The instrument is not the crime

Ban fraud, not robo-calls.

Forgery is a crime. Fountain pens can be used to sign other people’s names. Outlawing the use of fountain pens is not a sensible response to the forgery problem.

Making harassing telephone calls ought to be a crime. Deceiving voters about the source of campaign communications, for example with “false flag” materials that purport to come from your opponent, also ought to be a crime. Robo-calls can be used to harass and deceive. But outlawing robo-calling is not a sensible response to the problem of harassing false-flag calls.

What appears to have been a nationally coordinated and somewhat successful multimillion-dollar Republican effort to harass voters with robo-calls that seemingly came from Democratic Congressional candidates in swing districts ought to be thoroughly investigated, and the perpetrators jailed if some law can be stretched to cover their truly disgusting activity. For good measure, “false-flag” and harassing campaign telephone calls ought to be explicitly made federal crimes. Barack Obama has proposed such a law. But robo-calling itself, while undoubtedly annoying, is also highly useful as a way of conveying political information and encouraging people to vote.

“Robo-call” was the blog shorthand (and the journalistic shorthand for the tiny number of newspapers that bothered to cover it at all) for this fall’s display of tele-thuggery. It would be a mistake to embody that shorthand in legislation.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

9 thoughts on “The instrument is not the crime”

  1. Not to mention getting people to football games. During down years, teams send robo-calls to season ticket holders from the coach, popular players, broadcasters, etc.
    Also the evidence is that robo-calls have exactly zero impact on turnout in federal elections.

  2. Banning robocalls to people on the Do Not Call list would be acceptable — nay, Commendable!!
    I really didn't listen to the robocall barrage — just hung up as soon as I realized it was a recording — but it was a nuisance anyway.

  3. I couldn't disagree more strongly. If you pass an "intent" statute, you've done nothing. It won't stop it. The do not call list has been amazingly effective. Extending it to invasive political calls, regardless of intent, is a net benefit for all.

  4. Gotta break it to you, but there's a rather significant difference between "seems to be", and "purports to be", and you've had to set the threshold for what constitutes a reasonable perception pretty darned low to even reach "seems to be" in the case of these robo-calls.
    The flag might have been in the wrong place, but it wasn't false.

  5. "But outlawing robo-calling is not a sensible response to the problem of harassing false-flag calls."
    It is, however, a sensible response to the problem of harassing robo-calls, period.
    Yes, there are two different issues here–the Republicans' possibly criminal use of false-flag robo-calls, and the inherently harassing nature of all robo-calls. A law banning robo-calls is not justified by the former, but it is well justified by the latter.

  6. Brett, try to pay attention to the facts. In fact, the people who received those calls blamed them on the Democratic candidates, just as the people making the calls intended. They were called at odd hours, heard the introduction, and then, quite sensibly, slammed down the phone. The notion that they should have had to listen to all the bulls*** in order to figure out who it came from is ridiculous on its face. Why do you want to defend this sort of behavior?

  7. Anon, pay attention the the facts: The flag was not false, the calls at no point claimed to be from the Democrats, and did indeed correctly identify the source at the end.
    People making moronic assumptions on the basis of incomplete information does not constitute fraud. And assuming that only the Democratic party would be calling about a Democratic candidate is a moronic assumption. Ever heard of "negative advertising"?
    Were the Republicans delighted if Democrats made such a stupid assumption? Doubtless. Still doesn't make it fraud.
    Every election year candidates and parties engage in real, active, "honest" to goodness efforts to deceive voters. Whatcha going to call that, if you waste "fraud" on something like this? "Super-ultra-hyper-fraud"?

  8. Robo-calls are bad because of what they are, a recorded sales call. This year robo calls get extra bad points because they redialed you if you didn't listen to the whole message. That redialing is the real issue here.
    Whether the flag was false or poorly placed is a distraction. If the law says it must be up front and its not, then it deserves to be called a false flag.
    Political messages should not be be a part of do-not-call, but robo calls–no matter the source–should be.
    I'd like to see some real statistics on these kinds of calls. I believe most people hang-up on these things pretty quickly regardless of whether they like the candidate. IMHO the candidate who uses these for a positive message for themselves is a fool. In fact, one local candidate helped me decide not to vote for him by using last minute robo-calls asking for votes. All other things seemed equal between the two candidates.

  9. Brett, you never cease to amaze. The Republicans weren't just "delighted" to have the calls misinterpreted; they carefully designed the calls to be misinterpreted, breaking the law along the way by putting the ID at the end when it was sure not to be heard by those who hung up. So tell me: what's the difference between an illegal activity designed to deceive, and "fraud"?

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