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I'm currently developing an Alexa Skill for a client and would like to add the ability for the Alexa Skill user (where the skill user is anonymous, i.e. the skill is not linked to an account) to be able to agree to accept email and/or text messages. In the US various laws (i.e. Can Spam), and more recent acts protect the public from unsolicited communications by email and SMS text messaging by commercial entities. It's my understanding that the user must specifically agree to this happening, and the agreement must use some form of digital signature - for example a verbal agreement to SMS/email to a customer service rep isn't sufficient. Any opinions on whether a digital acceptance could be legally acceptable using an Alexa response - although it's "verbal" the system is converting that speech utterance to text, i.e. it's not a conversational approval (which is prohibited) in the sense meant by the congressional acts.

Thanks

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The CAN-SPAM act, enforced by the FTC, does not require prior permission to send email, but you cannot send a deceptive commercial message. If a message pretends to not be an advertisement (but is), it is deceptive – advertisements have to be clearly identified as advertisements. A customer can give prior affirmative consent for a sender to send an advertisement that is not clearly identified as an advertisement (the sender can send a "relational" email).

Assuming that you want to set things up so that emails from the vendor are in the relational and transactional bin (that is, it is legally not "a commercial message"), you need to get "affirmative consent", defined in 15 USC 7702(1):

(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative; and

(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient’s electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.

Nothing in the law requires that the consent be transmitted by email, that it be signed, or anything else. There simply has to be consent. Clarity and conspicuousness are what is most important. Subparagraph (B) is probably particularly applicable in this instance. There are special technological proof issues surrounding the question of whether a recipient has actually consented (see the most recent episode of the X-Files). This is presently beyond the reach of the law: if a person say "Okay" in response to Alexa saying something and this is stored as a pair of text stimulus + reponse string, there are major evidentiary issues which could be raised and at some point legislated. At present, there is no requirement that you record the voice exchange. The law does not say anything at all about a need to "prove" that you got consent. A digital signature is probably pretty clear evidence, but it is not legally required.

Turning to another area of communicative regulation, phone communication is regulated by the FCC (not the FTC), under the Telephone Consumer Protection Act of 1991. Applicable to voice or SMS calls, CG Docket No. 02-278 of 15 Feb 2012 requires prior express written consent of the called party, under various conditions. 47 CFR 64.1200(f)(8) states...

The term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.

(i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that:

(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and

(B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.

(ii) The term “signature” shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.

"Writing" is, itself, undefined. However, para 32 of the order, which provides context for the regulation a propos the written agreement and signature requirement, makes it clear that the agreement must be written (which under the ordinary meaning of words does not include "spoken"). To confuse matters a bit, they also say

The FTC has determined that written agreements obtained in compliance with the E-SIGN Act will satisfy the requirements of its rule, such as, for example, agreements obtained via an email, website form, text message, telephone keypress, or voice recording. Finally, under the TSR, the seller bears the burden of proving that a clear and conspicuous disclosure was provided, and that an unambiguous consent was obtained.

The paragraph uses "agreement" in two ways (this is not unusual): the abstract thing that people are agreeing to, and the act of accepting or agreeing to that thing, typically indicated by a signature. In context, it is clear that the "terms" must be written, but the acceptance or signature can be email, form, SMS, keypress, or voice recording.

Para 34. further addresses the interpretation of "consent", saying

The FTC specifically found that consent obtained via an email, website form, text message, telephone keypress, or voice recording are in compliance with the E-SIGN Act and would satisfy the written consent requirement in the amended TSR

About 4 times they reiterate a voice recording constitutes a signature (they are operating within the domain of the E-SIGN Act, and not generally redefining "written words" to include "spoken words").

  • Great answer, thanks! Regarding SMS text messages, the situation is definitely different; SMS text messaging is affected by 2013 FCC edict where companies are required to have written and signed consent from a consumer in order to be able to send them SMS text messages. It's principally that was in my mind when I asked the question. – Nostradamus Mar 8 '18 at 20:25
  • Excellent followup, thanks so much! A lot to think about here - unfortunately for privacy reasons Alexa Skills Kit (ASK) does not provide an API to access a voice recording of the utterance - I may seek clarification directly from the FCC though I don't hold out much hope of a timely nor comprehensive response. Thanks again! – Nostradamus Mar 9 '18 at 5:13

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