Texting Laws

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 What Is Texting?

Texting laws regulate the exchange of communication through cell phone text chat features. Texting has become a ubiquitous method of communication, sometimes even more so than regular telephone calls and email messaging in some areas.

Newer cell phone technologies have adapted to allow the transfer of all manner of communication through texting, such as:

  • Standard dialogue between the people;
  • Photos;
  • Videos;
  • Web links;
  • Credit card information;
  • Contact information.

Thus, texting has become closer in nature to email, and can also be more simple to use than email in many cases.

What Do Texting Laws Cover?

Texting laws address a variety of legal issues such as the following:

  • Privacy and confidentiality;
  • Commercial use of text messages;
  • Safety, especially with regard to stalking and harassment;
  • Texting while driving;
  • Sexting”: Sexting is sending inappropriate or explicit images through text message, often images of the person sending the texts;
  • Use of texts as evidence in trials and at hearings in a court of law.

For example, the Federal Communications Commission (FCC) is an agency of the federal government that regulates communication by radio, television, wire, satellite, and cable across the United States.

Businesses and other organizations need to know that in response to complaints made to the FCC about various telemarketing practices, the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act were adopted in order to regulate SMS marketing, SMS restrictions and text message privacy.

“SMS” stands for “Short Message Service”, which is a component of the text messaging service on most telephone, Internet, and mobile device systems. It allows mobile devices, importantly cell phones, to exchange short text messages.

According to the TCPA, the FCC’s leading law for electronic communications since 1991, businesses and other organizations must obtain written consent from people before sending them any text messages. Even if a business has a person’s phone number or already has an “established business relationship” with the person, written consent is still a requirement.

To ensure compliance with the TCPA, a consumer must have received “clear and conspicuous disclosure” that they will receive text messages from the business or organization. Also, they must agree to receive these messages at their specific phone number.

These are the main rules that businesses and organizations are required to follow to ensure full transparency when sending out their marketing text messages to consumers:

  • Texts must include both the sender’s identity and an easily accessible opt-out option;
  • Businesses must provide a way for consumers to opt-out of receiving text messages by replying directly to the text message;
  • Texts can only be sent between the hours of 8 a.m. and 9 p.m. to minimize inconvenience to the consumer;
  • The TCPA also applies to text messages sent to collect debts.

Texting laws that apply to businesses state that the consequences for failing to comply include paying financial damages ranging from $500 to $1500 per text message sent to each person who did not provide consent. It should be noted that tax-exempt nonprofit organizations are exempt from the opt-in and “do-not-call” requirements of the TCPA.

The CAN-SPAM Act forbids businesses from sending commercial email messages to a mobile phone. The Act defines commercial messages as advertisements or promotions for a product or service.

Note that this definition does not cover messages about an existing transaction or relationship – for example, a delivery notification. It also does not include non-commercial messages.

When sending a commercial email to a mobile device, CAN-SPAM requires application of the the following SMS marketing regulations:

  • The email can be easily identified as an advertisement;
  • Recipients of the email can quickly unsubscribe or opt-out of receiving further messages;
  • The sender of the email includes a return email address and postal code, so a person can contact the sender.

Also, text message solicitations must not be misleading or deceptive, and text messages must include an option to opt-out of future messages. Text messages sent with the prior consent of the recipient are exempt from CAN-SPAM rules.

Individual states also have their own laws that address the same topics as do the TCPA and the CAN-SPAM Act, so it is essential for businesses and organizations to educate themselves with their state’s texting laws as well.

Can I Text While Driving?

Texting while driving has been made illegal in all states of the U.S.; however the penalties vary widely from state to state. For example, In Alabama and New Mexico, a first offense is punishable by a fine of only $25. In Nebraska, the penalty is a fine of from $200 to $500; in addition a person gains 3 points against their driver’s license.

In New York state, texting while driving appears to be a more serious violation. It can be punished by imposition of a fine of up to $150 plus a mandatory $85 surcharge fee. Violation also adds 5 driver violation points to a person’s driving record. Drivers who are operating a vehicle with a permit, junior license or probationary license have their license suspended for 120 days on the first offense and one year for subsequent offenses.

What About Sexting?

Only 27 states have adopted laws that address sexting. However, sexting is still very problematic, especially when it involves pictures of minors, because in that case it can violate child pornography laws. Child porn production and distribution laws provide some of the harshest punishments imposed by American criminal law.

When children under the age of 18 get caught up in violations that can lead to charges involving child porn offenses, the situation can have very serious and long-lasting consequences.

Many people are of the opinion that child porn laws should not be applied to sexting and related conduct if they are perpetrated by minors. As a result, it may be up to the discretion of prosecutors whether or not to bring such charges.

In some states, the law has addressed the issue by defining “sexting” as a limited activity that exclusively involves minors. These states may carefully define the crime as involving only limited circulation of images between minors only. They then classify it as a petty offense or a minor misdemeanor. The punishment can involve a term of imprisonment in jail for less than a year and a fine of no more than $2500.

In Illinois, the law prohibits minors from distributing indecent visual material of another minor through an electronic device. A minor who violates the law is subject to a petition for adjudication and may be adjudged a minor in need of supervision. A minor found to be in need of supervision may be ordered into counseling or ordered to receive other services to address the acts that led to the need for supervision. Or, the minor may be ordered to perform community service.

However, the minor can still be prosecuted for other crimes, including disorderly conduct, public indecency, child pornography, and sexual harassments. Communications or any other crime that may apply to the facts of the case.

From these two examples, it can be seen that state laws vary widely in their treatment of sexting, especially if the offense is committed by minors and involves victims who are minors.

What Are Some Penalties for Texting Violations?

Penalties, of course, depend on the type of texting violations. For texting while driving, the penalty is limited to a fine and possibly some points on a person’s driving record. More serious penalties, e.g. jail time, could be imposed if the violation results in serious injury or death to another driver or passenger.

For more serious crimes, such as sexting or harassment, the criminal consequences may be more severe, i.e., longer jail sentences and higher fines, and depending on the circumstances, the perpetrator might be charged under child porn laws. This could lead to severe punishment, e.g. a prison term. Civil damages can sometimes result in cases involving defamation or similar civil wrongs.

Do I Need a Lawyer for Help with Texting Laws?

Texting laws address a wide range of different legal issues. If you have been charged with a crime in connection with texting, e.g. texting while driving or sexting, you want to consult a traffic violation lawyer.

If you are in business and want to understand how to use text messaging legally in your marketing and promotional communications program, you want to consult a business lawyer. A business lawyer can also provide the guidance you need if you have been charged with violations of the TCPA or the CAN-SPAM Act.


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