking the Democratic candidate in the hotly contested Virginia Senate race.

Aside from being false -- Politifact recently debunked a similar claim by Kaine’s Republican opponent, George Allen -- the message came from an email address that used portions of Kaine’s name, giving the appearance that the message might have come from Kaine himself.

Kaine’s campaign said it had nothing to do with the message, and called on Virginia Atty. Gen. Ken Cuccinelli to investigate.

“This isn’t just a sleazy campaign tactic,” Kaine’s campaign wrote in an email to supporters. “It’s a crime.”

As it turns out, there is some disagreement about the legality of this sort of political messaging.

Although the Federal Communications Commission has clearly stated that unsolicited automated text messages are against the law, some political advertising firms have found a way around the ban.

Instead of sending text messages the traditional way -- from one phone number to another -- these firms send emails to people’s cellphones, which produce messages that appear much like text messages.

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The messages may originate as emails, but the phone companies consider them incoming text messages, which can come with a charge if the cellphone owner does not subscribe to a text messaging plan, said Scott Goodstein, founder of Revolution Messaging, a text messaging and mobile advertising firm that serves Democratic and progressive clients.

“You’re actually paying to have somebody spewing negative campaign information on you,” said Goodstein, whose company has called on federal regulators to close the loophole that allows unsolicited email-to-text messages.

And, he said, these types of unregulated messages deny voters key information about who is behind an attack.

“If I’m going to put up a TV ad, I have to put up a disclaimer and register,” Goodstein said. “These companies think they’re above the rules of society and think they can just go smear people.”

Goodstein pioneered the use of text messaging in political campaigns, helping create the Obama campaign’s text message database in 2008. President Obama used that database to announce Joe Biden as his running mate, and his campaign has been sending out regular text messages throughout his term.

Goodstein said the Obama list operates the right way: It targets only the cellphones of people who specifically signed up for texts from the campaign, and subscribers can reply “STOP” any time to get off the list.

But that system only works for campaigns that have built a large list of text message subscribers. Smaller campaigns -- and outside entities wishing to influence the outcome of a particular race -- often don’t have the resources or the time to build such a list. So they turn to people such as Gabriel Joseph, whose firm, ccAdvertising, “specializes in sending emails.”

Joseph would not say whether he was behind the Kaine messages and would not discuss his business, but he has bragged in the past about sending “millions” of messages to cellphones via email, according to a Slate report.

“I don’t know anything about sending text messages,” Joseph said in an interview. “My company specializes in creating unique ways to be able to do stuff.”

Goodstein, whose political text messaging business gives him reason to want to see the industry more tightly regulated, said he thinks sending unsolicited emails to people’s text message inboxes is illegal.

Earlier this month, the FCC issued an advisory opinion that reiterated its ban on unsolicited automated text messages, but did not specifically refer to text messages that are sent by email. The CAN-SPAM Act of 2003 exempts political messages from bans on email spam.

“The FCC’s got their laws, but they don’t ban emails,” Joseph said. “My company sends emails, and emails are specifically excluded from the spam law.”

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