Consumer and Privacy Organizations, Legal Scholars Urge Appeals Court to Protect Consumers' Telephone Privacy

October 25, 1999 12:00 am

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Monday, October 25, 1999

WASHINGTON — In a friend-of-the-court brief filed today, 15 consumer and privacy organizations and 22 legal scholars urged a federal appeals court to reconsider a decision that would allow telephone companies to use private telephone records for marketing purposes.

The groups, including the American Civil Liberties Union, said that the case is of great importance to consumers across the United States.

The brief, filed in support of a petition from the Federal Communications Commission, asks the 10th Circuit Court of Appeals to uphold a privacy provision that was enacted by Congress in 1996 and implemented by the FCC.

In US West v. FCC, the federal appeals court said that the “opt-in” privacy safeguard recommended by the FCC violated the First Amendment rights of the telephone company to market products and services.

The information that would be disclosed “consists of customer calling records that would not exist but for the private activities of telephone customers,” the groups said in legal papers. “These records, which are not publicly available, include such sensitive and personal information as who an individual calls, when, for how long, and how often.”

An alternative “opt-out” approach, they argued, is burdensome and “would have required telephone customers to contact their carrier to prevent the disclosure of their personal calling records.”

The groups concluded that an “opt-in approach is consistent with the First Amendment and is the most reasonable fit with Congress’s intent to protect the privacy of telephone subscribers’ personal information.”

“This is not a question of whether there is a First Amendment right to commercial speech, but instead of whether corporations have a right to disclose the sensitive personal information of their customers without consent,” said Barry Steinhardt, associate director of the ACLU.

“If the courts allow companies to claim a right to disclose personal information, then every law that gives us control over our own data is called into question,” he added.

The brief was supported by a wide range of privacy and consumer organizations, including the ACLU, the Electronic Privacy Information Center, the Consumer Federation of America, and the U.S. Public Interest Research Group. The brief was also endorsed by many leading legal scholars. The Washington law firm of Covington & Burling filed the brief on behalf of the coalition.

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