23 Jul The French Naegelen law under the light of the American Traced Act
As the bill on the supervision of telephone marketing and the fight against fraudulent calls (known as the Naegelen legislative proposal) has been voted in identical terms by the two chambers of the French Parliament, it is worth evaluating this text, without questioning the will of the legislator, but by appreciating the effectiveness which one must expect from it, in the light of the American Act on the same subject, published on December 30, 2019, and known under the name of “Pallone -Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act ” or ” Pallone Thune TRACED Act ”.
These texts have many points in common:
- They both fight against abusive telephone marketing,
- They both strengthen the repressive arsenal against this type of calls,
- They both direct operators to implement a number authentication system.
But these texts present many and profound differences in method. Let’s not go on about different legal traditions, or on a relationship between the Parliament and administrative authorities that is not the same, but let’s use the text of the TRACED Act as a checklist of what to do to succeed in effectively fighting abusive calls. The main differences are as follows:
- The American text gives broad outlines, imposes precise deadlines, but entrusts the development of the details of the content of the measures to the sectoral regulator, while the French text hardly says what it expects from this regulator for the implementation of this law,
- The American text is very prescriptive on the method that the sectoral regulator must adopt and on the way in which it must report to Congress on its action on the subject, while the French text says nothing on this matter,
- In each section of the Act, he American text builds the evaluation of the public policy that it defines, while the French text completely ignores the need and the conditions for such an evaluation,
- The American text creates the means of cooperation between the different components of the American authorities, while the French text ignores the consequences of the very insufficient cooperation between the French authorities on such a transversal subject,
- Finally, the American text does not hesitate to organize sectoral self-regulation, when French law is, by tradition, afraid of calling for it and formulating its demands.
The remainder of this text details and illustrates these similarities and differences, section by section of the TRACED Act.
Section 3 – Illegal calls, an offense to be sanctioned by a forfeiture
Section 3 sanctions in more severe terms, such as a forfeiture, the offense of abusive and automated marketing, called Robocalls. It should be noted that this article is accompanied by a mission entrusted to the Federal Communications Commission (FCC), after consultation with the Federal Trade Commission (FTC), to report annually to Congress on the number of offenses falling under this definition. The law specifies the plan of the report, which must detail five statistical information, propose improvements to the system, analyze the behavior of providers of interconnected VoIP whose customers make illegal calls and propose actions by these providers so that they reduce the number of calls of this type routed through their networks.
In the Naegelen law, there is also an increase in the fines against those who place illegal calls.
From this first significant section, American law is characterized by its obsession with the evaluation of public action, which here takes the form of a report from the sectoral regulator to the legislator, quantifying the facts thus qualified and the actions taken to ls fight. This aspect is totally absent from French law.
Section 4 – Call authentication
Section 4 – Call authentication – requires providers to deploy the STIR / SHAKEN architecture for their IP telephony within eighteen months from the promulgation of the law, and, for their TDM telephony, at the same time , to have taken reasonable steps to authenticate calls.
Again, the FCC must, within twelve months of the enactment of the law, submit a report on this implementation of call authentication to the specialized committees of both houses of Congress.
Within the same period of twelve months after the entry into force of the law, the FCC:
- shall assess the difficulties in implementing call authentication encountered by some providers,
- may extend the implementation deadline for these providers,
- shall publish best practices for implementing authentication,
- shall publish rules specifying the conditions under which an operator can block a suspicious call without being itself subject to prosecution for improper blocking,
- shall establish a process allowing the caller whose calls are blocked to verify the authenticity of these calls,
- shall ensure that calls from providers who have benefited from an additional implementation period will not be subject to negative discrimination during this period.
There is a requirement in the Naegelen law to put in place a call authentication device, but no implementing provision is foreseen, no mechanism for defining exceptions, no particular requirement is expected on this point of the sector regulator. The only requirement is, three years after the law comes into force, to cut unauthenticated calls. If this was applied literally, it would cause many problems, as the legitimate uses of presenting a number other than one’s own are mostly ignored.
Conversely, the American legislator is not afraid to delegate tasks to the sectoral regulator and to ask it to report in writing within deadlines defined by law.
Section 5 – Interagency Working Group
Section 5 of the Act establishes an Interagency Working Group, established by the Attorney General, the Chairman of the FCC and the Chairman of the FTC. This working group shall:
- determine whether or not the legislation in force effectively allows the prosecution of offenses,
- identify national and international public policies that fight or could effectively fight against abusive or fraudulent calls,
- consider whether it is necessary to establish a memorandum of understanding between the national and foreign authorities concerned to improve the fight against these practices,
- appreciate whether it is necessary to strengthen the means of combating and the sanctions against such violations,
- evaluate whether the regulation of contracts between telecommunications operators and their customers can help prevent and prosecute such crimes.
This working group will report to Congress within 270 days.
The American legislator understood that close cooperation between the administrations concerned was one of the keys to the success of the fight against illegal calls. A comparable working group between ARCEP, DGCCRF and the Ministry of Justice, reporting to Parliament on its efforts, would be welcome.
Section 6 – Know Your Customer
Section 6 of the Act directs the FCC to question the circumstances under which carriers assign phone numbers to their customers. The procedure should establish new KYC (Know Your Customer) obligations, which will require providers to take extra precautions to avoid assigning numbers to potential perpetrators of such violations.
From now on, anyone who knowingly assigns numbers to someone to make illegal calls can be subject, by this law, to a forfeiture penalty.
Making providers responsible for calls initiated on their network when they did not check who their customers are is a very interesting avenue, totally ignored by French law.
Section 7 – Protection of subscribers against illegal calls
Section 7 of the Act deals with the protection of telephone subscribers against receiving calls or text messages with a spoofed number. No later than one year after the law comes into force, the FCC must establish rules to protect subscribers from receiving unsolicited calls or text messages from a caller using an unauthenticated number. The FCC must therefore:
- rely on the report of the Government Accountability Office (the American equivalent of the French Court of Auditors) on the fight against the fraudulent use of a misleading or inaccurate caller ID,
- consider the best means of ensuring the subscriber or operator the means to block calls from an unauthenticated number,
- assess the impact on the protection of the personal data of callers using an unauthenticated number,
- assess the effectiveness of the verification of the accuracy of the caller ID,
- estimate the availability and cost of the caller ID verification.
Instead of ordering operators to interrupt unauthenticated calls, the US legislator has entrusted the FCC with defining the means to put in place for the protection of telephone subscribers against illegal calls and has assigned it the duty to report about it.
On this point, the side effects ignored by the Naegelen law would be dramatic if they were not subject to a legislative correction within three months:
- the French could no longer call foreigners by roaming in France, because their calls have a French number, but pass through the operator of origin of the foreign visitor,
- multinational companies that allow their employees abroad to use French numbers will no longer be able to do so,
- the filtering of calls from abroad with a French number, which was done with discernment by French operators on the recommendation (and not obligation) of ARCEP, can no longer be carried out for calls from operators. Europeans.
It is essential that French legislation evolves to take into account in a much more subtle way the actions of protection of the subscriber against illegal calls, by delegating this task to ARCEP, even if it means asking it to report to Parliament. .
Section 8 – Exceptions
Section 8 provides exceptions to the prohibition of automated calls.
Section 9 – Database of terminated numbers
Section 9 provides for the establishment of a database of terminated numbers, so that these numbers, once reassigned, are purged from the lists of numbers of subscribers who have expressed a desire not to receive automated calls.
This mechanism of purging numbers registered as not to be called, once they have been terminated, is a useful link in this chain of efforts, which France would be wrong not to take inspiration from.
Section 10 – Reporting, Call Blocking, Call Tracing
Section 10 – Stop robocalls – directs the FCC:
- within 18 months after the entry into force of the law, to fluidify the means for any private entity to share information with the FCC on cases of violation of the ban on automated calls and presentation of identification deceptive caller;
- within 12 months after the entry into force of the law, to ensure that robocall blocking systems can be available either as an opt-out or as an opt-in;
- to study the details of calls to be kept by operators to effectively trace back the authors of illegal calls (traceback) and report them to Congress within 18 months.
Section 11 – Cooperation between the FCC and the Department of Justice
Section 11 states that the FCC enforcement bureau must report facts relating to certain violations of the TRACED Act to the Attorney General.
To those who know the inadequacy and fragmentation of existing systems in France (Bloctel reports, I alert ARCEP, Pharos platform, etc.) to report illegal calls, the American program defined by sections 10 and 11 of the TRACED Act appears much more robust on this subject.
Section 12 – Action Program Against One-Ring Calls
Section 12 sets out a program of action for the FCC against one ring calls (known as one ring scams in the United States):
with other American authorities,
- cooperation with foreign governments,
- in consultation with the FTC, educating the public about this type of scam,
- incentives for operators to stop this type of calls,
- work with entities providing call blocking services,
- establishment of obligations for international interconnection providers to verify with the foreign operator the nature of the services provided.
A report to Congress on this matter is due by the FCC one year after the law comes into force.
Congress mandates the FCC to fight one-ring calls, which invite you to call back. Is this a priority for France?
Section 13 – Annual report on the effectiveness of illegal call tracing
While previous reports were one-off, Section 13 of the law directs the FCC to publish an annual report on the efforts of the private consortium in which operators participate to trace calls suspected to be illegal robocalls to the source. This report should include:
description of the efforts undertaken by the Consortium to trace the origin of
the illegal calls,
- a list of telephone operators registered by the Consortium as participants in this work,
- a list of the telephone operators registered by the Consortium as having been asked to participate in this work, but having refused to do so, with the reason given for this refusal,
- how the FCC intends to use this information.
Seven months after the law comes into force, and once a year thereafter, The FCC is required to inform the public about this illegal call tracing program.
Three months after the law comes into effect, and once a year thereafter, the FCC must publish the rules under which it is possible to enroll in a single private consortium that leads private efforts to trace the origin of calls suspected of being illegal robocalls. This consortium must:
competent and neutral,
- publish and update a collection of best practices to trace the origin of these calls,
- focus on fraudulent, abusive or illegal calls,
- Notify the FCC of its willingness before the FCC communicates about the possibility of signing up.
Based on the information provided by the consortium, the FCC may publish the list of telephone operators that refuse to participate and take action against them.
This section of the Act touches on a fundamental difference in the assessment by the United States and France of sectoral self-regulation: in the United States, the legislator is organizing the creation of a single neutral private consortium intended to share the information on illegal call tracing. In France, calls to sectoral organization are, at best, desired by the authorities (as is the case for managing number portability), but never required. It might be time to revisit the legal precautions that leave the French authorities so passive with regard to the organization of sectoral self-regulation.
Section 14 – Hospital Robocalls Working Group
Finally, section 14 creates a working group in charge of combating robocalls received by hospitals.
As French hospitals are not particularly targeted by illegal calls, this point is probably not a priority for France.