Evan Schuman's StorefrontBacktalk

Of course, there are serious problems with the way the Alabama court looked at this case. If I were a retailer, I would not rely too heavily on the court’s conclusions.

Express consent means exactly what it says and does: that a consumer has expressly consented to receiving communications substantially in the form of and in the nature in which they are sent. Obviously, if consumers give out their phone numbers to a retailer, and the retailer later calls those consumers for purposes for which they gave that phone number, that is not an unsolicited communication.

So, for example, if Walmart were to call Stephanie and tell her that her prescription was ready or follow up on information about the prescription, clearly Stephanie would have consented to this communication by giving out her telephone number. Similarly, other telephone communications related to the transaction for which Stephanie gave her phone number (and possibly even an SMS message saying something like “your prescription is ready”) could, under the definition of consent in both the statute and the regulations, be acceptable.

But for consent to be express, consumers need to be given an opportunity to know, in a meaningful way, exactly what it is they are consenting to. This is where the Alabama court gets it wrong and the Washington state court, at least at the outset, seems to get it right.

Consent, like privacy itself, is not binary. It’s not like you either have privacy or you don’t. It’s not like you either give consent or you don’t. You consent to providing certain information to certain people for certain purposes. Sometimes it is obvious; other times it is not. A lot of it is determined by the circumstances. For retailers, if they want express consent to use someone’s telephone number to send that person text messages, the best approach is that taken by almost every retailer: Tell the consumer what you’re doing.

The law does not require that the consent be in writing, through a click wrap agreement, or in a particular form or format. Merely that it be express. But the fact that the law requires express consent means that we—retailers—cannot rely on the implied consent. Consumers actually have to know what they are consenting to, and they actually have to agree to it.

I seriously doubt that a reasonable consumer was asked to provide his or her telephone number to a pharmacy as either expressly given or even implied consent to receiving text messages on unrelated matters. Even though a phone is capable of receiving both text messages and telephone calls through the same telephone number, they are different forms of communication. (If you provide your home address for someone to mail you a catalog, it does not imply consent for door-to-door salespeople to come into your home—even though it’s the same address.)

Consumers frequently pay their telephone providers separately for voice communications and for text messages. Under the Walmart rationale, once I have your phone number, I could send you hundreds or thousands of text messages, increasing your phone bill by hundreds of dollars, simply because you wanted a prescription. Not only is that a bad marketing practice, but it is exactly the type of thing that the telephone consumer protection act was designed to prevent.

The take away here is not that Walmart was able to win in the district court. Rather, that the best approach is to respect the privacy of your customers. When you collect personal information of any type from them, treat them with respect; use the information only for the purposes for which it was collected and, most importantly, have a commitment to transparency, openness and obtaining consent.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.