Category Archives: legal

I loathe my iPhone.

No, let me rephrase that: I loathe the experience of owning a mobile smart phone. Mine happens to be an iPhone, and I’m calling attention to that for a reason.

Remember the iPod? The first iPod launched in 2001. It was Steve Jobs’ baby, and it literally saved Apple from oblivion. Jobs sold it as a bog-simple concept – “1000 songs in your pocket.” It was a portable digital media player – ho-hum today, but that’s because we forget its novelty in its time. But the real vision embodied by the iPod was in Jobs’ insistence that Apple own every element of the user experience, from the first moment the buyer touched that unique round controller, to the carefully choreographed opening of the package, to the downloading of songs from iTunes, and on and on for the life of the device. I still have, use and love the iPod Nano I bought in 2004.

Apple saw to it that every aspect of my experience with that little red brushed-metal-clad gadget was as pleasurable as it could be. No other tech ownership experience I’ve ever had has come close. The Harvard case study version of what happened next for Apple is that the iPod revived a floundering company and turned it into one of the most valuable brands in the history of the world.

The iPhone is the iPod’s most direct descendant. It has brushed aside competition from Android and other devices because Jobs’ successors at Apple learned from the iPod’s dominance through obsessive attention to design and user experience. And the rejuvenated Apple had the brute force of supplier dominance and market power to swamp the smart phone market.

The smart phone experience has deteriorated, from enjoyment of the utility and entertainment value of having a powerful internet endpoint in my pocket, to increasing frustration as my iPhone has become a constant, productivity-draining source of interruptions.

Smart phones are connected to mobile communications networks and the internet. The market and the device itself are affected by networks, systems and regulatory conditions that are beyond Apple’s control. But as one of the most valuable companies in history, Apple has power – market power and political power. It is big enough to influence public policy, as its documented history of (apparently legal) tax avoidance demonstrates.

A Constant Productivity Drain

Apple’s power to influence public sector policymaking is what brings me back to my experience as a smart phone user. Because that experience has deteriorated, from enjoyment of the utility and entertainment value of having a powerful internet endpoint in my pocket, to increasing frustration as my iPhone has become a constant, productivity-draining source of interruptions.

I, like a lot of people I know, am interrupted dozens of times a day by spam phone calls and text messages. These things come in waves — spammers seem to buy huge batches of numbers, from all over the USA, put robodialers on them, hammer their lists for a few weeks, and then lie low for a while. Then they return.

The Federal Trade Commission and the states have Do Not Call lists; you add your number to these lists, and then by law the spammers are supposed to leave you alone. It’s a joke. Spammers ignore those lists.

What some of us do now is download to our smart phones a call-blocking app. The one I use is called “Mr. Number,” but there are a bunch of them out there. Mr. Number monitors all my phone traffic. When I get a spam call, I add it to a block list that the app maintains for me, and report it to a database that they keep centrally, which allows me to describe the nature of the scam. There are, I imagine, hundreds of thousands of numbers in that database from all the app’s users. The app is pretty effective for a while; then the spammers buy more bulk batches of numbers and we start all over again.

As far as I can tell, phone spammers act with absolute impunity — there don’t seem to be any consequences for what they’re doing. Why? Because policymakers don’t have the will to do anything about phone spam. I imagine, in fact, that the parasitic enterprises that generate the robocalls influence legislators to avoid practical regulation, in the same way payday lenders have, through campaign contributions and lobbying. (They have had help from lobbyists for the debt collection agencies, who also robocall.)

But Apple has the kind of influence that could overwhelm that of the robocall scammers. Apple is a lobby unto itself. If Steve Jobs were alive today and running the company, I believe he would understand the potential for phone spam to so degrade the smart phone experience, for so many users, that it becomes a fundamental threat to the evolution of the mobile device market and all the apps and services that depend on it. Jobs would act – and Tim Cook could act – to save the smart phone experience.

There IS a Fix

So, beyond browbeating Apple (and, by extension, Google and Samsung), am I suggesting that there even is a practical way to rein in phone spam? Of course there is.

As I say, I use an app called Mr. Number. The block list the app allows me to compile for my own phone is somewhat useful, but the real value is in the database the vendor maintains. For each source phone number in it, the vendor has a history that includes the number of times it’s been reported as a spam source, and each individual report, explaining the nature of the intrusion.

I propose that either the Federal Trade Commission or the Federal Communications Commission establish a partnership with a vendor like Hiya, which markets Mr. Number, under which the federal agency would get access to the database. (I suppose it would be fair to pay the vendor for this; it might even make sense for the agency to fund improvements to the vendor’s infrastructure.)

The real value is in the database the vendor maintains. For each source phone number in it, the vendor has a history that includes the number of times it’s been reported as a spam source, and each individual report, explaining the nature of the intrusion.

The new regulation I envision would provide that for every number that reached a certain volume of reported complaints, the agency would identify the carrier that issued the number (e.g., Verizon or AT&T), and then trigger an order to the carrier to identify the party to whom the number was sold. That party would be notified that it was using the number illegally; the number would be suspended or terminated and the offending user assessed fines that would escalate with repeat offenses, until they genuinely hurt. There would be one class of fines for people spamming to sell basically legitimate services. For callers pushing culpable fraud, there would be fines for the calls and additional penalties for the fraud itself.

States’ Attorneys General have been agitating for action on robocalling. But since the calls are virtually always interstate, jurisdiction clearly is federal. The Federal Government routinely collaborates with the large telecommunications carriers and secures private data on individual subscribers, so there is obvious precedent for getting access to the identities of the spammers.

(Yes, I know: Often the spammer is using a feature of voice over IP technology to “spoof” the number that shows up in caller ID. There is an aboveboard market for spoofing technology, but it is exploited constantly by spammers to hide the sources of their calls. VOIP spoofed calls can be traced by law enforcement agencies with subpoenas. The interests of the handful of companies that market spoofing tools are in direct conflict with those of the hundreds of millions of us who are plagued by these calls; new regulations are needed.)

The vendor of the call blocking app (or several vendors) would love to have the federal contract. And the regulation would address a problem that everyone experiences – Democrats, Republicans, Independents, really anyone who has a phone. We ALL hate this.

Such regulation has begun to get across-the-aisle support. But regulation aimed at blocking or redirecting robocalls won’t solve the problem. Robocalling works for spammers because it costs practically nothing to send millions of calls or text messages, and enough of them will get through to make it worth the investment. Regulation will need to trace the calls to their sources – especially those hiding behind VOIP spoofing – identify those sources, and hit them with real consequences.

And let’s be realistic: New regulations like these aren’t coming from a Congress that is in the thrall of campaign donors whose interest is in preserving their right to annoy us with scam solicitations dozens of times a day. For that, the only resolution is countervailing lobbying pressure – potentially enormous pressure – from the companies whose interest is in saving the smart phone user experience.

Looking at you, Tim Cook and Sundar Pichai.