Donald Trump’s re-election campaign is all-in on it. Sen. Bernie Sanders helped pioneer it. Alexandria Ocasio-Cortez relied on it. The federal government isn’t sure how to regulate it. And it is quietly reshaping this fall’s midterm elections.
Texting is changing American political campaigns while regulators, politicians, and the voters are scrambling to catch up. The tech behind texting is old, of course, but new peer-to-peer platforms are enabling political campaigns to text tens of millions of people without asking permission first, a change from past text message advertising campaigns. Largely free of government regulation, texts could also be the next pipeline for unaccountable money to flow into American politics, much like social media advertising in 2016.
But ready or not, peer-to-peer texting is set to explode this fall as campaigns, political action groups, grassroots groups, and party organizations are expected to send well over 100 million text messages in the 2018 midterm cycle.
“Don’t be giving out all of our secrets!,” said Corbin Trent, the communications director for Ocasio-Cortez’s insurgent Democratic primary campaign which sent over 120,000 texts over the summer in her successful campaign to unseat Rep. Joe Crowley. “I think it was one of the keys to increasing turnout among younger voters in our election.”
Campaigns say that the key advantage for texts is simple: people read them. The open-rates vary by company and campaign, but they often are in the range of 70 to 90 percent whereas email open-rates have been falling for years as inboxes get stuffed with more and more spam.
Trump‘s re-election campaign is furiously attempting to collect as many cell phone numbers as possible from their supporters in preparation for a massive direct-to-consumer text messaging operation. “In 2016 we used text like no one had seen before on the President’s campaign,” said Gary Colby, co-founder of Opn Sesame and the director of digital advertising and fundraising for Trump in 2016. "You won’t catch us sleeping on text in 2020. We know everyone reads their texts."
The stakes are big this November with 435 House seats, 33 Senate seats, 36 governor seats, and innumerable local political positions up for grabs. “It will be the difference between winning and losing a close race in 2018,” Coby said. "Text messaging's impact will surprise those slow to adopt new tools."
In the recent special election for one of those House seats in Ohio’s 12th district, over 1 million combined text messages were sent from the campaigns, party organizations, and outside groups. At least 120,000 texts were sent in the final 24 hours, a tactic that could be repeated nationwide this November and again in 2020.
But this text message golden age has operated largely in a legal grey area. Past text message campaigning was mostly automated “broadcast” texting which legally required explicit opt-ins with heavy fines for spam. The vast majority of this year’s political texting, however, don’t require voters to opt-in to be pinged.
Peer to peer texting companies have created online platforms and smartphone apps that auto-fill the phone numbers and the text message the campaign wants sent, allowing a single volunteer to send several hundred or thousands of text messages to targeted voters every hour. Since the person is pressing send one at a time and that person can edit the message, the peer to peer texts are not currently subject to the same regulations as automated ones.
Peer-to-peer also allows a campaign or any political interest to text millions of people legally without requiring users to every sign up for the messages in the first place. Campaigns just need a large base of supporters willing to press send over and over and over, often thousands of times.
As a result, a wild scramble has ensued among political groups to collect as many cell phone numbers as possible. Many campaigns are pouring millions of dollars into convincing supporters to give them their cell phone numbers, and some are buying them like any telemarketer would on the open market.
“People don’t realize how easy it is to buy cell phone numbers and most campaigns still don’t know that you can buy cell phone numbers,” said Jess Morales, the digital organizing director for Hillary Clinton in 2016 who ran Megaphone, the campaign’s text messaging program. “Most campaigners are going to follow the rules and push the limits. The regulators don’t really understand what’s happening.”
The four biggest peer-to-peer political texting firms — Hustle and Relay on the left; RumbleUp and Opn Sesame on the right — have collectively sent 90 million texts for political groups since the 2016 election, according to the firms.
Some campaigns have found creative ways to collect cell phone numbers. Last fall, liberal billionaire Tom Steyer’s political group NextGen America filed Freedom of Information Act (FOIA) requests to each of the 39 public colleges in the state asking for their student directories on the eve of the Virginia gubernatorial election. Eighteen schools including Virginia Tech complied.
The group then scraped all available cell phone numbers from the directories, turned them over to local campaigns, and thousands of students’ phones began flashing with text messages promoting liberal candidates as Election Day approached. “NextGen America is doing all that we can to make sure young people get to the ballot box on November 7th,” the group’s spokeswoman Aleigha Cavalier explained the to Roanoke Times last October (contacted by VICE News, Cavalier did not have anything to add). There was some blowback from Republicans and critical media coverage, but it was all legal.
In the spring of 2018, the new Virginia legislature passed a FOIA reform to prevent colleges from turning over their directories again. Steyer’s group appeared to think the strategy was effective. In June Steyer announced the group plans to send 7 million peer-to-peer text messages in targeted congressional districts this year.
Legal grey area
The regulatory framework for texting comes from legislation passed in 1991, the Telephone Consumer Protection Act, which did not anticipate smartphone technology.
“The problem with outdated laws is that unscrupulous people are going to use the loopholes.” said Gigi Sohn, the former senior adviser to former FCC chairman Tom Wheeler. “The FCC has gotta put some strong rules around these peer to peer texting and i think the responsible companies will welcome them.”
Some of the legal ambiguities prompted a group of peer to peer texting companies to recently form the “P2P Alliance” and petitioned the FCC this past spring to “clarify that P2P text messaging is not subject to the restrictions on calls to mobile phone numbers.” The group cited a 2016 FCC ruling that found “manually placed text messages are permissible without prior express consent.”
The P2P alliance did not respond to an email.
The FCC is currently requesting comment, but there is no mandated timeline for ruling on the petition. In a sign of how important the technology might be for future campaigns, the Republican National Committee submitted a comment to the FCC “in strong support” of the P2P Alliance and warned the FCC to “tread lightly when it comes to regulating political speech.” The DNC has not submitted a comment and did not indicate to VICE News if they planned to do so.
The RNC weighing in to protect this new campaign tech is all the more notable since Democrats have been lapping Republicans in embracing the technology. Volunteers and campaigns have sent over 80 million texts so far this cycle through Hustle and Relay compared to under 10 million through RumbleUp and Opn Sesame, according to numbers given to VICE News.
All four companies have gone on recent hiring binges with Hustle, the first company to make a big splash in the space with work for Sanders’ presidential campaign, going from just 12 employees at the beginning of 2017 to over 150 now.
“Republicans were much slower to join the bandwagon,” said Thomas Peters, the founder of RumbleUp, a new peer to peer texting company who had their first live client in January of this year. But he seemed optimistic that the Democratic advantage would dissipate just as it did with Facebook.
“Democrats invent, Republicans perfect”
“Democrats invent, Republicans perfect,” he said.
With guaranteed eyeballs, every campaign and peer-to-peer texting firm is furiously experimenting with the medium. Campaigns are using to to get out the vote on Election Day, organize instance protests within hours, fundraise, persuade, recruit volunteers, and more. Some campaigns are embedding attack ads to ensure an opponent’s gaffe breaks through to voters.
While the sometimes uninvited messages have annoyed some, volunteers have reported that voters have texted back gratitude for reaching out and sending reminders to vote.
“A lot of people don’t like getting phone calls and maybe do not like answering their door but they don’t mind texts,” said Victoria Nadel, a 53-year-old former defense attorney from Salem, Massachusetts who has volunteered on several campaigns since Trump’s victory. “Texting is how people communicate now. I mean I see young people texting when they are next to each other.”
There is a potential dark side to the peer to peer texting boom beyond just spam, however. Text messages could also be used to spread fake news or be a pipeline for dark money to anonymously spread attack ads about an opponent. And text messages aren’t required to have “paid for” disclosures, meaning it could very difficult to trace back the origin of messages.
There have already been early signs of potential problems. When early voting began in Tennessee's Republican gubernatorial primary, for example, voters started getting pinged with anonymous attack ads against Republicans Randy Boyd and Bill Lee, according to text messages discovered by The Nashville Tennessean.
"Hey did you see this? Looks like Bill Lee's not conservative," said one text with a link to an article. "I'd never vote for Bill Lee. He gave $ to liberals Megan Barry and Phil Bredesen, who's running against Marsha (Blackburn)!," said another text (Lee did eventually win anyway). Calls to the text sender got busy signals. No one knows who sent or paid for the messages and we may never know.
The stems from a 2002 Federal Elections Commission (FEC) ruling that exempted text from such disclosures because of the limited number of characters (Google and Facebook later claimed that exemption for themselves to avoid requiring “paid for” disclosures). The FEC is still in the midst of trying to require more transparency for online platforms and text messaging does not appear to be on the near-term agenda.
“This is probably very quickly going to become illegal”
Brent Leatherwood, the former executive director of the state’s Republican Party, told the Tennessean about the dark texting campaign: "This is probably very quickly going to become illegal."
While government regulators think about it, however, peer-to-peer texting is largely relying on self-regulation by cell carriers, campaigns, smartphone makers, and the peer to peer firms. Close observers of the space say that carriers like Verizon and AT&T are more scrupulous than free email providers like Gmail in watching for spam-like behavior. Apple announced this summer that iOS 12 will have new features for reporting spam texts.
And the texting companies are constantly updating their platform to try and push users against spam-like behavior. “ There's a good foundation but we also need to flesh that out and really make sure that this new way of communicating is really empowering to voters and to consumers and that it's not abused,” said Roddy Lindsay, the co-founder and CEO of Hustle.
It’s unclear if self-regulation will be enough to prevent abuse, or if government regulation would either. What is clear is that texting is becoming a force in American politics.
“I’m a huge believer in texting,” said Faiz Shakir, the ACLU’s national political director. ACLU’s People Power program has sent over 3.7 million texts since its launch last February, Shakir said. “People mostly text with their friends and family and that’s the medium you are operating in.”
Cover illustration: Leslie Xia
This article originally appeared on VICE News US.