Tenth Circuit’s ‘Do Not Call’ list decision protects residential privacy through the correct interpretation of Supreme Court rulings, says expert

Neil M. Richards, an expert in the fields of privacy law and constitutional law and an associate professor of law at Washington University in St. Louis, is closely following the court cases surrounding the Federal Trade Commission’s “Do Not Call” list. Richards is currently working on a reconciliation of the right of data privacy with traditional First Amendment values. Richards’ comments on the decision follow:

“The Tenth Circuit’s decision upholding the constitutionality of the ‘Do Not Call’ registry is a straightforward application of the Supreme Court’s commercial speech jurisprudence,” says Richards.

Neil Richards
Neil Richards

“This sensible decision suggests that the Tenth Circuit interprets the Supreme Court’s cases as allowing the government to protect the privacy of ordinary people in their homes against unwarranted intrusions by businesses who merely want to sell them things. Telemarketers are a business like any other, and when they engage in abusive and annoying conduct in their attempt to sell its products, they should be subject to consumer protection regulation just like any other business.”

Three important factors, dealing with both the consumers and the telemarketers, were addressed in this decision.

“First, we’re talking about people’s residential privacy, which Anglo-American law has long protected against a wide variety of intrusions by both the government and private citizens,” says Richards.

“Second, the Tenth Circuit considered it significant that the ‘Do Not Call’ list is not a blanket ban on all telemarketing, but instead is tailored to protect the privacy of those people who have decided they don’t want telemarketers calling them. Finally, the do-not-call list is targeted at the most egregious kind of telemarketers – commercial solicitations by businesses who have no prior relationship with the resident. Calls by companies with whom the resident has done business in the past, as well as political and charitable calls, are excluded from the opt-in program.”

Richards notes that this may not be the end of the “Do Not Call” list cases.

“It’s likely that the telemarketers will petition the Supreme Court to take the case, and I think there’s at least some chance that the Supreme Court might hear it,” he says. “Supreme Court commercial speech doctrine is confusing, and this would be an opportunity to clear up some of the confusion.”