By Fred Korematsu
First published by the San Francisco Chronicle, Sep 16, 2004

In 1942, I was arrested and convicted for being a Japanese American trying to live here in the Bay Area. The day after my arrest a newspaper headline declared, “Jap Spy Arrested in San Leandro.”

Of course, I was no spy. The government never charged me with being a spy. I was a U.S. citizen born and raised in Oakland. I even tried to enlist in the Coast Guard (they didn’t take me because of my race). But my citizenship and my loyalty did not matter to the federal government. On Feb. 19, 1942, anyone of Japanese heritage was ordered excluded from the West Coast. I was charged and convicted of being a Japanese American living in an area in which all people of my ancestry had been ordered to be interned.

I fought my conviction at that time. My case went to the U.S. Supreme Court, but in 1944 my efforts to seek protection under the Constitution were rejected.

After I was released in 1945, my criminal record continued to affect my life. It was hard to find work. I was considered to be a criminal. It took almost 40 years and the efforts of many people to reopen my case. In 1983, a federal court judge found that the government had hidden evidence and lied to the Supreme Court during my appeal. The judge found that Japanese Americans were not the threat that the government publicly claimed. My criminal record was removed.

As my case was being reconsidered by the courts, again as a result of the efforts of many people across the country, Congress created a commission to study the exclusion and incarceration of Japanese Americans. The commission found that no Japanese American had been involved in espionage or sabotage and that no military necessity existed to imprison us. Based on the commission’s findings and of military historians who reconsidered the original records from the war, Congress passed the Civil Liberties Act of 1988, declaring that the internment of Japanese Americans was unjustified. Finally, it seemed that the burden of being accused of being an “enemy race” had been lifted from our shoulders.

But now the old accusations are back. Fox News media personality Michelle Malkin claims that some Japanese Americans were spies during World War II. Based upon her suspicions, Malkin claims the internment of all Japanese Americans was not such a bad idea after all. She goes on to claim that racial profiling of Arab Americans today is justified by the need to fight terrorism. According to Malkin, it is OK to take away an entire ethnic group’s civil rights because some individuals are suspect. Malkin argues for reviving the old notion of guilt by association.

It is painful to see reopened for serious debate the question of whether the government was justified in imprisoning Japanese Americans during World War II. It was my hope that my case and the cases of other Japanese American internees would be remembered for the dangers of racial and ethnic scapegoating.

Fears and prejudices directed against minority communities are too easy to evoke and exaggerate, often to serve the political agendas of those who promote those fears. I know what it is like to be at the other end of such scapegoating and how difficult it is to clear one’s name after unjustified suspicions are endorsed as fact by the government. If someone is a spy or terrorist they should be prosecuted for their actions. But no one should ever be locked away simply because they share the same race, ethnicity, or religion as a spy or terrorist. If that principle was not learned from the internment of Japanese Americans, then these are very dangerous times for our democracy.

Fred Korematsu was awarded the nation’s highest civilian honor, the Presidential Medial of Freedom, in 1998. He and his wife, Kathryn, continue to live in their longtime hometown of San Leandro.

© 2004 SF Chronicle

By Hanah Metchis
First published by Reason.com, August 11, 2004

Editor’s note: Unmentioned in this article, Sen. Orrin Hatch, co-sponsor of the Induce Act, suggested last year that people who download copyrighted material without prior permission deserve to have their computers destroyed. At the time, Hatch’s website was using unlicensed software. Details here.

A few short years ago, technology enthusiasts used to claim that technology moves too fast for the law to hold it back. Those predictions turn out to be overly optimistic. In fact, lawmakers trying to put a stop to one evil are likely to create dozens more with legislation about a field they don’t fully understand. Vague language designed to catch potential technological workarounds can put a stop to innovation in completely unrelated areas.

The latest example of this dangerous mix of law and technology is the Induce Act, sponsored by Sen. Orrin Hatch. Its intent-to stop downloading of copyrighted material by making peer-to-peer file trading networks illegal-is bad enough. P2P networks have legitimate uses, like the distribution of taped Senate hearings. But the language of Hatch’s bill is so open-ended that many other electronic devices, from the iPod to TiVo to email-to-RSS converters, would be called into question.

The Inducing Infringement of Copyrights Act (S. 2560) says that anyone who “intentionally aids, abets, induces, or procures” a copyright violation can be sued for copyright infringement. That surely applies to the file trading networks, which make it easy to find and download a free copy of any song you desire. Apple’s iPod could also come under fire for its huge hard drive, which would cost about $10,000 to fill with legally downloaded music. The Electronic Frontier Foundation has prepared a sample complaint against the iPod, pointing out the dangers of the Induce Act against established, respectable companies and technologies.

Others have gone even farther in pointing out the absurdities that could result from an expansive reading of the Induce Act. Tech blogger Ernest Miller is keeping track of an Induce Act “Hit List,” pointing out products and companies that might be seen to “induce” copyright infringement. Among the everyday companies on Miller’s list are The New York Times, which in a recent article “painted a romantic picture of copyright infringers who violate the public performance right for films,” and Lego, which lets users upload pictures to create a Lego mosaic template. One commenter even joked that the manufacturers of Silly Putty could be liable for promoting the gooey toy’s ability to lift an impression off a printed page.

The Induce Act would have a definite chilling effect on technological innovation. Even if judges are not inclined to interpret it broadly, the vague language opens the door to harassing lawsuits. Companies creating multipurpose technologies would have to be prepared to defend themselves against copyright infringement allegations. To avoid that, the Business Software Alliance has proposed changes to the bill, including a limit on frivolous lawsuits and a provision for products with legitimate commercial purposes to be exempted from liability. The latter would reaffirm the Supreme Court’s 1984 Betamax decision which held that the VCR maker was not responsible for copyright infringement by its customers.

Faced with so many unintended consequences, Congress needs to consider whether this solution to copyright infringement is worse than the original problem. Digital content distribution is still in its infancy, but iTunes and other legal download services are growing in popularity. The digital music landscape could change next year, or even next month, in ways that the Induce Act would be unprepared to deal with. The law can undoubtedly cut off some avenues of technological innovation. But at the same time, the tech lovers of 1999 are right-the law cannot anticipate where technology will turn next. In the worst case scenario, a bad tech law could be simultaneously stifling and irrelevant.

© 2004 Reason Foundation

Editor’s note: The bill is co-sponsored by Senators Leahy (D-VT), Frist (R-TN), Daschle (D-SD), Graham (R-SC), Boxer (D-CA). You can reach your Senators via the U.S. Capitol switchboard at 1-800-839-5276 (temporary number).

By The Washington Post editorial board
First published June 22, 2004

Editor’s note: This editorial preempted an op-ed we were ready to write on the June 21 Supreme Court ruling. It represents our concerns well.

“You have the right to remain silent.” At least, you did before the Supreme Court handed down a decision in the case of Hiibel v. Sixth Judicial District Court of Nevada yesterday. Now, when a police officer suspecting you of a crime stops you in the street and asks your name, you can be prosecuted for refusing to answer.

That’s what happened to Larry Dudley Hiibel, who was approached by a police officer investigating a report of an assault. Repeatedly asked to identify himself, Mr. Hiibel insisted he had done nothing wrong and refused. This was illegal under Nevada law, which requires any person stopped by the police “under circumstances which reasonably indicate that the person has committed . . . a crime” to “identify himself” if asked. But as justices have long presumed in previous cases, refusing to talk was also Mr. Hiibel’s right under the U.S. Constitution, which guarantees that a person shall not be forced to act as a witness against himself. Not anymore.

The Supreme Court, voting 5 to 4, declared that there was nothing wrong with compelling people to answer police questions if the police were merely asking their names. It was okay to demand Mr. Hiibel’s name, Justice Anthony M. Kennedy wrote for the majority, “because in this case disclosure of his name presented no reasonable danger of incrimination.” That might be true of Mr. Hiibel, but what if you’re wanted for a crime? What if your name is similar to that of a fugitive? What if your first name is Osama? Justice Kennedy doesn’t answer these questions, leaving them to future cases. But as Justice John Paul Stevens wrote in dissent, “A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution.”

We believe that people generally ought to cooperate with law enforcement. But we also believe that targets of law enforcement have a right not to do so. Carving out exceptions, even seemingly innocent ones, is a bad idea.

© 2004 Washington Post

• Timothy Lynch of the Cato Institute wrote this interesting op-ed, which digs deeper into some problems with the Hiibel ruling
• Travel writer and civil liberties advocate Edward Hasbrouk offers interesting analysis of the Court decision on his blog
• See the Supreme Court ruling (pdf)

Proposed Air Security Program Threatens Our Privacy and Safety, Not Terrorists

The ongoing controversy over who knew of which terrorist threats and when has obscured one specific and telling finding from the commission investigating the 9/11 attacks. The commission revealed earlier this year that nine of the 19 hijackers were identified as safety risks by the federal government’s Computer-Assisted Passenger Pre-screening System (CAPPS) when they checked in for their flights.

The commission’s July, 2004 report added that “All five of the American Airlines Flight 77 hijackers [departing from Washington Dulles International Airport] were selected for security scrutiny,” via CAPPS. Luggage checked by the nine flagged hijackers was inspected, but the killers boarded their flights with no trouble.

If security personnel couldn’t employ information identifying suspect passengers to keep even one of those killers from their mission, how can the Bush Administration justify the proposed CAPPS II, a massive surveillance program that would create dossiers on every U.S. airline passenger?  It’s a critical time to ask, for CAPPS II soon could compromise both the privacy and safety of most Americans.

On March 17, the federal government announced that it will require airlines to collect and hand over selected information on all passengers to the Transportation Security Administration, an agency of the “Homeland Security” Department, to begin testing of CAPPS II.

This would initiate the largest surveillance program in U.S. history.

CAPPS II purportedly would help focus security resources by identifying airline passengers who pose the greatest risk of committing terrorist acts. The 2 million or so passengers flying to or from a U.S. airport each day would receive a risk assessment of green, yellow or red. Passengers rated green would receive routine screening. A yellow rating generates additional scrutiny. Red means say goodbye to your ticket and hello to law-enforcement agents–you won’t be boarding your flight.

Here’s how it works: When you make a flight reservation, the booking agent or airline records your name, address, phone number, date of birth and travel destination (that’s just for starters–the TSA could later expand the requirements). The data goes to the TSA, which forwards it to a company contracted to verify your identity. The TSA then feeds your data into a computer program to generate your risk assessment using government databases and algorithms.

So what criteria can label you yellow or red, and how does one challenge inaccurate data? Incredibly, the TSA provides passengers no right to know why they are deemed a security threat or to examine the accuracy of the government’s data.

This is just one glaring problem cited recently by the U.S. General Accounting Office (GAO) — an independent investigative arm of Congress. A GAO report on the CAPPS II plan faulted the TSA for lacking a credible budget, a timeline, adequate privacy protection policies, and any procedure for citizens victimized by false data to correct their record. Of eight critical concerns identified by Congress, the GAO said only one was addressed adequately. TSA officials insist the failures could be corrected.

Since even the most narrowly devised criteria will produce far more false positives than IDs of true security threats, CAPPS II is generating resistance well beyond privacy watchdogs.

Most business travel associations oppose the plan, too. This includes the Association of Corporate Travel Executives, which spoke up after 95 percent of its surveyed members said the proposed program is unacceptable. Among their concerns: If only 2 percent or so of passengers are coded red, as the TSA claims, 12 million people would be detained annually!

To appease businesses, the TSA will test a “registered traveler program” this summer whereby individuals able and willing to pay a fee and submit to a more invasive background check will be given a special ID card that entitles them to use an”express lane.”

TSA officials claim CAPPS II has been scaled back in response to earlier criticism that passengers would be forced to check their Fourth Amendment rights along with their bags. The TSA initially will not collect credit histories, for example, and promised to discard information soon after a passenger’s travels.

This promise is meaningless, however, since the “Patriot Act” empowers the government to procure these records at will from the contracted companies (which may retain and sell those records).  At a minimum, the government would be creating dossiers of our lifetime travel histories. And though the information the TSA says it will collect initially may seem inoffensive, the registered traveler program would coerce people to “volunteer” much more information in order to avoid second-class treatment and even longer airport lines.

Critics also are alarmed by TSA officials’ admission of plans to employ CAPPS II well beyond airports and for broader law enforcement purposes like catching common criminals — contradicting earlier promises to focus only on aviation security. Some critics even question whether government may legally detain a passenger unless a criminal charge can be filed against them.

A gift to terrorists?
The growing controversy over privacy and civil liberties threatens to obscure another fundamental question: can CAPPS II improve national security?

That’s doubtful, for the weakness in its underlying logic renders the program ineffective — or worse. A legal advice column in the trade journal Travel Weekly warned, “The system would be a terrorist’s delight.”

Why? CAPPS II proponents claim sacrificing privacy will allow most people to check in with less hassle by enabling aviation security to focus on high-risk passengers. Terrorist groups, however, easily could probe the system, determine which travelers get green ratings and consistently minimal screening and take advantage of that weakness.

Those members then could embark on a mission with greater confidence than with a more random selection process or one that relies on well-trained personnel to select passengers for intensive scrutiny.

And does any TSA official honestly believe that terrorists can’t obtain a false identification — available on any college campus or over the internet? According to federal investigators, at least two of the 9/11 hijackers’ passports “were clearly doctored.” It’s hard not to suspect they’ll announce the obvious later: the system is easily gamed, and Americans must therefore submit to a national ID card connected with a database of fingerprints or retina scans. Even the GAO report raises this scenario.

CAPPS II does have one sound premise: profiling of some kind can help allocate passenger screening resources most effectively.  It goes wrong in relying so heavily on technology. Observation and questioning by a trained human being (which admittedly could generate other concerns) can reveal tip-offs that no computer ever will catch.  Yet personal questioning of travelers who raise suspicion — the most critical component of an effective security program for Israeli airline El Al (widely considered the most secure airline in the world) — is not even under serious discussion.

Why? Real security is not as “efficient” as placebos. We often are sold a largely false choice: that we must sacrifice freedom or privacy to be secure. Speed vs. safety, however, is a genuine trade-off. Effective passenger profiling would result in some delays and inconveniences, impeding airline profits. Hence, the airline industry welcomed the installation of million-dollar x-ray scanners in more than 400 airports to check for luggage bombs, despite the intrinsic inability of x-rays to detect explosives (though they can be a useful tool when used by trained professionals). Transportation Secretary Norman Mineta admitted a false-positive rate of 35 percent for the machines.

Ironically, this is the one security realm where technology could provide help. But rather than investing in machines capable of detecting traces of explosives from outside luggage, Homeland Security officials and airlines preferred to project the illusion of increased safety.

Each expansion of federal power is framed as “fighting terror,” but the most effective terrorism prevention rarely demands sacrifices of our liberty. As the 9/11 commission report noted, “Gaining access to the cockpit was not a particularly difficult challenge.” Securing cockpit doors, strengthening onboard security procedures, and banning such potential weapons as small knives and box-cutters were all sensible moves that left freedom completely unscathed.

The corporate profit motive vs. safety
Bag matching, which prevents a bag from flying unless its owner also is aboard, is an effective measure that long has been standard practice in many countries. But U.S. airlines have blocked full implementation domestically, claiming extra costs from resulting flight delays would be crippling. This takes some nerve after grabbing more than $14 billion in taxpayer subsidies above and beyond the $1 billion in losses that were attributed to post – 9/11 shutdowns.

Although bag matching can’t prevent a suicide bombing, unaccompanied luggage bombs caused three of the worst air disasters of the 1980s including the deadliest airline bombing ever, 329 deaths on Air India flight 182. Until 9/11, the airline industry blocked requirements for secure cockpit doors despite 30 documented cockpit intrusions in the two years preceding the attack.

The role of corporate profit-seeking in creating the vulnerabilities that enabled 9/11 remains remarkably under-reported.

Securing our vulnerabilities
We should seek further improvements in airline security, but focusing backward on where terrorists last attacked, rather than identifying and securing other vulnerable targets, may endanger our safety. “Even suicide terrorists are extremely risk-averse,” said Andrew Thomas, safety expert and author of Aviation Insecurity . “They may perceive glory in killing, but not in getting caught.” So as passenger security improves, would-be terrorists increasingly will seek less risky targets, thus demanding we shore up vulnerabilities in other realms (including non-passenger aspects of airport security).

Identifying a terrorist is hard — “much harder than simply finding needles in a haystack,” one Homeland Security official said. It’s relatively easy, however, to identify and secure vulnerable targets that terrorists could strike and cause catastrophic damage.

As the Spain subway bombing demonstrated, physical defenses never will insulate us from harm, but we should pay particular attention to preventing the most deadly scenarios, like attacks on chemical or nuclear plants. Determined efforts at those sites could dramatically improve our resistance to both terrorist threats and accidental catastrophes that could dwarf the carnage wreaked on 9/11. Yet the Bush Administration seems determined to invite disaster by eliminating federal enforcement of many safety standards at nuclear weapons facilities to promote business efficiency.

CAPPS II may distract public attention from the truth that basic security and intelligence failures — not a lack of information or power by law enforcement officials — allowed the 9/11 tragedy to occur. What CAPPS II does not do, however, is make us safer. Congress should stop funding CAPPS II and rethink how to allocate our finite security resources in ways most likely to save lives.

The rest of us should scrutinize new “anti-terror” measures and defend ourselves against the reflexes of the White House and Congress to extend federal dominion in the name of security. Those promoting these expansions of power may be well-intentioned, but ultimately their policies endanger both our freedom and our safety.

Milchen directs ReclaimDemocracy.org, a non-profit organization working to restore citizen authority over corporations and defend constitutional rights. Kaplan has worked for 25 years as an information technology consultant. The authors thank Edward Hasbrouk, Andrew Thomas and Salim Jiwa for their assistance.

Update / Suggested Actions

Victory!  Or is it? On July 14, CAPPS II was pulled from consideration in it’s current form, but we’re not ready to declare the fight over (see our August 4, 2004 feature on the “Registered Traveler” program for details). Nevertheless, we know hundreds of readers sent copies of this article to your U.S. Representative and/or Senators, and you made a difference. Thank you!

Recommended Resources

• Andrew Thomas’ book Aviation Insecurity explains thoroughly the failings of our air security system and offers solid suggestions for improvement. Look for it at your local independently-owned bookstore.
• Edward Hasbrouk’s fine website for travelers has blog that covers CAPPS II and other timely issues. He wrote an exhaustive letter (54 pp pdf ) to the TSA outlining objections to CAPPS II.
• Feb 13 GAO report summary (pdf) or full GAO report (53 pp, pdf)

• The Electronic Privacy Information Center has more good resources

by Susan Bee
Last updated January 20, 2004

On November 10, 2003, the Tenth Circuit U.S. Appeals Court in Tulsa, OK heard oral arguments in Mainstream Marketing Services, et al. v. Federal Trade Commission. In this case, two telemarketing firms (Mainstream Marketing Services, Inc. TMG Marketing, Inc.) and a trade group (American Teleservices Association) challenged the constitutionality of the FTC’s Do Not Call Registry (DNCR). The judges are David M. Ebel, Stephanie K. Seymour and Robert H. Henry.

In MMS v. FTC, the Tenth Circuit consolidated four cases for an expedited hearing. The first two are appeals of rulings by two different District Courts: Mainstream Mktg. Servs. v. FTC,2003 WL 22213517 (D. Colo. Sept. 25,) and U.S. Security v. FTC, 2003 WL 22203719 (W.D. Okla. Sept. 23, 2003). The other two are separate reviews of the same FCC order: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014 (2003). The Tenth Circuit is expected to issue a ruling any time between January and May of 2004.

The primary disputes in the MMS case are whether the FTC crafted the DNCR narrowly enough to adequately protect corporate telemarketers’ “commercial speech” and whether the FTC’s failure to include non-commercial charitable organizations in the DNCR amounted to an unconstitutional “content-based” restriction on speech.

The term ‘commercial speech” describes speech used primarily by corporations to disseminate information about goods and services. Courts have held that commercial expression is valued because it helps consumers and furthers social interests by allowing the fullest possible dissemination of information regarding goods and services. Central Hudson Gas v. Public Service Commission of NY (1980). The courts have found that consumer interest in commercial information may be more keen than it is in the day’s most urgent political debate. Rubin v. Coors Brewing Co. (1976).

Evaluating the Constitutionality of Commercial Speech Restrictions

The prevailing standard used to determine whether a commercial speech restriction is constitutional was established by the U.S. Supreme Court in Central Hudson. The Court identified a three-step test to determine whether restrictions applied to lawful and non-misleading commercial speech are constitutional. Under the “Hudson test,” regulation of commercial speech is constitutional if, and only if:

1. the government asserts a substantial interest to be achieved by the restrictions;
2. the restriction directly advances that governmental interest; and
3. the restriction is narrowly tailored to meet that interest.

Neither Judge Nottingham (Colorado District Court) nor the Tenth Circuit panel had trouble finding that the FTC has a legitimate and substantial interest in protecting citizens’ privacy, or the right to be left alone in their own homes. Both Courts ruled that the government’s interest in protecting in-home privacy is sufficient to justify a restriction on speech. The Courts seemed to virtually ignore one of the most egregious arguments the telemarketers made: that the DNCR is unconstitutional because it regulates speech based on the speech’s unpopularity. Brief for MMS, p. 22. This is an apparent attempt to ride the coattails of constitutional protections on political speech, which can be particularly important when unpopular. But the FTC clearly is not basing its regulation on the unpopularity of the speech, but rather on its invasion of in-home privacy, which makes the speech unpopular.

Both Courts made this ruling despite the telemarketers arguments that citizens should be left to protect themselves from unwanted telemarketing calls by using technological alternatives, such those offered by local telephone providers or caller ID. The FTC countered, arguing it is justified in creating the DNCR because these technological measures are too costly to citizens and do not approach the degree of protection the DNCR can provide. The FTC argued that far from being obvious alternatives to commercial speech regulation, these technologies demonstrate the magnitude of the problem. (Consolidated Opening Brief of Appellants, page. 43-44)

Turning to the rest of the second two prongs of the Hudson analysis, together, the final two factors require there be a “fit between the legislature’s ends and the means chosen to accomplish those ends.” (United States v. Edge Broad, 1993). The government bears the burden of demonstrating both a substantial interest and the fit between that interest and the challenged restriction. Utah Licensed Beverage Ass’n v. Leavitt (10th Cir. 2001). The Hudson test does not require that the regulation be the least restrictive means of achieving the interest asserted, but only that it be narrowly tailored to meet the desired objective. Board of Trustees of State University of NY v. Fox (1989).

The telemarketers advance several theories about why the registry does not directly advance the government’s interest in protecting privacy and is not narrowly tailored. The first reason is that it is numerically under-inclusive; it only affects unwanted commercial calls, even though charitable contribution calls are equally invasive and may be equally unwanted by many people. In the District Court, Judge Nottingham ruled that numeric under-inclusiveness is not constitutionally fatal. Governments are not required to fix all the problems before they can fix any problem.

In a related argument, the telemarketing industry honed in on a First Amendment principle that the government is not supposed to regulate communications based on the content of the communication. Drawing from this principle that content-based restrictions on speech are intolerable, telemarketers argued that the DNCR is unconstitutional because it restricts commercial telemarketing but not charitable telemarketing. Judge Nottingham agreed. He wrote that while governments may not be required to regulate on all fronts (fix all problems before they can fix any), the FTC may not base its failure to regulate on some fronts and not others on the content of the speech–commercial versus non-commercial.

In ruling against the FTC on this issue, Judge Nottingham refused to accept any of the FTC’s reasons for distinguishing between commercial versus charitable telemarketing, which included: 1. charities are less likely to engage in abusive telemarketing practices. 2. the FTC is not really restricting any speech; the citizens are doing it by signing the registry. Nottingham disagreed, writing that because the DNCR does not give citizens the opportunity to ban all telemarketing calls–commercial and charitable-the FTC has entangled itself in the decision of which speech is blocked, thereby regulating based on content.

The Tenth Circuit Appeals Court does not seem to agree with Nottingham’s analysis. On October 7, the three judge panel granted the FTC’s request to stay the Colorado District Court’s injunction, stating the “FTC shows substantial likelihood of success on the merits.” The Tenth Circuit judges do not seem to believe that the DNCR is content based. Sticking more closely to the Hudson test, they wrote that to show a reasonable fit between the FTC’s goal of the DNCR, the FTC must only “demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Citing Rubin v. Coors Brewing Co. (1995). While the fit must be reasonable and in proportion to the interest served, it need not be a perfect fit or the best fit. Citing Fox, 492 U.S. at 480. “Within the bounds of the general protection provided by the Constitution to commercial speech, we allow room for legislative judgments.” Citing Edge Broad. Co. p. 434. The Courts do not require “that the Government make progress on every front before it can make progress on any front.” Id.

In its preliminary order, the Tenth Circuit found the FTC’s means of regulating commercial, versus charitable, telemarketing seems justified based on both Congressional and FTC findings. Congress expressly made factual findings in the 1991 Telephone Consumer Protection Act TCPA that telemarketing calls “conducted to induce purchases of goods or services” have subjected consumers to substantial fraud, deception, and abuse. Pub. L. 103-297 at ** 2,7. Consequently, in enacting a national do-not-call registry, the FTC “decided to limit coverage of the national registry to telemarketing calls made by or on behalf of sellers of goods or services.” 68 Fed. Reg. 4629

Furthermore, the FTC’s revised Telemarketing Sales Rule states that the agency relied on TCPA and FCC authority when it initially endorsed the distinction between commercial and non-commercial calls. Id. at 4591. The legislative history accompanying the TCPA, citing complaint statistics, found that commercial telemarketing intrudes upon personal privacy more than noncommercial telemarketing. Also, the FTC’s case was aided by its collection of evidence that commercial telemarketers ignored consumers’ requests to be put on the company-specific lists, or even hampered consumers’ efforts to be placed on such lists by hanging up on them. (Consolidated Opening Brief of Appellant, p. 37, citing 68 Fed. Reg. 4628-29; 18 FCC Rcd. 14030, Sec. 19)

The FTC’s case was also aided by the fact that, while it did not require charitable telemarketers to comply with the national DNCR, it still makes them comply with company-specific do-not-call lists. As the FTC found that charitable telemarketers do not try to thwart peoples’ ability to place themselves on do-not-call lists, the FTC and the Tenth Circuit apparently believe that citizens can still protect themselves from charitable telemarketing through company-specific lists.

Neither Judge Nottingham or the Tenth Circuit directly addressed one additional important argument made by the telemarketing industry–that the DNCR is not narrowly enough tailored because it was implemented without (1) consideration of its financial impact to the telemarketing industry, (2) considering less restrictive alternatives like educating consumers about the preexisting company-specific do-not-call lists, and (3) consider technological market-based solution, which incidentally are costly to citizens (MMS brief p. 20). These arguments are an attempt by the telemarketing industry to insert economic ramifications on corporations that result from governmental regulation into the analysis of whether the regulation on speech is sufficiently narrow.

Tenth Circuit Briefs and Legal Documents

• Defendant’s (FTC) Memorandum of Points and Authorities in Support
  of Its Motion for an Emergency Stay Pending Appeal (to Colorado District Court)

Principal briefs

• Consolidated Opening Brief of the FTC, FCC, and U.S.A. (Oct. 17, 2003)
• Consolidated Reply Brief of the FTC, FCC, and U.S.A. (Nov. 7, 2003)

Our simplified introduction to the Do Not Call List dispute