The DC Circuit Gets Privacy, and So Do Your Phone Records

I’m very pleased with today’s decision from the DC Circuit Court of Appeals on recently-strengthened privacy protections for phone records. The short history goes something like this: the FCC created strong opt-in (affirmative consent) provisions for the sharing of phone records (who calls whom, for how long, etc). In 1996, the 10th Circuit held that the restrictions violated the First Amendment rights of companies that wanted to sell this data to marketers. Thus, the FCC relaxed the standard to opt-out, meaning that you had to take affirmative action to stop your phone records from being sold.

Did you know that the burden was upon you? Probably not! That’s why in 2005, I petitioned the FCC to reestablish stronger privacy protections, because all sorts of investigation companies were pretexting and obtaining phone records for perverts, stalkers, etc. The FCC opened a rulemaking and reestablished opt-in protections for phone records again. The industry sued, arguing that the First Amendment barred opt-in protections. Today the DC Circuit rejected the industry’s argument, holding that the FCC had sufficient justification for the heightened protections.

But what’s more important is that the DC Circuit’s opinion “gets” privacy. Many courts conceive of privacy as a way to shield oneself from embarrassment. The DC Circuit disagreed, writing, “There is a good deal more to privacy than that. It is widely accepted that privacy deals with determining for oneself when, how and to whom personal information will be disclosed to others. See Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1109-10 (2002).”

Further, “…the carrier’s sharing of customer information with a joint venturer or an independent contractor without the customer’s consent is itself an invasion of the customer’s privacy – the very harm the regulation targets. In addition, common sense supports the Commission’s determination that the risk of unauthorized disclosure of customer information increases with the number of entities possessing it. The Commission therefore reasonably concluded that an opt-in consent requirement directly and materially advanced the interests in protecting customer privacy and in ensuring customer control over the information.”

Wow! In privacy law, courts are often wedded to waiting for some type of harm to arise, such as unwanted telemarketing calls. They rarely get the idea that it is the data sharing itself that is the problem, and that privacy is about how personal data is controlled. Good job, Judge Randolph. Now the burden won’t be upon you to shield your phone records from sale to marketers!


  1. Wow indeed – I wonder if Google was involved on the side of the defendants as this may have very broad implications regarding what Google is allowed to do with the information it gathers, much of which is personally identifiable/trackable now.

  2. Anonymous

    I am really starting to like at least some of the opinions of this PalMD dude.

    Now, of course he is a little off course on his excessive scepticism of alternative medicine, particularly Homeopathy. OK, everyone is entitled to their opinion.

    But on the issue of privacy he is right on the mark and I’m particularly impressed by his activism on the telephone privacy issue.

    Way to go PalMD!!

    Another area that gets my blood boiling, qi rebelling and any Homeopathic phantom molecules in me stirred up is the issue of Internet useage monitoring. Exactly who gave Google or my ISP the right to monitor every single web site I go to or what my search engine activity is? Unlike phone conversations which require some sort of legal justification (OK, well the pretense of one, anyway) this kind of monitoring of Internet activity is, I believe, ALSO within the realm of violating first amendment privacy rights.

    A recent victory was one (forgot where I read this) that Google will be required to EMPTY its archive of search records after a certain period of time passes, I think it was two years.

    And the easy and UNCOMPLAINING manner in which companies such as AT$T
    (oops sorry, AT&T) quietly acquiesced with the Bush administration request (demand, exhortation, friendly persuasion, do it or else) for records monitoring international phone calls of ALL AMERICAN CITIZENS is cause for concern and evidence that additional serious reforms need to made. Kudos to the few phone companies that thumbed their nose and quietly said “NO” to the request.

  3. LanceR, JSG

    Wow. Just… wow. Paranoia, delusional rantings, anonymous threats, *AND* a complete inability to read!

    (Hint: At the top of the page, where it says

    Posted on: February 13, 2009 11:08 PM, by Chris H

    That means that ChrisH posted it, not PalMD.)

Leave a Reply

Your email address will not be published. Required fields are marked *