to, other telecommunication carri-
ers, equipment manufacturers, and
customers.” 44 With regard to custom-
ers, section 222 defined “customer
proprietary network information”
(CPNI) to be “information that relates
to the quantity, technical configura-
tion, type, destination, location, and
amount of use of a telecommunica-
tions service subscribed to by any cus-
tomer of a telecommunications car-
rier, and that is made available to the
carrier by the customer solely by virtue
of the carrier-customer relationship.”
Note that Congress was somewhat pre-
scient in its inclusion of “location.”
In the 1998 order passed by the FCC
to implement section 222, the FCC im-
posed an “opt-in” requirement on any
carrier that wanted to use a customer’s
data to market additional services to
that customer. The carriers had to ob-
tain a customer’s affirmative, explicit
consent before using or sharing that
customer’s information outside of the
existing relationship with the carrier. 14
The carriers sued the FCC in the 10th
Circuit Court of Appeals (U.S. West, Inc.
v. FCC), claiming that the opt-in rule
violated their First and Fifth Amend-
ment rights. With regard to the First
Amendment, the carriers argued that
the FCC’s rules were an unconsti-
tutional restriction on the carriers’
“rights to speak with their customers.”
The carriers’ Fifth Amendment argu-
ment relied on the Takings Clause; the
last phrase in the Fifth Amendment,
the Takings Clause states that “private
property [shall not] be taken for public
use, without just compensation.” The
carriers argued that “CPNI represents
valuable property that belongs to the
carriers and the regulations greatly di-
minish its value.” 47

In a 2-1 decision, the Circuit Court agreed with the carriers’ First Amendment argument. While acknowledging that the speech involved was commercial and that such speech receives less protection than, for example, political speech, the Court held the FCC’s rule was “more extensive than is necessary to serve the government’s interest.” Writing for the Court, Judge Tacha stated that “Even assuming that telecommunications customers value the privacy of CPNI, the FCC record does not adequately show that an opt-out strategy would not sufficiently protect

In dynamic political
situations, many
users will be aware
of the potential for
surveillance, and
will thus put self-
imposed limitations
on their use of
cellular technology.

customer privacy.”
Judge Tacha did not address the
Fifth Amendment argument, but
Judge Briscoe, writing in dissent, made
his opinion clear, stating that “I view
U.S. West’s petition for review as little
more than a run-of-the-mill attack on
an agency order ‘clothed by ingenious
argument in the garb’ of First and Fifth
Amendment issues.”
In response to the Tenth Circuit’s
decision, the FCC modified its rules
in 2002, allowing for an opt-out rule
for sharing of customer information
between a carrier and its affiliates for
marketing purposes. 15 The 2002 rule
also addressed the sharing of infor-
mation with “independent contrac-
tors” for marketing communications-
related services. An opt-out rule was
deemed acceptable here as well, but
recognizing the additional privacy
risk, the FCC required that the carriers
establish confidentiality agreements
with the contractors to further protect
consumer privacy.

In 2005, the Electronic Privacy Information Center (EPIC) requested that these third-party rules be modified. Pointing to the use of “pretexting”—a practice in which third parties pretend to have the authority to receive the data and then use it for their own marketing, tracking, or other purposes—EPIC called for stricter rules that would protect the safety of the subscriber.q In 2007, the FCC passed yet another set of rules, this time requiring that the carriers “obtain opt-in consent from a customer before disclosing that customer’s [information] to a carrier’s joint venture partner or independent contractor for the purpose of marketing communications-related services to that customer.” 16

The carriers sued, once again asserting their First Amendment rights. In National Cable & Telecommunication Assoc. v. F.C.C. (2009), the U.S. Court of Appeals for the District of Columbia Circuit conducted a meticulous analysis in which the judges considered whether the government had met its constitutional burden in regulating what all agreed was commercial speech. In the end, the Court upheld q In 2006 Congress passed the Telephone Records and Privacy Protection Act of 2006, making pretexting illegal.