Hang Up on Harassment:
Dealing with Cellular Phone Abuse

Introduction

Whether you are a salesperson, politician, repairman, parent or teenager, you likely not only own a cell phone, but depend on its constant availability. Over 190 million Americans have cell phone subscriptions. Today, there are more cell phone subscriptions than traditional “land-line” subscriptions according to the Cellular Telecommunications International Association (http://www.ctia.org).

With cell phones fast becoming the primary way of communicating, harassing phone calls can be especially distressing and disruptive. You should be aware of the steps you need to take if you receive harassing calls, text messages, or spam.

What can I do if I am receiving harassing calls on my cell phone?

Cell phone carriers recommend that you contact the police first because they have expertise in personal safety. Forty-four states now have laws that explicitly include electronic forms of communication within stalking or harassment laws. For specifics please see http://www.ncsl.org/programs/lis/cip/stalk99.htm. In California, the law (Cal. Penal Code § 653m, Penal Code §§ 422-422.1) protects individuals who are harassed by electronic devices, including telephones, cell phones, computers, video recorders, fax machines, and pagers. For the full text of the law, go to http://www.leginfo.ca.gov/calaw.html.

You should file a report with the police department. This is important to ensure that you can get a subpoena. A subpoena is a court order demanding the production of evidence. Filing a report is not a guarantee that you will get a subpoena however. Depending on the resources of your local police station, your complaint may not be fully investigated. We recommend that you file the report as a first step because most cell phone carriers will not reveal customer information, including a harasser’s identity, without a subpoena.

Some cell phone carriers have corporate security divisions that will work with you to stop the harassing calls. You should call customer service after filing your police report and determine if your phone carrier will assist you without a subpoena. If your phone carrier does not offer this option you can consider filing a civil suit against your harasser and subpoena the information from the phone carrier as part of your lawsuit.

Unlike traditional “land-line” phones, you are not able to block incoming callers to your cell phone. However, you should record the date, time, and description of each call, and save any messages you receive. This information is essential evidence in helping the police and the cell phone carrier investigate the harassment. If you think that the messages will be deleted before you are able to get a subpoena, it is a good idea to play the message into a tape recorder.

How is harassment defined?

The law will vary from state to state, but in California a single call is enough to meet the definition of harassment if the caller threatens physical harm or is obscene. If the call does not fall into either of these categories, the calls must be repeated to be considered harassment.

Intent is another requirement included in most harassment definitions. The law generally requires that the harasser intend the calls to be viewed as harassment. Because of the need to prove intent, you should tell the harasser that you do not want to speak to the person and to stop calling. If the harasser persists after this clear message, it will be easier to prove that the intent was to harass.

If the caller is a debt collector or telemarketer, harassment law will not apply. For more information on dealing with these types of calls, see Fact Sheet 5 on telemarketing available at http://www.privacyrights.org/fs/fs5-tmkt.htm and Fact Sheet 27 on debt collection available at http://www.privacyrights.org/fs/fs27-debtcoll.htm.

Can a debt collector leave prerecorded messages on my cell phone?

Yes, if you give your prior express consent for such calls. In January 2008, the Federal Communications (FCC) ruled that collectors can leave autodialed, prerecorded messages on your cell phone if you provide the cell phone number on a credit application. In short, if you provide your cell phone number on a credit application, you are assumed to have given your consent for autodialed, prerecorded collection calls.

To read the FCC’s ruling, go to http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-07-232A1.txt

As cell phone numbers change frequently, consumers often complain about prerecorded collection calls intended for someone else. If you are unable to put a stop to such calls by simply contacting the collection agency, consider filing a complaint with the FCC. Contact information as well as the information to include in your complaint can be found at the end of this guide.

In addition, refer to Part 3 of PRC Fact Sheet 27, http://www.privacyrights.org/fs/fs27-debtcoll.htm#3, for suggestions on how to deal with contacts about another person’s debt.

What can I do if I am receiving harassing text messages on my cell phone?

If you believe the threats are serious, contact the police. Most carriers explicitly prohibit harassing SMS (short message service) messages, or as they are more commonly known, text messages, in their terms of use. However, filing a police report is still an important step. Since text messages can be sent from a computer without sending a call-back number, it may be difficult to pinpoint who is sending the message. A subpoena might be necessary to locate the harasser through their computer or their restricted phone number.

In addition to filing the police report, it is important to document the harassment. If you think the messages will be deleted before the investigation is complete, you may want to photograph the text messages.

Parents should be aware of the increase in electronic bullying through text messages. One option is to contact the carrier and ask that the text message function be disabled. Disabling this feature will block all messages though (it is not usually possible to block a single phone number). As cell phones are often an integral part of a child’s social life, you may not want to completely take away this option.

Experts suggest that turning off the text messaging function for a few days may be enough to discourage the harasser. Policies on blocking text messages vary by individual carrier, and your carrier may offer other options. Additionally, 16 states have laws regulating cell phones and pagers on school property. For specifics please see http://www.ncsl.org/programs/lis/legislation/pagersinschools.htm.

Often people use shorthand for text messages. If you are unsure of what the shorthand means, you can use the translator found at http://www.teenangels.org.

Resources

This guide was developed with funding from the California Consumer Protection Foundation.
The PRC is grateful for its generous support.

We acknowledge the assistance of Leslie Flint, Legal Intern,
in researching and writing this guide (June 2005).