by Caroline Headrick*^[1]

In the modern age, no individual with a cell phone, indeed even a landline, is immune from the threat of scam callers. If you have paid attention to your cell phone in the past year, you have likely noticed the “Scam Likely” call identification that accompanies calls from some unknown numbers. This is thanks to a bipartisan act called the TRACED ACT.^[2] Past estimates have placed scam callers at making well over a billion calls per year.^[3] In the first quarter of 2019 it was estimated that there were approximately one billion robocalls placed solely for falsely claiming to provide health insurance.^[4] This number does not account for the scam calls providing or promising other services or gifts. That number is much larger; in the first five months of 2021, smartphone users received approximately 22 billion scam calls overall, and were on track to receive approximately 52 billion throughout the course of the year.^[5]

It is easy to see these numbers as just that, numbers, and to think that we are accustomed to scam calls. The reality behind these numbers, however, is far grimmer. The Association of Certified Fraud Examiners—the world’s largest anti-fraud organization with nearly 90,000 members worldwide^[6]—notes that telephone scams are among the most prevalent scams used against the elderly.^[7] This is likely why the TRACED ACT’s legislative history shows particular concern for the effect that scam calls have on older Americans.^[8] Consequently, the Senate Communications Committee on Aging heard testimony regarding the effects of robocalls on the elderly on July 17, 2019, prior to the passing of the Act.^[9] The testimony concluded that a Voice Over Internet Provider (a service provider allowing for phone calls via the internet as opposed to a phone line) that originates 100 million calls in one month could net $50,000-$100,000.^[10] The reality is that these scams continue to be profitable, especially against the elderly, and this is of particular concern at times when the health and well-being of the elderly is compromised. In the early weeks of the Pandemic, scammers placed an estimated 1 million scam calls per week.^[11] These scammers capitalized on the Pandemic by offering face masks, at-home test kits, and health insurance—none of which were real.^[12]

The TRACED Act works to remedy the epidemic of scam calls by requiring providers to authenticate callers.^[13] Though the Act was signed into law on December 30, 2019,^[14] the continued prevalence of scam calls seems to suggest that the Act has failed to live up to its aspirations. Nonetheless, there have been two major victories from the bipartisan Act since its inception: (1) the government has prosecuted two cases against “gateway carriers,” parties who bring large numbers of fraud calls,^[15] and (2) the SHAKEN/STIR framework was officially implemented on June 30, 2021.^[16]

The SHAKEN/STIR framework requires call providers to authenticate the source of their callers, and to put that information into a database.^[17] Beginning September 28, 2021, providers need not accept calls from numbers not in the database.^[18] Smaller call providers have a deadline of June 30, 2023.^[19] So far, 1,500 providers are already in the SHAKEN/STIR database, with 200 in full compliance, and hundreds more working towards full compliance.^[20] Ideally, this framework will be a gatekeeper of sorts where providers will catch scammers and therefore not place them in the database for authentication. Without authentication, other providers need not service the scammers’ calls.^[21]

Since the Act’s passage, the government has taken several other important steps to end malicious robocalls. These include efforts to block one-ring scam calls—where scammers disconnect a call after one ring, inducing a party to call back in case the call was important^[22]— and steps to create a reassigned numbers database, with all the most recent reassigned toll-free numbers and their disconnection date, to ensure businesses are not calling reassigned numbers and consumers are not receiving unwanted calls.^[23] The FCC has also sought public comment on how to streamline the mechanisms for individuals reporting robocalls.^[24] Additionally, Congress has extended the safe harbor provision to one-ring calls, meaning that the Act provides companies robust protection from legal liability for blocking numbers using this calling method even if the numbers do not turn out to be scammers.^[25] The logic and hope is that a robust safe harbor provision ensures that providers will block calls more diligently because they are not overly impeded by potential liability.^[26]

This progress comes at a vital time as the elderly are even more vulnerable targets during health crises.^[27] It may be a couple of years before there is full compliance of the SHAKEN/STIR framework amongst all providers. However, the very existence of the TRACED Act, the increasing provider compliance with the SHAKEN/STIR database, and the additional steps taken by the government since the Act was passed—fighting one-ring scams, the creation of a numbers database, and streamlining scam call reporting—should foster some hope that scammers are being better detected moving forward, reducing the threat they pose to society at large, and especially to the oldest among us.

 

*Caroline Headrick, University of Minnesota Law School Class of 2022, JLI Vol. 40 Articles Editor

[1] The terms “robocall” and “scam call” are often used interchangeably and this article will do the same. However, many businesses use robocalls for legitimate purposes appointment reminders, which are not at all malicious and which this legislation does not seek to target and stop.

[2] Office of Pub. Affairs, Report Detailing Gov’t Efforts to Combat Robocalls Released to Congress, Dep’t of Just., 20-1,159 (Oct. 27, 2020), https://www.justice.gov/opa/pr/report-detailing-government-efforts-combat-robocalls-released-congress.

[3] Compare id., with Marguerite Reardon, Robocalls Are Out of Control. Is a New Mandated Technology Helping?, CNET (June 20, 2021), https://www.cnet.com/tech/mobile/robocalls-are-out-of-control-but-that-could-all-change-today/. These much larger robocall numbers come from YouMail, a private company specializing in blocking robocalls, and encompass all robocalls received. The FCC number demonstrates that individuals received over one billion calls in one type of matter alone.

[4] Office of Pub. Affairs, supra note 2.

[5] Reardon, supra note 3.

[6] Ass’c of Certified Fraud Examiners, Who We Are, https://www.acfe.com/who-we-are.aspx.

[7] Ass’c of Certified Fraud Examiners, The Fraud Examiner: Elderly Fraud, https://www.acfe.com/fraud-examiner.aspx?id=4294997223.

[8] Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act: Hearing Before the H. of Representatives, 165 Cong. Rec. H9235-02, 116th Cong. 1 (2019) (Proceedings and Debates); Hearing on S. 151 Before the Senate, 165 Cong. Rec. S3073-01, 116th Cong. 1 (2019) (Proceedings and Debates).

[9] Kate Polit, Senate Aging Committee Tackles Robocall Scams, MeriTalk (July 17, 2019), https://www.meritalk.com/articles/senate-aging-committee-tackles-robocall-scams/.

[10] Id.; see Voice Over Internet Providers (VOIP), FCC FEDERAL COMMUNICATIONS COMMISSION, https://www.fcc.gov/general/voice-over-internet-protocol-voip (explaining what a VOIP is).  

[11] Tony Romm, ‘That Can Actually Kill Somebody’: Scam Robocalls Are Pitching Fake Coronavirus Tests to Vulnerable Americans, Wash. Post (Mar. 19, 2020), https://www.washingtonpost.com/technology/2020/03/19/robocalls-coronavirus-test/.

[12] Id.

[13] Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED ACT), 47 USCA § 227(b)(4); Att’y General Moody Applauds Congress for Passage of TRACED ACT, Office of Att’y Gen. Ashley Moody (Dec. 20, 2019), http://www.myfloridalegal.com/newsrel.nsf/newsreleases/495FFF31E3E05A9E852584D60051BB7E.

[14] Office of Pub. Affairs, supra note 2; Kelly Hill, Carriers Update Progress As SHAKEN/STIR Deadline Hits, RCRWireless News (July 1, 2021), https://www.rcrwireless.com/20210701/policy/carriers-update-progress-as-stir-shaken-deadline-hits. 

[15] Office of Pub. Affairs, supra note 2

[16] 47 USCA § 227(b)(5)(A); Reardon, supra note 3.

[17] Att’y General Moody Applauds Congress, supra note 13.

[18] Hill, supra note 14.

[19] Reardon, supra note 3; see also 47 USCA § 227(b)(5)(A)(ii).

[20] Hill, supra note 14.

[21] Id. “As of September 28 of this year [2021], intermediate providers and terminating voice traffic providers will not be required to accept traffic from voice providers who aren’t in that database.”

[22] First Report and Order, 20 FCC Rcd. 171 (2020), https://docs.fcc.gov/public/attachments/FCC-20-171A1.pdf.

[23] Ben Stark, FCC’S Reassigned Numbers Database Becomes Final Rule, DNC.com (Mar. 28, 2019), https://www.dnc.com/news/fccs-reassigned-number-database-becomes-final-rule.

[24] Notice of Proposed Rulemaking, 20 FCC Rcd. 174 (2020); Chris Alarie, One Year Later: Tracking the Implementation of the TRACED ACT, DNC.com (Dec. 30, 2020), https://www.dnc.com/news/one-year-later-tracking-implementation-traced-act.

[25] First Report and Order, 20 FCC Rcd. 171 (2020).

[26] See Advanced Methods to Target and Eliminate Unlawful Robocalls, Call Authentication Trust Anchor, CG Docket No. 17-599, WC Docket No. 17-97, Declaratory Ruling and Third Further Notice of Proposed Rulemaking, 34 FCC Rcd 4876, 4886-88, paras. 33-34 (2019) (2019 Call Blocking Declaratory Ruling). “[T]he Commission believes that enabling voice service providers to use all available technologies and methodologies at their disposal without fear of liability is crucial to combat illegal calls.” (explaining why the benefits of a broad safe harbor provision outweigh the risks).

[27] Romm, supra note 11.