...\r.b . .. til-:3 . ~A ‘ov. 0.... ~\:-F .. I ‘ i , 6. .‘u. .. ,.s....v..‘ v}. \a 4AIIUcr—‘fto.l a . pr 3': .stclu.... .. «[3. .l. .v.~.. ti 9.1:}..3: . .h‘ 3 \ . I .4.Ar nu. .llhni VV. .‘ cm..9=- ‘ I f . .u , o.¢..‘.ov , a. .3”! , 53.1..5Ip V. 4 .13....(7 ‘ . : .123»! I J )1. . (.1 .l .l... :5: .t .IL IL... :17, . . éxs 019:1.165. 1.310.}. .57. x an? ‘ .. . . l o ( (7“. I . TMESQ I|GCH (35AM LIBRARIES Ml mm M l l \\\\\\\ ~ Mi L 31 l This is to certify that the dissertation entitled U.S. TELECOMMUNICATIONS PRIVACY POLICY AND CALLER ID: A STUDY OF ANONYMITY AND SOLITUDE INTERESTS IN CONFLICT presented by Laurie Thomas Lee has been accepted towards fulfillment of the requirements for Ph.D. Mass Media degree in a; .2 3; Major professor Date January 6, 1993 MS U is an Affirmative Action/Equal Opportunity Insulation 0 12771 LIBRARY Elohim State University PLACE IN RETURN BOX to remove this checkout from your record. TO AVOID FINES return on or before date due. DATE'BU'E DATE DUE DATE DUE IJUN. was 0 II”! n U cert) ¥¥.|é Lax.“ 13;: (IAN Ll: l '1)“ Cpl / MSU Is An Affirmative Action/Equal Opportunlty Institution thllcm U.S. TELECOMMUNICATIONS PRIVACY POLICY AND CALLER ID: A STUDY OF ANONYMITY AND SOLITUDE INTERESTS IN CONFLICT BY Laurie Thomas Lee A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Mass Media Ph.D. 1993 ABSTRACT U.S. TELECOMMUNICATIONS PRIVACY POLICY AND CALLER ID: A STUDY OF ANONYMITY AND SOLITUDE INTERESTS IN CONFLICT BY Laurie Thomas Lee Caller ID has raised a public outcry about possible invasions of privacy. Two state court decisions have reached different conclusions over the legality of Caller ID. Is calling party identification an invasion of the calling party's "right" to privacy? What about the called party's interest in privacy enhancement? What exactly are the privacy interests, and how should they be compared and weighed? This study of privacy and Caller ID integrates legal research with social science research and provides an assessment of and a means for a determination of the legality of Caller ID. It first examines the privacy issues surrounding Caller ID and its current regulatory status. U.S. and state constitutional rights are examined, with a focus on the "State Action" doctrine, Informational Privacy and the Fourth Amendment. Federal statutory laws, particularly the Electronic Communications Privacy Act, as well as state wiretap laws are detailed. Then, common law privacy and privacy associated with property rights are discussed, followed by policy considerations dealing with blocking and unlisted numbers. The study concludes that Caller ID is generally within the current framework of the law. The nature and meaning of privacy--theory, functions, and dimensions--are then fully explored. It is argued that the privacy dimensions relevant to Caller ID are "Anonymity" and "Solitude." Caller ID poses a new challenge to the courts as privacy interests in conflict may be considered. The dissertation examines these specific privacy dimensions as they appear to be handled by the courts. Various sets of criteria for deciding "Anonymity" and "Solitude" cases are found. The courts treat these privacy dimensions somewhat similarly under both constitutional and common law, although with a slight leaning toward greater Solitude protections. Finally, how the dichotomy of privacy interests may be balanced is discussed. Based on the criteria of the "Expectation of Privacy" and the "Reasonable Person" doctrines, a "Reasonable Needs" methodology is proposed. The approach, is designed to assess both. the individual and societal needs for privacy in light of technological advances such as Caller ID, while preserving the "reasonableness" standard for weighing and balancing privacy interests in conflict. To Kevin and Meredith iv ACKNOWLEDGMENTS The author would like to thank her dissertation director, Dr. Robert LaRose, for his invaluable guidance, help and support. TABLE OF CONTENTS LIST OF TABLES . . . . . . . . . . . . LIST OF FIGURES . . . . . . . . . . . . INTRODUCTION . . . . . . . . . . . . . Caller ID Technology and Capabilities The Debate--Pro and Con . . . . . Purpose of This Dissertation . . . Research Questions . . . . . . . . Methods Used . . . . . . . . . . . PRIVACY POLICY--IS CALLER ID A LEGAL SERVICE? The Current Regulatory Status . . The Constitutional Question . . . The U.S. Constitution . . . . Meeting the "State Action" doctrine ix 12 13 15 17 17 21 22 22 32 A Constitutional right of privacy Informational privacy and ‘weighing' of interests 0 O O O O O O O O O O O 0 An expectation of privacy and the Fourth Amendment . . . . . State Constitutions . . . . . Statutory Law--The Wiretap Question Federal Statutes . . . . . . State Statutes . . . . . . . Privacy Under Common Law . . . . . vi 43 50 61 61 72 81 Privacy and Property Rights . . . . . . Policy Considerations . . . . . . . . . Blocking . . . . . . . . . . . . . Protection of Unlisted Numbers . . Conclusions . . . . . . . . . . . . . . PRIVACY TREORY--IRAT IS PRIVACY? . . . . . . The Nature of Privacy . . . . . . . . . Privacy Functions . . . . . . . . . Defining Privacy . . . . . . . . . The Dimensions of Privacy and Studies on Privacy Inputs and Privacy Outputs . . . Variations in Privacy Perceptions . . . Conclusions . . . . . . . . . . . . . . INTERESTS IN CONFLICT--ANONYNITY AND SOLITUDE--EOI comma? O O O O O O O O O O O O O O O 0 Cases of Anonymity and Solitude: The Constitution Expectations of Privacy . . . . . . Anonymity--Cases and Criteria Solitude-~Cases and Criteria . Comparisons . . . . . . . . . Cases of Anonymity and Solitude: Common Law The "Reasonable" Person . . . . . . Anonymity--Cases and Criteria Solitude--Cases and Criteria . Comparisons . . . . . . . . . Privacy in Conflict . . . . . . . . . . A Proposed Methodology . . . . . . . . . vii 92 103 103 111 118 120 121 122 125 129 136 142 147 149 150 154 154 (f) 167 V 178 181 181 182 189 196 199 205 Inadequacies, Analysis . A CONCLUSIONS--IS THERE AN EQUITABLE SOLUTION? BIBLIOGRAPHY Societal Needs, "Reasonable Technology . Needs" viii Approach and a Circular for 205 209 216 225 LIST OF TABLES Caller ID Availability . . . . . . . . . . . . . . . . 18 State Constitutions Explicitly Recognizing A Privacy Right 0 O O O O O O O O O O O O O O O O O O I O O 52 States With Trap and Trace Statutory Provisions . . . . 74 States With Caller ID--Blocking . . . . . . . . . . . . 104 ix LIST OF FIGURES Caller Output . . . . . . . . . . . . . . . . . . . . . 137 Called Party Input . . . . . . . . . . . . . . . . . . 137 Called Party Input With Screening . . . . . . . . . . . 138 Privacy Inputs/Outputs . . . . . . . . . . . . . . . . 139 No Caller ID . . . . . . . . . . . . . . . . . . . . . 219 With Caller ID . . . . . . . . . . . . . . . . . . . . 220 Both With Caller ID . . . . . . . . . . . . . . . . . . 221 Both With Caller ID And Blocking . . . . . . . . . . . 222 INTRODUCTION The recent introduction of Caller ID and its use of Calling Party Identification (CPI)1 has regulators, the courts, and the industry embroiled in a controversial issue over subscriber privacy rights. Caller ID-—a telephone service which displays the calling party’s number on a display unit when a call is made--is argued to be an invasion of privacy of the caller whose number is displayed, yet an enhancement of privacy for the Caller ID subscriber who can see who is calling before choosing to answer. The controversy raises a score of questions over its legality under federal and state laws“ The matter is so unclear that many states are waiting for a decisive legal determination before allowing the service to be offered. Two recent, yet conflicting, court decisions only fuel the debate and are sure to necessitate further court analysis. In the summer of 1990, in the landmark case of Barasch v; PublicUtility'C'om'n,2 the Commonwealth Court of Pennsylvania ruled that Caller ID violates U.S. and Pennsylvania 1This is also sometimes called Calling Party Information, CPNI (Calling Party Number Identification), and CNI (Calling Number Identification). 2576 A.2d 79 (Pa. Comwlth. 1990) [hereinafter Barasch (1990)]. This case was decided May 30, 1990. 1 2 constitutional privacy rights as well as that state’s wiretap laws. Yet several months later in Sbuthern Bell v. Hamr,3 the Court of Common Pleas in South Carolina ruled that the service does NOT invoke or violate U.S. or South Carolina constitutional privacy rights. Moreover, the court found that Caller ID does not violate the wiretap laws of South.Carolina. In both cases the service proposed included limited blocking capabilities for certain agencies. Both cases have since been upheld, by the state Supreme Courts in .Barasch v. Bell Telephone Company'of‘P'ennsylvania4 and Southern Bell Tel. and Tel. CO. v. Hamm.5 The privacy issues which underlie these concerns are unclear. Privacy is not violated when calling party numbers are used in the public telephone network for administrative or billing purposes. The use of CPI for other purposes does, however, seem to be restricted by statutory law, rules and regulations, and judicial decisions, although some of these laws are yet to be tested and interpreted. The treatment of privacy in law is varied--there are different types of privacy which change according to application. Whether a 3Southern Bell v. Hamm, In the Court of Common Pleas, Richland. County, Case INo. 90-CP-40-2686 (Nov. 26, 1990) [hereinafter Southern Bell (1990)]. This ruling came in the form of a declaratory judgement. ‘605 A.2d 1198 (Pa. 1992) [hereinafter Barasch (1992)]. .No ruling was made on the constitutionality of the service, however . 5409 S.E.2d 77s (s.c. 1991) (decided Oct. 7, 1991) [hereinafter Southern Bell (1991)]. 3 constitutional right of privacy exists, applicable to Caller ID, is yet unknown. Federal and state statutes seen to suggest that Caller ID might be a form of illegal ”wiretapping.” FCC rules governing the use of Customer Proprietary Network Information (CPNI) suggest that such data might be a property right of the customer, although telephone tariffs seem to suggest otherwise. Under a common law cause of action, an invasion of this type would not likely constitute an invasion of privacy. Thus, whether or not calling party identification is an invasion of one's "right" of privacy under law is still an open question. A legal framework for addressing the privacy issues involved in this development is desperately needed. An examination of privacy law and the nature and meaning of privacy is also needed to guide these policy-making decisions and avoid future confusion, particularly as more services are being developed and introduced. Caller ID is just the beginning of a line of new services which may evoke even more subscriber resistance. Expanded uses of services such as name identification and others for telemarketing, home telemetry and emergency service purposes are being developed. As these applications and others come under public scrutiny, they will spur more negative attitudes and demands for information control. Restrictions on these services will certainly defeat the obvious advantages and may well hinder the future of telecommunications infrastructure development, setting back the timetable for network modernization in the United States. Both sides of the Caller ID debate--the caller and the called party--present valid concerns and their arguments of a right of privacy which must be considered. Can calling party identification be both an invasion and enhancement of privacy? What is the concept of privacy and the nature of the caller's interest in. privacy and the called. party's interest in privacy? Are there different types of privacy or dimensions which have implications for Caller ID? Before the Caller ID debate can be fully assessed and any legal action taken, there should be a clear understanding of the notion of privacy; .Any response to the Caller ID debate should address and distinguish both.1) the nature of the caller’s privacy and why and how Caller ID invades this privacy, and 2) the nature of the called party's privacy and why and how Caller ID enhances privacy. A thorough examination of the Caller ID debate from a social science perspective is an important step in this process. Once the nature of privacy relevant to Caller ID is better understood, a return to the legal literature for a more thorough, comparative analysis is warranted. Like the breakdown of privacy interests found in the social sciences, a similar division of cases may be found in the law, related to both the caller and.called.party'privacy interests” Caller ID poses an interesting problem of privacy interests in conflict, which have not been addressed and weighed by the courts. How are such competing interests handled by the 5 courts? What are the criteria used in determining the legitimacy of the specific interests, warranting legal protection? How might these interests be weighed and compared when in conflict? A methodology for addressing this conflict is called for, especially in light of the lack of current legal clarity and guidance in an age of global communications and rapid, technological change. The current tests used in constitutional and common law analyses are inadequate, short- sighted, and circular. A new methodology would address these shortcomings while retaining the merits of the current methodology. The standard should anticipate change and the advent of new technology as well as consider societal needs. This study provides an assessment of and the means for a determination of the legality of Caller ID. The study examines existing privacy law and integrates this analysis with a study of social science research on the nature privacy. It will first examine the privacy issues surrounding Caller ID and its technology and then examine the legality of Caller ID and its current regulatory status. U.S. and state constitutional rights will be examined, with a focus on the "State Action" doctrine, Informational Privacy and the Fourth Amendment. Federal statutory laws, particularly the Electronic. Communications Privacy .Act, as 'well as state wiretap laws will also be detailed. Then, common law privacy and privacy associated with property rights will be discussed, followed by policy considerations dealing with the issues of 6 .blocking and unlisted numbers. An assessment of the legality of Caller ID under the current law will be offered. Then the nature and meaning of privacy-~theory, functions, and dimensions--will be fully explored. The privacy' dimensions relevant ‘to Caller ID ‘will be distinguished, 'Various privacy perceptions, preferences, and needs will also be identified. Case law will then be re-examined in light of the social science research in order to determine how the courts generallytreat the specific privacy interests and how the courts might balance the competing interests. A new categorization of privacy case law relative to the social science research will be offered. An examination of the relevant privacy criteria will also be made for comparison_ purposes. Finally, how the dichotomy of privacy interests may be balanced will be discussed. Based on the criteria of the "Expectation of Privacy" and the "Reasonable Person" doctrines, a "Reasonable Needs" methodology will be proposed. The approach will assess both the individual and societal needs for privacy in light of technological advances such as Caller ID, while preserving the "reasonableness" standard for weighing and balancing privacy interests in conflict. 7 Caller ID Technology and Capabilities Caller ID is part of a package of Custom Local Area Signaling Services (CLASS")--a new generation of telephone 6 The new services are now technologies and services. possible because of a transmission technology known as Common Channel Signaling System 7 (SS7) being deployed in public telephone networks worldwide. SS7 provides a separate transmission channel from the one carrying the content of the call which can be used to transmit and process calling party information (i.e. , telephone numbers) independently of the call itself. With SS7 technology, when a caller originates a call through his or her serving central telephone office, that central office generates information containing the caller's phone number. This information is then sent to the central office serving the called party. At that point, the called party’s number is analyzed by the receiving switch to ascertain if the party being called is a subscriber to the Caller ID service and other CLASS" features. If so, with Caller ID the caller's number, which has been "trapped" by the telephone company's switch, is then transmitted over the normal telephone lines to the subscriber's display device. This unit is provided by the subscriber and may be a telephone 6These include such features as Selective Call Forwarding, Call Trace, Return Call, Priority Calling, and Call Block. 8 set with a built-in.display screen, a small ”box" connected.to the line along with his or her telephone, or a personal 7 The callerI 8 computer connected to a line via a modem. telephone number is delivered during the first silent interval of ringing. In addition t0>displaying the number, a Caller ID device may also record and store the number, its area code, and the date and time the incoming call was made.8 The caller's name may also be forwarded by the telephone company. The technology has been developed to transmit the telephone subscriber’s name associated with the number from which the call was placed. U.S. West Communications tested the service in Grand Forks, North Dakota, in 1990 and is now offering it in such places as Omaha, Nebraska. It is also technically possible to block the delivery of the number and name. ‘This works by dialing a code (i.e., *67) before placing a call. The called party display would reveal the words Private Number or simply a P. A "Block-Block" service is also being developed to permit the called party receiving the blocked call to, in turn, send the caller a recorded message requesting that the caller's identity be forwarded, or else the call may not be answered. 7Unless in conjunction with a subscription to Caller ID (where available), the device itself would be incapable of displaying the calling party's number. The units generally cost $60 to $80, and.a monthly subscription (where available) generally runs $6 to $10. 8Lanning, New Caller ID Data Emerges in Trial, TELEPHONY, May 7, 1990, at 8. 9 The Debate--Pro and Con Proponents of Caller ID argue that they should be able to know who is calling before they answer the phone. They want to be able to screen and manage calls, saying that Caller ID protects and enhances privacy.9 The service could, for example, help stop obscene, harassing, and threatening calls as well as allow subscribers to avoid other undesirable calls (i.e., annoying sales calls).10 Plus, knowing the caller's identity could help reduce false alarms and anonymous bomb threats11 and lead to more efficient business communications and customized customer services.12 Thus, lives, money, and time could be saved and privacy increased. On the other hand, opponents of Caller ID, including consumer groups and the American Civil Liberties Union, argue that they should not have to have their numbers displayed every time they place a call to anyone with the service. They 9Karpinski, GTE Unrolls CLASS Red Carpet, TELEPHONY, Oct. 22, 1990, at 12, 14. 10A Bell Atlantic survey of Caller ID customers revealed that 73 percent selected the service to combat abusive calls while 60 percent chose it for its call management capabilities, replacing an answering machine. Should Caller ID Be Offered With or Without Blocking, TELEPHONE NEWS, Dec. 17, 1990, at 4. 11Maier, Consumer Groups Want to Hang Up On Caller ID System, BALTIMORE BUS. 3., Feb. 26, 1990, at 5. 12For example, telephone users could cross reference telephone numbers with databases. Catalog ordering, for example, could be customized, lowering the costs of its products and services. 10 want to be able to be anonymous, saying that Caller ID is an invasion of privacy. The service could, for example, present a threat to battered spouses and undercover law enforcement officials whose protected location could become known. The service could also compromise the integrity of confidential hotlines13 (i.e., AIDS, crimestoppers), encourage discrimination in answering certain callers, plus lead to an increase in telemarketing calls by businesses that could record the callers' numbers and compile computerized lists to use or sell.14 Thus, the welfare and sanctity of many could be at stake and privacy jeopardized. The debate is also affected by issues such as the protection of unlisted phone numbers and the availability of blocking options. Customers with unlisted telephone numbers could lose their anonymity with Caller ID, as it is currently offered,” posing an even greater privacy threat. On the other hand, Caller ID Blocking options--such as per-call, per- line, or limited to certain "at-risk" groups--are now being considered and offered in some places, which might mitigate 13T. McEldowney, Privacy: Whose Right Is It Anyway?--A Consumer Groups Perspective, Paper Presented at the Meeting of the National Communications Forum, Chicago (Oct. 2, 1989). 14Taff, Future Bright For 900-type Services, NETWORK WORLD, JUIY 24, 1989, at 12, 13. 15In states such as California, one-third of telephone customers have unlisted numbers; In Nevada, 47 percent have unlisted numbers. See Look'Who’s calling, L.A. DAILY J., Oct. 5, 1989, at 6; Centel of Nevada Proposes "Caller ID" With Blocking; Ohio Bell Files Tariff Without, TELECOMMUNICATIONS REP., Mar. 26, 1990, at 17. 11 the privacy threat, although reduce its enhancement qualities.16 The extent to which these and other factors may influence judicial decisions determining the legality of Caller ID is important. 16A Harris poll found that 48 percent of the public favors blocking while 27 percent believe Caller ID should be outlawed and 23 percent believe it should have no limitations placed on it. In general, a 55 percent (to 43 percent) majority believe Caller ID should be offered. See LOUIS HARRIS & ASSOCIATES, THE EQUIFAX REPORT ON CONSUMERS IN THE INFORMATION AGE (1990) . 12 Purpose of This Dissertation The purpose of this dissertation is to provide an assessment of and the means for a determination of the legality of Caller ID. It adds to the body of privacy law by specifically examining existing privacy law and integrating this analysis with an examination of the social science research on the nature of privacy. This dissertation is intended to contribute to the Caller ID privacy debate and offer an approach to an equitable, judicial determination of j privacy interests in conflict. 4. The dissertation offers clarity and a new light on analyzing privacy issues. It specifically provides a thorough examination of the existing laws and an assessment of the legality of Caller ID. It further provides a needed analysis of social science research on privacy relative to Caller ID. It offers, a new’ categorization of existing’ privacy law relative to the understanding of the nature of privacy within the social sciences. It also provides a breakdown in each category of the elements necessary for a successful suit, which affords a means for comparing competing privacy interests. Finally, a new balancing methodology is offered for weighing privacy interests in conflict. The approach allows the courts to assess both the individual and societal needs for privacy in light of technological advances such as Caller ID, while preserving the "reasonableness" standard for weighing and balancing privacy interests in conflict. 13 Research Questions The research questions addressed by this dissertation are as follows: 1. Is Caller ID an invasion of the calling party's "right” of privacy? What is the legal theory and framework of privacy issues applicable to Caller ID? a) b) C) d) 8) Is there a constitutional right of privacy applicable to Caller ID? Is there a federal statutory right of privacy applicable to Caller ID? Is there a state statutory right of privacy applicable to Caller ID? Is there a common law privacy right applicable to Caller ID? Is there a privacy right under federal administrative rules, applicable to Caller ID? What is the nature of privacy, and what specifically are the privacy concerns? a) b) C) What are the privacy functions related to the caller and called party? Why do both proponents and opponents of the service seek "privacy?" What privacy distinctions and dimensions are applicable to the caller and called party concerns? How are they different or similar? Who is sensitive to what levels of privacy? What demographic and personality characteristics predict 14 the use of and attitude toward Caller ID and Caller ID blocking services? d) How do the caller and called party interests interrelate? Do the courts follow a similar treatment of privacy as maintained by the social sciences research? Is there a similar treatment of the caller (Anonymity) and called party (Solitude) privacy interests by the courts? a) What are the criteria used in determining whether a specif ic privacy interest warrants legal protection? b) Which interest predominates? Finally, how'might the courts treat privacy interests in conflict? a) How can the privacy interests of the called party be effectively balanced with those of the calling party? b) What legal methodology might best address a conflict of privacy interests? 15 Methods Used This dissertation utilizes primarily legal methodology along with historical methodology as applied to social science research. The following procedures were completed: 1. 2. An assessment of the legality of Caller ID. An assessment of the nature of privacy relevant to Caller ID. A categorization of privacy cases based on a social sciences breakdown of privacy dimensions. A proposal of a methodology utilizing key legal criteria in assessing and.weighing conflicting privacy interests. To accomplish the objectives of this study, a complete survey of the legal and social sciences literatures on privacy law and theory applicable to Caller ID was conducted. These tasks specifically included: 1. Analysis of the current availability and regulatory status of Caller ID. Analysis of privacy and Caller ID from a constitutional perspective. Analysis of the legality of Caller ID under federal statutory law, particularly wiretapping law. Analysis of the legality of Caller ID under various state statutes, as found in wiretapping and related law. Analysis of FCC rules restricting/allowing the release of customer proprietary network information (CPNI) , and other relevant administrative rules/opinions. 16 Analysis of common law privacy theory and its applicability to Caller ID. Analysis of the social sciences literature on privacy. Analysis of empirical research and other studies conducted on privacy, applicable to Caller ID. PRIVACY POLICY--IS CALLER ID A LEGAL SERVICE? The Current Regulatory Status Since it was first offered in New Jersey in 1987, the service has been subjected to several proposed federal and state laws and numerous state regulatory decisions and actions modifying tariffs to allow or disallow the service. The key actions have revolved around the issues of whether or not Caller ID is legal under federal and state statutory and constitutional law, whether or not unlisted numbers should be protected, and whether or not blocking should be available. Caller ID has been found to be currently available or approved and soon to be offered in at least sixteen states so far. Telephone companies have or are currently offering the service on a trial basis in several states and several others have tariffs pending. (See Table 1) The states have reacted differently to Caller ID. For example, tariffs for the service were approved by the public utility commissions (PUCs) in New Jersey, Maryland, Virginia, West Virginia and Tennessee with few or no objections.“ Even so, the Virginia Corporation Commission is still reviewing the privacy question, having opened.hearings on the subject, and the West Virginia commission would revisit the 17Rockwell, States React Differently to Caller ID, COMM. WEEK, Oct. 9, 1989, at 43. 17 Table l 18 Caller ID Availability ”proved/OfI-r-d/Wms Wins Alabama Nebraska Arkansas Delaware New Jersey California Dist. of Columbia New York Indiana Florida North Carolina Massachusetts Georgia North Dakota Ohio Idaho Oregon Pennsylvania Illinois South Carolina Washington Iowa South Dakota Kentucky Tennessee Maine Vermont Maryland Virginia Michigan West Virginia Nevada issue if necessary.18 Maryland Public Service Commission (PSC), After approving Caller ID, in response to the increasing privacy concerns being raised, later ordered C&P Telephone Company to offer free, per-call blocking.”9 The Indiana Commission recently rejected a Caller ID proposal, citing inflexible blocking options.2° Other commissions have also mandated some form of blocking.21 18C&P Telephone Co. of West Virginia, Case No. 89-292-T- T, slip op. (W.V.P.S.C. June 30, 1989). 19Maryland Orders Call Blocking, TELEPHONY, Nov. 26, 1990, at 3. Service in Maryland began in October 1989, and the blocking was required in November 1990. 2oNagelhout, Caller ID: Privacy and Blocking Issues, PUB. UTIL. FORTNIGHTLY, Mar. 1, 1992, Rt 31. 21899 section on Blocking, infra p. 103. .I4:I4(£R 19 On the state legislative front, some interest has also been sparked. In California a law was passed in 1989 mining free, per-call blocking in the state.22 The law has served as a model for state legislation, and blocking has been the subject of several other state bills. No laws have yet been passed on the federal level, although bills in the House of Representatives and the U.S. Senate were introduced in 1990 and again in 1991.23 The bills would create the Telephone Privacy Act, allowing Caller ID, but requiring telephone companies to also offer blocking. The FCC is also proposing a rule to regulate Caller ID on an interstate basis and would require per-call blocking.24 Many of the telephone companies,25 however, have come out strongly against any federal legislation, preferring to leave the matter to be worked out by the states.26 221989 Cal. Legis Serv. AB 1446 (West) (An Act adding 5 2893 to the Public Utilities Code). 23H.R. 1449, 102nd Cong., lst Sess., 137 cone. REC E965 (1991), and S. 652, 102nd Cong., lst Sess., 137 CONG. REC 83283 (1991). 2456 Fed. Reg. 57,300 (1991) (proposed Sept. 26, 1991). (Notice of Proposed Rulemaking, In the Matter of Rules and Policies Regarding caller Identification Service, CC Docket 91-281, F.C.C. (91-300).) 25These include New Jersey Bell, Pacific Bell, Centel's Central Telephone Co., and AT&T, as well as Bell Atlantic Corp., Bell South Corp. and U.S. West, Inc. “Taft, Proposed Federal Caller ID Regulation Raising Backles, NETWORK WORLD, Jan. 13, 1992, at 6, 47; caller ID Legislation Opposed by Telco Witnesses at Kohl Bill Hearing; Consumer Groups Back Measure; Pacific, centel Favor Per-call Blocking; NJ Bell Firm on "No Blocking," TELECOMMUNICATIONS REP., Aug. 6, 1990, at 9, 10; LECs Blast Beer Proposal that 20 The inconsistency across states is, of course, troubling because of the interstate nature of telecommunications. Currently, CLASS'I services are offered only within individual telephone exchanges. But with the advent of nationwide Signaling System 7 capabilities in the next few years, calling party information may be transported across state borders, raising the specter of a patchwork of regulation that may be technically and legally unworkable. For example, should customers in Pennsylvania where Caller ID is not allowed be able to block their CPI when calling South Carolina where Caller ID is available? A clear, legal determination of the privacy debate is needed so that some uniform policy among the states might exist" The question is: Is Caller ID an invasion of the calling party's "right" of privacy? FCC Establish Uniform, Nationwide Rules for Caller ID, TELECOMMUNICATIONS REP., Aug. 27, 1990, at 25, 26. 21 The Constitutional Question Caller ID teeters on the edge of constitutionality and symbolizes the beginning of an important era for emerging telecommunications technologies and privacy policy. Whether a fundamental interest exists in the anonymity of CPI and how the calling and called parties' interests will be weighed will have a lasting impact on the future development of the U.S. telecommunications infrastructure, potentially encouraging or handicapping the capabilities and benefits of an advanced network in a global information market. So too, will the notions, functions, and strategies of privacy undergo change in a society with expanded or reduced opportunities for privacy.27 It is important to first look to the highest source of law when assessing whether or not Caller ID is, in fact, an illegal service offering. Although the Pennsylvania Supreme Court did not rule on the constitutional question,28 the Pennsylvania Commonwealth Court in Barasch (1990) and the South Carolina Supreme Court in Southern Bell (1991) did rule on the constitutionality of Caller ID. Both courts, however, reached opposite conclusions. 27See L. Thomas & R. LaRose, The Meaning of Privacy in the Age of the Intelligent Network, Paper Presented to the International Communications Association, Chicago (May 1991). 28The Pennsylvania Supreme Court, on appeal, declined to decide the constitutional issue because the case could "preperly be decided on non-constitutional grounds." (at 9) 22 In order to invoke the U.S. Constitution as a binding source of law, the requirements of the "state action” doctrine must be met. Only actions by the government, and not private entities or individuals, are subject to U.S. Constitutional restrictions. Therefore, before considering whether Caller ID is violative of constitutional privacy rights, it is first necessary to determine whether Caller ID sufficiently involves government action. In this case we would look at whether the involvement of a state's public utility commission, which regulates telephone companies and approves of a telephone company's Caller ID tariff, rises to the level of "state action."29 Although the Pennsylvania Supreme Court did not rule on the constitutionality of Caller ID and hence did not address state action, the lower court did reach some interesting conclusions. In Barasch (1990) , the Commonwealth Court of 29A.claim that it is the individual Caller ID subscriber, rather than the telephone company, who invades the privacy of the caller, would not give rise to a constitutional question. In the first place, the subscriber is technically only the recipient of the information first "captured" and then released by the telephone company (see later section). Even so, a Fourth Amendment claim of search and seizure would only apply to government action; private party searches are exempt. (See Burdeau v. McDowell, 256 U.S. 465 (1921).) (This would also include any subsequent private party receipt of the CPI, such as by telemarketers.) 23 Pennsylvania concluded that even though the "furnishing of utility service is generally not considered to be a state function, " the Pennsylvania Public Utility Commission's action to allow Caller ID "must be construed as state action sufficient to justify the applications of constitutional prohibitions.”3° Petitioners persuasively argued that approval of Caller ID by the Commission constituted state action because the Commission facilitated Bell of Pennsylvania's intrusion into the privacy rights of that state's citizens. The court considered "the aggregate" of such factors as the Commission's required, extensive investigatory hearings and its further action in ordering that limited blocking be made available to certain, certified individuals. Moreover, the court noted that Bell of Pennsylvania has historically been a monopoly, and that Dell could not offer Caller ID without the imprimatur of the Commission. The court cited a UCLA Law Review article by G. c. Smith.“ Smith, in an extensive article examining the constitutional question, had suggested that Caller ID would be subject to state action, although acknowledging that the 3°Barasch (1990), at 87. 31Smith, We’ve Got Your Number! (Is It Constitutional to Give Out?) : Caller Identification Technology and the Right to Informational Privacy, 37 UCLA L. REV. 145 (1989) . Smith analyzes the constitutionality of Caller ID and concludes that the service invokes a constitutional right of informational privacy, favoring the calling party and not Caller ID. (This dissertation argues against many of Smith's analyses, in favor Caller ID.) 24 relationship between the regulator and the regulated is not very clear. He discussed two possible paradigms by which Caller ID availability may or may not be regarded as state action: "Responsibility through encouragement , " and "Imprimatur through involvement." Under the "Responsibility through encouragement" model, the courts, according to Smith, would look at whether the government is responsible by having "encouraged" the regulated party to take the constitutionally suspect action. Smith points out that in Blum v. Yaretsky,32 the Supreme Court said that state action occurs when the state is responsible for the specific conduct, such as by dictating the decision, using coercive power or affirmatively commanding or significantly encouraging the action. A number of Supreme Court and lower court cases have followed this model. For example, in Carlin Communications, Inc. v. Southern Bell Tel. 5 Tel. Co.,33 the Eleventh Circuit ruled that a public service commission's restrictions on a service called "Dial-it, " did 139; constitute state action since the PSC did not {equine Bell to prohibit the service; there was no coercion. Smith concedes that if applied to Caller ID, as it existed in New Jersey at the time 32457 U.S. 991 (1982). (This case concerned Medicaid regulations, where the Court found no state action, explaining that the State was not responsible for the decision to discharge or transfer patients.) 33802 F.2d 1352 (11th Cir. 1986). See also Carlin Communications, Inc. v. Mountain States Telephone and Telegraph Co., 827 F.2d 1291 (9th Cir. 1987). 25 of his article,34 Caller ID would not fall under state action.35 However, he notes that only lower courts have applied this paradigm to W; the Supreme Court has not yet. Smith thus points to an "alternative" model suggested.by eeglie; Supreme court decisions which have addressed public utility regulation. He suggested the paradigm of the Supreme Court as "Imprimatur through involvement , " whereby state action is found when there is "active regulatory involvement followed by approval. " Such involvement is "a sign that government has put its ' imprimatur' on the actions of the ."36 He arrived at this analysis by regulated parties . distinguishing the contrary Supreme Court decisions of Public Utilities Commission v. Pollak37 and Jackson v. Metropolitan Edison Co.38 In Pollak, the High Court had found state 34Smith found that in the case of the New Jersey tariff, the PUC did offer some encouragement in a few statements, but that Bell was not coerced, influenced, or given an incentive. In fact, they established a system of monitoring and asked that alternatives be examined. 35Smith does say that the lower courts fail to register adequately the "realities” of public utilities regulation.and should consider the subtle and symbiotic relationship between the regulator and the regulated. Even so, in determining whether state action exists, the inquiry does not turn on the relationship between the private entity and the State in general, but rather focuses on the relationship of the State to the challenged action of the regulated entity. Jackson v. Metropolitan Edison, Co., 419 U.S. 345, 351 (1974). 36Smith, supra note 31, at 222. 37343 U.S. 451 (1952). 38419 U.S. 345 (1974). 26 action where the utility commission had conducted an investigation and conducted a full hearing into the issue of whether or not piped-in music on buses should be allowed.39 The commission had also concluded that the music "tends to improve" conditions. Smith distinguished the case from the subsequent Supreme Court decision in Jackson, the leading case to date on this matter. In Jackson, the Court found no state action in a suit in which the termination of a woman's electric service had been permitted by a general tariff provision approved by the utility commission."0 The Court pointed out that in contrast to Pollak, the tariff had never been the subject of a hearing or other scrutiny by the commission; "there was no such imprimatur placed on the practice. . . ."41 Since the Jackson Court only distinguished and did not overrule Pollak, Smith concluded that state action is thus suggested by W ingelyemen; in the form of a full investigatory hearing and approving conclusions--hence "Imprimatur through involvement . "42 39The case concerned the District of Columbia Transit Company and the First Amendment rights of bus riders. 40It is interesting to note that this was the Pennsylvania Utility Commission. The petitioner in this case argued that "this state action" deprived her of her property without due process of law (under the Fourteenth Amendment). 41419 U.S. 345, 357. 42The implementation of Caller ID in New Jersey, for example, would thus qualify as state action according to Smith since the commission there had conducted a full hearing, had made some positive statements about Caller ID and shared some 27 However, after examining Pollak and Jackson more carefully, one could find this "alternative model" of the ‘Supreme Court to simply be the same "Responsibility through encouragement" paradigm. In Pollak, state action was found n9; because the commission held investigations and hearings, but rather because it had effigmetiyely_enggzeeg (encouraged) the piped-in music. It was because of this that the Jackson Court found "the nature of the state involvement" in.Pollak to be ”quite different." The Court explained: [T]he District of Columbia Public Utilities Commission [in Pollak], on its own motion, commenced an investigation of the effects of the piped-in music, and after a full hearing concluded get 9311 that Capital Transit’s practices were ' not inconsistent with public convenience, comfort, and safety,’ . . . but also the; the practice 'in fact, through the creation of better will among passengers, . . . eenge W the conditions under which the public ride.’ Here, on the other hand, there was no such imprimatur placed on the practice. . . ." (Jackson at 356-357, quoting Pollak at 126) [emphasis added] The Supreme Court clearly distinguished its two state action decisions based on whether or not the commission encouraged the practice. Regarding the Jackson case, the Court based its decision on finding "no suggestion in this record that the . . . Commission intended either overtly or covertly to encourage the practice.“3 In fact, the Court in Jackson seemed to suggest that as long as a commission only approves and does not mm the practice, state action does not of the same views about privacy as New Jersey Bell (although it did also undercut Caller Identification and established a monitoring system). 43at 357. The Court cited Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972). 28 arise. Approval by a state utility commission of such a request from a regulated utility, where the commission has not put its W on the side of the proposed practice by ezgezing it, does not transmute a practice ini;iete§_by the utility and eppreyeg by the commission into 'state action'. . . . Respondent's exercise of the choice allowed by state law where the initiative comes from it and not from the State, does not.make its actions in doing so 'state action' . . . . (at 357) [emphasis added] Thus, if a regulator does not initiate action on Caller ID and does not necessarily come out in support of the service, it is not responsible by having "encouraged" the telephone company to take the "constitutionally suspect" action. Indeed, the South Carolina Supreme Court in Southern Bell (1991), in its determination of state action, came to a similar conclusion in finding no state action. The State Court agreed with the lower court's determination that the South Carolina Public Service Commission's involvement was merely limited. to ‘the standard approval. process that. a telephone company must follow regarding the offering of new services.44 In this case, the Commission only held a hearing and issued an order, even though it did subsequently deny a motion that blocking should be available to all customers.45 Although the hearing was required by state law, the court stated that “in no way could the PSC be said.to be responsible 44Southern Bell (1991), at 779. ‘SIt should be noted that in contrast, the Pennsylvania Commission did affirmatively order limited blocking (which had already been part of Southern Bell's tariff). 29 for or to have coerced the institution of the service."46 Such conduct of a "quasi-judicial[executive entity . . . simply does not rise to the necessary level of involvement to result in action by the State."47 The lower court in its 1990 decision also stated that it "is equally clear that the [U.S.] Supreme Court has drawn a clear distinction between what might be called 'ex_en;e' encouragement by the State and 'm’ encouragement. " " [U ]nless the State's encouragement takes place betere the private actor initiates the activity in question, there can be no sustainable assertion of state action."48 Supreme Court decisions sincelJackson, albeit not public utility cases, have followed and further clarified the "encouragement" paradigm. Again, in Blum v. Yaretsky',49 the Court said that a finding of state action requires government exercise of "coercive power" or "such significant encouragement, either overt or covert, that the choice in law be deemed to be that of the state."50 Thus, it can be concluded that as long as a telephone company Luigieeee Caller ID (i.e., by filing a tariff) and a ‘éId. ‘7Id. 48Southern Bell (1990), at 13. The opinion here cites the Supreme Court.cases of Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978) and San Francisco Arts 6 Athletics, Inc. v. United States Olympic Committee, 438 U.S. 522 (1987). 49457 U.S. 991 (1982). 501d. at 1004. 30 utility commission (or federal government or state legislaturesl) does net_eignifieently_eneegzege the service (i.e., by actively endorsing it or ordering itsz), then the doctrine of state action would not be met. If the constitutionality of Caller ID was again addressed in Pennsylvania, no state action would be found. Indeed, the decision in Barasch (1990) on the question of constitutionality was close.53 In the Barasch (1990) case, unlike Southern .Bell (1990 & 1991), the Commission. did affirmatively order limited blocking, absent a request by any party to. do so. However, it is unlikely that an order 51Indeed, a statutory law pertaining to the operation of a telephone company may also be examined for implicating state action. For example, in State v. Droutman, 362 A.2d 1304 (N.J. 1976), state action was considered. The Superior Court of New Jersey held that New Jersey's wiretap statute, allowing "interceptions" necessary to the rendering of service, did not evoke state action when the telephone company traced calls subject to its internal annoyance program. "The State by adopting the provision in no way put its weight behind the tracing operation by ordering it. Neither has the State provided the impetus to the company to engage in such activity. The initiative for the action came from the company, rather than the State. . . ." (at 1310) 52Smithdoes note that it is "problematic" for government "ordering" of the practice to be necessary, since in Pollak the commission did not "order" the practice. (supra note 31, at n.80) A more reasonable interpretation is that ordering the service would be only one example of "encouraging" it. 53Two (of the five) judges dissented on the question of constitutionality, stating that state action involves more than just adjudicating a tariff. The Commission "did not encourage or require" that the Bell tariff be brought before it. Furthermore, the minority stated that the Commission ”is not interested in whether Bell offers this service or not; it did not become involved in or give its imprimatur to Caller ID. It only carried out its statutory duty to adjudicate requests that come before it." (at 94 n.5) 31 requiring blocking would raise constitutional privacy questions,54 unless proponents of Caller ID were to argue that blocking availability violates men; privacy interests in not always being able to know who is calling them. It is therefore unlikely that other Caller ID proposals around the country would implicate state action and, in turn, be subject to U.S. Constitutional review. Considering the current conservative makeup of the Supreme Court and that current Chief Justice Rehnquist wrote the Jackson opinion, it is doubtful that a public utility case concerning Caller ID would be decided differently. The lower courts, following the "Responsibility through encouragement" model, and the Supreme Court continuing with this similar tack would find no state action in a federal constitutional challenge. 5"A limited blocking requirement may, however, raise questions of constitutional due process rights as it did in the lower court' s Barasch (1990) decision. (The Pennsylvania Supreme Court did not address the due process question.) In that case, the Commission's order to provide limited blocking was found to have lacked minimal due process standards guaranteed by the Fourth through the Fourteenth Amendments of the U.S. Constitution as well as Article 1 of the Pennsylvania Constitution. The court found that the certification process required of those granted blocking constituted arbitrary government action, leaving unanswered many procedural questions such as how any appeal would be handled if certification were denied. Thus, how a PUC handles matters of blocking could invite constitutional review under the due process clause. 32 A_Q9nstitutisnal_right_sf_nrixasx Even if Caller ID failed the state action test and was subjected to constitutional scrutiny, it still would appear to fall within the standards of the U.S. Constitution. For example, some might charge that Caller ID is a restraint upon communication--a violation of First Amendment rights--should telephone customers requiring anonymity forgo making calls. In Sokol v. Public Utilities Commission,55 the California Supreme Court found that the termination of an individual's telephone service denied him of "an essential means of communication for which there is no effective substitute" and was thus an infringement of his right of free speech.56 Whether there is a constitutional right to telephone service has not been addressed directly by the U.S. Supreme Court.57 Nonetheless, if the privately owned telephone network were considered a public forum,58 Caller ID would only be a restriction on the manner of communication (part of the reasonable time-place-manner restrictions allowed by the 55418 P.2d 265 (Cal. 1966). 551d. at 270. 57See P. O'Neill, Medium of Equality?: The Right to Communicate by Telephone, Paper Presented to the International Communication Association, Dublin, Ireland (June 1990). 58Id. The courts have, without explicitly saying so, treated the telephone system much like a public forum in cases involving illegal activities performed over the network. 33 State) and not a total ban on one's telephone communication.59 The decision not to communicate by telephone is one of choice, plus it can be argued that telephone alternatives such as using a pay phone are available.50 Of course it is the right of privacy which is at the heart of the debate raising the most conjecture and which will be discussed at length here. A right of privacy is not explicitly stated in the‘U.S. Constitution, although.it has an implicit textual basis. For example, the Third and Fourth Amendments confer special protections on "persons, houses, papers, and effects" which easily suggest a privacy right. The Fifth Amendment affords a types of privacy in withholding information related to self-incrimination.61 The First Amendment has also suggested a notion of a right of 59See Whalen v. Roe, 429 U.S. 589 (1977), where the Court refused to entertain a First Amendment claim because the effective exercise of speech was not directly at stake. 60A similar argument could be made for a First Amendment right of freedom of association should petitioners argue that Caller Identification inhibits associations (which people may wish to keep anonymous). See NAACP v. Alabama, 357 U.S. 449 (1958), where the Court held that an order requiring the NAACP to disclose membership lists violated members' right of freedom of association. But see O'Neal v. United States, 601 F. Supp. 874 (N.D. Ind. 1985), where telephone subscribers' right of freedom of association was not violated by an Internal Revenue Service summons issued to a telephone company for its toll records since the summons was not for a list of association members necessarily and no harm was shown. 61The Supreme Court has, however, backed away from its holding that the Fifth Amendment confers a privacy right. 34 privacy.62 Courts have held that unless a substantial government interest is being served, an individual can claim a First Amendment right not to disclose personal information-- a right to avoid compelled disclosure.63 These Amendments to the Constitution, however, provide little support for a Caller ID challenge. The Third Amendment would, if anything, be arguably advanced in favor of Caller ID because of the service's ability to screen out telephone "intruders" into the home. The Fourth Amendment would not be entirely applicable since the State is not "searching and seizing" the CPI, but rather is allowing its subsequent disclosure. The Fifth Amendment is hardly applicable, and a First Amendment claim is tenuous, since compelled disclosure Le the telephone company is not at issue-~they already know the number from which the call originates. At issue is whether disclosure 1;! the telephone companies to other private parties is an invasion of privacy.64 Moreover, a right of privacy has appeared in First Amendment cases as a description of an individual's interest in solitude--such as freedom from the blast of sound trucks or door-to-door salesmen--a claim 62See Gerety, Redefining privacy, 12 HARV. C.R.-C.L. L. REV. 233 (Spring 1977). 63See S.C. Spears & J. Cooper, Privacy Implications of Caller ID, Paper Presented to the International Communication Association, Chicago (May 1991), citing the cases of: DeGregory v. Attorney General of New Hampshire, 383 U.S. 825 (1966), Sweezy v. New Hampshire, 354 U.S. 234 (1957), and Watkins v. U.S., 354 U.S. 178 (1957). 541d. 35 advocates of Caller ID could arguably make in support of Caller ID. Privacy is nonetheless considered a protected right as one of a collection of unenumerated rights, contained in the Bill of Rights, which are considered to be "penumbial" or "inalienable." A "structural" or "relational" argument for this constitutional protection65 is found in the Ninth Amendment. The Ninth Amendment states that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."66 James Madison and other drafters of the Constitution sought to assure that specifying certain guarantees would not be read as excluding others, and it is argued that one of these fundamental rights "retained by the people" is privacy.67 Despite this foundation for privacy rights, a right of privacy was not recognized until many years later. A broad right of privacy under Common Law“was first articulated in the late nineteenth century in an infamous and influential law review article by Samuel Warren and Louis Brandeis.6 Only within this century has it achieved constitutional recognition 65See Gerety, supra note 62, at 239. “U.S. cous'r. amend. x1. 6”See Rohde, Origins of the Right of Privacy, L.A. LAW., Mar. 1988, at 45. 68Warren 5 Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). Their’work initiated.the development of this area of law. 36 by the Supreme Court, solidifying largely into the privacy- based approaches of the Fourth Amendment and more recently the liberty and substantive due process clause of the Fourteenth Amendment. It is the Fourteenth Amendment which may provide the surest constitutional basis for the right of privacy.69 The Supreme Court first recognized the fundamental "right to privacy" as a constitutional right, partly rooted in the Fourteenth Amendment, in its 1965 decision in Griswold v. Connecticut.70 Still, the High Court has recognized this fundamental right only in very limited circumstances involving marital, sexual, family and reproductive matters.71 Thus the protections of the Fourteenth.Amendment may not be germane to Caller ID. For example, in Paul v. Davis”:2 the Supreme Court rejected a plaintiff’s claim that a police department's circulation of a flier depicting him as a 69U.S. CONST. amend. XIV. Section 1. This provides that "[n]o state" shall "deprive any person of life, liberty, or property, without due process of law; . . ." 7o381 U.S. 479 (1965) (where a statute prohibiting the use of contraceptives was held unconstitutional). The Court did not agree on the source of the right of privacy. The Court stated that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them life and substance." (at 484) The First, Third, Fourth, Fifth, and Ninth Amendments were said to contain "various guarantees [that] create zones of privacy.” (at 484) The concurring Justices stated that the Fourteenth Amendment's "concept of liberty protects those personal rights that are fundamental." (at 486) 71Such as with.Roe v. Wade, 410 U.S. 113 (1973) (abortion held constitutional). 72424 U.S. 693 (1976). 37 shoplifter (when he had only been arrested and not convicted) had deprived him of procedural due process. This type of government disclosure of information was considered to be "very different" from "fundamental" privacy interests such as those related to procreation and family-’13 The release of CPI may also be considered beyond the scope of a fundamental right. I E ll 1 . l .1 . E 'I ! Although the Supreme Court has never directly addressed the constitutionality of the government disclosing "personal" information, in 1977 it did recognize a ”privacy interest in disclosure," giving birth to what might be considered a specific right of "Informational Privacy."7‘ In Whalen v. Roe75 and later in Nixon v. Administrator of General 731d. at 713. Of course, any restricted or limited blocking requirement may raise questions of constitutional due process rights as it did in Barasch (1990), should the action be considered arbitrary and no appeal process (to receive any specially created blocking privileges) is available. This, however, would only apply to procedures concerning blocking and would likely occur only in isolated cases as procedures for regulating Caller ID are fine tuned. 74This has been described as "the right of an individual not to have his private affairs made public by the government." The interest has been termed as "disclosural privacy," "the right to nondisclosure" and "the right to confidentiality." See Clark, The Constitutional Right to Confidentiality, 51 GEO. WASH. L. REV. 133 (1982). 75429 U.S. 539 (1977). 38 Services,76 the Court suggested that an individual's interest in the continued confidentiality of personal information stored by the government may be protected by a constitutional right of privacy.77 Moreover, the Court seemed to have abandoned the requirement that the interest be a "fundamental" right.78 This informational privacy right also appears to exist in a compilation of constitutional rights including the First, Fourth, Fifth and Fourteenth Amendments.79 Whalen and Nixon are the only Supreme Court cases addressing a right of "informational privacy.” Whalen involved a privacy-based challenge to a New York law which required state officials to collect information about patients' use of certain prescription drugs such as opium and cocaine. The plaintiffs had alleged that some people who needed such drugs would decline treatment out of fear that the information gathered would be misused. Nixon concerned the release of papers of former President Nixon to government 75433 U.S. 425 (1977). 77429 U.S. 539, 599. ”See Clause, The Constitutional Right to Withheld Private Information, 77 NW. U.L. REV. 536 (1982). ”In Whalen, the Court did not say where the interest is located although it was not found in the First or Fourth Amendment, seemingly suggesting that it exists in the Fourteenth Amendment. In Nixon, however, the Court focused on the First, Fourth, and Fifth Amendments. It is important to note that there is no discrete legal discipline called "information law," rather it is so far a composite of legal concepts including torts, criminal law, contracts, personal and intellectual property and statutory law. See Trubow, Information Law Overview, 18 J. MARSHALL L. REV. 815 (1985). 39 archivists to review and classify. Although these cases are instructive, they still do not provide a standard for determining the permissibility of egpeeggen; disclosure by the government (i.e., the telephone company) . In both Whalen and Nixon, the Court determined that the risk of public disclosure of the information at issue was too minimal to warrant consideration, and therefore dealt only with the intrusion upon privacy caused by the information gathering itself. The Court did not determine whether the government can "intrude" on an individual’s informational privacy by disseminating private information to the public, much less to the specific parties an individual purposefully calls. Thus, a Supreme Court precedent on informational privacy applicable to Caller ID is not available. Of course Whalen and Nixon may be read by courts in a broad sense to include an informational privacy right in limiting the government's subsequent dissemination of personally identifying information. It can be argued that in both cases, the plaintiffs' genuine concern was not with the mere disclosure ‘to the: government, but rather that. the information would become known to the public and harm their reputations.80 Even so, the Court specifically limited Whalen to its facts, providing little support for a broad disclosure privacy interest. 8°See Hosch, III, The Interest in Limiting the Disclosure of Personal Information: A Constitutional Analysis, 36 VAND. L. REV. 139 (1983). 40 Nonetheless, should a privacy right be found in subsequent disclosures, the courts must then helenge the alleged privacy right against the legitimate interests served by the challenged conduct. In both Whalen and Nixon, the Court balanced these interests and found for the State.81 In Nixon, the Court concluded that the public good which would result from the archival screening of the materials outweighed any harm to Nixon's interests. In.Whalen, the Court balanced the extent of intrusion. against the interests that. the intrusion advanced. The Court acknowledged and examined two specific privacy guarantees: 1) The right not to disclose private information, and 2) The right to 'make personal 82 (later described as an decisions without interference interest in autonomy). It concluded that the challenged interests were minimal. These case lessons in balancing may still serve as a guide in weighing Caller ID privacy interests. When the Whalen Court considered the interest in nondisclosure of personal information, it considered whether there was proper security maintained over the data. The Court found insufficient risks when it found that the prescription drug law in question required precautions and imposed criminal liability on any official who publicly disclosed a patient's 81Balancing has been supported by lower federal courts, such as in Plante v. Gonzales, 575 F.2d 1119 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979). 82429 U.S. 589, 599-600. 41 identity. Caller ID may also meet this test with precautions in place ensuring the release of the CPI only to the called party, or with additional laws passed limiting the nature or extent of subsequent disclosures made by the called party. The Whalen Court also found that the law did not infringe upon the patient's right of autonomy since that law did not totally prohibit the use of the prescription drugs. Likewise, Caller ID does not totally prohibit opponents' use of the telephone. Finally, in Nixon the public's interest, versus the private interest, was held paramount. Certainly it is here that many of the arguments--pro and con--surrounding the Caller ID debate will be weighed. Turning to Barasch (1990) and Southern Bell (1990 a 1991), the courts in these cases did indeed.weigh these Caller ID constitutional privacy interests, although reaching different conclusions. In Barasch (1990), the court weighed the interests of the calling party and called party and found in favor of the calling party. The court considered several areas to be serious privacy invasions, such as the caller having less control over the distribution of his or her number as well as the threat Caller ID poses to women in battered women's shelters, law enforcement officials, and police informants needing anonymity. In Southern Bell (1991) , however, the Court, in applying the balancing test, found the interests served by the service to be "substantial" and the 42 interests of the called party to be largely "undetermined."83 That Court considered the benefits of Caller ID to the called party as being able to avoid harassing, fraudulent, unlawful, and obscene calls. It also considered the service to be a surrogate for "911" services where "911" is unavailable as well as a help in reducing the number of bomb threats.84 Clearly, with privacy interests on both sides, a legal determination is difficult. I: state action is found, and if a right of informational privacy relevant to the subsequent disclosure of information is found, then further court interpretation may be needed in balancing these diverse interests. As an appropriate legal test is developed, several areas should warrant examination. These include: 1) the nature of the "expectation of privacy" involved, 2) the extent to which the privacy interests are substantial and the nature of the disclosure (i.e., is there a privacy interest or property interest in telephone numbers?), and 3) the privacy alternatives and safeguards available such as blocking. Privacy expectation is examined next, while the nature of the privacy interests and privacy alternatives and safeguards will be explored in later sections. 83Southern Bell (1991), at 779. 8"Id. Further balancing or weighing of rights as applicable to Caller ID will probably include an examination of the privacy expectations of telephone customers, including whether or not a customer's number is unlisted. Although the Fourth Amendment is not directly applicable,85 Fourth Amendment telephone cases are still instructive since they address the notion of a constitutional right of privacy and the expectation of privacy relevant to telephone use. The Fourth Amendment supports a conclusion that individuals have legitimate expectations of privacy when connected with the fundamental liberty against arbitrary governmental intrusions. These intrusions--illegal searches and seizures by the government--are often contested in telephone wiretap cases and cases involving the release of telephone calling records to government authorities. In 1928, the Supreme Court reasoned that warrantless wiretapping of a phone by government officials did not violate the provisions of the Fourth Amendment because wiretapping did not involve physical intrusion into one's home.86 By 1967, 85This is because the State is not ”seizing" the CPI, but rather allowing for its subsequent disclosure. 8601nstead v. United States, 277 U.S. 438 (1928), overruled by Katz v. U.S., 389 U.S. 347 (1967). Justice Brandeis wrote a now famous dissent in Olmstead, stating that the founders of the Constitution "conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men." (at 478-79) 44 however, the Supreme Court departed from the trespass doctrine in the landmark case Katz v. U.S.” In Katz, FBI agents acting without a warrant attached a listening device to the outside of a public phone booth to monitor the defendant's conversation. The High Court, finding the practice to be an unconstitutional search and seizure, declared that the Fourth Amendment "protects people, not places. "88 It adopted a stance that sought to protect a person's legitimate and reasonable privacy concerns, stating that information which a person seeks to keep private should be constitutionally protected. When the Supreme Court employed the Katz analysis in Smith v. Maryland in 1979,89 it decided that the utilization of a pen register, which records the numbers dialed from a telephone,90 did not constitute a search or necessitate a 8"389 U.S. 347 (1967). 88Id. at 351. 89442 U.S. 735 (1979). 90Closest to Caller ID in legal precedent are pen registers and so-called "trap and trace" devices. A pen register is a mechanical device, usually installed by the telephone company at the central office, which can decode and record the numbers dialed from.a particular telephone. Local exchange carriers typically use pen registers to monitor equipment and facilities or identify the source of obscene or abusive calls. A trap and trace device (sometimes known as a cross frame unit, card drop, and touch-tone decoder) captures electronic impulses which identify the originating number of an incoming wire or electronic communication. Neither device enables anyone to hear or record the content of the communication. Although Caller ID service is most similar to a trap and trace, most available legal precedent centers on the use of pen registers. Note also that a Caller ID unit cannot perform a trap and trace per se, since it is merely a 45 warrant under the U.S. Constitution.91 The key to the case was the ”expectation of privacy" involved-~a test developed in Katz and articulated in Smith. In this case, where the telephone company used a pen register at police request to record the numbers dialed from the home of a man suspected of placing threatening calls to a robberyvictim, the Court found there was no "expectation of privacy" in the numbers a person dials. In Smith, two tests were applied: 1) whether individuals have shown that they seek to preserve (something) as private, and 2) whether the individual’s subjective expectation of privacy is "one that society is prepared to recognize as reasonable." Regarding the first test, the Court found that callers could not entertain an actual expectation of privacy in the numbers they dial. [W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must 'convey' phone numbers to the telephone company, since it is through the telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long distance (toll) calls on their monthly bills. (at 228) The Court also stated that people realize that devices are used for the purpose of checking billing operations, display terminal only; the information is forwarded from the central office. 91Law enforcement agencies are now required to obtain warrants as required by the Electronic Communications Privacy Act Of 1986, (codified at 18 U.S.C. 55 2510-2521, 2701-2710, 3117, 3121-3126 (1988)). 46 detecting fraud, and preventing violations of law such as obscene phone calls. Moreover, the Court found that even though the caller in this case may have intentionally called from the privacy of his home in order to keep the EQDLSDLE of his conversation private, his eendget (placing the call) was not calculated to preserve the number he dialed. In addressing the second test, the Court determined that if any such expectation of privacy existed, it was not one that society would recognize as reasonable. The telephone user must assume the risk that the telephone company might reveal the information. [EJven if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain.private, this expectation is not 'one that society is prepared to recognize as reasonable . . . . .' When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ’exposed' that information to its equipment in the ordinary course of business. In doing so, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. (at 229) The Supreme Court's Fourth Amendment ruling has since been followed by courts such as the District Court of Appeals of Florida, First District, in Yarbrough v. State92 and by a U.S. District Court in Colorado in U.S. v. M’osko.93 Many other courts have found no expectation of privacy in telephone 92473 So. 2d 766 (Fla. Dist. Ct. App. 1985). 93654 F. Supp. 402 (D. Colo 1987). 47 toll records that would implicate a federal privacy right.9‘ The courts repeatedly say that subscribers take a risk when revealing their affairs to third parties (i.e., the telephone company) that the information. will be conveyed to law enforcement officials.95 Courts in the past have also held that an expectation of privacy protected under the Fourth Amendment only extends to the content of telephone conversations and not to the records or the fact that 9“United States v. Doe, 537 F. Supp. 838 (E.D. N.Y. 1982); United States v. x, 601 F. Supp. 1039 (D. Md. 1984); Kesler v. State, 291 S.E.2d 497 (Ga. 1982); United States v. King, 335 F. Supp. 523 (S.D. Cal. 1971), aff’d in part and rev’d in part 478 F.2d 494, cert. denied 414 U.S. 846, and cert. denied 417 U.S. 920; Indiana Nat. Bank v. Chapman, 482 N.E.2d 474 (Ind. Ct. App. 1985); Hadley v. State, 735 S.W.2d 522 (Tex. Ct. App. 1987); Re Order for Indiana Bell Tel. to Disclose Records, 409 N.E.2d 1089 (Ind. 1980); United States v. Baxter, 492 F.2d 150 (9th Cir. 1973), cert. denied 414 U.S. 801, cert. denied, 416 U.S. 940; United States v. Grabow, 621 F. Supp. 787 (D. Colo. 1985); and State v. Hamzy, 709 S.W.2d 397 (Ark. 1986). 95It is of interest to note that in Smith (and other cases) the telephone company was considered a thizg_pezey to whom the subscriber risked conveying information. In most cases, the telephone company provided the information at the request of the government. However, if a third jparty yelnnterily (and not acting as an agent for the government) conveys confidential information to law enforcement officials, Fourth Amendment privacy rights are not applicable. (See S.E.C. v. O'Brien, Inc., 467 U.S. 735 (1984).) It may then follow that the voluntary, third party (telephone company) release of CPI to the called parties--the private sector-- would be no more invasive. In other words, if a telephone company can voluntarily release call records to government agencies without infringing constitutional rights, then it would seem implausible that a release to private individuals should implicate constitutional question. Moreover, treating the telephone company as a third party would suggest a view that a telephone company is not synonymous with the government, but instead is an independent entity; therefore its actions would not warrant state action and the "expectation" test would not apply. 48 conversations took place.96 In applying the “expectation of privacy" test, Caller ID may receive the same protection under the Constitution as pen registers and toll records. If telephone customers have no expectation that the numbers they dial will not be given to the police, then there would also be no expectation that the numbers would not be given to the people they call. This will be especially true as Caller ID is openly marketed and customers are informed about the service.” The telephone customer will have assumed the ”risk" when he or she voluntarily conveys to the telephone company (a third party) the number from which he or she has elected to call. Of course the matter becomes complicated when unlisted/unpublished numbers are taken into account. The federal courts have not specifically considered the nature of unlisted numbers in the expectation of privacy test. For the same matter, other safeguards, such as using alternative communication means (pay phones, the mail), have also not been taken into consideration by the federal courts. Nonetheless, the Supreme Court's treatment of the 96Nolan v. United States, 423 F.2d 1031 (10th Cir. 1969), cert. denied 400 U.S. 848; United States v. Baxter, 492 F.2d 150 (9th Cir. 1973), cert. dismissed 414 U.S. 801, and cert. denied 416 U.S. 940; United States V. Lustig, 555 F.2d 737 (9th Cir. 1977), cert. denied 434 U.S. 926, and cert. denied 434 U.S. 1045; Re Order fer Indiana Bell Tel. to Disclose Records, 409 N.E.2d 1089 (Ind. 1980); Hadley v. State, 735 S.W.2d 522 (Tex. Ct. App. 1987). 97For example, the Florida PSC ordered Southern Bell to conduct a mailing to its customers informing them of the pending Caller ID service. 49 expectation of privacy test has only narrowed under a more conservative makeup, suggesting no reversal in the near future on its position toward privacy in telephone numbers.98 In just the last two decades, the Court has diminished expectations of privacy in automobiles, businesses, offices, backyards, trash bins and bank records.99 For example, in 1976 the Supreme Court ruled that bank customers have no legitimate expectation of privacy in their bank records.100 The Supreme Court has also let stand a lower court decision finding that no expectation or right of privacy exists for conversations conducted over cordless telephones . 101 Indeed, the federal courts, to date, have not ruled that a constitutional right to caller anonymity exists, and future litigation may very well hinge on an interpretation of whether there is a reasonable expectation of privacy. In the meantime, it appears Caller ID will withstand a challenge under the U.S. Constitution. 98See Crowley & Johnson, Balancing and the Legitimate Expectation of Privacy, 7 ST. LOUIS U. PUB. L. REV. 337 (1988) . 99For an analysis of these related cases, see Benner, Diminishing Expectations of Privacy in the Rehnquist Court, 22 J. MARSHALL L. REV. 825 (1989). 100This has since been protected by the Right to Financial Privacy Act of 1978, 12 U.S.C. SS 3401 et seq., where customers must be given prior notice and allowed to contest government access to their records. 101Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989), cert. denied, 110 S. Ct. 723 (1990). 50 State_§2nstitution§ State constitutional privacy rights must also be examined following a similar analysis as federal rights. Caller ID is thus far approved or disapproved on a state-by-state basis and may continue to be subject to litigation in state courts applying state law. It is therefore important to examine individual states' privacy laws, particularly the highest source of state law--state constitutions. As on the federal level, state courts will first assess whether the telephone company offering rises to the level of "state action." A key question to watch, though, may be whether or not a state court is W the ”state action doctrine" in reaching a determination of constitutionality on the state level. Such a determination may not be necessary. The minority in the lower court Barasch (1990) case stated their belief that a state action analysis is a pre-requisite to the exercise of federal protections, but irrelevant to the application of state constitutional rights. Thus, a determination of state action may not even be needed to invoke a state constitutional privacy right. Even so, several state courts have considered state action while rendering decisions pertaining to telephone companies and state constitutional rights. In District Attorney for Plymouth District v. Co.t'i'ey,1°2 a telephone 102434 N.E.2d 1276 (Mass. 1982)- 51 company's installation of an on-line trapping (tracing) system did not amount to state action, where the action was merely incident to the rendering of its service and there was no court order or prior police participation. Also, in State v. Holiday,”3 where the telephone company kept a record of allegedly harassing calls made by a subscriber, the telephone company and the complaining subscriber were not considered agents of the state government. Thus, if a finding of state action is a prerequisite, state courts, like federal courts, may reach similar conclusions, excluding Caller ID from constitutional scrutiny. Should Caller ID nonetheless fail the state action test, the service may be subject to tougher constitutional standards than found at the federal level. Some states have stricter constitutional guarantees for privacy. State courts, interpreting their respective state constitutions, are free to impose more stringent standards of government conduct than required by the U.S. Constitution.1cm Unlike the U.S. Constitution, ten state constitutions explicitly recognize a right of "privacy." (See Table 2) Thus, in these states, Caller ID may need to meet a higher level of standard to be found constitutional, if a state 103169 N.W.2d 768 (Iowa 1969). 1cmBrowning, On Privacy, Pen Registers, and State Constitutions: The Colorado Supreme Court Rejects Smith v. Maryland, 15 TOLEDO L. REV. 1467 (1984). 52 Table 2 State Constitutions Explicitly Recognising A Privacy Right* ALASKA CONST., Art 1, S 22: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." CAL. CONST., Art. 1, S 1: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring safety, happiness, and privacy." FLA. CONST., Art 1, s 23: "Every natural person has the right to be free from governmental intrusion into his private life except as otherwise provided herein." HAWAII CONST., Art. 1, S 6: "The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right." ILL. CONST., Art. 1, S 6: "The people shall have the right to be secure in 'their' persons, houses, papers and. other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." LA. CONST., Art. 1, S 5: "[E]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy." MONT. CONST., Art. 2, S 10: "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." S.C. CONST., Art 1, S 10: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated . . . ." WASH. CONST., Art. 1, S 7: "No person shall be disturbed in his privatelaffairs, or his home invaded, without authority of law." *Emphasis added. 53 constitutional question is raised.1°5 For example, in the state of Washington, where an explicit, constitutional right of privacy exists, the Utilities and Transportation Commission (WUTC) staff considered.the service to be in violation of that state's constitution (as well as wiretap laws), because the Washington Supreme Court, in State v. Ghnwall,”6 had determined that the telephone numbers one calls are priygee communications. The deputy state attorney general also agreed, saying that the phone number and not just the call is considered a private communication protected by law in that state.107 Nonetheless, in Southern Bell (1991), the South Carolina Supreme Court ruled that South Carolina's constitutional privacy rights as well as federal constitutional privacy rights were not violated (even though its State Constitution specifically affords a right of privacy--see Table 2). The Court referred to the expectation analysis in Smith and said that it could not hold that "the telephone number of the equipment from which a call has been placed is entitled to 105Indeed, a right of privacy applicable to Caller ID may not be raised. Although unusual in the Pennsylvania case (Barasch (1990)), courts are not likely to address a constitutional question if the matter can be decided on non- constitutional grounds. 106720 P.2d 808 (1986). 107Simon, US West Drawing Flak Over Caller ID--Critics Say Phone System Runs Afoul of Privacy Laws, But Firm Seeks Changes, SEATTLE TIMES COMPANY, Jan. 18, 1991 (LEXIS, Nexis library, Wires file). 54 more privacy than the telephone numbers called by someone."108 The telephone number is numerical information, voluntarily transmitted, and the service "simply does not violate any right that rises to the level of constitutional protection . " 109 Yet in Pennsylvania, where a right of privacy is not explicitly stated in its constitution, the Commonwealth Court in Barasch (1990) recognized that an independent constitutional right of privacy exists in the Pennsylvania Constitution (Article 1, SS 1 and 8). Citing several Pennsylvania cases, the court ruled that an individual has a right of privacy in the case of his or her telephone number, hence making the "unauthorized seizure" of one's telephone 11° Furthermore, "efforts to make number unconstitutional . distinctions between telephone numbers and conversational content are constitutionally untenable. ."111 108Southern Bell (1991), at 780. 109Id . 11°Barasch (1990), at 88. Bell of Pennsylvania, appealing the decision, however contends that the State Supreme Court has consistently held that the Pennsylvania Constitution protects the privacy of telephone calls from disclosure to third parties--not that "one party to a telephone call may assert a constitutional privacy right against another who is also a party to that same call." See Bell of Pennsylvania, Public Utility Commissioners Seek Appeal From Commonweal th Court Decision That "Caller ID" Service Violates State Wiretap Act, Constitutional Privacy, TELECOMMUNICATIONS REP., Aug. 20, 1990, at 9. Again, the State Supreme Court did not rule on the question of constitutionality in Barasch (1992) . lllBarasch (1990), at 88. The court attributed this to several Pennsylvania Supreme Court opinions. 55 It is clear that an examination of individual case rulings in each state will be necessary to, at best, project a legal determination of the constitutionality of Caller ID service in each state. Some statesnz also have clauses which recognize fundamental, inherent, and inalienable rights which may or may not be interpreted to include an applicable right of privacy. It should also be noted that most if not all states have a constitutional provision for due process, which was also violated in the Pennsylvania case.113 Comparable "Fourth Amendment" cases on the state level will serve to shed light on.how state courts will handle state constitutional privacy rights as they consider and weigh competing Caller ID interests. Whether there is a reasonable "expectation of privacy" may be a pivotal factor since several state courts have not reached the same conclusions as the Supreme Court in Smith when interpreting their own state constitutional rights. Despite the High Court's stand, the Colorado Supreme Court subsequently reached a dramatically different conclusion in 1983 in People v. Sporleder.“L14 The State Court held that the telephone subscriber does indeed have a legitimate expectation of privacy in the numbers dialed, and therefore 112These include Alaska, Colorado, Idaho, Indiana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, . North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah, and Wisconsin. 1432A. CONST., Art. 1. S 1- (599 sapra note 54-) 11“666 P.2d 135 (Colo. 1983). 56 declared that a pen register constituted an illegal search and seizure in the absence of a search warrant, exigent circumstances, or consent. The Court stated that the telephone is a "necessary component of modern life" and that disclosing to a company the numbers dialed did not alter the caller's expectation that those:numberS‘would.be'used.only for internal telephone company business purposes. The individual had the right to expect that the information would otherwise remain private; it is impossible to assume the risk when there is no other realistic alternative. The Colorado decision points to more arguments (which may be raised at the Supreme Court). One critic points out that there is no evidence that the average telephone user is aware of the circumstances under which such a record is made, and that it is reasonable to assume that the absence of a listing of M calls on a monthly phone bill leaves most subscribers with the accurate impression that the phone company does not record such numbers.115 Also, the Supreme Court's Smith decision did not take into account possible abuses of the pen register (i.e., by private citizens and businesses--as might occur with Caller ID). The Sporleder rationale was also followed in applying constitutional protections to pen registers in 1'15Fishman, Pen Registers and Privacy: Risks, Expectations, and the NUllification of congressional Intent, 29 CATH. U.L. REV. 557 (1980). 57 Pennsylvania,116 and to toll records in the states of California and New Jersey.117 In State v. Hunt,”8 the New Jersey Supreme Court held that a warrantless seizure of telephone billing records violated the New Jersey Constitution (although not the U.S. Constitution). This precedent is interesting since New Jersey has Caller ID, being the first state to allow it and without much objection. Other states have, however, followed the U;S. Supreme Court's Smith rationale. In Yarbrough, the Florida Appeals Court found that in addition to the U.S. Constitution, the rationale in Smith delineates the parameters of constitutional protection in Florida. Essentially, Article 1, S 12 of the Florida Constitution conforms with the Fourth Amendment of the U.S. Constitution.119 A similar decision was reached in a New York case, People v. Di Raffaele.120 Interestingly, in California, where constitutional protection for toll records has been recognized, no state constitutional right was found when the police obtained, without a warrant, the name and 116Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989). 11"Colorado v. Casey Corr, 682 P.2d 20 (Cal. 1984); People v. Blair, 602 P.2d 738 (Cal. 1979); People v. McKunes, 51 Cal. App. 3d (2nd Dist. Ct. 1975); People v. Suite, 101 Cal. App. 3d 680 (lst Dist. Ct. 1980); and State v. Hunt, 450 A.2d 952 (N.J. 1982). 118450 A.2d 952 (N.J. 1982). 119Article 1, S 23 (see Table 2), which specifically addresses "privacy," was not introduced in this case. 120433 N.E.2d 513 (my. 1982). 58 address of a telephone subscriber from the telephone company.”1 This could suggest that courts may find a lesser degree of constitutional privacy protection for the release of names and addresses than for telephone numbers. The dissent in Sporleder is also instructive, drawing a comparison between the numbers dialed and the information contained in an address on the outside of one's mail. Courts have held mail cover searches to be constitutional when they do not delay the delivery of mail and only obtain information regarding the size, weight and address.122 The dissenting justices argued that routing information such as phone numbers does not warrant constitutional protection. The issue of unlisted numbers, not addressed on the federal level, has been a key consideration in several state cases examining' privacy' expectations. In 'the state. of Washington case of State v. Butterworth,123 state constitutional privacy rights were held to be violated, where the police had obtained the defendant's unpublished telephone listing without a warrant. Although the action was not considered a violation under the Fourth Amendment of the U.S. Constitution, the Washington Constitution, Article 1, S 7,124 was determined to be broader and to provide greater J'21People v. Lissauer, 169 Cal. App. 3d 413 (lst Dist. Ct. 1985). 132Browning, supra note 104. 123737 P.2d 1297 (Wash. Ct. App. 1987). 1'24See Table 2 for text of this provision. 59 privacy protection. The state appeals court relied, in part, on State v. Gunwalllzs and Sporleder and stated that "since Butterworth specifically requested privacy regarding ‘his address and telephone number in asking for an unpublished listing, we need not resort to assumptions about his expectation of privacy."126 In California, the Supreme Court in People v. Chapman127 determined that under the California Constitution, Article 1, S 13,128 the defendant had a "reasonable expectation of privacy" in the unpublished listing which police had obtained from the telephone company.129 The court said.that.1) disclosure of one's name and address to the telephone company is not entirely volitional, 2) such disclosure is plainly for the purpose of billing, and 3) by affirmatively requesting an unpublished listing, the defendant took specific steps to ensure greater privacy.13o Interestingly, the language of the California constitutional 125720 P.2d 808 (1986). 126737 P.2d 1297, 1300. The court also noted that even though Washington state law permitted the disclosure to police of a customer's gas usage records, this case was different because of the specific steps taken to keep the information private. 12"679 P.2d 62 (1984). 1'zaThis provides: "[T]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches may not be violated; and a warrant may not issue except on probable cause, . . ." 129679 P.2d 62, 71. 13°Id. at 67-8. 60 provision closely tracks that of the Fourth Amendment as do such provisions of many other states. Still, the issue of unlisted numbers is not resolved. The New Jersey Board of Public Utilities argues that an unlisted number, while connoting an expectation of privacy, does not accord an unabridgable right to privacy on the subscriber. The Board explains that the unlisted option does not, and has never been intended to, provide a subscriber with complete anonymity.131 Thus, the treatment of privacy and of caller anonymity-- even in unlisted.numbers--is.not decided and.is not.consistent across states. Local legal precedent will play a chief role as evidenced by the Barasch (1990) decision. However, an examination of all privacy-related precedent to produce a projected estimate of the legality of Caller ID across each state would unfortunately be beyond the scope of this analysis. At best, it can be said that if a determination of the constitutionality of Caller ID only remains at the state level, then Caller ID'will likely be permitted in some states, but if challenged, might be found in violation of constitutional privacy rights in some states as well. 1“Re New Jersey Bell Tele. Ph. Co., 86 P.U.R.4th 308 (N.J.B.P.U. 1987). 61 Statutory Law--The Wiretap Question WEISS Congress has legislated the use of pen registers and trap and trace devices--laws which could also be construed to apply to Caller ID. U.S. Senator Herbert Kohl (D-Wis) proposed new federal legislation--the Telephone Privacy Act--to amend federal wiretap law, U.S.C. Title 18, s 3121, to unequivocally allow for Caller ID, although with a mandate that telephone companies also offer blocking.132 The Senate bill, along with a companion House bill,133 were originally introduced in 1990,134 primarily to open debate on privacy issues, but 1323.652, 102nd Cong. 1st Sess., 137 CONG. REC. 83283-4 (1991). The purpose of 8.652 reads, in part, that for the purpose "[T]o protect their right to privacy, telephone users must be able to limit the dissemination of their telephone numbers to persons of their choosing.” The text of the proposed amendment reads, in part, that the prohibition of the use of a pen register or a trap and trace device does not apply "where a non-governmental recipient of wire or electronic communication consents and its provider enables any originator to block the receipt of the originating number." The provision allows emergency assistance or 911 emergency lines to use the device and for the provider to prevent blocking to these services. 133R.R. 1449, 102nd Cong., lst Sess., 137 CONG. REC E965 (1991) . The House bill was introduced by Reps. Synar and Edwards. The House bill is similar to the Senate bill, although it does not specify that the recipient be nongovernmental, and there is no exception against callers being able to block calls to 911 emergency services. 134S. 2030, lolst Cong., 2nd Sess., 136 CONG. REC S485 (1990) (introduced by Kohl), and H.R. 4340, 101st Cong., 2nd Sess., 136 CONG. REC E782 (1990) (introduced by Rep. Robert Kastenmeier (D-Wis)). 62 the bills have not as yet passed either House of Congress.135 Thus to determine the present legality of Caller ID under statutory law, a careful examination of the current federal wiretap law is necessary. One of the few federal wiretap cases which have dealt with trap and trace devices--devices considered most similar to Caller ID because they trace incoming calls-—is U.S. v. Seidlitz,136 a case decided in light of the 1968 Wiretap Act.137 In Seidlitz, the U.S. Court of Appeals, Fourth Circuit, determined that telephone traces which did not interfere with or observe the contents of dialogues but merely traced the source of communications were not illegal "interceptions." In this case, owners of a computer system had used a "spy" attachment in order to trace the location of an unauthorized online user of computerized information. The court reasoned that the intruder, Seidlitz, who was a computer 1'35The Senate bill did pass the Senate Judiciary Committee in October 1991 and was changed in the process (S.Rep. 102-247). New revisions clarify that the service would be legal not only on a federal level but also in states such as Pennsylvania where it was declared illegal. Per-line blocking authorized by a state would be grandfathered, and 800 and 900 services would be prohibited from selling, reusing, or disclosing information obtained through Caller ID. Caller ID Law MCves Forward, NETWORK WORLD, Nov. 4, 1991, at 2. 136589 F.2d 152, cert. denied 441 U.S. 922 (1978). 137Title III of the Omnibus Crime Control and Safe Streets Act Of 1968, 18 U.S.C.A. SS 2510-2520 (1970). See also, Michigan Bell Tel. Co. v. United States, 565 F.2d 385 (6th Cir. 1977) , where the court required Michigan Bell to cooperate with police in installing equipment to trap and trace calls because the device does not accomplish "aural" acquisition within the meaning of the federal act. 63 expert, was undoubtedly aware that by their very nature, computers could record the data he sent and received. The court cited Congress' intent in excluding such devices under the 1968 Wiretap Act, quoting that the "legislation is not designed to prevent the tracing of phone calls . . . [it] is intended to protect the privacy of the communication itself and not the means of communication."138 Then in 1986, Congress amended the 1968 Wiretap Act, creating the Electronic Communications Privacy Act of 1986139 (ECPA) which now legislates the use of pen registers and trap and trace devices as well as provides more expansive guidelines on the illegality of certain interceptions. The ECPA generally forbids the interception of wire and oral communication as well as "electronic" communication, which includes data communication. 'The .Act also amended. the definition of intercept to include non-aural interceptions. The question of whether or not Caller ID violates the ECPA is a matter of close analysis and interpretation. The Act's effect on the access to information about the usage of telecommunications is varied. Some argue that there is no authority for the proposition that wiretapping law even applies in the context of Caller ID service. Bell Atlantic argues that wiretapping law is aimed at various forms of surreptitious interference outside normal network operations, 138Id. at 157. 139pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified at 18 U.S.C. 55 2510-2521, 2701-2710, 3117, 3121-3126 (1988)). 64 which is not the case with Caller ID.140 Others believe that attacking the Caller ID issue from the wiretapping side is a "big waste of mental energy," arguing that "[i]t's a long stretch from wiretapping--from physically and secretly listening to a conversation--to delivering Caller ID" which involves the network's signaling channel and not the message carrying channel."1"1 Even so, others, including Congress’ research branch, the Congressional Research Service, claim that Caller ID violates the federal wiretap statute. Although pen registers and trap and trace devices are permissible under Chapter 119 of the ECPA,”2 newly created Chapter 206 specifically limits the use of pen registers and trap and trace devices.143 This portion of the ECPA governs the use, application, and issuance of orders for these devices, and generally prohibits any person, including law enforcement and other governmental authorities, from installing or using a pen register or a trap and trace device without first obtaining a court order.144 1“OCaller ID Doesn’ t Violate Wiretap Act, TRANSNAT'L DATA & COMM. REP., May 1990, at 22. M1Quoting J. Pisula, President of Teleos Communications, a manufacturer of ISDN systems, in Is ANI an Invasion of Privacy?, NETWORKING MGMT., Feb. 1991, at 25. 1"218 U.S.C. s 2511(2)(h)(i) (1988). 143m. 55 3121-3126. 1“Id. 5 3121(a) . 65 In any event, there are exceptions.145 The key exceptions which have sparked the most debate are found in SS 3121(b)(2) and (3). This specifically allows "a provider of electronic or wire communication service . . . 2) to record.the fact that a wire or electronic communication was initiated or completed in order to protect . .. . a user of that service from fraudulent, unlawful, or abusive use of service; or 3) where the consent of the user of that service has been obtained." It can be easily argued that Caller ID service, offered by the telephone companies, similarly protects users from abuse by obscene and crank callers and unwanted, potentially fraudulent solicitations. iMoreover, by virtue of subscribing to the service, the user of the service has given his or her consent to have calls "traced." Nonetheless, the Congressional Research Service (CRS) , in a legal memorandum requested by the House Committee on the Judiciary, has stated that these exceptions appear to be inapplicable.M6 CRS stated that "caller identification 145For example, the legislative history clarifies that "[d]evices used by a provider . . . incident to billing or cost accounting, or for any other similar purposes in the ordinary course of business are excluded from the definition of pen register. Thus, devices that many companies and firms use to record billable time for their clients’ accounts are outside this bill's prohibitions against the installation and use of pen registers." (Senate Report No. 99-541, U.S. CODE CONG. & ADMIN. NEWS, 3555 (1986).) Whether Caller ID«could be included here is debatable, particularly since these exceptions were not said to apply to trap and trace devices but to pen registers (which record outgoing numbers and not incoming numbers). “5136 CONG. REC. E783 at E783 (1990). 66 equipment constitutes a 'trap and trace device' for purposes of the ECPA . . . regardless of whether a number or a name associated with the number are displayed after the trap and trace has occurred."147 CRS primarily argues that a telephone customer is not authorized under the Act to employ a trap and trace device because permisSible use is limited to DIQYIQSIS (the telephone company). This overlooks the nature of the technology since "tracing" of the call occurs at the central office, not at the customer's premise, and is done as a service jprovided only’ by the telephone provider; the customer is incapable of independently tracing calls with a Caller ID device which is merely a display unit through which the telephone company provides the information. Moreover, the exception requires the consent of the user, clearly implicating necessary subscriber involvement. CRS suggests that even if the exception could be read to embrace user rather than provider use, its authority seems limited to preventing toll fraud, obscene or harassing calls or similar abusive service. "It does not seem to permit perpetual use offered as a customer convenience."”8 CRS relies on the argument that since the ECPA now protects private networks and 147Including name identification is an interesting point since a:name is not explicitly covered.by the Act's definition of a trap and trace device--"a device which captures the incoming electronic or other impulses which identify the originating pepper of an instrument or device from which a wire or electronic communication was transmitted." (S 3127(4)) (emphasis added) 1“3136 CONG. REC. at E784. 67 intracompany communications, Congress must therefore frown.on perpetual use. This argument is interesting, but too thinly supported. CRS analyzes the phrase "where the consent of the user of that service has been obtained." They state that the term "the user" rather than "a user" seems to imply that the exception is restricted to consent to use a trap or trace in connection with a particular call as opposed to continuous use which might have many users. "[OJther users cannot be presumed to have consented . . . and the exception clearly envisions user consent rather than just subscriber consent."m9 Moreover, CRS argues that the past tense of the phrase limits the use to instances where there has been 2:191; consent. "Since the trap and trace has already occurred when the name associated with the calling number is displayed regardless of whether a 'user' chooses to answer the call or not, there is no 'the user’ to consent when a call is not answered."150 These arguments are simply refuted by noting that the service is available on a egpeeripeien basis. In the first place, the Caller ID subscriber is the person (or household, etcetera) to whom the particular line with the service is assigned; consent (for calls to be traced) by any other user 1491a . 1501a. 68 of the subscriber’s telephone is largely irrelevant.151 Its continuous use and prior consent are also implied within the context of a subscription. Even the words "the user of that service" suggest the possibility of a regular, on-going type of offering. Arguments made by others concerning the lawfulness of Caller ID focus on whether one or both (or all) parties to the communication must give consent and whether or not the telephone company, following a trace, may then proceed to disclose the identifying information to the subscriber. In the first instance, the term "the user of that service" (rather than "users") appears to preclude others. Also, in trap and trace court cases, the consent of nonparticipating callers has not been upheld as necessary under privacy law. In addition, Congressional intent to limit consent to one party may be inferred from other parts of the ECPA. Chapter 119, which is to be read in conjunction with Chapter 206, generally permits interceptions, such as telephone recordings of the conversation, where prior consent has been given by 52 just one of the parties to the communication.1 'The only 1“If anything, a guest in a subscriber's home would seem to have little basis arguing that the identity of callers calling the guest be necessarily unidentifiable to the subscriber. 15218 U.S.C. s 2511(2) (d) (1988) . This reads "[th shall not be unlawful under this chapter for a person not acting under color of law to intercept a[n] . . . electronic communication where such a person is a party to the communication or where one of the parties to the communication has given prior consent. . . ." 69 exception to this is if the purpose of the interception is for committing a criminal or tortious act in violation of law in which case one party consent is not enough. The legislative history reveals that even this qualification was particularly narrowed from the 1968 Act because Congress wanted to prevent such claims as mere embarrassment (a privacy tort) as an exception to the single party consent requirement.153 Regarding the telephone company's liability for making calling party identification available, one may first consider the distinction between the disclosure of content and noncontent (or usage) information. In general, the ECPA prohibits those who are not a party to the communication from disclosing its "contentsfl15¢-information concerning the substance, purport, or meaning of the communication.155 With the 1986 amendment, Congress intentionally deleted from the 1968 contents definition the "identity of the parties" and the ”existence . . . of communication," thereby essentially permitting the disclosure of the existence of communication and the identities of the conversants.156 One may also look to the newly created Chapter 121 addressing stored wire and 153Senate Report No. 99-541, U.S. CODE CONG. & ADMIN. NEWS, 3555 (1986). 15418 U.S.C. s 2511(1) (c). 155m. s 2510(8). 156Burnside, The Electronic Communications Privacy Act of 1986: The Challenge of Applying Ambiguous Statutory Language to Intricate Telecommunications Technologies, 13 RUTGERS COMPUTER & TECH. L.J. 451 (1987). 70 electronic communications and transactional (such as toll) records access. The ECPA generally prohibits an electronic communications service provider from knowingly divulging the contents. of any' stored. electronic communication.197 An exception to this provision, however, is that the contents of a communication.may be divulged to the "addressee or intended recipient of such communication."158 (This also suggests once again the necessity for only single party consent.) Moreover, concerning noncontent information, the Act permits a provider of electronic communication service to disclose to W other than a governmental entity, a record or other information pertaining to a subscriber or customer of such service.”9 Under the ECPA, providers may now disclose noncontent information such as billing and administrative records regarding subscriber or customer accounts to nongovernmental entities without liability. Hence, the release of calling party identification by the telephone companies to a Caller ID subscriber would certainly appear permissible under the ECPA. Thus, absent a federal law prohibiting Caller ID, it would appear that Caller ID could survive the prohibitions of interception and disclosure under current federal statutory law. Even the CRS stated that the courts "might consider the 15718 U.S.C. ss 2702(a)(1) and (2)- 1531d. 5 270203)”)- 1591d. 5 2703(c) . Governmental agencies must obtain a warrant, subpoena, court order or consent. (S 2703(c)(1)(A)) 71 privacy interest involved relatively minor and accordingly find that Congress did not intend to preclude the use of such equipment . " 15° It should be noted that there are other federal statutory laws besides the ECPA which deal with privacy concerns, but none of these is applicable per se. Since the enactment of federal wiretap law, S 705 (formerly S 605) of the Communications Act of 1934161 only prohibits the interception of regie communication. The Freedom of Information Act (1966)162 concerns the availability of personal information contained in federal records, and although it restricts from public inspection information that would constitute a "clearly unwarranted invasion of privacy," this information generally regards personnel, medical and investigatory records.163 The Privacy Act of 1974164 regulates the data collection and dissemination activities of federal agencies, requiring consent of the individual, and provides a procedure to allow individuals access to such personal records--which include name and identifiable numbers. The Act is applicable only to federal agencies,165 however, 160136 CONG. REC. at E783. 16147 U.S.C. s 705. 1625 U.S.C. s 552. 153m. s 552(b)(6). 1“5 U.S.C. 9 552a. 155m. s 552a(1) . 72 and was not made applicable to private industry.166 A statute which does pertain to private entities is the Cable Communications Policy Act of 1984,167 which created a national standard for the protection of subscriber privacy by regulating the collection, use and disclosure by cable operators of personally identifiable information about subscribers without their consent. This information includes names, addresses, and telephone numbers. Although this Act would not pertain to telephone common carriers, its substance is worthy of note because it may become directly applicable should cable-telephone company cross-ownership be permitted. Neither the Pennsylvania nor the South Carolina courts ruled on the legality Of Caller ID under federal statutory law. Both states' courts did consider their own respective state wiretap laws, however. For this reason, it is also important to consider the individual state laws applicable to Caller ID. SLAL2_§LALUL2§ States may regulate Caller ID, and in fact, some state laws are precisely the focus of the current privacy debate. An analysis of state laws is critical. In light of the conflicting decisions of the two state courts so far, Caller 1“See Legislative History, 1974 U.S. CODE CONG. &.ADMIN. NEWS 6916, 6934-36. 16747 U.S.C. ss 521-611. 73 ID may be only allowed in some states and possibly taken away in some states where it is already available. California is the only state thus far with a law enacted specifically addressing Caller ID.168 Absent specific Caller ID legislation, the legal question for the remaining states will generally turn on an analySis of the state wiretap statutes. A review of all states’ wiretap statutes reveals that 22 states have laws dealing with trap and trace devices. Twenty of those state laws (See Table 3) are identical (or virtually identical) to the ECPA.169 Each of these 20 state laws provides two particular, relevant exceptions (as found in the ECPA): 1) For a provider of electronic communication service to use a trap and trace device to record the fact that an electronic communication was initiated or completed in order to protect a user of that service, from fraudulent, unlawful, or abusive use of the service; or 2) where the consent of the user of that service has been obtained. Unfortunately, the difficulty in knowing whether these exceptions are applicable to Caller ID rests with court interpretations. While the South Carolina Supreme Court accepted these exceptions, the Pennsylvania Supreme Court ruled differently. Although the Pennsylvania provisionno lfiasee section on Blocking, infra p. 103. 169Statewiretap laws vary, even though the ECPA.required states to be in compliance with its provisions within two years of its enactment. 17°Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. 5771 (as amended in 1988 in compliance with the federal law). 74 Table 3 States With Trap and Trace Statutory Provisions* Arizona A.R.S. 13-3012 Colorado C.R.S. 18-9-305 Florida Fla. Stat. 934-31 Hawaii H.R.S. 803-42 Idaho Idaho Code 18-6720 Kansas R.S.A. 22-2525 Maryland Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. 10-4B-02 Minnesota Minn. Stat. 626A.02 Nebraska R.R.S. Neb. 86-707.03 New Hampshire R.S.A. 570-B:3 North Carolina N.C. Gen. Stat. 15A-261 Oklahoma 13 Okl. St. 177.2 Oregon ORS 165.661 Pennsylvania 18 Pa.C.S. 5771 South Carolina S.C. Code Ann. 17-29-20 South Dakota S.D. Codified Laws 23A-35A-23 Utah Utah Code Ann. 77-23a-13 Virginia Va. Code Ann. 19.2-70.1 West Virginia W. Va. Code 62-lD-10 Wisconsin Wis. Stat. 968.34 *Statutory provisions identical (or nearly) to Title 18 USCA S 3121 of the federal Electronic Communications Privacy Act (of 1986) (ECPA). 75 is nearly identical to that of the ECPA, the Court determined that unlike the ECPA, ell-party consent is required in Pennsylvania. The Court came to this conclusion by interpreting the intent of the provision together with the nnnerlying Pennsylvania Wiretap Act which is much more protective of individual rights than the corresponding federal legislation. Another section of the state law, for example, prohibits a person from intercepting electronic communications 171 Moreover , the unless n1], parties have given consent. Pennsylvania courts have consistently held that the recording of telephone conversations by a private party must have the consent of n11 parties.172 Where the consent of only one party is required, the Wiretap Act has so stated.173 The Court also stated that the term "user" could mean anyone using the telephone network, including the calling party. The service violates the law because it is being used for ”unlimited purposes" without consent.17‘ Finally, the Court maintained that it is the customer and not the telephone provider (who would be excepted) who is "capturing" the data 171m. s 5703 . 172See, e.g., Commonwealth v. Jung, 366 Pa. Super. 438, 531 A.2d 498 (1987), as cited in the concurring/dissenting opinion of Barasch (1990), at 93. 1”It is interesting to note that S 5704(9) allows ene- party consent for recording computer communications, electronic mail, and voice mail. 1“Barasch (1992), at 7. 76 and controls the Caller ID device.175 Although South Carolina’s wiretapping law is almost identical, the South Carolina Supreme Court distinguished its decision from Barasch (1990*),176 finding that South Carolina does not have a similar (and extensive) statutory scheme as Pennsylvania. "Nowhere in the South Carolina Act is the term ’all parties’ utilized by the General Assembly so as to require both parties to consent."177 The Court stated that the choice Of the singular term "user" must, in this context, be understood to be the Caller ID subscriber. The Court also distinguished the South Carolina law from the Pennsylvania law by pointing out that in South Carolina, special legislative action to exempt police and emergency communications (i.e., "911e") from.the wiretapping law is not required as it was in Pennsylvania. Regardless, the Court found the service to be lawful due to the exception pertaining to its use in protecting subscribers against fraud or abusive use. Even though the Barasch (1990 a 1992) courts did not consider this exception, the South Carolina Court stated that "there can be no doubt that Caller ID service is designed to protect the utility’s subscribers from abusive or unlawful 1"F’It was also argued that two traps take place--the first by the telephone company and the second when the calling number is deposited and stored in the Caller ID device. 1“The rationale in the lower court (Pennsylvania) decision was similar to that Of the Pennsylvania Supreme Court decision. 177Southern Bell (1991), at 777. 77 telephone calls."178 Finally, the South Carolina Supreme Court did not address the issue but the trial court maintained that the subscriber and the Caller ID device are incapable of independently "capturing" and/or displaying the calling party’s telephone number; only the telephone company (who would be excepted) conducts the trap and trace. Thus, decisions in other states (or at least those with the trap and trace provisions) may hinge on 1) interpretations of each state’s legislative histories and statutory schemes on wiretapping (i.e. , who is/are the "user" and who must "consent") , 2) interpretations of who "captures" (intercepts) the CPI, and 3) whether an exception pertaining to fraud and abusive use exists and is considered applicable. SO far in at least two other states with trap and trace provisions, Caller ID has been considered illegal. In Florida, the Attorney General said the service may violate the Florida wiretap laws.”9 The North Carolina Attorney General also filed an opinion following the Barasch (1990) decision, stating that Caller ID is a commercial application of technology which constitutes a trap and trace device in violation of the North Carolina (and federal) law. As for the "consent" exemption, the North Carolina analysis noted that a user could consent to a trap and trace for purposes of a telephone or police investigation, but the exemption could not 1781a. 179Caller ID Roundup, COMM. DAILY, Dec. 11, 1990, at 3. 78 be construed to include a 952W trap and trace device used by the subscriber and not the telephone provider.180 (In response, Southern Bell argues that the "capture" takes place in the telephone company’s central Office and thus is performed by the provider in conformance with the trap and trace law.181) Other state statutes are less clear. Nevada and Texas both mention trap and trace devices but seem to require a 182 Some states court order for its use, without exceptions. (such as Alabama and Texas) , however, have provisions allowing a provider to divulge the contents of communications to the "addressee" or "intended recipient." Others allow communications to be "intercepted" with prior consent (Rhode Island, Iowa) by one party (Alabama, Wyoming), or specifically require consent from all parties (Louisiana, Washington183) . Assessing the statutory schemes of every state’s wiretapping law would again be beyond the scope Of this analysis. It does appear, however, that the courts in some 180Caller ID Violates N.C., U.S. ’Trap and Trace’ Law, Attorney General Tells Commission, TELECOMMUNICATIONS REP. , July 23, 1990, at 8. 181Southern Bell Argues That Caller ID Unit Does Not Constitute ’Trap and Trace’ Device, TELECOMMUNICATIONS REP. , Aug. 13, 1990, at 15. 182Caller ID is nonetheless available in Nevada. 183Although Washington’s statute does also say that wire communications "which occur anonymously or repeatedly or at an extremely inconvenient hour . . . may be recorded with the consent of one party to the conversation." (WASH. REV. CODE ANN. S 9.73.030 (1988)) 79 states may interpret their laws to permit Caller ID. In Maryland, the Attorney General has determined that the courts there would likely require the consent Of only one party.184 Precedent in.Massachusetts suggests that that state’s wiretap law may not be violated because the Massachusetts statute expressly permits telephone companies to trace calls and disclose the results when necessary to prevent unlawful, harassing calls.185 Some argue that this type of allowance found in some state statutes would only apply to Call Trace and 911e applications and not Caller ID. Yet in New Jersey, the Superior Court stated that their wiretap statute is not even applicable to the installation of tracing equipment because there is no interception; detecting the identity of a caller is not the result of overhearing word or sound.186 The states :may' respond like California. by' creating legislation specifically exempting, limiting, or prohibiting Caller ID. For example, U.S. West is proposing legislation to exempt all "tariffed services" from the specific wiretap provisions. And although a public utility commission has no jurisdiction to decide the legality (under criminal statutes) 18“Maryland Commission Directs C&P to Offer Free Per-call Blocking With Caller ID, TELECOMMUNICATIONS REP. , NOV. 26, 1990, at 5. 185District Atty. for Plymouth Dist. v. Coffey, 434 N.E.2d 1276 (1982). 186State v. Droutman, 362 A.2d 1304 (1976). See also State v. Murphy, 349 A.2d 122 (1975), rev’d on other grounds, 372 A.2d 1315 (1977). 80 of Caller ID,187 the Washington Utilities and Transportation Commission has said that the legal problems in that state may be resolved through a "carefully crafted tariff." 137As stated in Southern Bell (1990). 81 Privacy Under Common Law This analysis looks next to common law to examine the scope of invasion of privacy torts. In the absence of applicable constitutional or statutory protections, protection may be sought from the body Of tort law. Moreover, an examination of applicable torts is useful in discovering various recognitions Of an "informational privacy right," and how the courts have handled and weighed such claims of privacy invasion from a common law perspective. Privacy law began its modern history as a tort. Originally, common law gave a remedy only for physical interference with life (such as bodily injury) and property. Then came a recognition Of mankind’s spiritual nature, feelings and intellect (such as with copyright and libel law). Gradually the scope of these rights broadened to mean "the right to enjoy life--the right to be let alone."188 This idea was first introduced into American jurisprudence in 1890 by Samuel Warren and Louis Brandeis in their well-known law review article, The Right to Privacy.189 A common law cause of action known as "invasion of privacy" has since been recognized by courts and legislative bodies as a means of 188Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). (Supra note 68.) 189Id. They were prompted to write the article because of Warren’s personal annoyance with press coverage of the lives Of his socially elite family. Because of this, their article is primarily concerned with what Prosser categorizes as public disclosure of embarrassing, private facts. 82 protecting against unwarranted intrusions into one’s affairs. Essentially, one who invades the right of privacy of another is subject to liability for’ the resulting' harm ‘to the interests of the other. In 1960, Dean Prosser synthesized hundreds of cases recognizing a right of privacy actionable in tort.190 Prosser’s widely accepted analysis”1 breaks down the privacy invasion lawsuit into four separate torts: l) Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness, 2) Publicity which places a person in a false light in the public eye, 3) Public disclosure of embarrassing, private facts about the plaintiff, and 4) Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs. For the most part, it appears that a privacy action here would not qualify for recovery under any of these four recognized categories. The first two torts--appropriation and false light--have little direct relevance to Caller ID. The appropriation tort generally involves the commercial use of someone’s notoriety or prestige without permission, such as an unauthorized product endorsement. While this tort protects an interest which seems to rest upon a "proprietary" right in one’s name or likeness, it is the person’s name as a symbol of his or her 19°Prosser, Privacy, 48 CALIF. L. REV. 383 (1960). 191His concepts have since been alluded to in most privacy cases and by most scholars, as well as reflected in the RESTATEMENT (SECOND) OF TORTS S 6528 (1977). 83 identity that is involved here, and not his or her name as a mere name. The same would be true with the transmission of a person’s name or telephone number via Caller ID service. While it may be possible that a company which takes product orders over the phone could advertise that a particular caller (i.e., a celebrity) is their customer, this situation could also occur when a customer orders a product by mail, uses a credit card, or enters a store in person.192 The matter is not a direct consequence of Caller ID. Likewise, the tort of false light could only come into play indirectly. For example, if someone makes Obscene phone calls while using another person’s phone, that might implicate that person who may then be placed in a false light. The tort Of false light, which deals with non-libelous falsehoods about a person, requires that the matter be made public. MOreover, it must be something that would be Objectionable to an ordinary, reasonable person--not merely minor errors such as mistaken identity. The intrusion and public disclosure torts, while worthy of examination, would likely not be met by a claim because of 192It might be argued that a business which uses the identification Of a caller for commercial purposes (such as compiling and selling the names to other businesses) would be in violation of this tort. However, for the above reasons, this would not be the case. In Shibley v. Time, Inc., 40 Ohio MISC. 51, 321 N.E.2d 791 (1974), aff’d 341 N.E.2d 337 (1975), the court found that none of the four judicially recognized categories of privacy were violated in an action where a magazine publisher, without consent, sold and rented its list of names and addresses to others for commercial purposes. This conduct continues to be widespread. 84 the standards that must be met to be actionable. The intrusion tort involves intentional intrusion, physically or otherwise, upon the solitude or seclusion.of another or his or her private affairs or concerns. This tort usually applies to physical intrusions and has little relevance to information law, except to the extent that it includes intrusions such as wiretapping, eavesdropping, using’ hidden. microphones and unauthorized prying into personal bank accounts and confidential records. Aside from the technical arguments as to who (telephone company or subscriber) is doing the intruding, the intrusion must be found to be ”highly offensive" to a reasonable person. Merely having a number or name displayed would hardly seem "highly offensive."193 Also, Prosser explains that the thing intO‘which.there is prying or intrusion.must be, and entitled to be, private. It is certainly arguable as to whether or not a telephone number or name is a private fact and not a public fact. These facts are contained in city directories and many public records. Even if unlisted numbers were considered a private fact, name identification, in itself, would not be. Of course, it may be argued that it is the name combined with the context of the 193In In re Rosier, 105 Wash.2d 606, 717 P.2d 1353 (1986), the court stated that the release of an individual’s electrical usage records would not be "highly Offensive" to a reasonable person. Yet, the Washington Appeals Court in State v. Butterworth, 737 P.2d 1297 (1987), remarked that if the information in Rosier had been contained in an unpublished telephone listing, its disclosure might have been ”highly offensive." The court, however, Offered no reasoning for this comment. 85 call which renders the name private. Still, a person may not be enrirled to place totally anonymous calls. In Sbuthern Bell (1990), the court found persuasive a tariff provision which provides that "[t]he calling party shall establish his identity in.the course of any communication as often as may be necessary."194 On top Of this, a Caller ID subscriber could counter a claim of intrusion with a similar claim. After all, it is the caller who first intruded upon the called party’s solitude with the telephone call. Caller ID is, in fact, a service designed to guard against or manage intrusions.195 Plus, it may be difficult for the caller to argue that his or her number or name is more private and entitled to be more private than that of the person he or she is calling (and whose number he or she knows). Finally, the tort of public disclosure of embarrassing private facts, which went.to the heart of Warren and.Brandeis’ analysis, is analogous to the concept of information privacy and might seem to be most relevant to the calling party’ 3 concern. This tort would most likely implicate the telephone company, although again it Offers little support. In the 13‘Southern Bell (1990) at 6, quoting from the General Subscriber Service Tariff s A2.2.2. 195The Supreme Court has even recognized the right of receivers in Rowan v. United States Post Office Department, 397 U.S. 728 (1969). In this case, the Court said "nothing in the Constitution compels us to listen to or view any unwanted communication . . . the ancient view that ’a man’s home is his castle’ into which ’not even a king may enter’ has lost none of its vitality . . . ." (at 737, regarding unsolicited and unwanted mail). 86 first place, the information involved, as with the intrusion tort, must be "highly offensive" to a reasonable person. Prosser remarks that "[aJny one who is not a hermit must expect the more or less casual observation of his neighbors and the passing public as to what he is or does and some "196 Again. the receipt reporting of his daily activities. of CPI is hardly offensive. Secondly, whether or not a name or telephone number is a private fact is again debatable. Prosser further describes here what is private and what is public by pointing out that what is public is a matter that is public record unless that record is confidential such as income tax returns.197 He points out that, according to precedent, no one is entitled to complain when there is publication of his or her date of birth, marriage, or the fact 198 that he or she drives a taxicab. An individual’s home 196Prosser, supra note 190, at 396. 1971d. at 395-96. 1'93‘Unless, of course, such information is protected by specific statutory law. For example, in Massachusetts, the sale of motor vehicle records identifying owners’ dates of birth was contested as a violation of that state’ 3 Fair Information Practices Act, which restricts the release of personal data held by government agencies. One plaintiff successfully argued that potential employers would discriminate against him if they learned his age. Two other people involved in relationships with younger partners successfully argued that they feared embarrassment and harassment if their ages were known. On appeal, however, the plaintiffs admitted that the name and address of a car owner is a public record and its disclosure is not prohibited. The court agreed, determining that the release Of date of birth and height are restricted by state law nnt ngt Qne’s nnne nng nfldre§_. See T.E. MCMANUS, TELEPHONE TRANSACTION-GENERATED INFORMATION: RIGHTS AND RESTRICTIONS, 57-58 (May 1990) , Citing John Doe & Others v. Registrar of Motor Vehicles, 26 Mass. 87 address is a public fact which may be disclosed.199 CPI ‘would indeed seem to fall into this latter category. 1mnirdly, this tort deals with publicity and would require that the information be communicated to the public at large and not just the called party or even a small group of people. Finally, for this tort to be brought, the information must not be a matter Of legitimate public concern. It must fail ”local standards regarding how much exposure a member of society should be required to put up with."200 Although these standards are not entirely known, it can be said that a significant portion of the population favors Caller ID.201 The service can be used for thwarting Obscene and harassing calls which are legitimate public concerns. Thus, because CPI is not exactly communicated to the public at large, is hardly "Offensive," and has some element of legitimate public interest, a tort cause of action in this case would probably not be found. Of course with Caller ID, it is conceivable that if a person (i.e., a.public Official) makes a "sensitive“ call (i.e., to a drug rehabilitation center or a clinic for venereal disease) his or her identity and the "embarrassing" App. Ct. 415, 528 N.E.2d 880 (1988). 199See McNutt v. New Mexico State Tribune, 538 P.2d 804 (N.M. Ct. App. 1975), cert. denied, 540 P.2d 248, where police officers’ names and addresses were considered a public fact and their mere publication, without more, could not be viewed as an invasion of privacy. 200Mclean, Unconscionability in Public Disclosure Privacy cases, COMM. & L., Apr. 1988, at 31. 2“See LOUIS HARRIS & ASSOCIATES, supra note 16. 88 nature of the call could end up in the press. But this scenario could also occur with other forms of communication and is again not a problem inherent in the service itself. The liability of the telephone company under common law for releasing CPI may otherwise turn on what may be considered to be more direct consequences of the service-~such as a surge in unwanted telephone solicitations or the regrettable identification of the location of a woman in a battered women’s shelter. Examples Of privacy cases involving the publication or release of one’s address are instructive to this analysis since identification of a person’s address could be considered equally if not more of a privacy concern. Although an issue seldom raised, the courts have held that the publication of a person’ s residential address is NOT an invasion Of his or her privacy.”2 In one case, a court found that employees’ rights to privacy were not invaded by a National Labor Relations Board order requiring an employer to release its employees’ addresses and names.”3 The court reasoned that those employees who did not welcome visits to their homes were free to turn the visitors away and would have the protection of the law in doing so. A class action suit against the release of employees’ names and addresses by an 2°259e Annotation, Publication of Address as well as Name of Person as Invasion of Privacy, 84 A.L.R.3d 1159 (1978 8 1989 Supp.). 203NLRB v. British Auto Parts, Inc., 266 F. Supp. 368 (C.D. Cal. 1967), aff’d 405 F.2d 1182 (9th Cir. 1968), cert. denied 394 U.S. 1012 (1969). 89 agency in a similar case was dismissed when the court found a claim that the people would be subjected to unsolicited messages to be insufficient to create an actionable invasion of privacy because a mailing of unsolicited messages not amounting to harassment is not actionable.204 Thus, courts might view the release of CPI in similar fashion and discard opponents’ Objections that telemarketing and other firms will abuse the availability of CPI with unwanted phone call solicitations. Although there are not many cases, there are a few lower court cases involving the disclosure of a telephone customer’s address or phone number by a telephone company when that subscriber has an nnlieted phone number.205 In Montinieri v. Southern New England Tel. Co.,206 the jury found a telephone company not liable for causing emotional distress by the unintentional release of the address of subscribers having an unlisted telephone number, even though the people were, in fact, taken hostage by a person who subsequently went to their home. No liability would have existed unless the telephone company should have realized that its conduct involved an "unreasonable risk" of causing distress that might result in illness or bodily harm. (Would releasing CPI cause such an 2°"Tobin v. Michigan Civil Service Comm., 331 N.W.2d 184 (1982). 205Annotation, Telephone Company's Liability for Disclosure of Number or Address of Subscriber Holding Unlisted Number, 1 A.L.R.4th 218 (1980 a 1989 Supp.). 206175 Conn. 337, 398 A.2d 1180 (1978). 90 "unreasonable risk?") The jury in the case was allowed to consider that the plaintiffs also surrender part of their privacy to the public domain in other ways, such as when they Obtain driver’s licenses and motor vehicle registrations and have their names published in the City directory. In another case, New York Times Co. v. Givens,2°7 the court found that the plaintiff newspaper could compel a telephone company to .reveal the name and address Of a telephone subscriber for the purpose of pursuing a lawsuit. The court also pointed out regulation that provided that in the absence of gross negligence or willful misconduct, a telecommunications carrier is free of all damage claims caused by the disclosure of the telephone number Of a nonpublished service. For these reasons, a common law tort of invasion of privacy regarding CPI would probably not be actionable. Some states, in fact, may not even recognize such claims. In virtually all jurisdictions, some form of a tort cause of action for invasion of privacy is recognized. However, in three states--Nebraska, Rhode Island and Wisconsin--judicial adoption of any form Of the common law cause of action continues to be rejected.208 Also, New York does not recognize the torts of intrusion upon seclusion and publicity 2°"305 N.Y.S. 2d 164 (1969)- 2“See Comment, The Use and Abuse of Computerized Information: Striking a Balance Between Personal Privacy Interests and Organizational Information Needs, 44 ALB. L. REV. 589 (1980). NO cases have been reported since. 91 given to private facts.”9 Thus, a Caller ID claim under common law in some states may never even be brought in the first place. 2(”See Graifman, Put Telephone Right to Privacy on Hold, N.Y.L.J., Apr. 3, 1990, at 2, citing Arlington v. New York Times Co., 434 N.E.2d 1319 (1982), cert. denied, 459 U.S. 1146 (1983). 92 Privacy and Property Rights Finally, key to the decision in Southern Bell and a subject which has not been widely addressed is the matter of a property interest. In other words, who owns the telephone number? Although this may not appear to be a matter of privacy policy, it should be clear that if the telephone company owns the telephone numbers, then telephone customers may have no claim to an invasion of privacy if the telephone company chooses to disclose the numbers to others. Indeed, in the Southern Bell (1990 & 1991) cases, the courts considered the telephone company’s property interest as compared to the customer’s privacy interest in the telephone number. The courts partly relied on a provision in Southern Bell’s General Subscriber Service Tariff which states that "[t]elephone numbers are the property of the Company . . . . [tjhe subscriber has no property right to the telephone number or any other call designation . . . ."210 The courts, asserting that the information transmitted is numerical information, voluntarily transmitted, stated that ”[n]o fundamental interest is involved in the anonymity of a telephone number, particularly when the ownership thereof is vested in the telephone utility, not the subscriber.”11 21°SOuthernBell (1991), at 780; Southern Bell (1990), at 15, referring to S A2.3.12. 211SouthernBell (1991), at 780; Southern.Bell (1990), at 17. 93 Since the Supreme Court’s decision in Katz, there has been a shift away from the original property-related standard of privacy analysis. Before the development of common law, the courts long recognized rights that were essentially the same as the right of privacy under the guise of property rights and rights of contract.212 With Katz, however, the notion Of absolute property rights gave way to actual notions of privacy, emphasizing "liberty," "expectations," and "familial or marital rights."213 Yet the courts still find property rights pertinent to privacy entitlements in the post- Katz era.214 Increasingly, computer data, time and services have been accorded the status of property. Most states, for example, have passed laws establishing property rights in computer data , barring unauthori zed access and alteration.215 Such property rights are useful elements in evaluating privacy claims. Some even argue that privacy interests could still be effectively protected within a legal 212See, e.g., the landmark case of Boyd v. United States, 116 U.S. 616 (1886), in which the Supreme Court equated personality and the "privacies of life” with an individual’s property rights. 213Mott & Mott, Property and Personal Privacy: Interrelationship, Abandonment and Confusion in the Path of Judicial Review, 18 J. MARSHALL L. REV. 847 (1985). 21"See also Tomkovicz, Beyond Secrecy for Secrecy’s Sake: Toward an Expanded Vision of the Fourth Amendment Privacy Province, 36 HASTINGS L.J. 645 (May 1985). 215Noted by Noam, Telecom Services Raising Privacy concerns, TRANSNAT'L DATA 5 COMM. REP., Mar. 1990, at 15. 94 framework protecting property rights.216 Few laws deal with the concepts of ownership in what may be otherwise known as "telephone transaction-generated information" or TTGI.2r7 Prior to divestiture, information generated by telephone usage and by transactions related to telephone service was controlled by AT&T, and no one questioned their right to control it.218 TTGI was used internally in research and development, planning products and services, and later in marketing. Until recently, an "implicit pact" existed between telephone companies and customers. The terms allowed telcos to collect and use customer data as required for provision of service; however, the data could not be provided to other parties without consent of the customer.219 But with competition and new or more efficient uses of TTGI, the information became a valuable commodity subject to a number of concerns including privacy. In competitive businesses in general, information collected about customers is considered.tolbe owned.by the business, not 216Palmer, Privacy Isn’t a Right--But It Might be Considered Property, L.A. DAILY J., July 7, 1983, at 4; See also Mott & Mott, supra note 213. 2 17T . E . MCMANUS , TELEPHONE TRANSACTION-GENERATED INFORMATION: RIGHTS AND RESTRICTIONS (May 1990). This includes white pages and yellow pages information, new service orders, aggregate traffic information, billing and call detail records, and of course, calling party identification and other network information. (at 8-9) 219m. at 43. 219Pendleton, The Telco That Knew Too Mach, TELECOMMUNICATIONS ENGINEERING 5 MGMT., Mar. 1, 1990, Rt 40. 95 the customer. Because local exchange companies still operate in primarily a monopoly, bottleneck situation where the expense of data collection is arguably borne by ratepayers, the issue of ownership is important.220 The ECPA,221 other areas of common law, and even copyright law offer only limited degrees of guidance in determining ownership rights. Copyright law is one of the only laws which addresses ownership of TTGI, but this primarily pertains to a telephone company's proprietary interest in its white and yellow pages directories, which competitors might copy,222 and would seemingly have little application to the telephone company’s usage of CPI in its 22°13. MCMANUS, supra note 217, at 13. The local telephone loop is now being opened up to competition, however. See Mason, FCC Mandates Physical Co-location, TELEPHONY, Sept. 21, 1992, at 3. This may affect this issue of ownership, but how is not clear. It may mean that the telephone companies, and perhaps their business competitors, do indeed own the information, or that because of their obligation to cooperate with these competitors, the telephone companies do not own the information or have a reduced ownership right to it. 221Such as S 2703 (c), allowing telephone companies to divulge usage data. 2""2Up until now, lower courts have generally held that the telephone companies have a copyright interest in their directories. The Supreme Court, for the first time, recently reviewed the matter in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., No. 89-1909, slip op. (S. Ct. Mar. 27, 1991) and held that a telephone company’s white pages are not entitled to copyright. The Court stated that the raw data are uncopyrightable facts, and the way in which a telephone company selected, coordinated, and arranged those facts is not original in anyway. "[S]ubscribers’ names, towns, and telephone numbers--could not be more obvious and lack the modicum of creativity necessary . . . ." (at II) See also Patry, Copyright in Compilations of Facts (Or Why the "White Pages" are Not Copyrightable), COMM. & L., Dec. 1990. 96 possession. Certainly customers could hardly stake a copyright claim to this information.223 Federal Communication Commission rules governing the use of Customer Proprietary Network Information (CPNI)224 may serve as an analog for analysis, although these rules may otherwise have limited application. The rules basically concern the release of customer information to such firms as enhanced service providers, customer premise equipment vendors and even telephone company subsidiaries.225 The FCC's CPNI rules apply, with minor exceptions, "to all information about customers' network services and. customers’ use of 'those services that a BOC [Bell Operating Company] possesses by virtue of its provision of network services."226 This includes usage data. and informationx on customer* calling patterns, billing information, traffic studies, and "forwarded-to numbers," but specifically excludes credit information because it only addresses information on how a 223This is partly because copyright cannot extend to one's name or other short expressions, likely including a telephone number. Moreover, the customer has not created an original work of authorship; the CPI transmitted is merely a compilation of facts whose compilation is partly if not mostly done and "reported" by the telephone company who arguably (although now doubtfully) has a copyright interest should several bits of data--i.e., caller's name, number, last time called, etcetera--ever be transmitted. See Id. 22“Memorandum and Order, CC Docket No. 88-2, Phase 1, 4 F.C.C. Rcd No. 1, 1988. 225A2major concern behind the rules was the potential for carriers to use customer information in their possession to market enhanced services to their competitors' customers. 21“Memorandum, supra note 224, at 215. 97 customer pays its bills--information already available to those who do business with the customer.227 It would appear that based on the FCC's definition, CPNI would exclude customers' names, addresses, and telephone numbers,228 ‘although the FCC does not explicitly state this.229 The FCC, which largely accepts the BOCs' CPNI definitions, notes that Bell Atlantic and Southwestern Bell include customer name, address and telephone number within their CPNI definition. ‘U.S. West, on the other hand, specifically excludes this information.230 Despite this uncertainty, the rules are nonetheless interesting because the FCC responded to the privacy and commercial aspects of proprietary customer information by employing a property distinction. Its rules essentially place the ownership of the data in the hands of the customer generating that information rather than in the hands of the telecommunications carrier. Under this model, the customer "lends" the information to the telephone company for a 227m. at 216. 228Some have suggested that the FCC order does, in fact, exclude names, addresses, and telephone numbers. See Endejan, Caller Identification Services: The Demise of the Anonymous Phone Call, COMM. LAW., Spring 1990, at 6; also Toth, Calling Line ID Vs. Privacy: A Regulatory Update, BUS. COMM. REV., Mar. 1990, at 62. 229The FCC does, however, prohibit BOCs from making unpublished and unlisted telephone numbers available to their enhanced services personnel unless the customer first contacts the BOC seeking information about such services. Memorandum, supra note 224, at 217 & n.1017. 230m. at 212 n.995. 98 service, but the control over who has access to the information remains with the "owner."231 There are a number of FCC rules restricting the use of CPNI. FCC rules forbid a carrier from providing any separate corporation with such information unless it is available to any member of the public on the same terms and conditions.232 In its Third Computer Inquiry, the FCC stated that it "would be inconsistent with legitimate customer expectations about confidentiality to make CPNI generally available to all CPE vendors."233 In its Phase I and Phase II Orders addressing Open Network Architecture, the FCC allowed AT&T and the Bell Operating Companies to use proprietary customer information but required the carriers to honor requests from customers that their information be withheld or be released to other enhanced service providers. Multi-line business customers must be notified annually of these "rights,” and the FCC determined that carriers should not be paid for releasing CPNI to third parties?“ The issue as regulated here is somewhat distinct from the release of information to a called party through the CLASS.I 231Katz, U .5. Telecommunications Privacy Policy, TELECOMMUNICATIONS POL’Y, Dec. 1988, at 353. 23247 C.F.R. s 64.702(d)(3)- 233Report and Order, cc Docket No. 85-229, 104 F.C.C. 2d, 1986. 23“Report: and Order, cc Docket No. 85-229, 2 F.C.C. Red Vol 10, 1987; Memorandum Opinion and Order on Reconsideration, CC Docket No. 85-229, Phase II, 3 F.C.C. Red No. 5, 1988; Memorandum Opinion and Order, 4 F.C.C. Red No. 11, 1989. 99 features: the motivations of the recipients of CPNI under these rules are primarily economic and the customers do not themselves initiate the release of their numbers by virtue of placing a call. There is also a technical question of whether or not a customer’s proprietary rights would extend to information about the phone numbers of the calls he or she receives. If they do, then customers would merely be telling the telephone company to release their CPNI to their own telephone display units. If they do not, it would appear that under these rules, a telephone company could not release the calling party's number (CPNI) without the calling party's permission. Whether or not the rules governing the release of proprietary customer information could pertain to calling party identification is not clear, particularly since name, number and address may be excluded. The CPNI issue has also been concerned with mostly large business firms and not the residential subscriber, thus distinguishing the concern as one of a commercial nature and less a personal privacy issue. Because of this, the rules may not be extended to calling party identification. Also, because the FCC specifically allows automatic number identification (ANI)235 and had addressed Caller ID in an earlier proposal addressing options for subscribers with unlisted numbers,236 it is clear that 2351nto-2 Order, 3 F.C.C. Red 4407 (1988). ANI was allowed with little consideration for privacy issues. 236See next section on unlisted numbers, infra p. 111. 100 the administrative agency has not intended to afford telephone customers with rights associated with ownership. One FCC rule which does, however, suggest such a recognition is the FCC's recent BOO-number portability mandate which lets businesses take their 800 numbers with them when they switch long- distance carriers.23'7 This order, however, was intended to mitigate ATaT's competitive advantage over other interexchange carriers and may not necessarily indicate a property distinction. A clearer answer to the property question comes from the courts in primarily search and seizure cases. In most cases, the courts have noted that telephone toll and billing records are the property of the telephone company and not the customer.238 In Kesler v. State,239 the court stated that the right of privacy is recognized in the content of telephone conversations, but not in the toll and billing records which belong to the telephone company. In another case,240 the court noted that a telephone subscriber is fully aware that a record of his or her long distance calls is the telephone 237sec Mandates aoo portability, TELEPHONY, Aug. 5, 1991, at 3. 238People v. 01 Raffaele, 433 N.E.2d 513 (my. 1982), later app. 476 N.Y.S.2d 20; and United States v. Grabow, 621 F. Supp. 787 (D. Colo. 1985). 239249 Ga. 462, 291 S.E.2d 497 (1982). 2”Re Order for Indiana Bell Tel. to Disclose Records, 274 Ind. 131, 409 N.E.2d 1089 (1980). 101 company’s property. In State v. Hamzy,“1 the court held that telephone company records belonged to the telephone company and that the defendants in the case therefore lacked standing to assert a privacy interest in the property of a third party (the telephone company). Although the Supreme Court has yet to make such a decision, in a related landmark case,“2 the Supreme Court held that a bank account record is the property of the bank and not the individual account holder. Courts have also ruled and some public utility commission rules specify that subscribers have no proprietary right in the telephone numbers assigned by the telephone company?“3 Such cases have involved disputes where it was determined that a telephone company has the right to change a subscriber’s telephone number.244 A subscriber, for example, has been held to have no proprietary and legal right to retain his or her present telephone number, even though the numbers transposed to letters spelling the subscriber company’s name 2“288 Ark. 551, 709 s.w.2d 397 (1986). 242United States v. Miller, 425 U.S. 435 (1975). In this case the records were subpoenaed pursuant to the Bank Secrecy Act of 1970. 2‘3See Annotation, Telephone Company’s Right to Change Subscribers’ Telephone NUmber, 75 A.L.R.3d 700 (1977 a 1989 Supp.). 2“First Cent. Service Corp. v. Mountain Bell Tel., 95 N.M. 509, 523 P.2d 1023 (Ct. App. 1981). 102 or slogan.245 Also, a telephone company has the right to dispose of the telephone numbers of bankrupt subscribers; the numbers do not become the property of the bankrupts.“6 Thus it may be found that telephone companies have a right to offer Caller ID because they have a property right in the telephone numbers in their possession. Tariffs, approved by state PUCs, may as with Southern Bell, specifically state this proprietary right. It may be argued, though, that the property right does not extend to identifying the customer’s number each time a customer uses that number, much less identifying the customer’s name, but CPI is just one more type of transaction-generated information like credit card data and magazine subscription lists which are compiled and circulated. In fact, the Bell Operating Company "license agreements" with directory subsidiaries largely state that the BOCs gun their subscriber lists?“ The courts in the Barasch (1990 In 1992) cases did not address a proprietary interest,“8 hence this question of law may be dependent upon tariff language as well as more legal interpretation. 24514.11. Glass, Inc. v. New York Tel. Co., 264 N.Y.S.2d 160 (1965); Freedom Finance Co. v. New York Tel. Co., 285 N.Y.S.2d 163 (1967). 246Slenderella Systems of Berkeley, Inc. v. Pacific Tel. & T81. CO., 286 F.2d 488 (2nd Cir. 1961). 24‘T.E. MCMANUS, supra note 217, at 19. “BIn fact, only the opposite was mentioned when Bell of Pennsylvania stated that Petitioner Barasch had failed to establish a property interest in telephone anonymity. (Barasch (1990), at 85) 103 Policy Considerations The option for customers to be able to guard their CPI has been a key issue and one which might appear to reduce the weightiness of the calling party privacy interests. Several informational privacy cases suggest that "disclosure is less objectionable when the government . . . preserves an individual’s ability' to prevent, particularly troublesome disclosures."249 Two alternatives have been proposed by regulators to safeguard callers’ interests--blocking alternatives and unlisted numbers protection. Blocking Various blocking schemes, particularly free, per-call blocking, required. of or' perhaps simply offered by ‘the telephone companies would seem to mitigate the privacy concerns. So far, however, this has only had an effect on some tariffs in some states. While some of the first states to allow Caller ID required no blocking, more and more states are seeing forms of blocking attached ‘to the service (See Table 4). Blocking' has been 249Smith, supra note 31, at 202. He cites Barry v. City of New York, 712 F 2d. 1554 (2d Cir.), cert. denied, 464 U.S. 1017 (1983) (where adequate safeguards were found in allowing public employees to oppose an inspection request by filing a written "claim of privacy"). 104 Table 4 States lith Caller ID--Blocking* ** fiLQLQ. Alabama*** Delaware Dist. of Columbia Florida Georgia Idaho Illinois Iowa***** Kentucky**** Maine Maryland Nebraska Nevada***** New Jersey New York North Carolina North Dakota South Carolina X Tennessee Vermont Virginia West Virginia XX xxx xxxxxxxx xxxx >< *States where either Caller ID is available, tested in a trial, or approved and pending; blocking whether offered by the telephone company or mandated. **Blocking features provided on a limited basis to law enforcement and/or crisis intervention centers. ***Alabama’ s Caller ID is prohibited for agencies whose services are confidential in nature. ****GTE will also offer Protected Number Service (PNS)--a second unpublished number with a distinctive ring. *****Nevada’s and Iowa’s per-line blocking installation is only free to initial and new customers. Nonresidential entities (i.e., businesses) may not have Per-line blocking. 105 offered by some telephone companies250 and rejected by others.251 Blocking has also been mandated by some public utility commissions, and has been the subject of several state bills and proposed federal regulation and legislation. In California, newspaper accounts of Caller ID service provoked a groundswell of opposition to their introduction, resulting in action by that state’s legislature. A California law252 now mandates that users in that state must have the ability to suppress the display of their numbers on a per-call basis at no charge to the user, an approach that other states are considering. Indeed, a few states have proposed similar legislation, including New York and Maryland.”3 A bill to require free, per-call blocking was, however, voted down in 250For example, Nynex, U.S. West, and Pacific Bell pledged to offer free, per-call blocking. Southwestern Bell has come out in favor of free, per-call blocking, and Centel has pledged to offer blocking. GTE has proposed its own version of blocking--Protected Number Service (PNS)--a second unpublished number with a distinctive ring. 251These include Bell Atlantic, Bell South, Ameritech and United Telephone. See Powell, Is ANI an Invasion of Privacy?, NETWORKING MGMT. , Feb. 1991, at 20. In general the ability to suppress the information on a line-by-line (as opposed to call-by-call) basis is being opposed by telephone companies, partly on the contention that consumers perceive no additional privacy benefits over call-wise screening. 2521989 Cal. Legis Serv. AB 1445 (West) (An Act adding 5 2893 to the Public Utilities Code.) Section 1 of the law specifically states that a) "Telephone subscribers have a right to privacy, and the protection of this right to privacy is of paramount state concern;" and b) "To exercise their right of privacy, telephone subscribers must be able to limit the dissemination of their telephone number to persons of their choosing." 253Stover, Look Who’s calling, POPULAR 301., July 1990, at 76. 106 Illinoiszs‘, and a bill to offer free blocking was overwhelmingly defeated in Virginia.255 Some of the state public utility commissions which have specifically mandated some type of blocking are: Alabama, Delaware, District of Columbia, Florida, Illinois, Iowa, Kentucky, Maryland, Nevada, and New York. Commissions in New Jersey, Tennessee, Virginia, and West Virginia have not required blocking. With the proposed federal legislation--the Telephone Privacy Act--telephone companies nationwide, offering Caller ID, would be required to provide blocking.256 The Senate bill specifically calls for per-call blocking, although any state laws and regulations authorizing per-line blocking would be grandfathered.257 Under the Senate bill, the telephone companies would not, however, be expected to provide blocking to government assistance lines and emergency 911 services. But if the telephone companies otherwise fail to provide blocking, aggrieved users are allowed to sue for civil damages or other relief. Author of the Senate Bill, Senator Herbert Kohl, explains that blocking will not undermine Caller ID. "Callers will not block calls to their friends and 254Fear of Caller ID Abuses Unfounded, COMMERCE, July 1990, at 42. 255Legislative Roundup, WASH. TIMES, Jan. 16, 1991, at B3. 2555. 552, 102nd Cong., 1st Sess., 137 CONG. REC 83283 (1991); H.R. 1449, 102nd Cong., lst Sess., 137 CONG. REC E955 (1991). 257Caller ID Law Moves Forward, NETWORK WORLD, Nov. 4, 1991, at 2. 107 colleagues.”258 Moreover, he explains that the call recipient would still obtain more information than is currently available and still retains the right not to answer the phone.”9 Blocking is also a matter of fairness as well as privacy. He states that blocking already exists for the wealthy, with access to 900 services through which private calls may be made for a few dollars a minute. "I believe phone companies should make blocking available to everyone-- both rich and poor."260 Of course many of the telephone companies have come out against Ithe federal blocking requirement, arguing that blocking will undermine the service and its benefits. Representative from New Jersey Bell and AT&T have said that the nationwide mandate is "premature and unwise,"261 and many argue that Caller ID should be dealt with at the state level because it is "a local problem, a local issue."262 They believe the states should function as "laboratory experiments" for the development of public policy before any 253135 CONG. REC 8485, at S485 (1990)- 2591d. He further explains that "[b]y way of analogy, a homeowner can refuse to open the front door when a visitor covers the peephole with a finger." 260137 CONG. REC $3283, at S3284 (1991). 261Messmer, Industry, Senate Argue Merits of Bill That Would Legalize caller ID, NETWORK WORLD, Aug. 6, 1990. 262QuotingNewJerseyBell President and.CEO'J.G. Cullen, in caller ID Legislation Opposed by Telco Witnesses at KOhl Bill Hearing, TELECOMMUNICATIONS REP., Aug. 5, 1990, at 9. Others agreeing include representatives from Pacific Bell, Central Telephone, and Bellcore. 108 federal law is enacted.263 Many issues not addressed by the proposed legislation must be resolved such as whether or not blocking must be free and whether it is to be offered on a per-call and/or subscription basis. Also unresolved are whether customers should be able to block calls to 800 and 900 numbers and whether telephone companies who do not offer Caller ID would still be required to provide blocking for customers who call areas which have Caller ID. The FCC is also proposing a rule to regulate Caller ID on an interstate basis and would specifically require per-call blocking.264 A federal model of regulation for Caller ID was deemed necessary and in the public interest as the service is developing on an interstate basis. The FCC noted that interstate Caller ID involves the interconnection of local and long distance SS7 networks which would require a regulatory structure to address issues. In terms of blocking, the FCC has sought comments on establishing a requirement that interstate Caller ID incorporate a per-call blocking option. Many of the telephone companies have come out against the proposal and FCC involvement with Caller ID.265 Jurisdictional problems are also significant , 2631a. 26“Notice of Proposed Rulemaking, In the Matter of Rules and Policies Regarding Caller Identification Service, CC Docket 91-281, F.C.C. (91-300), (proposed Sept. 26, 1991); 56 Fed. Reg. 57300 (1991). 265Taff, Proposed Federal Caller ID Regulation Raising Hackles, NETWORK WORLD, Jan. 13, 1992, at 6. 109 particularly since the courts have severely limited the scope of FCC intervention or preemption of state regulation (unless there is substantial cause or justification). The Supreme Court has held that S 152(b) of the Communications Act of 1934266 "not only imposes jurisdictional limits on the power of a federal agency, but also by stating that nothing in the Act shall be construed to extend FCC jurisdiction to intrastate service, provides its own rule of statutory construction."267 Thus, the Court has made it clear that the Act does not grant the FCC power to preempt state regulation of services. Deployment of CLASS'I has been mostly local in orientation, and.any attempt tijreem t the states is likely to be overturned as with the Ninth Circuit Court of Appeal’s recent decision regarding the FCC’s Open Network Architecture rules--asserting that the FCC had not properly justified its preemption of state regulation of enhanced services. If nationwide uniformity is determined to be in the public interest, this can be accomplished with federal and state cooperation through the use of joint conferences as allowed by the Communications Act, 8 410(b). Despite the efforts to institute various forms of blocking, blocking options may still not be enough. NOrth Carolina’s Attorney General contends that even if Caller ID is offered with free blocking to all customers, it would still 26647 U.S.C. s 152(b). 26“’Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 376-77 n.5 (1986). 110 not conform with the provisions of that state’s laws as well as the federal law.268 Also, if the constitutionality of Caller ID comes into question, blocking may be insufficient for the service to pass constitutional muster. Again in Barasch (1990), the Pennsylvania Commonwealth Court held that the service was unconstitutional with limited blocking available to certified agencies, but also would be unconstitutional w blocking was an option free to everyone.269 The court found no support for shifting the burden of individuals to having to protect their privacy rights by activating blocking. Failing to activate blocking, they said, does not give consent. Moreover, the court stated that privacy violations still exist for those who lack notice of the blocking option, who cannot afford blocking if a fee is imposed, and who forget to trigger the blocking mechanism in cases of emergency or trauma. Of course in Southern Bell (1990 8 1991), where the same limited blocking options had been proposed ,270 the courts found the service to meet constitutional standards. The courts did not specifically consider the limited blocking, nor did they weigh the matter of blocking at all in their 263Caller ID Violates, supra note 180, at 8. 269The Pennsylvania Supreme Court chose not to address the blocking issue, having chosen not to rule on the constitutionality of the service. 2“’OThe limited blocking here means that blocking would be limited to law enforcement officials and crisis intervention agencies upon request. 111 decisions. Thus in either case, the addition of optional blocking may not resolve the Caller ID debate over its legality.271 Other arguable "safeguards," such as making calls from a payphone or foregoing certain calls altogether, may 3180 not weigh into the decision.”2 WW Protection of unlisted (and nonpublished) numbers is another option being considered for safeguarding privacy interests and may be a factor in weighing and mitigating the debate. Since subscribers with unlisted numbers demonstrate a desire (if not need) for anonymity by virtue of paying for unlisted service, then it is thought that this category of customers should be afforded protection from Caller ID disclosures. Still, singling out such customers may present some technical as well as legal difficulties. About 27 percent of customers nationwide subscribe to 2”An administrative law judge working for the California PUC recently recommended that that state not allow Caller ID even though blocking would be offered. Taff, Pa. Caller ID Ruling May be Far-reaching, NETWORK WORLD, Mar. 30, 1992, at 15. 2”Smith notes that there are no examples of informational privacy cases which involve the individual capability to avoid privacy problems MW foregoing all benefits of participation (supra note 31, at 205) . With Caller ID, when a person can use a pay phone, call with a credit card or with operator assistance, or call through a third party, then the ability to make calls is not lost. 112 nonpublished?73 and unlisted274 service.”5 The number varies with location. .Almost 20 percent of U.S. ‘West customers in the state of Washington have unlisted numbers while 23 percent of Bell of Pennsylvania’s customers have unlisted numbers. One-third of all Californians subscribe to unlisted service, and 47 percent of those in Nevada have unlisted numbers.276 The percentage is higher in large cities than rural areas. With such a considerable number, the telephone companies fear that special consideration given to unlisted subscribers will hurt the integrity of Caller ID service. In addition to the FCC’s CPNI rules which distinguish unlisted subscribers by requiring their consent for information release, some state PUCs are beginning to deal with the issue of unlisted and nonpublished numbers. In Washington, the Utilities and Transportation Commission clarified Pacific Northwest Bell’s (PNB’s) tariff277 273Anonpublished number generally means one which is not published in the white pages directory, although it is still available through directory assistance. 27‘An unlisted number is given out by neither a directory nor directory assistance. 275Katz, Caller ID Privacy and Social Processes, 14 TELECOMMUNICATIONS POL’Y 372, 395 (Oct. 1990). 276Based on figures cited across several trade sources. 27'7In response to a 1987 decision, State v. Butterworth, which forbids the release of nonpublished subscriber information to law enforcement without a court order. 113 associated with nonpublished numbers,278 allowing for the release of nonpublished subscriber information to public safety agencies (i.e. , 911) and other telephone companies, but prohibiting PNB to release such information to information service providers (other than for collecting charges) .279 In Massachusetts, New England Telephone is prohibited from providing enhanced service providers with billing tapes without first deleting information about subscribers with nonpublished numbers.280 In 1989, the Idaho PUC began requiring all local exchange companies to notify customers of the conditions under which their unpublished telephone numbers may be released.281 The Colorado PUC has proposed rules similar to the FCC’s CPNI rules whereby the collection and disclosure of individually identifiable information is regulated. The regulated information, however, would specifically exclude the names, addresses and telephone 2"The Commission defines this as the name, address, and telephone number of nonpublished subscribers, but does not distinguish this term from unlisted numbers. 279Washington Utilities and Transportation Commission v. Pacific Northwest Bell Telephone Company, 102 P.U.R.4th 396 (WASH. U.T.C. 1989). Interestingly, if a nonpublished subscriber’s number is improperly disclosed, the subscriber retains the right to have the number changed and collect a refund, but the telephone company liability continues to follow the "commonly accepted" policy that it be "held harmless for the unauthorized release of nonpublished information in order to prevent ratepayers from paying for the company’s defense of frivolous lawsuits." (at 402) 280Toth, supra note 228. 281Case No. U-1500-173, Order No. 22575 (Idaho 9.0.0. June 1989). 114 numbers of published subscribers, but customers with unpublished numbers would have to be notified and sign a waiver before information about them can be released.282 Only a few states so far have addressed the issue of unlisted and nonpublished numbers, and already a lack of uniformity among states has developed. None have specifically applied regulation to the release of unlisted numbers though Caller ID. The FCC recently considered but rejected a nationwide, uniform plan to assuage the interests of unlisted subscribers. A Petition for Rulemaking at the FCC sought to establish uniform nationwide rules for "calling number delivery," or Caller ID.28:3 The proposed rule would have amended Part 64 of the Code of Federal Regulations and stated that all telephone common carriers must "make available to any non- business telephone subscriber who has taken telephone service on an unlisted basis the means, at reasonable charges, of substituting a confidentially registered alphanumeric 282Rules Regulating the Collection and Disclosure of Personal Information Obtained by Public Utilities, Docket No. C90-1142, Decision No. 90R-520, Commission Order Proposing Rules (Colorado P.U.C. Aug. 27, 1990). 283Petition for Rulemaking, In the Matter of CALLING NUMBER DELIVERY, Docket NO. RM-90-7397, F.C.C. (Mar. 20, 1990) . The rulemaking was requested by Joseph Baer, a professional engineer from New York. 115 designation for the billing number on a call-by-call basis . . . ."284 The petition also proposed that whenever a called party rejects a call, this would be indicated to the caller by an audible and displayable signal.285 The alphanumeric identification, or AI, is considered to protect the caller’s privacy while still providing adequate identification for the called party to screen calls or report abuse.286 The telephone companies blasted the proposal, however, because the plan was fraught with considerable technical, administrative as well as jurisdictional problems. In separate comments filed at the FCC, the telephone companies generally argued that the plan was technically unfeasible, saying that the technology necessary to implement the plan does not exist and would have been expensive to develop and deploy, causing significant delays.287 The FCC rejected the 234This would consist of the area-code, followed by up to 20 alphanumeric characters chosen by the subscriber and permanently assigned. The service is to be invoked with each call by pressing a sequence of buttons. 285Petition, supra note 283, at 14. 286Call Trace would still function. 287For example, Southwestern Bell noted that telephone switches cannot recognize whether a call is coming from an unlisted number for per-call activation to work. Comments of Southwestern Bell Telephone COmpany, In the Matter of Request by Joseph Baer for Rulemaking, RM No. 7397, Before the F.C.C. , Aug. 20, 1990. Bell Atlantic argued that an alternate identity would require the creation of a second North American Numbering Plan. Comments of the Bell Atlantic Telephone Companies on .Petition for’.Rulemaking, In the Matter' of Petition for Rulemaking to Establish Uniform, Nationwide Rules for Calling NUmber Delivery, RM No. 7397, Before the F.C.C., 116 proposed in favor of its proposed federal regulatory plan.288 Finally, the telephone companies argue that ”rights" associated with nonpublished and unlisted number service should not be equated with any "right" to make anonymous calls, again noting that tariffs generally state that callers must identify themselves in the course of communication.289 Moreover, unlisted telephone numbers are designed to protect the interest of telephone subscribers as called parties--i.e. , to protect against unwanted calls--not when those subscribers are the calling party?"90 In that case, the subscriber is intentlgnally disclosing his or her number and then only to the called party. Alternative services such as pay phones can August 20, 1990. Nynex pointed to problems with using an unambiguous mnemonic which could be exploited--the AI could approximate another party’s AI, exposing that party to potential liability. Comments of the NYNEX Telephone COmpanies, In the Matter of Petition for Rulemaking Filed by JOseph Baer Regarding calling Number Delivery, RM No. 7397, Before the F.C.C., August 20, 1990. All in all, the required modifications were said to require at least three years to complete, and would deprive customers of the many benefits of Caller ID if abusive callers could hide behind.the Cloak of an AI. 288Notice of Proposed Rulemaking, In the Matter of.Ru1es and Policies Regarding Caller Identification Service, CC Docket 91-281, F.C.C. (91-300), (proposed Sept. 26, 1991); 56 Fed. Reg. 57300 (1991). 289In addition to Southern Bell’s tariff noted earlier, GTE’s Tariff, F.C.C. No. 2, 5 2.3.1 provides: "The calling party shall establish his identity in the course of any communication as often as may be necessary." See also AT&T Tariff F.C.C. NO. 1, S 2.4.1.C.1. 29QcOmments of the Ameritech Operating Companies, In the Matter of Petition fOr Rulemaking COncerning Calling Number Delivery, RM No. 7397, Before the F.C.C., Aug. 20, 1990. 117 preserve the identity of the number, or the unlisted subscriber can simply subscribe to Caller ID to protect against unwanted return calls.291 Thus the issue may remain at the state level. To specifically protect unlisted service subscribers, it appears, however, that individual tariffs would have to be revised if anonymity is only extended to directories and operator directory assistance. This may raise an entirely different problem if the action is found to be‘discriminatory; singling out unlisted subscribers as warranting this protection may lead to an inequity between rich and poor--more so, since the costs in providing this type of specific protection would be high. Who pays is a problem facing both blocking and unlisted numbers policy considerations. 291Indeed, a majority of Caller ID subscribers also have unlisted numbers, suggesting that unlisted service subscribers are not necessarily against Caller ID, but in fact use it to guarantee greater anonymity; With widespread availability of Caller ID, the request for unlisted numbers may even dramatically decline. 118 Conclusions Caller ID and its use of CPI appears, for the most part, to be a legal service under the current framework of the law and may survive future court challenges--at least on the federal level. ”State action" will probably not.be found, and if it is, the service will likely withstand a constitutional challenge as the interests of both parties are weighed. Federal wiretap laws contain applicable exceptions, and proposed legislation only clarifies Congressional intent that Caller ID should be permissible under the law. If the service remains subject to state statutory and constitutional law, it may, however, encounter obstacles in some states. Yet if a property right in the CPI is found to be vested with the telephone company, the matter may be reduced to an interpretation of tariffs. While policy solutions such as blocking and unlisted numbers protection might mitigate the issue when Caller ID is brought before the courts, these considerations (which may pose additional problems) might not be decisive elements. Essentially, the debate boils down to a conflict of rights: the right of callers to remain anonymous versus the right of called parties to know'who is on the other end of the line. In the aftermath of the Barasch (1990 & 1992) and Southern Bell (1990 & 1991) decisions, it will now be up to higher courts to decide and clarify the legality of this new technology, undoubtedly by incorporating some type of 119 balancing methodology. If Caller ID is indeed found to be within the law, the new service will certainly impact telecommunications privacy policy and the concept of privacy. PRIVACY TKEORY--mT I8 PRIVACY? Before the Caller ID debate can be fully assessed, privacy interests weighed, and any legal action taken, there should be a clearer understanding of the nature and importance of privacy. It would be impossible and improper for the courts to apply a balancing methodology without such a clear understanding. Any response to the Caller ID debate should address and distinguish both 1) the nature of the caller’s privacy and why and how Caller ID invades this privacy, and 2) the nature of the called party’s privacy and why and how Caller ID enhances privacy. This chapter examines the nature of privacy and provides a foundation for a comparative legal analysis of the privacy interests in conflict. It specifically examines the definitions and types of privacy as related to the Caller ID debate from a social science perspective. It also explores the motives for seeking and preserving privacy and distinguishes the issue as a dichotomy of privacy perspectives. This examination provides the basis for a judicial balancing of the caller and called party privacy interests and should lead to a more thorough understanding of the privacy debate and the privacy implications of Caller ID and other electronic communications systems. 120 121 The nature of Privacy Historically, privacy was a luxury reserved for royalty and other elites, but the movement from primitive to modern societies expanded the physical and psychological opportunities for privacy and converted those opportunities into choices.292 Urban anonymity and smaller family size are two contributing factors. Even the telephone affords more privacy today than it did at the turn of the century when switchboard operators "heard all." Personal privacy "rights" and the expectations for more privacy have increased.293 Modern society has also brought with it developments which impinge on privacy, such as an increase in population density, bureaucracy, and more efficient surveillance means (i.e., consumer credit databases). The rapid introduction of’ computers and advanced telecommunications has aggravated perceptions of privacy invasion, causing many people today to feel that they are losing control over a vital part of”, themselves?“ Public opinion polls have shown that more and more people believe privacy to be a concern and expect 292A. WESTIN (1970), PRIVACY AND FREEDOM (1970). 293Katz, Telecommunications and Computers: Whither Privacy Policy? SOCIETY, Nov.-Dec. 1987, at 81. 29412,. I I I J 122 privacy loss to be a larger problem in the future.295 The public considers telephone communications, in particular, as an area of privacy which should be strongly protected.296 We The functions of privacy appear to be diverse, although there are indications of certain fundamental or inherent bases. Studies have shown that all animals, including humans, seek periods of seclusion--sometimes described as a tendency toward territoriality--and that animals seek to balance privacy and participation}?7 The need for privacy and the resultant socialunorms. protecting privacy are present in every society. There is also a universal tendency on the part of individuals to invade the privacy of others, partly attributed to a natural curiosity as found in animals. Societies have a need to engage in surveillance of their members in order to guard against anti-social conduct, and individuals have an 29""Katz & Tassone, Public Opinion Trends: Privacy and Information Technology, 54 PUB. OPINION Q. 125 (Spring 1990); and O.H. Gandy, Jr., The Preference FOr.Privacy: In Search of the Social Locations of Privacy Orientation, Paper Presented at the 75th .Annual. Meeting of ‘the Speech Communication Association, San Francisco, Cal. (Nov. 1989). 296This is true for both the content of calls and the records of calls being made from a number. Harris surveys done in the 1970s showed that the public considered the keeping of such telephone records to be more dangerous than records of political affiliations and psychological and intelligence test results. Id. 297A. WESTIN, supra note 292. 123 obligation to disclose information about themselves as is necessary for the proper functioning of society.298 The reasons people seek privacy vary with the individual and are affected by their past experiences and the surrounding environmental variables. For example, persons with high preferences for privacy often feel that they do not have enough privacy, even though they might have more privacy than persons with a low preference for privacy.299 Privacy is also dialectic in nature--sometimes we want it and sometimes we do not.300 Moreover, circumstances which restrict privacy (such as crowdedness) are thought to increase the desire for ‘more (although, adaptation level theory ‘would suggest the opposite301) . 02 privacy Aside from its instinctive characteristics,3 is considered necessary for personal growth--to get in touch with the self and to experience a sense of unity.303 Privacy provides a period for self-evaluation and for 2981a. 299Marshall, Dimensions of Privacy Preferences, 9 MULTIVARIATE BEHAV. RES. 255 (1974). 3°°I. ALTMAN, THE ENVIRONMENT AND SOCIAL BEHAVIOR (1975) . 3°13ee Marshall, supra note 299. 3°2I. ALTMAN, supra note 300. 3°3Fischer, Privacy and Human Development, in PRIVACY: A VANASHING VALUE? 37 (W.C. Bier ed. 1980). 124 emotional release.304 It has also been associated with the maintenance of personal dignity, and a lack of it is connected to a breakdown of the self and to low self-esteem.305 Individuals are sometimes specifically motivated to pursue privacy in order to "escape identification" and the concomitant pressures of role responsibilities and adherence to expected behaviors.”6 When anonymous, social sanctions cannot be applied; a person is free, for example, to enjoy total freedom of expression.”7 The ability to invade privacy has also been shown to be reflective of social status.'?‘08 Other reasons for seeking or preserving privacy include the fear of losing control309 and a fear of future consequences . 31° A stressful environment311 and 304A. WESTIN, supra note 292, and I. ALTMAN, supra note 300. 3osLaufer & Wolfe, Privacy as a Concept and a Social Issue: A Multidimensional Development Theory, 33 J. SOC. ISSUES 22 (1977). 306Pastalan, Privacy as a Behavioral Concept, 45 SOC. SCI. 93 (Apr. 1970). 3°7Burgoon, Privacy and Communication, in COMMUNICATION YEARBOOK: 6 206 (M. Burgoon ed. 1982). 308For example, physicians can ignore certain traditional barriers to privacy. Schwartz, The Social Psychology of Privacy, 73 AM. J. SOC. 741 (1958). 309Katz, supra note 293. 31"Laufer & Wolfe, supra note 305. 311See Webb, Privacy and Psychosomatic Stress: An Empirical Analysis, 6 SOC. BEHAV. & PERSONALITY 227 (1978) . Webb found a perceived lack of privacy and stress to be directly associated, with the degree of association being 125 "stimulation overload" may contribute to the need for privacy.312 W The concept of privacy has long suffered from multiple definitions, and the meaning of privacy varies considerably 13 from one discipline to another.3 Theorists do not even agree on what privacy is--a behavior, attitude, process, goal, 4 For the present discussion, it will or phenomenal state.31 be useful to distinguish definitions best suited to the caller (privacy invasion) perspective and the called party (privacy enhancement) perspective. Some definitions of privacy which pertain to the caller’s position are: consistently strongest for females. 312Burgoon, supra note 307. 3131Privacy has been examined by sociologists, psychologists, biologists, philosophers, political scientists, and lawyers, and has been treated in the contexts of such divergent issues as homosexuality, abortion, psychological testing, drug testing, media coverage, government surveillance, and academic research. 3mMargulis, Conceptions of Privacy: Current Status and Next Steps, 33 J. SOC. ISSUES 5 (1977). 1) 2) 3) 4) 5) 126 The claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.315 Individual freedom of choice or options to achieve goals in. order to control what (and, to *whom) information is communicated about oneself. Ability to exert control over self, objects, spaces, information, and behavior. Related to the act of concealment. Privacy is an outcome of a person’s wish to withhold from others certain knowledge . . . .313 The right of the individual to decide what information about himself should be communicated to others and under what conditions.319 Definitions of privacy relevant to the called party’s position include: 1) 2) 3) The ability to control interaction, to have options, devices, and mechanisms to prevent unwanted interaction, and achieve desired interaction.320 Control of stimulus input from others.321 The essentially agreed-upon right to maintain boundaries and deny access to others. 315A. WESTIN, supra note 292. 316Proshansky, Ittleson, & Rivlin, in I. ALTMAN, supra note 300. 3171Laufer & Wolfe, supra note 305. 318Jourard, Some Psychological Aspects of Privacy, 31 LAW & CONTEMP. PROBS. 307 (1955). 3“"9Pastalan, supra note 306. 32QRapaport, in I. ALTMAN, supra note 300. 321Simmel, in I. ALTMAN, supra note 300. 322Warren & Laslett, Privacy and Secrecy: A Conceptual comparison, 33 J. SOC. ISSUES 43 (1977). "' -~ Cu... .____.M 127 4) The control of transactions between person(s) and other(s) , the ultimate aim of which is to 2enhance autonomy and/or to minimize vulnerability.iw_ \b—N.-.._ fl“ , ._ 5) Interpersonal boundary process by which a person or group regulates interaction with others.3 4 Although there are other definitions which relate to power and status,325 human dignity, and personal space,326 most conceptualizations of privacy appear to fall into two seemingly discrete categories: 1) control over information about oneself and.2) control over outside interactions. 'These categories mirror the two sides of the Caller ID debate--the information controlled is the telephone number, and outside interactions being controlled are the telephone interruptions and conversations. It is instructive to also consider what privacy is not. For example , Levine” 7 and Warren and Laslett328 distinguish privacy from secrecy, saying that a breach of a secret is ‘attended by sanctions, whereas in lprivacy, ___..—7 / disclosure is at the discretion of the possessor/ and suCh 323Margulis, supra note 314. 324Derlega & Chaikin, Privacy and Self-disclosure in Social Relationships, 33 J. SOC. ISSUES 102 (1977). 325Kelvin, A Social Psychological Examination of Privacy, 12 BRIT. J. SOC. & CLINICAL PSYCHOLOGY 248 (1973). 326Kubis, Some Problems of Privacy and Surveillance in a Technological Age, in PRIVACY: A VANASHING VALUE? 193 (N.C. Bier ed. 1980). 327Levine, Privacy in the Tradition of the Western World, in PRIVACY: A VANASHING VALUE? 3 (W.C. Bier ed. 1980). 3”Supra note 322 . 128 sanctions (as provided by law) are directed only against coercive acquisition by persons outside the boundary. Certainly one’s telephone number would be considered positive information and the disclosure of one’ s number is discretionary; hence, Caller ID is an issue of privacy and not secrecy. Also, Kubis329 suggests that privacy as a property notion should be rejected, asserting that, unlike property, one cannot dispose of "one’s personhood. " Kelvin”0 distinguishes privacy from isolation, stating that privacy is deliberately chosen, pleasurable, and enhances satisfaction, whereas being in isolation is an imposed action, negative, and stressful. In this regard, the called party’s use of Caller ID to manage incoming calls would not be a matter of isolation, but rather privacy. 329Supra note 326 . 3"’"Supra note 325. 129 The Dimensions of Privacy and Studies on Privacy The multidimensional nature of privacy was first described by Westin.331 Westin proposed four basic states of privacy which have served as a basis for most privacy analyses since. They are: Anonymity; Reserve, Solitude and Intimacy . 332 The Caller ID privacy debate can be best characterized as a conflict between at least two of these dimensions. It would follow that the caller’s privacy interests in being able to place anonymous calls would fall within the dimension of Anonymity. Westin describes the state of Anonymity as when the individual is in a public place or performing public acts but still seeks freedom from identification. When Caller ID is available, the public telephone network, in a sense, becomes such a "public place." Westin further explains that when a person is in such a state of privacy, he [or she] "does not expect to be personally identified and held to the full rules of behavior and role that would operate if he were known to those observing him."333 The dimension of Solitude, on K... .\ 331Supra note 292 . 3321d. These categories will appear in capital letters for clarity. 3331d. at 31. Westin also notes that one kind of anonymity is the publication of ideas anonymously. "Here the individual wants to present some idea publicly to the community or to a segment of it, but does not want to be universally identified at once as the author--especially not by the authorities, who may be forced to take action if they ’know’ the perpetrator.” (at 32) 130 the other hand, seems to describe the privacy interest of the called party. In this state, "the individual is separated from the group and freed from the observation of other persons . . . [and] may be subjected to jarring physical stimuli, such as noise . ."334 The other two dimensions also seem related to the caller and called party interests. The dimension of Reserve, defined as the "creation of a psychological barrier :gainSt unwanted intrusions," or "mental distance,"335 may be applicable as the caller is establishing a psychological barrier by not disclosing his or her identity. Intimacy, which is concerned with small unit relationships,336 has some indirect relevance--for example, the called party answering only calls from intimate relations. Others such as Altman337 have applied these categorizations. Pastalan338 further linked these modes of privacy with a series of situational contingencies. These included Antecedent factors, Organismic factors, Behavioral 334Id. at 31. Westin says that despite all of the physical and psychological instrusions, "solitude is the most complete state of privacy that individuals can achieve." (at 31) 335m. at 32. 3351d. In the state of Intimacy, "the individual is acting as part of a small unit that claims and is allowed to exercise corporate seclusion so that it may achieve a close, relaxed, and frank relationship . . . ." (at 31) 33'7Supra note 300. 33°Supra note 306 . ‘llll IJHIIIII‘III'III‘I 131 states, and Environmental factors of the privacy dimensions. All of these contingencies will be discussed indirectly throughout this study. Factor analytic studies have tended to confirm Westin’s privacy types, although with some variations. Marshall’s339 principal components analysis revealed factors which generally corroborate Westin’s dimensions, although Marshall did not consider Reserve to be a form of psychological distancing, but rather agree of self-disclosure. In her study, Reserve dealt with a preference not, to disclose‘much “about; 939§91,.f,. to others and was, in fact called the "Low Self-disclosure 34° also Factor-" A subsequent factor analysis by Pedersen yielded a Reserve factor which indicated an unwillingness to talk to others, especially strangers. In this sense, the privacy interests of those opposing Caller ID may be typified not only as Anonymity, but also as Reserve. Although Marshall’s and Pedersen’s analyses each generated six factors,“1 intercorrelations performed by 3”Supra note 299, and Marshall, Privacy and Environment, 1 HUM. ECOLOGY 93 (1972). 34“Pedersen, Dimensions of Privacy, 48 PERCEPTUAL & MOTOR SKILLS 1291 (1979). 341In addition to Anonymity, Solitude, and Reserve, Pedersen obtained two separate Intimacy factors (Intimacy with Family and Intimacy with Friends), and he added Isolation as a dimension distinct from Solitude. Pedersen described Isolation as being alone and away from others (i.e., on a mountain top as opposed to alone in one’s room). Isolation would be less applicable to the caller perspective than the dimension of Solitude which was loaded on by statements such as ”I do not like to be disturbed when I am at home." Nonetheless, after a cross-validation of the independence of 132 Marshall revealed two major groupings, further clarifying the Caller ID privacy dichotomy. One centered on a strong relationship among the factors of Anonymity and Reserve, and 3‘2 where a new one she called Noninvolvement with Neighbors, Anonymity and Noninvolvement were seen to contain aspects of Reserve, such as controlling self-disclosure. The other consisted of a strong relationship among Solitude and Intimacy, and another factor called Seclusion,343 ‘which seemed to center on. distancing oneself from others and erecting physical barriers to sight and sound. This split across privacy dimensions further reflects the privacy dichotomy relevant to the Caller ID positions. Burgoon proposed four broadly defined dimensions of communication-related privacy: Informational Privacy, Psychological Privacy, Physical Privacy, and Interactional Privacy.344 Informational Privacy and Psychological Privacy correspond with Westin’s dimensions of Anonymity and Reserve. Burgoon described Informational Privacy as the ability to the factor scales, Pedersen found a moderate positive relationship between the two dimensions. See Pedersen, Personality Correlates of Privacy, 112 J. PSYCHOLOGY 11 (1982). 3“This factor resulted from statements expressing a preference for precisely this (i.e. , "Although I occasionally enjoy talking to my neighbors, I don’ t like to get very involved with them.") 343Seclusion of the home was added to distinguish a preference for living away from traffic and the view of neighbors. 3MBurgoon, supra note 307. 133 control who gathers and disseminates information about oneself or a group and under what circumstances. Psychological Privacy, defined as that which protects one from intrusions upon thoughts and feelings, also includes the . ability to control cognitive outputs such as with whom we share information. As in Marshall’s and Pedersen’s dimensions of Reserve, Burgoon included the degree of self-disclosure as an element. Here, self-disclosure control distinguishes Psychological Privacy from Informational Privacy in that in the first instance it is personal control whereas control associated with Informational Privacy is partly governed by law or custom. Informational Privacy goes beyond personal control because the information may be disseminated without one’s.knowledge, such as information we release in credit card applications, registrations, tax returns--and of course via Caller ID. Relevant to the called party perspective, Burgoon suggested a category called Interactional-Privacy (similar to Intimacy) as describing the Communication privacy experience. \This dimension is defined as controlling the who, what, when and where of encounters with others so as to achieve a manageable number of social relationships, while limiting the interpersonal annoyances and.avoiding unwanted conversations. Physical Privacy, similar to Solitude, is defined as the freedom from surveillance and unwanted intrusions upon one’s space by the presence of such things as sounds (e.g., telephone ringing). 134 Burgoon (and others) later performed a factor analysis345 which generally confirmed these categories, although revealing five dimensions instead of four as being communication-related privacy violations . 3‘5 Burgoon ’ s fifth dimension, ImpersonalViolations, had a factor loading for statements such as "Demands your time, " ”Tries to start a conversation with you," and "Sends junk mail." This dimension seems to describe the concerns of the called party, although unwanted solicitations are also a concern of opponents of Caller ID as well, raising the possibility of similarities in privacy goals between the two Caller ID positions.3‘7 Finally, similar categories were also formed in a nonempirical study of privacy dimensions by Laufer and Wolfe.348 The two researchers viewed privacy as an interpersonal concept, presupposing the existence of others. Relevant here are its two elements which neatly fit the 345Burgoon, Parrott, LePoire, Kelley, Walther, & Perry, Maintaining and Restoring Privacy Through Communication in Different Types of Relationships, 6 J. SOC. a PERS. RELATIONSHIPS 131 (1989). 3“Burgoon combined Informational and Psychological Privacy into one category (Informational/Psychological) and split the Interactional dimension into Nonverbal and Verbal Interactional. Nonverbal Interactional may become a more precise factor for describing called party privacy (telephone ringing) , although Verbal Interactional would also include the ensuing telephone conversation. 3“Indeed, Burgoon also considered Interactional Privacy to have some element of anonymity or lack of personal identity, which would then apply to the caller’s privacy interest as well. 3“BLaufer & Wolfe, supra note 305. 135 telephone users’ distinct positions: 1) Information Management, and 2) Interaction. Management. Information Management (clearly the caller’s privacy perspective) is concerned with the disclosure or nondisclosure of information. Interaction.Management (clearly the called.party perspective) de; S with one’ s interaction with specified others. Thus, based on an examination of these various privacy dimensions, the two Caller ID privacy perspectives may be summarized as follows: 1) The caller’s privacy interests relate to concerns ' about Mgnaggmgn§_gfi_lnfgzmatlgn about the self and a desire for Angnymlty and Bgsgzyg. 2) Called party privacy interests relate to concerns about the Managgmgnt_gfi_ln§§;§ctlgn§ and a desire for Sglltg_g. In the first case, Caller ID opponents wish to manage the disclosure of their calling party information to the extent they desire Anonymity and Reserve. In the second case, Caller ID proponents wish to manage their telephone interaCtions to the extent they desire Solitude. These two categories of dimensions provide a clearer perspective on the two positions and produce a more precise analytic structure from which to perform future legal analyses. 136 Privacy Inputs and Privacy Outputs In looking at the dichotomy of privacy dimensions, it can be shown that in the first case, privacy appears to involve control over one’s outputs (to achieve Anonymity), and in the second case, control over inputs to One’s self (to achieve Solitude). Altman discusses the nature of inputs and outputs by identifying privacy as a "bidirectional process."349 He considers privacy to be a Boundary-Regulation process. In this sense, individuals use barriers to control inputs from others and outputs to others. To summarize the Caller ID relationship in terms of inputs and outputs, the caller, desiring Anonymity, seeks to prevent the disclosure output of his or her identity (name and/or number) when placing a call (an interaction output) through to the called party (who likely answers the phone). Figure 1 illustrates this relationship. In Figure 2, the called party, desiring Solitude, seeks to receive the disclosure input of identifying information (name and/or number) when answering the phone, before allowing the interaction input of the caller--or disallowing the input as in Figure 3. 3‘91. ALTMAN, supra note 300. 137 Privacy Privacy Boundary Boundary CALLER =======sad --------------- > ------- > CALLED PARTY (Anonymity) (Solitude) sass 2 Telephone Call With Name and/or Number ----> = Telephone Call Without Name or Number Figure 1 Caller Output With Blocking Privacy Privacy Boundary Boundary CALLER 88=8===33fi =8========s====s§ ========a CALLED PARTY (Anonymity) (Solitude) ass» - Telephone Call With Name and/or Number ----> a Telephone Call Without Name or Number Figure 2 Called Party Input 138 Privacy Privacy Boundary Boundary CALLER acssasaasfl ssac=======zassd CALLED PARTY (Anonymity) (Solitude) === = Telephone Call With Name and/or Number ----> 2 Telephone Call Without Name or Number Figure 3 Called Party Input With Screening 0 as it might pertain to the Caller Altman’s analysis,35 ID debate, provides some further insight into how the two Caller ID perspectives relate and their implications, and is worth exploring here briefly. According to Altman, the "regulation" process is driven by a desire to maintain, restore, or reach an optimal level of privacy. However, the level of privacy desired may well differ from the level of privacy that is actually achieved. Figure 4 is a profile of the regulatory process as depicted by Altman.351 It presents eight privacy situations based on boundary regulation, desired and achieved privacy, and input-output processes. P refers to a person (or group); E refers to another person (or group) or to some general environmental stimulation. The boundary around P is shown to 35°l’d. 3511a. 139 be either closed (solid line) or permeable (dashed line). Cases 1 through 4 portray relationships between desired and achieved privacy in regard to inputs from others (e.g. , managing telephone interactions); Cases 5 through 8 deal with the disclosure of outputs from the self to others (e.g., calling party identification). W W .\ achieve 4‘ achiev 1) PC7—-E =desire 5) P——+qE =desire I I I achieve achieve 2) P>.—E =desire 6) P—D E =desire .‘ achieve s‘ achieve 3) P~7_.E desire 8) P—D E >desire Source: Altman, I. (1975). fighgylgz. New York: Wadsworth Publishing Company. Figure 4 Privacy Inputs/Outputs In cases 1 and 2, P is shown to have desired certain levels of contact with E andmwas able to achieve those levels, resulting in satisfaction. In the context of Caller ID, the called party (P) in the first case uses Caller ID to screen a call and elects to answer the call; in the second case, P screens out a call he or she chooses not to answer. In both cases P achieves the desired level of privacy. In case 3, 140 however, P fails to achieve the desired level of privacy. In this case, P does not have Caller ID for screening calls and is interrupted with an undesired call (e.g. , obscene or threatening call). Case 4 is particularly interesting, showing P to achieve more privacy than desired, resulting in a state of isolation. This is a type of boundary-control failure. Here P might use Caller ID in excess, limiting calls to such a degree that social interaction is impaired.352 Cases 5 through 8 parallel the first four profiles but deal with P’s desire to direct outputs to E. In cases 5 and 6, P achieves a desired level of privacy. In terms of disclosing P’s calling party identification, case 5 may illustrate a situation in which P willfully permits his/her number to be passed through the network to E. In case 6, Caller ID may not be available, or P uses some type of arranged boundary system such as Caller ID blocking. Case 7, however, shows a failure of the boundary system, such as having no available way to suppress caller identification, resulting in less privacy than desired. Case 8, like case 4, depicts P actually achieving more privacy than desired. Here P might be using some information boundary system like Caller ID suppression, but then finds that some people will not answer his or her "anonymous" calls. 352P may, in fact, receive fewer phone calls simply because he or she subscribes to the service. This has particular implications for businesses which use Caller ID, whether or not they intend to capture the numbers for telemarketing purposes or not. 141 These eight cases oversimplify the complexity of privacy regulation. Altman points out that at a slightly more complicated level, one can generate various privacy-management situations from cases 1 through 8. For example, in case 1, a person allows another to capture his or her number, but in case 6, that other person does not reciprocate. The implications of these relationships and of Caller ID blocking mechanisms on privacy invite further study. 142 variations in Privacy Perceptions How might the privacy concerns of the caller perspective weigh against those of the called party? The results of t . 353 Psychological Burgoon’s study reveal an important poin and Informational violations were seen by the participants of the study as being the most invasive. Telephone invasions, however, were not regarded as especially serious. Statements such as "shares personal file with others" and "goes to another with information from you" produced two of the highest mean scores on invasiveness,3M although they also had some of the highest standard deviations, revealing that respondents varied considerably in their attitudes. Statements about telephone invasions ("calls you at home, work, etc.," and "calls on phone and interrupts") produced relatively low'mean scores.355 From this, one might conclude that the disclosure of calling party information could be a more serious privacy violation than violations associated with telephone interruptions by unknown callers. 56 However, a study by Thomas and LaRose3 produced 3“Burgoon, supra note 345. 3543.46 and 3.58 respectively; This was based on a five- point Likert scale, where subjects rated how strongly they agreed or disagreed that the acts constitute an invasion of privacy. ’ 3552.67 and 2.84 respectively. 356L. Thomas a R. LaRose, I See You Calling But You Can’t Come In: Telecommunications Privacy Policy and User Responses to Calling Party Information, Paper Presented at the Annual 143 results suggesting the opposite. That study, performed to investigate users’ attitudes toward privacy and their use of CLASS"357 features other than Caller ID, revealed that while about two-fifths agreed that the privacy of the caller is violated, those in the experimental group with Priority Calling and Call Block were more likely to agree that the privacy of the called party is protected by the services. Perhaps the nature of the disclosure--one’s phone number--or simply its type is relatively trivial compared to the information disclosures examined by Burgoon. Other variations in privacy perceptions may have implications for Caller ID. Related studies of privacy reveal just how complex the nature of privacy is. For example, are there differences in terms of who receives the calling party information and for what purpose it is used. Simmons”8 wm~'—- Mac.” found that the perception of privaCy invasion varied with the purpose, or judged benefit of an inquiry. Here, the release of personal information for medical purposes was less invasive than if it were for a job application. Indeed, we might also expect different perception levels of privacy invasion when Convention of the International Communication Association, Dublin, Ireland (June 1990). 357Custom Local Area Signaling Services“. These services utilize calling party identification information and include such services as Priority Calling (Distinctive Ring), Selective Call Forwarding, and Call Trace. 358Simmons, Invasion of Privacy and Judged Benefit of Personality-test Inquiry, 79 J. GEN. PSYCHOLOGY 177 (1968). 144 the release of calling party information is associated with such services as enhanced 911. Burgoon found that the perception of informational -u-ua—mh. type.”9 More invasion was perceived, for example, if the ~2;;hange was with a teacher or a sibling than with a parent. Certainly, any decision to release calling party information might depend upon the nature of the relationship with the person or business being called. The type of person placing the call may also be correlated with the tendency to forward his or her identification. In terms of gender, Derlega and Chaikin,360 in their study of privacy and self-disclosure, noted that women tend to disclose more than men. Burgoon found no gender differences in the perception of privacy violations,361 and Pedersen362 found no significant differences between the sexes on the dimensions of Reserve, Solitude and Anonymity. Burgoon did, however, find that women would tend to use more blocking strategies to achieve privacy, such as by postponing conversations, terminating conversations, and closing doors. Thus, we might predict that women would be more amenable to 3591Burgoon, supra note 345. 360Derlega & Chaikin, supra note 324- 36"Burgoon, supra note 345. 362Pedersen, Sex Differences in Privacy Preferences, 64 PERCEPTUAL 8 MOTOR SKILLS 1239 (1987) . 145 Caller ID, but also more likely to use number identification suppression options and use Caller ID for call management purposes. Age may also have an effect. Marshall found that adults have a greater preference for Reserve while students have more Solitude preferences.363 Hence, younger people might favor Caller ID more than older persons. Personality characteristics may also be related. Pedersen36‘ obtained personality correlates of privacy preferences and found that those preferring Reserve and Anonymity tended to be shy, 365 rigid, cautious, and uncooperative. Those preferring Solitude were found to be apathetic, defensive, rebellious, and cautious . 356 Finally, the perception of privacy invasion may also center on the level of permission sought and granted. ‘ -w‘-___._~_.-... 363Marshall, supra note 299. 36“Pedersen, Relationship of Personality to Privacy Preferences, 2 J. SOC. BEHAV. & PERSONALITY, 267 (1987). 365The California Psychological Inventory, a self-report personality inventory, was used to measure the personality characteristics. Other related traits included passive, unfriendly, uncertain, self-abasing, unorganized, judgmental of others, insecure, pessimistic, careless, nonconforming, submissive, and stubborn. 366Pedersen found gender differences here. Men preferring Solitude were found to be apathetic, deliberate and slow, while women were considered to be cautious, apathetic, defensive, rebellious, demanding, connected, and generally lacking social skills. 146 Tolchinsky367 found that when personal information about an employee was given out by a company, employees considered failure to ask their permission to do so as the greatest invasion of privacy, more important than either where the information might be sent or the possible consequences of the disclosure. This has direct relevance to the problem of unlisted numbers and to the availability of suppression options. 36'7Tolchinsky, McCuddy, Adams, Ganster, Woodman & Fromkin, Employee Perceptions of Invasion of Privacy: A Field Simulation Ekperiment, 66 J. APPLIED PSYCHOLOGY 308 (1981). 147 Conclusions From a social science perspective, both sides of the Caller ID controversy may lay claim to valid privacy interests. The two positions reflect two different facets of a multidimensional concept. The caller’s position Clearly represents an interest associated with the dimension of Anonymity, and the called party’s interest is associated with the dimension of Solitude. Each of these types of privacy is not only desired, but is an important, fundamental human privacy need. This must be remembered as callers and called parties seek to control their privacy inputs and outputs. Unfortunately, this study has also Shown that there is no N. clear evidence from the research that either side is more important or represents a more important need. Anonymity Violations may be perceived as more invasive than Solitude violations, but in the context of Caller ID and the type of information it discloses, the Anonymity violation may be perceived as less invasive. Moreover, the research has shown that younger people, for example, have more preferences for Solitude than Anonymity.368 If some type of judicial balancing is used to adjudicate the privacy debate, the various privacy perceptions, preferences, and needs should warrant consideration. For I example, the courts may consider the purpose of the invasion \m "m.~..- h 368See Marshall, supra note 363 and accompanying text. 148 and its effect on the severity of the violation. The courts may :ISOW censider that a man would i be less inclined to disclose calling party information than a woman, and that a privacy invasion by a spouse or parent is perceived to be less severe than an invasion by a telemarketing organization, for example. A blocking arrangement or arrangement whereby the forwarding of the calling number was first requested and then granted by the caller, would also mitigate the perceived invasion because a level of permission was introduced. These types of considerations ‘would likely impact ‘the courts’ determination of what is a reasonable privacy right and which competing privacy interest should prevail. This study has provided a basis for future legal analysis by providing a clearer understanding of the privacy interests at stake, their meaning, and implications. More social science privacy research is warranted, particularly in light of the service’s political and legal ramifications. Further investigations Should help in weighing and balancing the privacy interests on both sides of the debate as they are addressed through regulatory and technological means. INTERESTS IN CON?LICT--ANONYHITY AND SOLITUDE-'80! COKPARB? Having explored the nature and importance of privacy, a return to the legal literature is warranted for a reassessment and re-examination of the legal treatment of privacy. Whether this treatment corresponds with the findings and treatment of privacy in the social sciences is of interest. For example, do the courts acknowledge the dimensions of privacy as put forth by the social sciences? Do the courts specifically recognize a privacy interest of "Anonymity" and a privacy interest of "Solitude?" How might the courts compare these legal treatments and which interest would predominate? This section looks at different types of privacy cases and forms a similar division of privacy dimensions in.case law as in the social sciences. The cases are examined for their character and the criteria by which they were