US Supreme Court lets opt-out data sharing stand

Advertisers have rights too

The US Supreme Court today let stand a controversial lower-court ruling enabling telecomms companies to use and share information mined from customers' billing records to pitch additional services, the Associated Press reports.

The Court declined to reinstate US Federal Communications Commission (FCC) regulations previously struck down by the Tenth US Circuit Court of Appeals. The FCC regs had required telecomms companies to seek permission before using or sharing their customers' records.

US West, SBC Communications and BellSouth had challenged the Commission on grounds that the regs restricted their First Amendment right to engage in 'commercial speech' with their customers.

The appellate court found that the FCC could adequately protect consumers' privacy by allowing them to opt-out of marketing schemes which use their billing data.

The FCC had "insufficiently justified" its imposition of an opt-in regime, the appellate court ruled.

FCC Chairman William Kennard had criticised the ruling earlier. "It's a sad day when the First Amendment rights of telephone companies to solicit business outweighs the rights of consumers to protect their privacy," he sighed.

Today's appeal was filed by the Competition Policy Institute, a front group representing start-ups entering the telecomms market. The Institute calls customer records "data, not speech."

A rather lame objection; the Court grasps the difference. Its point was that the companies involved need access to that data in order to exercise 'commercial speech'.

Privacy is beginning to emerge as a Campaign 2000 issue, especially in congressional races - but potentially in the presidential race as well - with the Internet featured as both the cosmic mother lode of marketing data, and the single greatest threat to consumer privacy ever devised by Man.

Election hopefuls will divide themselves into pro and con camps according to whether accommodating the ad industry, or Mom and Pop, better suits their campaign strategy.

By declining to hear the FCC-regs appeal, the Supreme Court has signalled not that the marketing vs privacy issue is dead, but rather that the sorts of legislation likely to be promised in the coming months by your friendly neighbourhood congressional hopeful had better be considered, and written, with care. ®

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