On March 3, 2024, a federal TCPA lawsuit was filed in the District of New Hampshire against Steve Kramer, Lingo Telecom, LLC (“Lingo”), and Life Corporation (“Life Corp”), who together are believed to be the parties responsible for the now notorious robocalls sent to New Hampshire voters in advance of that state’s primary election.
The TCPA lawsuit Complaint, which was filed on behalf of the League of Women Voters of New Hampshire, the League of Women Voters of the United States, and three individual New Hampshire residents, alleges violations of the Voting Rights Act, the Telephone Consumer Protection Act (TCPA), and New Hampshire Election Laws.
TCPA Lawsuit: Background Facts
According to the Complaint, shortly before the New Hampshire Primary, Kramer got in contact with someone named Paul Carpenter, who is described as a “transient magician and digital nomad with no fixed address” who had some familiarity with AI technology. In exchange for a $150 Venmo payment, Carpenter created an AI “deepfake” recording impersonating the voice of President Joe Biden using a script provided by Kramer, a process which apparently took less than 20 minutes.
The TCPA lawsuit Complaint goes on to allege that Kramer hired Life Corp to distribute thousands of robocalls playing the deepfake recording to likely Democratic voters in New Hampshire, and that Life Corp used Lingo to disseminate the calls bearing A-level STIR/SHAKEN attestations. Two days before the Primary election, thousands of New Hampshire residents received the calls, in which the fake Joe Biden urged them to forgo voting in the Primary. The Caller ID pushed with the calls showed them as sent from a phone number belonging to the head of an independent Super PAC.
Voting Rights Act Claim
The Voting Rights Act prohibits attempts to intimidate, threaten, or coerce any person for voting or attempting to vote. According to the Complaint, Kramer’s actions were undertaken with the purpose of intimidating, threatening, or coercing lawfully registered voters, so that they would be fearful or reluctant to exercise their right to vote in the 2024 New Hampshire Primary. The plaintiffs seek to hold Life Corp and Lingo liable for Kramer’s actions because they “were aware or should have been aware of the false information reflected in the call but nevertheless failed to prevent the message’s broadcast.”
The TCPA lawsuit Claim
The TCPA lawsuit claim was brought on behalf of the three individual plaintiffs who were the recipients of the calls, and alleges that they violated § 227(b)(1)(B) of the TCPA, which prohibits any person or entity from initiating any telephone call to a residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes, or some other exemption applies.
As detailed in a prior article, the FCC recently adopted a Declaratory Ruling that officially decrees an AI-generated voice to be “artificial” as that term is used in the TCPA. The TCPA lawsuit Complaint also alleges that the calls violated FCC regulations enforcing the TCPA by failing to include an automated interactive opt-out mechanism with the call, failing to accurately identify the entity placing the call, and failing to maintain an internal Do-Not-Call list.
What Happens Next?
In their TCPA lawsuit Complaint, the plaintiffs requested a permanent, nationwide injunction preventing the defendants from producing, generating, or distributing AI-generated robocalls impersonating anyone without their express, prior written consent and from distributing calls with spoofed caller ID, and also requested an injunction requiring Lingo Telecom and Life Corp to establish policies and procedures to prevent robocalls directed to voters that violate the Voting Rights Act.
They also requested monetary rewards equivalent to the maximum statutory damages available for violations of the TCPA and New Hampshire’s election laws, along with punitive damages and attorney’s fees.
If the facts reflected in the Complaint are true, the outlook does not look promising for the individual defendant, Steve Kramer. The legal basis for the plaintiffs’ claims against Lingo Telecom and Life Corporation are less certain. The Complaint asserts them to be liable because they “were aware or should have been aware of the false information reflected in the call but nevertheless failed to prevent the message’s broadcast.” The success of these claims depends upon the facts as they are revealed, along with the vagaries of the legal system and the New Hampshire Federal District Court.
However, the fact that they were included in this case does highlight how important it is for service providers to undertake every reasonable effort to ensure their networks are not used to facilitate illegal activities.
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