[IP] 'Do not call' rules upheld with strong privacy statement from 10th circuit court of appeals
Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Wed, 18 Feb 2004 09:54:41 -0500
From: Daniel Weitzner <djweitzner@xxxxxxxxxxxxx>
Subject: [for IP]'Do not call' rules upheld with strong privacy statement from
10th circuit court of appeals
To: Dave Farber <dave@xxxxxxxxxx>
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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