USA: Opt-in for Telecoms Data Confirmed

The U.S. Court of Appeals for the District of Columbia Circuit recently denied the petition of the National Cable & Telecommunications Association (NCTA) for review of an order of the Federal Communications Commission (FCC) restricting the use of customer proprietary network information (CPNI). The court held that the opt-in requirement for disclosure of CPNI to third parties does not violate the First Amendment to the U.S. Constitution (e.g., .the carriers' First Amendment right under the US Constitution to speak to their customers).

All telecommunications carriers in the US receive information (traffic data) on each call made by customers, including who was called, when, and for how long. They also maintain records of the features and services purchased by customers. Under the Telecommunications Act of 1996, 47 U.S.C. § 222(a), carriers are required to keep this CPNI confidential.

An FCC 2007 Order requires Opt-in for Third Parties being able to receive CPNI, abrogating an earlier practice of an opt-out that has led to a lot of abuse by data brokers and pretexters. NCTA filed suit, claiming that the FCC's 2007 Order violated the First Amendment and the Administrative Procedure Act.  In its decision the court disagreed and  observed that, by conceding the constitutionality of Section 222, NCTA necessarily conceded that the government has a substantial interest in protecting CPNI, and that the opt-in approach advances that interest, under the test for commercial speech that is protected under First Amendment in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). The court also rejected NCTA's argument that the FCC was required to prove that third parties had improperly disclosed CPNI, noting that sharing CPNI without consent is itself an invasion of customers' privacy.

Link: Nat'l Cable & Telecommunication Association v. FCC, No. 07-01312, 2009 BL 29319 (D.C. Cir. Feb. 13, 2009): http://pacer.cadc.uscourts.gov/docs/common/opinions/200902/07-1312-1164901.pdf

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