Gus Hurwitz on the TCPA

The Regulatory Review – ICLE Director of Law & Economics Programs Gus Hurwitz’s recent paper in the Brooklyn Law Review on the Telephone Consumer Protection Act (TCPA) was cited in The Regulatory Review.

In an article in the Brooklyn Law ReviewNebraska College of Law’s Justin (Gus) Hurwitz explains that the TCPA bans robocalls without the ‘prior express consent’ of the receiver. Hurwitz writes that, although the TCPA has faced challenges on First Amendment grounds, the U.S. Supreme Court has upheld the law based on precedent establishing the sanctity of and special right to privacy in the home. But Hurwitz explains that, because cell phones are now the primary recipients of robocalls, the TCPA effectively extends the special protection of homes to public spaces. In light of this shift to mobile devices, Hurwitz argues that the TCPA no longer passes constitutional scrutiny. Instead, he recommends that regulators encourage the development of technologies that would allow consumers to control their incoming calls.