Scott Goodstein arrived at the American Association of Political Consultants conference last March suspecting he might have finally found his culprit. Clubby industry gatherings were not familiar turf for Goodstein, a goateed former music promoter who launched the Punk Voter political action committee and organized anti-Iraq War protests. But ever since Goodstein led the pioneering Obama Mobile program during the 2008 election, he has been much in demand by political operatives seeking to understand how the campaign used mobile downloads and text messages to engage supporters on their smartphones and cellular devices. He was invited to appear on a panel at the AAPC conference to discuss “the newest in third screen technologies from the campaigns that used them and the operatives who developed them.” The morning of his panel, Goodstein set out for Washington’s Fairmont Hotel with two different PowerPoint presentations: one with a straightforward account of the uses of mobile communications in politics today, and another that would accuse the man sitting next to him of committing a federal crime.
The crime, as Goodstein saw it, was sending unsolicited text messages to voters. Goodstein had been investigating the case ever since he read a press account of a Democrat in upstate New York who received an unwanted appeal on her phone in 2009 from a Republican congressional candidate. Before the 2010 midterms, Goodstein catalogued other examples of similar contact in congressional races. But he was never certain of which of his rival vendors was behind them. Now his co-panelist, the president of the firm ccAdvertising, was explaining how the firm was able to market such services, by using the email addresses the major mobile carriers maintain as an alternative method of sending texts. Software would pair all the various combinations of listed numbers and mobile carrier emails—like firstname.lastname@example.org or email@example.com. When a phone number and email address corresponding to a real user was found, a message would go through, arriving in the user’s phone as a text. Using this method, Gabriel S. Joseph III claimed, he was able to send one-third of the people on a California voter file an individually targeted text message. And because ccAdvertising sent the messages through an email gateway, instead of a text-messaging platform, they could be delivered in bulk at almost no cost. Joseph boasted that he had sent “millions” of such messages. “As soon as he put that slide up, I said ‘that was the same crap I was seeing in all these congressional races,’ ” says Goodstein. “He clearly was the guy.”
Goodstein decided to present his case against Joseph and other consultants who used similar tactics at the AAPC panel. He noted that the 1991 Telecommunications Consumer Protection Act, which aimed to prevent people from being charged for unwanted calls, prohibited using an automatic dialer to reach cell phones and pagers—and that regulators had since confirmed that the law included SMS text messages under its definition of calls. Only by getting their targets to opt-in to receive messages from a clearly identified sender could political organizations blast messages to cell phones. Joseph had justified his practice by explaining that he was sending emails, a medium in which other laws clearly protected political speech. But Goodstein displayed statements from the industry groups that set best practices for mobile carriers. He lingered on one quotation, from a CTIA-The Wireless Association official: “Whether the message is delivered over the Internet, or as an SMS message, spam is spam no matter how it goes.” Goodstein concluded by trying to shame Joseph with a passage from the AAPC code of ethics that, without irony, requires members to “not indulge in any activity which would corrupt or degrade the practice of political consulting.”
For Goodstein, the attempt to hold Joseph accountable in front of his peers proved quixotic. Their conversation quickly disintegrated from edgy countercharges into sheer awkwardness until the moderator, former Michigan Republican Party boss Saul Anuzis, directed his speakers onto less contentious terrain. No one in the crowd appeared to write down the hotline number Goodstein had established to help people beseech their state attorneys general to “investigate text message spam.” (Most attendees appeared befuddled and bored by the exchange; many were there because they wanted a primer in the basics of mobile communications and couldn’t even follow the technical and legal arguments.) When, seven months later, Virginia voters were hit with unwanted text messages attacking a Democratic state senator seeking re-election, Goodstein encouraged the Democratic Party of Virginia to pursue an injunction against the communications. They never did. “I don’t think that the Democratic party understands a lot of this,” Goodstein laments.
But when, in the days before last week’s Michigan primary, voters across the state began receiving unwanted text messages under the title “Romney’s Poor Comments,” Goodstein grew more sanguine about the fight against mobile spam. For once, he was seeing a Republican victimized by the technique, but more important, Goodstein thought he was finally on his way to closing the loophole that Joseph and other vendors have used to justify their practice. In January, the Federal Communications Commission accepted a petition from Goodstein’s firm, Revolution Messaging, that asked regulators to clarify that provisions of the 1991 telemarketing law did not distinguish between emails that turned into text messages and those that started as text messages. “You’re not allowed to use an auto-dialing device to call a cell phone without express consent,” argues Elizabeth Howard, a lawyer with the Washington firm Sandler Reiff Young & Lamb who drafted Revolution’s petition.
That Goodstein, who gives his employees the day off on May Day, has taken to the barricades over this issue appears at first a peculiar joining of rebel and cause. He is a critic of corporate consolidation who is attacking competitors for failing to follow industry standards, and along the way defending the prerogatives of telecom carriers he’s separately battling on issues like net neutrality. But Goodstein portrays his quest to beat back political text-spammers as a consumer-protection initiative. “If any other business could do this, they would,” he says. “There’s a reason why lower interest rates or buy a better sex drug—all these industries that do a lot of spam by email—don’t mess with the text gateway, and that’s because the end user pays for the communication.”
But Goodstein’s legal crusade will also serve to protect a political technology that is not at the moment value-neutral: The Obama campaign has a huge advantage when it comes to targeting voters via solicited text message.
Beginning in the late 1990s, inexpensive access to voter files and ubiquitous robo-dialing technology made mass, automated voter contact cheap and easy. (Vendors charge pennies per robocall.) But the strict regulations around mobile phones have ensured that they exist in a privileged space among forms of campaign communication—the only platform where one needs prior permission to approach a voter. “The law was written at a time when there was a small number of mobile phones owned generally by really well-off people, including politicians, and they were very expensive with no all-you-can-eat plans. The people who had them wanted to protect them,” says Shaun Dakin, a marketing consultant and privacy advocate who launched the National Political Do Not Contact Registry. “Now there are more and more people who are cell-phone only.” The cost of having a cell phone has come down in the interim, but most plans still charge users to receive text messages.
As a result, the durable competitive advantage in mobile communication isn’t technology but social capital: having a strong enough relationship with supporters that they will agree to accept intrusive messages for which they may have to pay. The invasive quality of text messages—they typically interrupt all activity on a device—means that, more so than any other type of political communication, they are almost certain to be seen. Industry studies show text messages are often 10 times more likely to be opened than email. “If you have a text message list of 10,000,” says Goodstein, “that’s equal to an email list of 100,000.”
Obama can claim supremacy in that area likely to remain unmatched by anyone trying to unseat him. The millions of mobile numbers accessible via the campaign’s Chicago servers are a testament to years of diligent organizing and data collection. When Oprah Winfrey agreed to appear at three early-state rallies in the summer of 2007, it was widely seen as a major media coup: possibly the most admired woman in America making a rare foray into partisan politics to stand alongside a candidate. But for those in Obama’s campaign office in Columbia, S.C., where Winfrey was scheduled to appear at a Sunday-afternoon rally, the star’s barnstorming weekend presented a special challenge. To make the Oprah event a success, they would have to gather useful data on the 30,000 people being shuttled from local churches into a football stadium to hear the talk-show host introduce Obama. Goodstein decided to get rid of the volunteers and clipboards at the doors and instead use the speakers and stadium’s screens to encourage attendees to enter a proprietary short code, 62262, which spelled “Obama,” and opt-in for future text message updates. The campaign would instantly text the sender back to confirm they had registered, with a warning that message and data rates applied and instructions to remove oneself from the list.
Over the course of the campaign, Goodstein experimented with the language of the request for people to text, always trying to find new ways to get people to give Obama permission to contact them on their cell phones. By the time Obama accepted the Democratic nomination in an open-air stadium in Denver in August of 2008, Oprah had been resigned to a seat in an audience of 80,000. Now Goodstein was providing the entertainment: As the crowd trickled in for hours before the program began, Invesco Field’s screens were filled with games and trivia contests that Goodsteain had scripted, all designed to lure the waiting crowd to take out their mobile devices. “If you were bored we collected your cell-phone number,” Goodstein says proudly. By then, Obama’s Chicago headquarters had reportedly harvested 3 million of them.
Since 2008, Goodstein’s Revolution Messaging has developed similar programs for many of Obama’s allies on the left, including AFSCME and the Democratic National Committee, as clients. The firm’s petition to fight unsolicited texting is on the FCC’s docket, and will likely open up a comment period in which some of the rival consultants Goodstein has hounded as text spammers will be given an opportunity to defend their practice and the loophole that makes it possible. (Joseph would not comment directly on Goodstein’s petition, other than to direct Slate to a ccAdvertising press release that affirmed the company believes it is following federal telemarketing laws.) A majority of commissioners—including chairman Julius Genachowski, a longtime Obama friend who was a fundraiser and tech adviser to the 2008 campaign and whom Goodstein refers to by first name—would then offer a ruling clarifying whether email-to-text messages are covered under the mobile law. Goodstein is not currently working for Obama’s campaign, although he does not rule it out. He is rooting for the FCC to weigh in before the fall election season.