LAW&TECHNOLOGY: Privacy and Your Phone Records

By Deborah Pierce

ON JUNE 30, the ACLU and other civil liberties groups filed a friend of the court brief in support of the Washington Utilities and Transportation Commission’s (WUTC) strong rules that protect the phone call records of Washington state residents. The fight is over whether Verizon can sell or share the call records (who you call, and for how long) to others unless the person “opts-out”.

How We Got Here

The Telecommunications Act of 1996 required the Federal Communications Commission (FCC) to propose rules governing when telephone company could share or sell consumer proprietary network information (CPNI). The phone companies wanted rules that would allow them to use an “opt-out” standard, meaning that unless you’ve told the phone companies not to share your CPNI, they will have presumed that you have given them permission to do so. In jargon-free speak this means that phone companies would be able to sell or share the billing type information that you see in your phone bill: who you have called, how long you talked, and what services you subscribe to. The FCC's proposed rules, by contrast, followed an "opt-in" standard: they would have required the phone companies to get your permission first before they share your CPNI. In the “opt-in” standard, the presumption is that permission hadn’t been given unless you said so.

Soon after the FCC proposed the “opt-in” rules, several phone companies challenged the rules, stating that the rules violated their First Amendment right to speak to their customers. The 10th Circuit Court ruled in favor of the phone companies, stating that the phone companies First Amendment rights trumped any privacy rights that individuals may have in their phone records. The Supreme Court declined to hear an appeal.

Washington’s WUTC promulgated its own “opt-in” rules regarding information contained in your phone bills. Verizon promptly challenged the rules, relying on the 10th Circuit Court ruling. This brings us to today, with civil liberties groups trying to protect the privacy of Washington state residents.

Why We Already Know That “Opt-Out” Doesn’t Protect Your Privacy

“Opt-out” puts the burden on you, the consumer: you must tell the phone company not to share or sell your CPNI. If you forget to send in your “opt-out” notice, then your permission to share or sell is presumed. For an example of how this scheme has not worked, we have to look no further than what has happened with banks.

“Opt-out” notices are required by the new banking laws. Theoretically, they should inform customers about how they can “opt-out” out many of the marketing come-ons that are so prevalent today. Instead what we have seen is that the notices are not clearly marked as privacy notices, so they go unnoticed by many people. Also, they are often written at difficult reading levels. The Privacy Rights Clearinghouse has done a study that shows that privacy opt-out notices are written at college and graduate school levels. Ideally, an “opt-out” notice should be written at around an 8th grade level. There is no reason to think that the “opt-out” notices wouldn’t follow the same direction as those from the banking industry, and be just as inscrutable.

What’s Next?

Right now the WUTC’s rules have been put on hold; they cannot be implemented until the lawsuit between Verizon and the WUTC has been resolved.

The main arguments in the friend of the court brief are that the decision in the 10th Circuit Court is not binding on the state of Washington (Washington is in the 9th Circuit), that the case in the 10th Circuit Court was wrongly decided, and that the “opt-in” rules proposed by the WUTC do not violate the First Amendment.

Hopefully, the Court will agree with those who signed onto the brief and the “opt-in” rules will be allowed to take effect.

Reader Comments

Discuss this article in the forums!