@Info.Policy: What does FTC's Do Not Call list really protect?

Robert Gellman

The Federal Trade Commission's new National Do Not Call Registry has gotten its share of attention and praise. Will it really stop telemarketing calls? My guess is, not well enough. Plus, the FTC violated the Privacy Act of 1974 in the way it set up the list.

If you register online at www.ftc.gov/bcp/conline/edcams/donotcall/index.html, you can put up to three phone numbers on the list, but you must supply an e-mail address for verification.

What will FTC do with the resulting e-mail addresses? Its Privacy Act system of records has a routine use for sharing information with any federal, state or local government authority for any regulatory, compliance or law enforcement purpose.

The government activities that qualify for disclosure do not have to be related to telemarketing. That's why the routine use flatly violates the law.

The Privacy Act prohibits disclosures wholly unrelated to the purpose for which the records were originally collected.

It gets worse. The routine use specifically allows for disclosure on an automatic basis. What that means is far from clear, but FTC could for example establish an automated service for other agencies to check phone numbers against e-mail addresses and vice versa.

I have no idea whether FTC plans to do this, but it is disturbing that the commission expressly reserved the right to do so in violation of law.

My advice: Register by phone rather than online so you don't have to disclose your e-mail address.

Will the do-not-call list stop telemarketing calls? Yes, but the rule has gigantic loopholes. A company can still call customers with whom it has a prior business relationship.

If you subscribe to a magazine, the publisher can call you to sell any of its other magazines for the life of the subscription plus 18 months.

Companies with which you have continuing relationships'phone company, bank, credit card, insurance, supermarket, drug store, cable TV, Internet provider, frequent flier accounts and so on'can continue to make telemarketing calls to you even if you are on the do-not-call list.

That loophole wasn't enough for FTC, so it left another. If you merely make an inquiry of a company, you can be called for three months.

What is an inquiry? Asking a question in a store? Clicking on a Web page? Calling to see if a store is open? Beats me. There is no definition.

Companies that want to telemarket can easily reorganize their operations to use the loopholes. It may take a while before this happens in earnest, but the telemarketing industry isn't going to give up easily.

By the time people realize that the registry doesn't do what was promised, the FTC leadership will have moved on, leaving the rest of us on the do-not-call list to answer the phone.

Robert Gellman is a Washington privacy and information policy consultant. E-mail him at rgellman@netacc.net.

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