Bipartisan Group of AGs Issue Warning Letter Over Alleged Election Robocalling

Troutman Pepper

[co-author: Stephanie Kozol]*

On February 6, a bipartisan group of 51 attorney general (AG) sent a warning letter to Life Corporation (Life Corp.) for allegedly engaging in an illegal robocall campaign that they claim was intended to deter New Hampshire voters from participating in the primary on January 23. The calls purportedly used artificial intelligence (AI) to impersonate the voice of President Biden, telling recipients to refrain from voting in the presidential primary.

The Anti-Robocall Multistate Litigation Task Force (Task Force) is a 51-member collective of state AGs focused on investigating and pursuing enforcement actions against various entities that are identified as being responsible for significant volumes of illegal and fraudulent robocall traffic. The Task Force initiated its investigation after Kathy Sullivan, a former NH Democratic Party chair who now runs a super PAC supporting the Biden campaign, issued a complaint that her personal cell phone number was showing up on the caller ID screens of those receiving the calls. The Task Force’s investigation found that the calling phone number was illegally spoofed, and that some of the spoofed calls were marked with A-level STIR/SHAKEN attestations by Lingo Telecom, LLC. An “A-level attestation” is an indicator that the generator of the calls had the legal right to use the allegedly spoofed number. Further, after reviewing more than 20,000 calls made from the illegally spoofed number, the Task Force concluded that some of the calls exhibited patterns that were consistent with a Telephony Denial of Service (TDoS) attack — an intentional attack on the telephony/voice service communications system of an organization intended to disrupt service by flooding the network with multiple and malicious inbound calls.

Under the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission (FCC) promulgated rules that restrict the use of phone calls made with automated telephone dialing systems and calls delivering artificial or prerecorded voice messages. The TCPA also generally prohibits solicitation calls to numbers on the National Do Not Call Registry. State AGs have the power to bring enforcement actions against calls that violate these rules, and they can recover considerable civil penalties for each finding of a TCPA violation. The warning notice indicated that, if further investigation shows that Life Corp. continues to originate similar calls, further enforcement action may be pursued. New Hampshire AG John Formella separately announced that the state’s Election Law Unit is issuing a cease-and-desist order to Life Corp. for violating state election laws, and they reserve the right to take further enforcement actions based on its prior conduct. In response to the activity in New Hampshire, the FCC also released a declaratory ruling on February 8, making AI-generated robocalls illegal effective immediately.

Why It Matters

Over the years, federal and state regulators have focused their efforts on combatting robocalling by bringing coordinated enforcement actions, forming cross-agency working groups, and supporting federal legislation designed to prevent the practice. With the explosion of AI technologies and the use of deepfakes for malicious purposes, we expect to see increased attention from regulators on the interplay between AI and communications to protect consumers from intentionally deceptive practices.

*Senior Government Relations Manager

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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