Using Investigative deception in TCPA litigation

There is a well known axiom in legal circles - you can't sue who you can't identify. Telemarketer's primary method of defending lawsuits is hiding their identity by using fake business names and spoofed calling numbers.

Even if the call's recipient learns a real business name during the call, without something concrete like a follow up email or a real employee name, when sued, often a business's first line of defense is to claim that someone else pretended to be them and they weren't involved.

Holding these illegal telemarketers accountable often involves "investigative deception". Often TCPA plaintiff's call it "playing along" - pretending to be interested in what the telemarketer is selling to collect evidence against them.

I found an interesting article from Alan Chen exploring "intentional lies used to gather information that is in the public interest—across different social contexts." It caught my eye because few blink an eye when the government uses lies or uncover investigation to get evidence, and there are favored plaintiffs such as civil rights, disability access, or union salting who never run into resistance from judges when those claims go to court.

But when a disfavored group (this article discusses investigative journalists and political activists) do the same thing, they can be threatened with with criminal and civil tort liability. Fortunately I have not seen TCPA plaintiffs threatened with criminal charges, but at least one judge is more than willing to let telemarketers countersue TCPA plaintiffs for fraud under the theory that the illegal telemarketer's time was wasted by the "playing along" investigative deception

This needs to be stopped and TCPA plaintiffs can ride along with the investigative journalists and political activists and use their arguments when a pro-telemarketer judge uses fraud claims to chill TCPA plaintiffs free speech rights.

Investigative Deception.pdf

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And that is what is really going on here. TCPA defense attorneys want to make examples of TCPA plaintiffs and hold them up to silence many other would be plaintiffs.

A well known TCPA defense attorney is always bemoaning the rising number of TCPA lawsuits. Telemarketers see themselves in an enemy at the gates situation - there are all those consumers who could be pillaged for profit if not for the hoard of TCPA plaintiffs.

When that amount of money is in play, there is enormous pressure to get back to business as usual. Thus the dirty tactics like counterclaims for fraud because the recipient of the illegal calls wasted the time of the people placing the illegal calls.

TCPA plaintiffs need to know the correct arguments to counter this back with.

I suggest reading the article fully, I'll just quote the highlights. In countering a pro-telemarketer judge who is trying to chill the free speech rights of a TCPA plaintiff, a plaintiff can lay the groundwork of the social benefits of TCPA investigative work.

"It was during the Progressive Era that some of the most prominent historical examples of investigative deception in journalism occurred. Emblematic of such investigations is the work of Nellie Bly and Upton Sinclair both of whom infiltrated nonpublic spaces to uncover and report on problems ranging from the treatment of patients in mental institutions to food handling and sanitation problems in the meatpacking industry. Both Bly’s and Sinclair’s work are said to have prompted legal reforms resulting from the public attention on the social problems they exposed."

I'm not suggesting that TCPA plaintiffs are Nellie Bly and Upton Sinclair reincarnated, but neither are TCPA plaintiffs infiltrating someone else's physical space with a camera - they are just answering their own phone that is actually being invaded by a trespasser. "TCPA claim is, by its nature, an invasion of privacy claim." L.A. Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 799 (9th Cir. 2017).

I am not here to praise or condemn animal rights or abortion or political activists, we are here to learn what legal headwinds they face, learn from what is and isn't working for them, and use that information to our advantage.

"Today, we have witnessed widely publicized investigations sponsored by animal rights organizations, who have sent undercover investigators to obtain jobs at slaughterhouses and factory farms to gather information about horrific treatment of farmed animals . . . Antiabortion activists have adopted similar tactics to infiltrate Planned Parenthood and other reproductive freedom groups, believing they would uncover violations of federal laws and medical ethics standards. Perhaps the most notorious of politically motivated undercover investigations have been conducted by Project Veritas, founded by James O’Keefe. While there are important factual differences among these types of investigations, they share some common features to each other and to investigative deceptions in the favored contexts. They all involve false or fabricated identities, lies or omissions about the true motive of the investigator . . . In recent years, the law in this area has been evolving . . . preemptive lawsuits challenging state laws that impose criminal or civil liability on . . . tort claims brought by investigative targets claiming that the investigations have caused them financial harm . . . I argue that one way to coherently build free speech doctrine in this area is to focus not on the differences but on the similarities among investigative deception across social and legal contexts"

Mr. Chen argues, and I agree, that defending investigative deception should be protected under that value that such free speech provides to society.

"The primary purpose of civil rights testers may be to identify violations of antidiscrimination laws, but they also contribute to a broader social movement to pro-mote fair housing.55 They also publicly expose the prevalence of racial steering practices. Similarly, the job of union salts in the short term may be to help form and certify unions, but they also facilitate a form of political association; communication from salts to nonunionized workers is surely speech on a matter of public con-cern.56 Similarly, law enforcement stings may primarily be conceived as part of the criminal justice process, but they also can call public attention to widespread government corruption, organized crime, and other social problems. Law enforcement activity probably fits less comfortably into the free speech framework, but that just underscores the question why investigative deceptions by journalists and political activists are viewed as less legally and socially acceptable than the same actions undertaken by government officials. Implicit in the acceptance of investigative deceptions in the favored contexts is that the value they provide outweighs any potential threat to the property interests of the targets of these investigations."

This really is the heart of the matter - demand judges explain why you, investigating the trespasser on your phone, is committing fraud by 'playing along' to find out their identity.

"What can we learn from the disparate legal frameworks touching upon these categories of investigative deceptions? First, we can make some general observations. At one end of the spectrum, it’s safe to assume that under Alvarez, the government may ban lies used to gain access to people and private property where that access is intended to or likely will lead to tangible harms. For example, the state may surely punish an investigator who lies about their identity so they can steal another company’s trade secrets or commit an act of vandalism or sabotage. The government may also prohibit lies used to access government facilities for the purpose of espionage or revealing state secrets. And some spaces, such as the Pentagon or a nuclear power plant, may be so sensitive or vulnerable that lies to gain access to them may still be punished without violating the First Amendment."

In the ninth circuit, Animal Legal Def. Fund v. Wasden, held that a lie to gain access to another’s property, with nothing more, does not necessarily cause a harm to the owner or produce a material gain for the liar. Again, a TCPA plaintiff is only talking on this own phone to an illegal caller, so using this and similar cases to lance the ridiculousness of a court so heavily biased towards the telemarketing industry that it would let stand a counterclaim for fraud for wasting the time of a telemarketer placing illegal calls should not be too hard.

Most of the specific examples in the article are similar to the proceeding cases, some with good outcomes and some not, but all for physical access on the land of another while presenting a false reason why the defendant is there. Many things are protected legally because society has decided the at the overall benefits greatly outweigh the harms, or the harms are suffered by the people deserving to suffer them.

It is important to keep putting this in the face of any court so biased to telemarketers that it will defend counter claim for fraud based on the time a telemarketer spent because the recipient of an unwanted phone call was 'playing along' to gather evidence.

"lies are valued in some contexts and less valued, unevenly valued, or not valued at all, in others. In the currently favored contexts of investigative deceptions, discussions of legal or ethical concerns about lying either explicitly or implicitly support the conclusion that the social value of uncovering evidence of civil rights violations or criminal conduct or of promoting union organizing are sufficiently weighty to overcome concerns that they may adversely affect legally cognizable interests, such as trespass or loyalty. Because those contexts have not, thus far, been evaluated in the context of free speech doctrine, they are not generally understood in constitutional terms. If they were, as I have argued, they could each be construed as promoting not only enforcement of the law but also exposure of otherwise private information to public scrutiny in a manner that promotes public discourse. If viewed through a First Amendment lens, they could surely be seen to facilitate free speech and freedom of association."

A must read case is Desnick v. Am. Broad. Cos., Inc. An eye doctor got butthurt that ABC's PrimeTime Live essentially deceived them to get access to the clinic for a news article critical of the doctor. He sued for trespass, defamation, and other torts arising out of the broadcast. The eye doctor sued for the broadcast itself, but also for the means by which ABC and Entine obtained the information that they used in the broadcast - they do claim that the defendants had obtained the videotape fraudulently.

It is the second part, the using deception to get information that is interesting here.

The second class of claims in this case concerns, as we said, the methods that the defendants used to create the broadcast segment. There are four such claims: that the defendants committed a trespass in insinuating the test patients into the Wisconsin and Indiana offices of the Desnick Eye Center, that they invaded the right of privacy of the Center and its doctors at those offices (specifically Glazer and Simon), that they violated federal and state statutes regulating electronic surveillance, and that they committed fraud by gaining access to the Chicago office by means of a false promise that they would present a "fair and balanced" picture of the Center's operations and would not use "ambush" interviews or undercover surveillance.

To enter upon another's land without consent is a trespass. The force of this rule has, it is true, been diluted somewhat by concepts of privilege and of implied consent. But there is no journalists' privilege to trespass. Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768, 780-81 (App. 1980); Le Mistral, Inc. v. Columbia Broadcasting System, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978). And there can be no implied consent in any non-fictitious sense of the term when express consent is procured by a misrepresentation or a misleading omission. The Desnick Eye Center would not have agreed to the entry of the test patients into its offices had it known they wanted eye examinations only in order to gather material for a television expose of the Center and that they were going to make secret videotapes of the examinations. Yet some cases, illustrated by Martin v. Fidelity Casualty Co., 421 So.2d 109, 111 (Ala. 1982), deem consent effective even though it was procured by fraud. There must be something to this surprising result. Without it a restaurant critic could not conceal his identity when he ordered a meal, or a browser pretend to be interested in merchandise that he could not afford to buy. Dinner guests would be trespassers if they were false friends who never would have been invited had the host known their true character, and a consumer who in an effort to bargain down an automobile dealer falsely claimed to be able to buy the same car elsewhere at a lower price would be a trespasser in the dealer's showroom. Some of these might be classified as privileged trespasses, designed to promote competition. Others might be thought justified by some kind of implied consent — the restaurant critic for example might point by way of analogy to the use of the "fair use" defense by book reviewers charged with copyright infringement and argue that the restaurant industry as a whole would be injured if restaurants could exclude critics. But most such efforts at rationalization would be little better than evasions. The fact is that consent to an entry is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause him for perfectly understandable and generally ethical or at least lawful reasons to revoke his consent.

The law's willingness to give effect to consent procured by fraud is not limited to the tort of trespass. The Restatement gives the example of a man who obtains consent to sexual intercourse by promising a woman $100, yet (unbeknownst to her, of course) he pays her with a counterfeit bill and intended to do so from the start. The man is not guilty of battery, even though unconsented-to sexual intercourse is a battery. Restatement (Second) of Torts § 892B, illustration 9, pp. 373-74 (1979). Yet we know that to conceal the fact that one has a venereal disease transforms "consensual" intercourse into battery. Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206 (1920). Seduction, standardly effected by false promises of love, is not rape, Pletnikoff v. State, 719 P.2d 1039, 1043 (Alaska App. 1986); intercourse under the pretense of rendering medical or psychiatric treatment is, at least in most states. Compare State v. Tizard, 1994 WL 630498, [*]8-10 (Tenn.Crim.App. Nov. 10, 1994), with Boro v. Superior Court, 163 Cal.App.3d 1224, 210 Cal.Rptr. 122 (1985). It certainly is battery. Bowman v. Home Life Ins. Co., 243 F.2d 331 (3d Cir. 1957); Commonwealth v. Gregory, 132 Pa. Super. 507, 1 A.2d 501 (1938). Trespass presents close parallels. If a homeowner opens his door to a purported meter reader who is in fact nothing of the sort — just a busybody curious about the interior of the home — the home-owner's consent to his entry is not a defense to a suit for trespass. See State v. Donahue, 93 Or.App. 341, 762 P.2d 1022, 1025 (1988); Bouillon v. Laclede Gaslight Co., 148 Mo. App. 462, 129 S.W. 401, 402 (1910). And likewise if a competitor gained entry to a business firm's premises posing as a customer but in fact hoping to steal the firm's trade secrets. Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 178 (7th Cir. 1991); E.I. duPont deNemours Co. v. Christopher, 431 F.2d 1012, 1014 (5th Cir. 1970).

How to distinguish the two classes of case — the seducer from the medical impersonator, the restaurant critic from the meter-reader impersonator? The answer can have nothing to do with fraud; there is fraud in all the cases. It has to do with the interest that the torts in question, battery and trespass, protect. The one protects the inviolability of the person, the other the inviolability of the person's property. The woman who is seduced wants to have sex with her seducer, and the restaurant owner wants to have customers. The woman who is victimized by the medical impersonator has no desire to have sex with her doctor; she wants medical treatment. And the homeowner victimized by the phony meter reader does not want strangers in his house unless they have authorized service functions. The dealer's objection to the customer who claims falsely to have a lower price from a competing dealer is not to the physical presence of the customer, but to the fraud that he is trying to perpetuate. The lines are not bright — they are not even inevitable. They are the traces of the old forms of action, which have resulted in a multitude of artificial distinctions in modern law. But that is nothing new.

There was no invasion in the present case of any of the specific interests that the tort of trespass seeks to protect. The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves). The activities of the offices were not disrupted, as in People v. Segal, 78 Misc.2d 944, 358 N.Y.S.2d 866 (Crim.Ct. 1974), another case of gaining entry by false pretenses. See also Le Mistral, Inc. v. Columbia Broadcasting System, supra, 402 N.Y.S.2d at 81 n. 1. Nor was there any "inva[sion of] a person's private space," Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1229, as in our hypothetical meter-reader case, as in the famous case of De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881) (where a doctor, called to the plaintiff's home to deliver her baby, brought along with him a friend who was curious to see a birth but was not a medical doctor, and represented the friend to be his medical assistant), as in one of its numerous modern counterparts, Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 232 Cal.Rptr. 668, 679 (1986), and as in Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971), on which the plaintiffs in our case rely. Dietemann involved a home. True, the portion invaded was an office, where the plaintiff performed quack healing of nonexistent ailments. The parallel to this case is plain enough, but there is a difference. Dietemann was not in business, and did not advertise his services or charge for them. His quackery was private.

No embarrassingly intimate details of anybody's life were publicized in the present case. There was no eavesdropping on a private conversation; the testers recorded their own conversations with the Desnick Eye Center's physicians. There was no violation of the doctor-patient privilege. There was no theft, or intent to steal, trade secrets; no disruption of decorum, of peace and quiet; no noisy or distracting demonstrations. Had the testers been undercover FBI agents, there would have been no violation of the Fourth Amendment, because there would have been no invasion of a legally protected interest in property or privacy. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427-28, 17 L.Ed.2d 312 (1966); Forster v. County of Santa Barbara, 896 F.2d 1146, 1148-49 (9th Cir. 1990); Northside Realty Associates, Inc. v. United States, 605 F.2d 1348, 1355 (5th Cir. 1979). "Testers" who pose as prospective home buyers in order to gather evidence of housing discrimination are not trespassers even if they are private persons not acting under color of law. Cf. id. at 1355. The situation of the defendants' "testers" is analogous. Like testers seeking evidence of violation of anti-discrimination laws, the defendants' test patients gained entry into the plaintiffs' premises by misrepresenting their purposes (more precisely by a misleading omission to disclose those purposes). But the entry was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law of trespass protects; it was not an interference with the ownership or possession of land. We need not consider what if any difference it would make if the plaintiffs had festooned the premises with signs forbidding the entry of testers or other snoops. Perhaps none, see United States v. Centennial Builders, Inc., 747 F.2d 678, 683 (11th Cir. 1984), but that is an issue for another day.

The Desnick opinion goes on, but this gives a great example of the line of reasoning to come back at a defendant or a court with when they also get butthurt that deception was used to gather evidence in a telemarketing case.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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