Saturday, September 27, 2003

Re: Commercial Solicitation

I still believe that the critical statement in the decision is the reference to Rowen: "The court categorically rejected the argument that a vendor has the right to send unwanted material into the home of another and found that the statute did not operate as a government restriction on speech." I believe that fundamentally citizens should have complete discretion as to who can connect a phone call to them. I think our general perceptions of how the phone network operates are colored by the technological limitations of the system to date. If we were to sit down and draw up specifications for an ideal phone system I would have a system that includes a caller-ID on steroids that would identify the number, name, originating location, and business/organization accurately for every caller, with no opt-out. It would include the ability for the consumer to block calls from individual numbers, by business/organization, by geography, and to arbitrarily block groups of numbers based on those or other factors. It would include optional white-listing and a multi-tiered voice-mail system, such that white-listed calls go directly through, calls from black-listed or unlisted calls go directly to separate voice mail buckets from which the user can opt (based on caller-ID info) to listen to them or not and to add them to the white-list if desired. Essentially I believe that no citizen is required to have a phone, and as such if they do have a phone should hold no obligation to receive any calls they don't care to receive.

All of the things mentioned in my list were not technologically feasible at the time our present network was established and so we have a system that contains little to no safeguards or tools to allow users to exercise much control over their incoming calls. This has established a sort of mind-set where people generally regard the phone network as a system where callers deserve this status of being able to connect calls with impunity. This certainly will not be the case as time progresses. Technologically all of the things I mentioned above can be accomplished today. However, given the morass of interconnected legacy systems and sluggish operating companies that are our phone network those things will only become commonplace after a substantial expenditure of time and money.

The government has stepped in here to offer some stopgap measure to give back some element of control to users of the phone networks. They certainly have nowhere near the funding or capability to offer all of the things I mentioned. In fact, even the extremely limited measure they've announced through the DNC list presents substantial overhead and management costs for them. I don't believe it is feasible for them to offer a highly specific system giving a high degree of control to users as to which types of calls are to be blocked. Essentially, based on their capabilities they have decided to offer a single standard leaving to users the simple choice of opt in or don't. Now, given that they can only (by their apparent judgment) offer a single standard, they are obligated to try and make that standard match the general sentiments of their citizenry. I believe they've done a pretty strong job of that, and if put to a poll an overwhelming percentage of citizens would support the lines they've drawn. So I see this as the government simply trying to step in and assist citizens in actions which they have every right to implement on their own, as was the case with Rowen, but for which the current state of technology makes it very challenging for citizens to do. I believe the discrimination between different speech falls most accurately on the head of the citizens rather than the government.

The essential statement, again, in my mind is that citizens are under no obligation whatsoever to accept any calls they choose not to. I think this reality frees the government from a good deal of responsibility in terms of how they offer to assist citizens in this effort. It is a matter of evaluating where the agency for the decision lies. As long as the government is very clear on how their system works, and it works pretty much automagically (ie the rules are set and never changed, and the rules leave little room for interpretation), I see them in an assisting role, and the bulk of the agency for the decision lying on those people who opt in. If it is the case that the system leaves a great deal of discretion to the government in terms of categorizing different types of speech, then this would hand a substantial amount of agency back to the government, enough, I think, to hold the government responsible for curtailing speech.

I agree wholeheartedly that the issue of evaluating the relative protections of commercial and noncommercial speech was given short shrift in the decision (as was indicated by my second issue), but I really don't think this case should get that far. The implication of the ruling with regards to the government being the responsible agent due to the fact that they do not handle speech uniformly in this case is that if they put a total ban on telemarketing it would be in the clear. I just don't see that. What we're trying to determine here is whether or not the government is taking the role of assisting citizens in an action which the citizens have a right to take (as in Rowen) or whether the government is exercising its own judgment regarding restricting speech. It strikes me as perverse that the court would decide that implementing the system in a manner less representative of the will of the citizens would in fact be considered more of an assisting role and less a case of the government exercising judgment. I think it should be the opposite. By making the system as representative as possible of the will of the citizens being assisted, they place themselves most clearly in an assisting position and most clearly are not exercising independent judgment.

No comments: