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Law & Technology
Law and TechnologyQwest: Sharing The Contents Of Your Phone Bill To Serve You Better?
By Deborah Pierce
Jan 31, 2002 -- Qwest Communications wants to let third-party marketers know all the details about who you call and how long you talk with them--without your prior approval. The good news is that you still have time to let the Federal Communications Commission (FCC) know you'd like to be asked before a phone company decides to sell or share the contents of your phone bill in this way. The last section of the article gives you links and details on how you can help stop this particular invasion of privacy.Many others are very concerned about Qwest's privacy practices. The Washington state attorney general has sent a letter to Qwest urging the company to suspend its opt-out marketing plans. The Arizona attorney general is asking the Superior Court in Pima County to limit Qwest's operations. Additionally, 30 state attorneys general filed comments in December with the FCC urging the FCC to implement an opt-in rule for CPNI.
What is CPNI anyway, and why should you care about it? CPNI is the acronym for "Customer Proprietary Network Information" and it includes the date and time you made a call, the number you called and how long you spent chatting. It also includes the type of network you subscribe to and other information found in your phone bill. It is this information that Qwest wants to sell and share with others.
How did we end up in a situation where a phone company would think it is fine to sell or share such detailed information about you?
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Extensive links and information can be found on the EPIC CPNI web pages: http://www.epic.org/privacy/cpni/ Send comments to the FCC about Qwest’s opt-out marketing plans: By Email: fccinfo@fcc.gov By Postal mail: FCC, 445 12th St. S.W., Washington, D.C. 20554, attn: Consumer Information Bureau. Reference Docket No. 96-115. A sample letter that you can send to the FCC can be found here. |
Prior to the Telecommunications Act of 1996 phone companies were allowed to sell CPNI to marketers, but after the Act was passed into law, companies were required to get approval from customers before sharing CPNI with third party marketers.
But, what exactly is "approval"? (Lawyers get paid to ask questions like this!) The Telecommunications Act was ambiguous on what constituted "approval". The FCC reviewed three options and issued a rule that required phone companies to get affirmative consent (opt-in) from customers before they sold or shared any of the customer's CPNI. The phone companies balked at this; they wanted an opt-out rule--in other words, a rule allowing them to sell or share data unless the customer tells them not to. Opt-out puts the burden on individuals to protect their personal information. [See my earlier article on Choice at (web link here) for more on opt-in vs. opt-out.]
In order to get the opt-out rule that they wanted, various telecommunications corporations filed suit in Federal Court raising a First Amendment challenge to the opt-in rule put in place by the FCC. [The phone companies also raised a Fifth Amendment challenge, but the Court did not rule on this.]
US West v. Federal Communications Commission
US West and a host of other phone companies, including Airtouch Communications, Sprint, AT&T, Pacific Bell, MCI, Bellsouth, and SBC Communications, made the argument that the opt-in rule was too restrictive and thus violated their rights under the First Amendment. The First Amendment, when applied to commercial speech, as in this case, uses a three prong test (it's rare to see any constitutional question that doesn't involve a two or three prong test). This test requires that rules established by the government must further a substantial government interest, materially advance that interest, and be narrowly tailored to serve that interest.
To address the first prong, the Court heard testimony that privacy is costly to society for many reasons, including that it "interferes with the collection, organization, and storage of information which can assist businesses in making rapid, informed decisions and efficiently marketing their products or services".
After reluctantly finding that privacy is a substantial government interest, the Court went on to decide that the opt-in rule did not materially advance that interest because "the government presents no evidence showing the harm to ... privacy ... is real." The dissent in the case notes, however, that an opt-in rule that prevents a carrier from using or disclosing CPNI without customer approval, directly promotes the goal of protecting customer privacy.
Finally, the Court found that the FCC rule was not narrowly tailored because opt-out as an option was not sufficiently considered by the FCC.
As a result, the Court ruled that the FCC's rule violated the First Amendment. The FCC must now issue a new rule, which can still be opt-in, so long as the FCC demonstrates that opt-out doesn't adequately protect privacy.
What you can do
The FCC's public comment period is still open. This means that you can send a letter to the FCC letting them know that you would prefer an opt-in rule to apply to your phone records. Comments to the FCC can be made via the US Post Office, or via email.
- For a letter that you can edit or send in as is, please go to the Seattle Press Web site.
- Contact the state Attorney General's Office and let her know that you prefer an opt-in rule.
- Contact Qwest and voice your displeasure for their disregard of your privacy.
Deborah Pierce is the founder and executive director of privacyactivism.org, which has its headquarters in Bellevue. She spent the last four years as a staff attorney at the Electronic Frontier Foundation, www.eff.org. To contact her, send e-mail to editor@seattlepress.com, attention Deborah Pierce.
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