'Do not call' rules upheld with strong privacy statement from 10th circuit court of appeals

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Wed, 18 Feb 2004 09:54:41 -0500
From: Daniel Weitzner <djweitzner () csail mit edu>
Subject: [for IP]'Do not call' rules upheld with strong privacy statement from
 10th circuit court of appeals
To: Dave Farber <dave () farber net>

Hi Dave,

As IPers have probably heard, a United States Court of Appeals (10th 
Circuit) just upheld the FTC's 'do not call list' against the argument that 
it unconstitutionally restricts the speech of marketers. This is an 
important case announcing significant support for a number of key privacy 
principles. (The import of the case is also evidenced by the fact that the 
caption citing parties involved goes on for 7 pages.) I took some notes on 
the opinion:

The court held that "the do-not-call registry is a valid commercial speech 
regulation because it directly advances the government’s
important interests in safeguarding personal privacy and reducing the 
danger of telemarketing abuse without burdening an excessive amount of speech."

The court's opinion is based on strong support for fundamental privacy 
principles, widely supported in name but not necessarily accepted as 
guiding principles for regulation. "The national do-not-call registry 
offers consumers a tool with which they can protect their homes against 
intrusions that Congress has determined to be particularly invasive. Just 
as a consumer can avoid door-to-door peddlers by placing a “No 
Solicitation” sign in his or her front yard, the do-not-call registry lets 
consumers avoid unwanted sales pitches that invade the home via telephone, 
if they choose to do so. We are convinced that the First Amendment does not 
prevent the government from giving consumers this option." With this, the 
court, sought to defend the "importance of individual privacy, particularly 
in the context of the home, [affirming] that “the ancient concept that ‘a 
man’s home is his castle’ into which ‘not even the king may enter’ has lost 
none of its vitality.”"

The restrictions in favor of privacy in the challenged regulations are 
premised on that fact that the regulations increase, rather than decrease, 
the choices that consumers have over information they receive: "Consumers 
who wish to restrict some but not all commercial sales calls can do so by 
using company-specific do-not-call lists or by granting some businesses 
express permission to call."

The court seems particularly concerned that consumers ought to have more 
fine-grained choices:
"Therefore, under the current regulations, consumers choose between two 
default rules ­ either that telemarketers may call or that they may not. 
Then, consumers may make company-specific modifications to either of these 
default rules as they see fit, either granting particular sellers 
permission to call or blocking calls from certain sellers."

Much of the privacy debate, especially in the 90s, was framed in the 
language of government regulation vs. industry self-regulation. This 
opinion takes a pretty clear stand against relying solely on 'company 
specific rules' to protect individual privacy: "[T]he FTC found ... that 
the company-specific approach is seriously inadequate to protect consumers’ 
privacy from an abusive pattern of calls placed by a seller or telemarketer.”

Finally, the court speaks on the proper role of technology in privacy 
protection and intruston. Technology can help consumers, but alone it's not 
enough, because marketers are also gaining significant data gathering 
advantage from new technologies: "Forcing consumers to compete in a 
technological arms race with the telemarketing industry is not an equally 
effective alternative to the do-not-call registry."

This is not the last word on any of these issues, as the case could go to 
the US Supreme Court and the questions are likely to end up back in 
Congress' lap.

(readers can find the full opinion at http://www.ck10.uscourts.gov/index.cfm)

--
Daniel J. Weitzner                              +1.617.253.8036 (MIT)
Principal Research Scientist            +1.202.364.4750 (DC)
MIT Computer Science & Artificial Intelligence Lab
W3C Technology & Society Domain Leader
http://www.w3.org/People/Weitzner.html

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