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Aust & NZ

Do Not Call


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section heading icon     telecommunication privacy

This page considers phone tapping, reverse directories, do-not-call registries and other issues.

It covers -

It is supplemented by guides on Networks & the GII, Security & Infocrime and Marketing. There is a more detailed examination of specific issues in profiles dealing with the Domain Name System, dot-au & auDA and the shape of Australian & New Zealand telecommunications.

section marker icon     introduction

Concerns about privacy in telecommunications are not new. The switch operator in Henry James' fin de siecle In The Cage

quite thrilled herself with thinking what, with such a lot of material, a bad girl might do

As noted in the first pages of this guide, protecting the privacy of personal and corporate telegraphic communications was one catalyst for the development of contemporary privacy regimes in advanced economies.

Users of telecommunication networks have had an expectation that their communication would be respected. That expectation has had the corollary of special treatment for network operators, broadly exempted from liability for the content of the traffic on the basis that the operator is aware that communication has taken place but unaware of the content of that communication.

That concern for privacy - reflected in restrictions on disclosure of information by network operators and unauthorised access by private investigators - has gone hand in hand with mechanisms for government identification of what communication is taking place and surveillance of the content of that traffic, including logs of calls, copies of telegrams and technologies that allow government officers to hear calls in real time or record them. Much of the debate about US civil liberties over the past eighty years has thus centred on the 'wiretap'.

More recently we have seen the emergence of concerns about the ownership of telecommunications contact information, as network subscribers seek to enhance their security or their privacy by

  • using caller identification (aka caller number display or CND)
  • restricting access to their numbers in an environment where the average US household is receiving ten telemarketing calls per night (often from a database rather than a human)
  • restricting publication or matching of street address or other contact details associated with their numbers

Those concerns have seen many consumers move 'ex-directory' to 'silent numbers'. They have also seen support for bans on 'reverse directories' and for establishment of 'do not call' registries.

Normalisation of the internet - particularly the strengthening of government and community anxieties about security - has seen debate about

  • whether the net should (and indeed can be) exempt from wiretapping
  • the responsibilities of regulatory choke points such as internet service providers
  • the handling of web site registrant contact information (in particular the various gTLD and ccTLD WHOIS databases)
  • restrictions on practices such as 'pretexting' that are unethical and often illegal

A result of that evolution is that telecommunication privacy in Australia and most countries involves the interaction of a range of legislation (typically both telecommunications enactments and privacy enactments, often supplemented by national security, criminal investigation and intellectual property law) rather than a single discrete enactment.

section marker icon     wiretaps

[under development]

Federal wiretapping law (centred on 18 USC 2511) broadly prohibit "interception" of spoken communications and also make it illegal to "disclose to any other person" when there is an expectation of privacy. It is generally legal under US federal law to record spoken communications as long as one person consented and as long as the taping is not done to violate any other law.

The Australian regime features a range of Commonwealth and state/territory legislation, notably the federal Telecommunications (Interception) Act 1979 - discussed here and here.

section marker icon     CND

It has been a tradition in telecommunication network management that subscribers do not own their telephone numbers. Instead they lease that number from the network operator. The advent of competition, mobile phones and number portability schemes has blurred that tradition but it remains essentially intact.

It is also a tradition that subscribers use their numbers to manage their identity and privacy, in particular as a mechanism for screening contacts. Many consumers, for example, provide third parties with a fixed line or mobile number but are unwilling to accompany that information with their address or other details. Concerns about stalking and other matters mean that some subscribers do not wish to publicly divulge a number.

That has affected the operation of public directories, demand for 'silent numbers' and services such as Calling Number Display (CND), which gives callers the option of displaying their number (and sometimes related information) to the recipient of the call.

In Australia the Integrated Public Number Database - discussed here - provides a master directory of all numbers across all carriers. Service providers and directory producers can only use IPND data to operate and provide directory assistance services, produce a public number directory, provide associated services and provide location-dependant telecommunications services such as services that send a call to the branch of the business nearest the caller.

A 'silent number' (aka 'silent line') is a fixed line service for customers who seek enhanced personal information protection by not having their telephone numbers included in publicly available print and electronic directories (and similarly not disclosed by directory assistance).

Silent line customers pay a fee to have their names, addresses and phone numbers withheld from directories. Silent line customer addresses and phone numbers are also not available through some directory assistance services, though the operator on these services may indicate that there is a listing for a silent number under the name requested.

How many people are 'ex-directory'? As of 2000 Telstra had around 800,000 silent line customers in Australia. About 16% of residential customers in Melbourne and Sydney (and an average of 12% in country areas) have silent lines.

The privacy implications of CND for callers encompass the level of control CND callers have over automatic provision of the number to receivers and whether this information is provided on the basis of informed choice. It also encompasses the uses to which CND information might be put by organisational and business receivers, who have the capacity to capture and possibly manipulate CND generated data.

section marker icon     directories

Who owns the directories? In the US the landmark 1991 Feist decision established that the network operator has insubstantial intellectual property protection for published phone directories, including what are known as colour pages business directories. That has resulted in a range of entities copying directory information by scanning or rekeying printed volumes.

In Australia the 1997 Telecommunications Act and industry codes relating to the IPND - eg the ACIF IPND Data Provider, Data User & IPND Manager code (PDF) - provide Telstra subsidiary Sensis, US data trading giant Acxiom and a handful of other commercial entities with direct access to the national 'master registry'. That is discussed in the ACA 2004 Who's Got Your Number - Regulating The Use Of Telecommunications Customer Information discussion paper.

Acting ACA chairman Bob Horton commented in 2004 that there was evidence customer information was being collected by public number directory producers and collated with data drawn from other sources to create consumer 'profiles'.

Current use of telecommunications customer data appears to go beyond what is allowed under existing legislation. In fact, our investigations indicate that databases are being created and maintained based on information provided by customers to their telecommunications service providers. These databases are then sold to other companies for direct marketing and other commercial activities. In the ACA's opinion, this is not only a breach of existing law but also outside what customers providing personal information expect to happen.

Section 285 of the Telecommunications Act 1997 prohibits unauthorised creation of reverse directories.

During 2001 the group launched a free 'Black Pages' online reverse search service for Australia, discontinued after a few months because of complaints from privacy groups and apparent pressure by regulators. Desktop Marketing Systems (DtMS) subsequently marketed CD-ROMs with a reverse directory facility. DtMS managing director Andre Kaminski reportedly dismissed privacy concerns, commenting

There is no such thing as privacy. Information is just a commodity. As Australia becomes a more sophisticated market, there is a demand for people like us.

Telstra successfully argued in the Federal Court that DtMS had breached its copyright; the product is no longer available.

section marker icon     registers as the embodiment of non-interference

The beginning of this guide also highlighted the significance of 'non-interference' as a principle underlying much privacy legislation, with individuals having a right to be left alone and to exercise that right by having some control over both what information is collected about them and how that information is used.

That principle is embodied in a range of telecommunication registers that have emerged over the past decade.

In essence those 'do-not-call' registers - discussed in more detail elsewhere on this site - are the obverse of the directories noted above. They allow consumers to specify that those consumers are not to received unsolicited commercial electronic messages. The consumer must specify that they do not wish receive marketing messages, with a national register typically being maintained by a government agency and based on legislation. Marketers are otherwise free to contact numbers.

The registers centre on voice (by fixed line or mobile) and fax contact, particularly to households. They do not encompass spam. Their development has reflected consumer disquiet with performance by some industry groups (eg poorly maintained lists managed by some direct marketing associations). It has also reflected recognition that some of the most egregious telemarketing has come from businesses and not-for-profit organisations outside those associations.

In 2003 the Federal Communication Commission (FCC) established a national Do-Not-Call Registry under the Telephone Consumer Protection Act of 1991 (TCPA), building on prohibitions in that enactment against sending unsolicited faxes and against unsolicited messages from automatic dialing systems to mobile phones.

The registry is nationwide in scope, applies to all telemarketers (with the exception of certain non-profit organizations), and covers both interstate and intrastate telemarketing calls. Commercial telemarketers are not allowed to call you if your number is on the registry. As a result, consumers can, if they choose, reduce the number of unwanted phone calls to their homes.

The US Registry now features over 60 million numbers.

In Australia the ALP has called for a similar registry, criticised - in our view unconvincly - by some telemarketers as resulting in "huge job losses". The proposed registry would be managed by the Australian Communications Authority. Apparently all unsolicited consumer telemarketing on public holidays and sundays would be banned.

The registry would supersede private lists such as that under the auspices of the Direct Marketing Association, which in July 2004 claimed that the US government

is facing an administrative and financial nightmare as it is now dealing with a disgruntled and disillusioned public and costs that are spiralling out of control.

It is unclear whether the Australian legislation would restrict cold calling by non-profit organisations and political entities, consistent with loopholes in the Spam Act 2003 and the Privacy Act.

section marker icon     ISPs as regulatory choke-points

A discussion of ISPs is available elsewhere on this site.

section marker icon     WHOIS

In discussing the domain name system (DNS) we have noted debate about privacy aspects of WHOIS databases for gTLDs (eg dot-com) and ccTLDs (eg dot-au and dot-nz). A WHOIS database contains contact information supplied by the domain name registrant, ie the entity responsible for registering the domain name - sometimes characterised as the "domain name owner".

The information typically includes the full name of one or more individuals, fax and voice numbers, an email address and a postal address.

During the first years of the internet that information was primarily used by network administrators. With the proliferation of sites and the emergence of cybersquatting such contact details came to be of interest to both those engaged in litigation and those who wanted to harvest information for direct marketing, eg for spam.

Exploitation of the data - including alleged substantial misuse by some domain name registrars - has resulted in restrictions on publicly-accessible information in some spaces, with suppression of some information or barriers to automated harvesting. The restrictions have coincided with - and often followed - registrant provision of spoof contact details, such as registration by Santa Claus, Mickey Mouse or Idi Amin of 1 Nowhere Street in Somewhereville.

section marker icon
     studies and sites

Literature, particularly in the US, on telecommunications privacy and surveillance is dauntingly large. We have therefore highlighted only a selection of works of particular interest.

For questions of directory and number ownership see Anne Branscomb's Who Owns Information: From Privacy To Public Access (New York: Basic Books 1994)

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version of September 2006
© Bruce Arnold | caslon analytics