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Federal judge strikes down North Dakota's anti-spoofing law

Federal judge strikes down North Dakota's anti-spoofing law

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A federal judge has ruled that North Dakota’s law targeting the practice of disguising caller ID numbers is unconstitutional because it intrudes on interstate commerce regulation, a power reserved for Congress.

The decision Monday by U.S. District Judge Daniel Traynor strikes down the anti-spoofing law that the 2019 Legislature passed unanimously to address public complaints about harassing and scam phone calls.

The judge wrote that because of mobile phones and technology such as call-forwarding, "North Dakota's Anti-Spoofing Act has the practical effect of regulating interstate commerce because it is impossible for Plaintiffs to determine whether a call recipient is physically within North Dakota."

Spoofing involves altering or disguising the phone number that shows up on the caller ID of the person being called. North Dakota's law making it a crime to “transmit misleading or inaccurate caller identification information with the intent to defraud or cause harm” took effect in August 2019. It also outlaws using a telephone number the caller does not own or have the consent to use.

Violations carry a maximum punishment of a year in jail and a $3,000 fine. A provision in the law also allows spoofing victims to file a civil lawsuit for up to $10,000 in damages per violation.

New Jersey-based SpoofCard LLC, a spoofing service with about 500,000 active users, and CEO Amanda Pietrocola sued last December. SpoofCard attorney Seth Thompson argued in court documents that the technique has legitimate uses, such as a doctor or a journalist making a work-related call from a personal phone and wanting to protect the private number.

The company argued that SpoofCard and businesses using spoofing services could potentially be held criminally or civilly liable in North Dakota for calls that Congress intended to be legal because they "can never be certain where their users, or the parties they or their users are calling, are located."

The company pointed to similar laws in Florida and Mississippi that were struck down by the courts. In the Florida case, the court reasoned that a New York business might make a spoofing call to an Ohio area code, but the call recipient might actually be in Florida at the time, and the business would then be violating Florida law. That essentially meant Florida was regulating commerce outside its borders, the court found.

Attorneys for the state of North Dakota argued that spoofing also is used by scam artists and questionable telemarketers, and that North Dakota's law is aimed solely at spoofing activity that is done with the intent to defraud. The attorney general's office maintained that the law does not regulate commerce outside the state's borders because it does not apply to a caller who reasonably believes, based on the number called, that the recipient of the call is not physically in North Dakota.

Deputy Solicitor General James Nicolai previously argued in court documents that the intent of the law is "to protect consumers from fraud and harassment," and that "any incidental effects the Act may purportedly have on interstate commerce do not clearly outweigh North Dakota's interest in protecting its citizens."

Traynor said North Dakota's law is similar to the laws in Florida and Mississippi that were deemed unconstitutional.

In the North Dakota case, "It is impossible for the Plaintiffs to determine where the individual called is physically located at any given moment," the judge wrote. "Due to this impossibility, it cannot be reasonable for the Plaintiffs to determine whether a person called is or is not physically within North Dakota."

Attorney General Wayne Stenehjem, who has said robocalls and spoof calls are his agency's top consumer complaint, in a statement to the Tribune said "we are disappointed, and we are reviewing the opinion in order to determine whether to appeal."

Thompson in a statement said "We were confident the court, like all the other U.S district courts that have considered unconstitutional state anti-spoofing laws, would rule in our favor. We're pleased with the court’s decision and are glad this matter has been resolved."

SpoofCard had made other arguments against North Dakota's law, including that it violated protected speech. Traynor said that because he had found the law to violate the commerce clause of the Constitution, it was not necessary for him to address other arguments.

 

Reach Blake Nicholson at 701-250-8266 or blake.nicholson@bismarcktribune.com.

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