So last night I jump up on my soap box about the FTC compelling marketers to retain certain dialing records, and this morning–wouldn’t you know it–I find a new case addressing precisely the issue of a government demanding production of dialer records in furtherance of a prosecution.
What are the odds? (100%, apparently).
In People v. Alorica, Inc. 77 Cal.App.5th 60 (2022) the Riverside County D.A.’s office (local prosecutor here in Southern California) issued a subpoena demanding that Alorica produce all of its outbound calling records. The government claimed that Alorica was a debt collector that made outbound calls on behalf of companies like Credit One (yes, that Credit One.)
Alorica responded by saying–wait a minute, we’re not even a debt collector. So keep your dirty hands off us. (Different words, same import.)
Apropos of my discussion yesterday, however, Alorica also responded by saying they only maintained 30 days of calling records. So the government’s demand that they somehow produce more than they have to give is, well, impossible to comply with.
The lower court was not persuaded and ordered Alorica to produce basically everything the government demanded. The appellate court agreed. And its a good lesson for everyone in terms of just how easy courts make it for government agencies to seize your records (via subpoena even.)
So under California law–which I assume is similar to laws throughout the nation on this topic– “[a]n agency has the power to investigate a matter within its jurisdiction “ ‘merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.’ ”
See what I’m saying?
The Court goes on to explain:
Encompassed within that investigative power is “the authority to conduct an investigation and to subpoena records to determine whether the entity under investigation is subject to the agency’s jurisdiction and whether there have been violations of provisions over which the agency has jurisdiction.”
In the Court’s view Alorica’s challenge that it is not a debt collector does not deprive the D.A.’s office of jurisdiction to issue the subpoena. Rather determining whether or not the agency has jurisdiction to investigate is itself a valid ground to issue an investigative subpoena. Eesh.
And the appellate court was also not enamored of Alorica’s claim that it lacked records. Alorica says “under the terms of Alorica’s contract with Credit One, Alorica only keeps call records for 30 days. The call data is transmitted to Credit One and Credit One may retain call records sent by Alorica each day (or periodically as required by Credit One).”
So Alorica basically tells the DA’s office to go knock on Credit One’s door to get more records. This is a clever ploy because Credit One is a national bank and, as such, they’re safe from intrusion by local authorities. So by pointing to Credit One, Alorica was assuring the records would be beyond the grasp of the DA’s office.
But the Court basically saw right through it.
Unconcerned whether the records might also be in Credit One’s possession, the Court confirmed that Alorica had to produce all records in its own control. That means, potentially, going and requesting data back from Credit One. And, in the Court’s view, Credit One’s protections from local authorities do not extend to Alorica–so Alorica must produce what Credit One wouldn’t have had to.
Bottom line, Alorica must fully cooperate with the government’s subpoena for records in furtherance of a prosecution under the TCPA.
And this is exactly the sort of thing that animates my concerns about overreach in the context of the FTC’s new NPRM.
Hang in there folks.