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Notes on 'Do not call' opinion from US 10th circuit court of appeals

From: Daniel Weitzner <djweitzner@w3.org>
Date: Wed, 18 Feb 2004 10:02:02 -0500
Message-Id: <68D42C52-6223-11D8-BBEC-000393CFED62@w3.org>
To: public-p3p-spec@w3.org

FYI, I took some notes on this recent opinion and though people in the 
WG might be interested. No immediate relevance to P3P but it's a strong 
endorsement of the need to increase consumer choice, both through 
technology and law.


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 

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 

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 

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 

Daniel J. Weitzner                                          
+1.617.253.8036 (MIT)
World Wide Web Consortium                       +1.202.364.4750 (DC)
Technology & Society Domain Leader      <djweitzner@w3.org>
Received on Wednesday, 18 February 2004 10:02:27 UTC

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