State of Vermont Public Service Board
Investigation of New England Telephone ) and Telegraph Company's PHONESMART
Call ) DOCKET No. 5404 Management Services
)
DIRECT TESTIMONY OF
MARC ROTENBERG, BOARD WITNESS
July 17, 1991
CPSR Washington Office 666 Pennsylvania Ave., SE, Suite 303 Washington, DC
20003 202/544-9240 (voice) 202/547-5482 (fax) mrotenberg@washofc.cpsr.org
(email)
1. What is your educational background and relevant employment experience?
I graduated A.B. cum laude from Harvard College in 1982 and received a
J.D. from Stanford Law School in 1987.
I am currently the director of the Washington office of Computer
Professionals for Social Responsibility (CPSR), a national membership
organization based in Palo Alto, California. In this capacity, I frequently
testify before Congress on matters involving computers and civil liberties and
often serve on governmental advisory panels. Most recently, I served on the
Senate Privacy and Technology Task Force established by Senator Leahy which
reviewed telecommunication privacy issues, including Caller ID. I am also a
member of the District of Columbia bar and conduct public interest litigation
primarily involving the Freedom of Information Act and the Privacy Act.
In addition to my work with CPSR, I am an adjunct professor of law at
Georgetown Law Center where I teach a course on the law of information privacy.
I was previously counsel to the Subcommittee on Technology and Law of the
Senate Judiciary Committee.
2. Have you testified previously before a regulatory body? If so, when, and on
what topic?
I have previously testified before two state regulatory agencies on
Caller ID matters:
¥ "In the Matter of the Application of the Chesapeake and Potomac
Telephone Company to Offer Caller ID with Special Identification Arrangements,"
Public Service Commission of Maryland, Case No. 211, August 31, 1990.
¥ "In the Matter of the Application of the Chesapeake and Potomac
Telephone Company to Offer Return Call and Caller ID within the District of
Columbia," Public Service Commission of District of Columbia, Formal Case No.
891, March 22, 1990.
I have also testified before the United States Congress on several
related matters involving computers and civil liberties:
¥ "The Fair Credit Reporting Act," the Subcommittee on Consumer Affairs
and Coinage. Committee on Banking, Finance and Urban Affairs, U.S. House of
Representatives, June 6, 1991 (to be published) (with Steve Bercu)
¥ "Telephone Privacy Consumer Rights Act," the Subcommittee on
Telecommunications and Finance, Committee on Energy and Commerce, U.S. House of
Representatives, April 24, 1991 reprinted in Telemarketing/Privacy Issues, 102d
Cong., 1st Sess. 43 (1991).
¥ "The Use of the Social Security Number as a National Identifier," the
Subcommittee on Social Security, Committee on Ways and Means, U.S. House of
Representatives, February 27, 1991 (to be published)
"S. 2476, the Computer Abuse Amendments Act of 1990," the Subcommittee
on Technology and the Law, Committee on the Judiciary, U.S. Senate, July 31,
1990 (to be published).
¥ "Computer Privacy and the Need for the Establishment of a Data
Protection Board," the Subcommittee on Government Information, Justice, and
Agriculture, Committee on Government Operations, U.S. House of Representatives,
May 16, 1990 (with Professor Mary Culnan and Dr. Ronni Rosenberg) reprinted in
Data Protection, Computers, and Changing Information Practices, 101st Cong., 2d
Sess. 109 (1990).
"H.R. 3849, the Government Printing Office Improvement Act of 1990,"
the Subcommittee on Procurement and Printing, Committee on House
Administration, U.S. House of Representatives, March 8, 1990 reprinted in The
Government Printing Office Improvement Act of 1990, 101st Cong., 2d Sess. 104
(1990).
¥ "Computer Virus Legislation," the Subcommittee on Criminal Justice,
Committee on the Judiciary, House of Representatives, November 8, 1989
reprinted in Computer Virus Legislation, 101st Cong., 1st Sess. 25 (1989).
¥ "The Redesign of the National Crime Information Center (NCIC)," the
Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary,
House of Representatives, May 18, 1989 (with David Redell) reprinted in FBI
Oversight and Authorization Request for Fiscal Year 1990, 101st Cong., 1st
Sess. 512 (1989).
¥ "The Computer Security Act of 1987 (P.L. 100-235) and the Memorandum of
Understanding Between the National Institute of Standards and Technology (NIST)
and the National Security Agency (NSA)," the Subcommittee on Legislation and
National Security, Committee on Government Operations, House of
Representatives, May 4, 1989 reprinted in Military and Security Control of
Computer Security Issues, 101st Cong., 1st Sess. 80 (1989).
3. Please describe generally your understanding of the service offered by New
England Telephone under the name, "PHONESMART," which are the subject of the
Board's investigation in this proceeding.
The Phonesmart services are a series of new telephone services based on
Common Channelling Signaling System ("SS7") that permit the transfer of the
phone number of the calling party through the phone network. With SS7 the
dialing information (the calling party's number) is forwarded from the
originating central office to the local switch in the terminating central
office. This creates the opportunity to make the phone number of the calling
party available to the call recipient. Whether the number is actually
forwarded is determined by the phone company.
The Phonesmart service offerings are fairly standard for SS7, and
include a Caller ID feature, which transfers the number of the calling line, a
Repeat Dialing feature, which dials a busy line until a connection is
established, a Call Return feature, which dials the number of the last incoming
call, and a Call Trace feature, which records the number, date and time of the
last incoming call. With Call Trace, the number of the originating call is not
forwarded to the customer. The number is stored by NET and the complaint is
handled by the Annoyance Call Bureau.
New England Telephone has agreed to provide blocking on a per-call, but
not per-line, basis at no charge. To execute the blocking feature will require
that the caller take additional steps that are not currently required to
protect the disclosure of the customer's phone number. The caller presses
"*67" from a touch-tone phone or dial 1167 from a rotary phone. The blocking
feature was disabled for the Call Trace and Repeat Dial services, so that it
does not work with these two services.
4. Please summarize your views as to the privacy implications of the
PHONESMART services, particularly Caller ID service.
The Caller ID service raises several distinct privacy problems. It is
not surprising that it has raised such public concern. Fundamentally, the
Caller ID service transfers control over the disclosure of the customer's phone
number from the customer to the phone company. All phone subscribers are
effectively compelled to disclose their phone numbers once Caller ID is
available unless they take extraordinary measures, such as dialing through an
operator or executing the requirements for the blocking option. I use the word
"extraordinary" in this context because in the non-Caller ID environment a
caller would not ordinarily be required to take extra steps to protect the
disclosure of personal information
Privacy: Control over the Disclosure of Personal Information
Many privacy scholars believe that the ability to control the
disclosure of personal facts is a critical component of the right of privacy.
Alan Westin, for example, in the seminal book Privacy and Freedom (1967), said
that privacy is the right of individuals to "determine for themselves when,
how, and to what extent information about them is communicated to others." Id.
at 7. Once individuals lose the ability to control the disclosure of personal
information, it becomes more difficult to establish trusts, to share
confidences, and to build smaller communities within the larger community.
Justice Louis Brandeis, the author of a famous article on the right to privacy
and arguably the father of the state and federal laws which today protect
telecommunications privacy, said that privacy is "the most comprehensive of all
rights" and the right most cherished by citizens of a free nation.
Analysis of Privacy Claims: Not a Zero Sum Trade-off
There is a widespread misperception that the privacy implications of
Caller ID can be viewed as the balancing of competing privacy interests: the
rights of the call originator versus the rights of the call recipient. Under
this analysis which presumes a zero-sum exchange of competing interests, the
argument goes, the balance tips in favor of the call recipient since the call
originator has "intruded" upon the call recipient by placing the call. The
analysis typically concludes that there may be the need to offer per-call
blocking, but such circumstances would be exceptional.
This view of the privacy implications of Caller ID fundamentally
obscures the information transaction that occurs in the Caller ID environment.
Caller ID essentially transfers control of the disclosure of the number to the
telephone company. The company then either sells the number to the call
recipient or requires that the call originator take extra steps to protect the
disclosure of the number. The number is only forwarded through the network to
those customers who subscribe to the service, but all customers relinquish the
right to decide when to disclose the number to the phone company.
The balancing argument also presumes that the call recipient always has
a privacy interest that justifies the disclosure of the caller's identity. In
many circumstances, however, the call recipient has no such expectation of
privacy. An 800 or 900 service provider holds the service out to the public
just as merchant opens his or her door to passersby. The 800 service provider
should no more expect the right to know the identity of the calling party than
the merchant should be able to require that customers disclose their identity
as a condition of entry to the store. Subsequent inquiries or purchases may
require that the caller disclose his or her identity, but these are decisions
left to the caller based on the benefits presented.
The example demonstrates that the balancing view of competing privacy
interests tends to obscure the net loss of privacy rights to phone subscribers.
When the communications carrier obtains the right to control the disclosure of
the phone number it places an additional burden on the consumer to protect a
right that he or she previously possessed.
Privacy Stratification
An further problem with the Caller ID service is that it creates
different classes of privacy protection for residential phone subscribers.
This is an unusual development in telecommunications regulation.
Traditionally, all phone subscribers have been entitled to the same degree of
privacy protection in the contents and records of their phone calls. There is
no distinction, for example, in either the federal wiretap statute or the
Vermont wiretap statue between the privacy rights of a telephone customer who
receives only basic local service and one who subscribes to more advanced
features, such as call forwarding or call return. Privacy statutes are designed
to afford a single level of protection for all individuals, and not to
distinguish privacy rights based on a person's economic standing.
Phone subscribers who could not afford the Caller ID service would not
have information about calling parties that those more affluent would routinely
obtain. The problem would be compounded if phone subscribers were required to
pay for a blocking service. The less affluent phone subscriber would have
neither knowledge about the calling party or the ability to block the
disclosure of the phone number, without taking extraordinary steps. The more
affluent phone subscriber could both know the number of the calling party and
could protect the disclosure of the phone number. This would create a
fundamentally unequal relationship between phone users who have previously
shared the same right of privacy. It would be like placing a one-way mirror
between people where once there had been a sheet of glass.
Not surprisingly, there is already some indication that privacy
stratification will likely result from the offering of the Caller ID service.
The Cabot Communications survey of Vermont Caller ID subscribers found that
most Caller ID subscribers live in households with an annual income between
$35,000 and $49,999. The income group least likely to subscribe to Caller ID
are those households with an annual income of less than $15,000. Testimony of
Gerald J. Malette, Attachment 3 ("New England Telephone, Caller ID/Call Trace:
Survey Results"), at 8. A similar point was also raised in a November 26, 1990
letter addressed to the Public Service Board by Katharine C. Whitney of
NEKCA/Child Development & Family Development Program. She indicated that NEKCA
opposes Caller ID "because it has the potential to discriminate against
minority populations; most specifically women and poor people." Ms. Whiteley
cites an article by Leslie Williams that appeared in Vermont Solidarity which
stated that "Caller ID would also allow businesses to circumvent
anti-discrimination laws by segregating calls from minority or low income
neighborhoods . . . ."
Privacy Problem for Subscribers with Nonlisted Numbers
There is a separate and specific privacy problem for phone subscribers
with nonlisted or nonpublished numbers. This is a group of phone users who
have taken additional steps to control the disclosure of personal information
by ensuring that the phone number is not listed in the phone directory or
provided by he operator or both. A letter to the Public Service Board from
Suzanne R. Larkin (August 18, 1990) concludes that "automatic and no charge
blocking to those with Non-Published and Non-Listed Services" should at least
be provided.
The request is sensible. If a phone customer has purchased a service
to protect the disclosure of his or her phone number and a subsequent service
offering would dilute the utility of the original service, the new service
should be reassessed and offered in a manner consistent with the company's
previous obligations.
Caller ID Use in Vermont
Regarding the general acceptance of the Caller ID service in Vermont,
the survey data provided by Cabot Communications contained in the hearing
record, may be somewhat skewed as the survey report indicates that "an
advertising campaign was developed for NET by Cabot Communications to promote
awareness of subscribers to the service." Testimony of Gerald J. Malette
Attachment 3 ("New England Telephone, Caller ID/Call Trace: Survey Results"),
p. 4. Specifically, one of the purposes of the research was to "Evaluate
subscribers' reactions to potential advertising copy points." Id.
Alternatives Available
Another Phonsesmart service offering realizes the benefits of the new
signalling system and avoid the privacy problems of Caller ID. The Call Trace
service provides the necessary capability for deterring harassing or obscene
phone callers without undermining the privacy of phone customers. The Call
Trace also directs complaints to the Annoyance Call Bureau which has the
expertise to handle obscene and harassing calls.
It is noteworthy, also, that NET is offering the Call Trace feature at
a more reasonable cost than some of the other Telephone Companies. Pacific
Bell, for example, is charging $10 per call to activate Call Trace. This
pricing would discourage the use of the feature. The NET pricing scheme
requires only a minimal charge, $1 per month to engage the feature, and then $5
when the feature is activated. (Note that there is some discrepancy in the
record regarding the cost to subscribe to Call Trace, Attachment 2
("Phonesmart: Bill Insert, Dialing Instructions, Confirmation Letter")
indicates a price of $1.00 on a sheet describing four of the services, but
later a price of $1.50 is listed on a sheet describing the Call Trace feature
alone.)
5. What is your understanding of the calling number blocking mechanisms that
are technically available as a part of PHONESMART services (e.g., per-call
blocking or per-line blocking)? For which PHONESMART services do these
blocking mechanisms work?
The blocking mechanism will provide an opportunity for the caller, if
he or she takes affirmative measures, to block the disclosure of the phone
number of the calling line. The result of executing the blocking option will
be to cause "P" or "Private" to appear on the Caller ID display unit attached
to the phone of the receiving party.
According to the materials of NET, the call blocking feature will only
work with Caller ID. Call blocking will not work with Call Trace or with Call
Return. This means that a Call Trace subscriber can still ensure that New
England Telephone will log the number called even if the call is blocked. This
should answer the concern that per-line blocking for Caller ID would diminish
it's effectiveness for deterring harassing or obscene callers.
It also means that a Call Return subscriber could directly call back a
person who placed a blocked call. It is conceivable that the return call
feature could be used to determine the identity of the original caller,
particularly when a call is placed from a phone in home with children, from a
domestic violence shelter with untrained interns, or from other locations where
some people might not be aware of the risk of disclosing the location of the
phone.
I am not aware of any technical reason that the blocking mechanism for
Caller ID must be disabled for the Call Return service. From a privacy
protection viewpoint, it would be inconsistent to provide blocking for the
Caller ID service but not the Call Return service.
The Call Trace service avoids many of the privacy problems raised by
Caller ID and Call Return; the logging of phone numbers and the assistance of
the Annoyance Call Bureau is the appropriate response to complaints of
harassing phone calls. Note that the blocking mechanism is not an issue with
Call Trace because the number is never forwarded from the last central office
in the network to the destination phone.
Given the availability of Call Trace to deter harassing phone calls and
the effective shielding that the service provides to a person who seeks to
register a complaint, it is not clear if Call Return would provide an
additional benefit. It also appears to fall through the cracks of protections
that are often recommended for Caller ID.
6. Please describe any limitations that, to your knowledge, may result in
blocking capability not being available from certain telephones (e.g., public
phones, semi-public phones, Centrex-served lines, multi-line hunt groups).
Signalling System 7 contains the ability to indicate to the last
central office in the network whether the number should be passed through to
the receiving party. I am not aware that any phone in the SS7 network could
not provide blocking.
Alleged Limitations on Blocking for 800 and 900 Calls
The blocking issue becomes more complicated when the destination of the
call, rather than the source of the call, is considered. Some of the telephone
companies have claimed that phone calls to 800 and 900 services, which are not
routed through SS7, cannot be blocked. Based on this representation, there are
a number of state laws and bills pending in Congress that appear to exempt
Automatic Number Identification (ANI) services, the 800 and 900 corollary,
until such blocking is technologically feasible. Presumably, that is when SS7
is widely in place. I have previously disputed the "ANI exception" for two
reasons. See, e.g., "Telephone Privacy Consumer Rights Act," the Subcommittee
on Telecommunications and Finance, Committee on Energy and Commerce, U.S. House
of Representatives, April 24, 1991 reprinted in Telemarketing/Privacy Issues,
102d Cong., 1st Sess. 43 (1991). First, as a matter of public policy, if a
regulatory agency or legislative body determines that a privacy interest should
be protected, then it must view skeptically a claim that such safeguards are
technologically infeasible. There may be economic or policy reasons for such a
determination, but a regulatory agency or legislative body effectively
abdicates its responsibility if it fails to direct technological requirements
where a substantial public interest is demonstrated.
My second objection to the ANI exception is that, in fact, it is
currently feasible to block the disclosure of a call to an 800 or 900 service
by dialing a service in California called Private Lines. (The service may be
reached at 1-900-STOPPER). This service suppresses the transfer of the ANI
information to the destination party. Thus calls today to 800 and 900 services
can be blocked.
Limitations on Caller Identification Ability
The question raises an additional point about the efficacy of the
Caller ID service. While it does not appear that there are any restrictions on
the use of a blocking feature from the phones indicated in the question, there
is a substantial question as to whether the calling party identification
feature of Caller ID would work with calls that originate from public phones,
semi-public phones, or Centrex-served lines. Calls from these phone are
unlikely to be linked with a particular individual and thus the opportunity for
actual identification of the caller's identity based on the phone number is
greatly diminished. For example, prank calls from college dormitories would be
difficult to trace to an individual, as would calls from within a university
Centrex system.
The critical point is that there no direct link between the identity of
the caller and the phone number of the calling line. The same person could
call from two different phones. Two different people could call from the same
phone. The phone number alone is insufficient to establish the identity of the
caller.
Alternative Means of Caller Identification
The Caller ID service also raises the question about how well it
compares with other means of identifying calling parties. Caller ID requires
that individuals make a very rapid determination about whether to answer the
call, based on the phone number alone. Unlike a phone answering machine which
may provide the identity of the caller and the reason for the call, the Caller
ID service shows simply a phone number.
It also clear that as long as it is possible to make anonymous calls,
it will be impossible to eliminate all undesired calls without reducing the
utility of phone service. For example, a call from a pay phone could be either
an ex-husband trying to harass a former spouse or a child attempting to reach
her mother to say that she will be late for dinner. The Caller ID service
could not distinguish between the two calls.
Caller ID or Calling Line ID?
This problem underscores a point that is made by Dr. Jeff Johnson,
Chairman of CPSR, that Caller ID ought more appropriately to be called "Calling
Line ID." As such, he has testified before the California Public Utility
Commission, its benefits for identifying the identity of the calling party have
been greatly overstated. Dr. Johnson has argued, convincingly I believe, that
the delivery of the phone number rather than the name of the calling party
benefits business phone subscribers rather than residential phone subscribers.
It is businesses and not residential customers who link the incoming number
with other databases and also collect and sell the names of the calling
parties. The best protection for the residential phone user is to ensure that
he or she can control the disclosure of the phone number. Prefiled Testimony
of Dr. Jeff Johnson before the California Public Utilities Commission, Re:
A.90-11-011, A. 90-12-065, and A. 91-01-039 (May 23, 1991).
7. What is you general understanding of the Vermont Telecommunications
Agreement ("VTA"), which was signed by NET and the Vermont Department of Public
Service and approved by the Board in December 1988? In particular, describe
your view as to what commitments NET made in exchange for what types of
benefits?
The VTA essentially established a flexible framework for the
development of telephone services in Vermont while ensuring that basic
residential service would be preserved. The Department of Public Service
eliminated rate of return regulation and relaxed other regulatory requirements
in exchange for an agreement that the NET would ensure the continuation of high
quality service, stable and predictable basic local exchange rates, limits on
the maximum rates for toll calls, and various other requirements outlined in
the Agreement. As the summary order entered 12/30/88 in Docket No. 5293
("Investigation of the proposed modified 'Vermont Telecommunications
Agreement'") states:
The MVTA [Modified VTA], in general terms, provides that NET will maintain all
existing service offerings, will not increase basic telephone exchange rates,
will substantially modernize its network by 1992, will meet objective service
quality criteria, and will comply with nondiscriminatory access provisions and
other service elements. In return, NET will be relieved from rate-of-return
regulation and will receive enhanced flexibility in regard to its ability to
make new service offerings.
I could not provide an overall assessment of the success of the VTA,
other than to note that in the area that I am most familiar with --
telecommunications privacy -- the NET promotional materials for the Phonesmart
services reflect a higher concern for customer understanding and present a more
honest description of the benefits and limitations of the new services than
similar materials prepared by other phone companies. For example, the NET
Phonesmart promotional materials comparing Caller ID and Call Trace associate
Caller ID with calling party identification and Call Trace with deterring
harassing or obscene calls. While I would restate the limitations of Caller ID
for identifying the calling party described above, it is apparent that these
materials provide customers with a more accurate description of the services
than is generally provided by SS7 service providers. I am also aware that that
the NET voluntarily agreed to offer free, per-call blocking in October, 1990
and has worked with a number of the domestic violence shelters in Vermont to
address concerns raised by the offering of Caller ID.
If these activities reflect the consumer service environment engendered
by the VTA, then it compares very favorably to other state regulatory
approaches.
8. NET filed its PHONESMART services tariff with the Board under Article XIX
of the VTA, entitled "Marketing Flexibility." Do you have an opinion as to
whether this provision should be interpreted so as to permit the offering of
the PHONESMART services in the manner in which NET has done so?
Article XIX grants the NET the "general authority . . . to determine
the rates, charges, terms, conditions and provisions of New Products and
Services." New Products and Services are broadly defined as including, but not
limited to, those services which are "substantially similar to but not
identical to Existing Products and Services" and those which are "not identical
or substantially similar to Existing Products and Services." There is a clear
exception for Basic Residence Local Exchange Services which apparently is
intended to ensure that the agreement regarding the provision of these services
will not be altered by the offering of a new product or service.
While Article XIX of the VTA clearly leaves broad latitude to the NET
regarding the offering of new services, it would nonetheless appear that any
service offering which would alter the character, utility, or desirability of
basic residential service could not be treated solely under Article XIX. The
VTA would also not alter restrictions on the service that might result from the
Vermont wiretap statute, the federal wiretap statute, or the state or federal
constitutions.
The critical question is whether the offering of Caller ID service
constitutes a fundamental change in the offering of existing services. It is
clear from the hearing record of the VTA that maintenance of all existing
services is considered a primary obligation of the NET. Docket 5293,
("Investigation of the proposed modified 'Vermont Telecommunications
Agreement'") (December 30, 1988), p. 11.
It is also clear that the VTA seeks to ensure that Basic Residential
Service will be provided at a stabilized cost. This is, in fact, one of the
commitments made by the NET in exchange for the relaxation of regulatory
authority. The question is how to treat alterations in service that are not
explicitly discussed in the Agreement. If, for example, basic residential
service subscribers found that the frequency of busy tones had increased
significantly because the company failed to maintain the equipment adequately,
the utility of the service would be diminished and the terms of the VTA
arguably breached. This problem is described by some as "The Nickel Candy Bar
Problem." You can maintain the price of a candy bar at 5¢ over a long period
of time if you simply reduce the weight of candy. Though the price has not
increased, the value to the consumer has clearly diminished.
The requirement that subscribers to basic service now take the steps
necessary for per-call blocking each time a call is made to reestablish the
right of privacy when the VTA was adopted suggests a similar diminishment of
the service.
The legal dictum that "your Constitutional right to swing your arm ends
where my nose begins" may well apply here. Under the VTA the NET should be
free to provide new services to the extent that these new services do not alter
or jeopardize basic services that they are required to provide. When the new
service offering collides with the basic service requirement, then the NET's
prior obligation must be considered. This interpretation of the VTA is
supported by the orders issued by this Board record in Docket No. 5252
(Investigation of Proposed "Vermont Telecommunications Agreement," July 12,
1988) and Docket No. 5293 (Investigation of the Proposed modified "Vermont
Telecommunications Agreement," December 30, 1988). In Docket 5252, the Board
concluded that Residential Basic Exchange Service must not be bundled directly
with New Services. This means that basic services "may not be linked to the
termination or continuance of New Service offerings or contractual
commitments." Id. at 6. A similar provision was adopted in Docket 5293. Id.
at 14,
In Docket No 5252 this Board recognized that the "post-VTA period would
offer a broader and more complex set of consumer choices -- indeed that is one
of the potential benefits of the proposal." Id. at 66. But it also made clear
the need for notification and maintenance of existing services:
[W]e regard this provision as having a critical "linchpin" role in the overall
structure of the VTA. The preservation of Existing Service offerings is
essential to reducing the consumer risk of this innovative regulatory scheme.
Id.
It may also be significant under an analysis of the VTA that the burden
of Caller ID will fall most heavily on low-income families and individuals
living alone who will not be able to afford the service but will be required to
take extra steps to protect the disclosure of the phone number. The Cabot
Communications survey indicated that poor families were far less likely to
subscribe to Caller ID than more affluent families in Vermont. See supra at 9.
The VTA evinces a commitment on the part of the state of Vermont to
ensure stabilized cost telephone service for all residents in the state. It
could reasonably be inferred that the VTA reflects a policy determination that
the availability of telephone services should not be left purely to market
forces, even in a substantially relaxed regulatory environment.
Finally, the VTA contains an escape clause, that allows the Public
Service Board to order the Department of Public Service and the company to
renegotiate relevant portions of the contact:
If at any time, after notice and hearing the Board determines that changes in
federal regulatory law, unforeseen and significant economic shifts, or changes
on technology have created either extreme hardships for the company or a
condition that is severely detrimental and contrary to the public good. 30
V.S.A. Sec. 226a(e)
The proposed offering of the Caller ID service has sparked widespread
public concern about telecommunications privacy. Arguably, this provision
could be invoked to protect the protect the public good.
9. Article I of the VTA deals with NET's offering of its existing services,
i.e., all services that were contained in its tariffs at the time the VTA was
approved. Do you have an opinion as to whether NET's provision of PHONESMART
services, with free per-call blocking available to all subscribers, is
consistent with the Company's obligations under the VTA section? Please
include in response your views as to any impact of PHONESMART services on
non-published or non-listed number service.
There are two categories of subscribers to consider. First are those
that are simply subscribers to basic residential service. The second are those
who have who subscribed to nonpublished or nonlisted services. The first group
of customers are entitled to the same degree of privacy protection that existed
at the time that the VTA was adopted. This would require the availability of
free, per-line blocking that defaults to non-disclosure.
Nonpublished and non-listed services were existing services at
the the time the VTA was adopted. Thus the NET was obligated to preserve the
viability of the service as it existed at the time. A person who had
subscribed to these services had taken measures to protect the disclosure of
the number. Even under the Supreme Court's somewhat narrow view of information
privacy, the subscriber had clearly not "assumed a risk" of disclosure of
personal information and thus should reasonably believe that his or her
expectation of privacy would be protected. These customers are also entitled
to free, per-line blocking that defaults to non-disclosure.
10. Please compare the consumer benefits and costs of Caller ID with and
without per-line blocking, for purposes of: (a) Deterring harassing or annoying
phone calls; and (b) Providing greater call management capability.
(a) Given the fact that call blocking does not affect Call Trace, the
availability of per-line blocking for Caller ID is unlikely to have any
significant impact on deterring harassing calls.
The availability of per-line blocking is also unlikely to deter the
determined caller who can call from a public phone, a centrex phone, or another
person's phone. Calling from these phones would effectively protect the
identity of the caller, regardless of the availability of Caller ID.
(b) If per-line blocking is offered so that callers must affirmatively act
before the number is disclosed, it will probably diminish the value of the
service in the short term, since few callers are likely to disclose their
numbers. Over the long term, however, callers may well disclose their numbers
if they perceive clear benefits. It is important to note that Caller ID is not
the only call management service available, and that answering machines and
answering services are widely available to residential phone customers. Both
are probably more effective call management tools since the actual identity of
the caller and the reason for the call are typically recorded.
If per-line blocking is offered to those who affirmatively request it,
it is unlikely that the call management capabilities of the service will be
significantly diminished. The actual coverage of the Caller ID service is so
limited that the availability of per-line blocking should not change the
interest of the service among the target population. For example, Caller ID
does not disclose the number of phone calls from outside the local service
area. It does not disclose the phone numbers of calls that originate out of
state or are from outside the country. Most significantly it does not disclose
the phone number of calls from telemarketers -- arguably the most intrusive
calls -- who almost always call from outside the service area.
Considering the wide number of phone callers outside of the state who
are currently able to call Vermonters without disclosing their numbers, it
seems surprising to suggest that the Vermont regulatory board would not provide
a similar right for calls that originate within Vermont.
11 In your opinion, have consumer expectations of anonymity or privacy when
placing telephone calls begun to change? Should state utility regulators play
a role in encouraging or slowing down that process?
In my opinion, the ability to maintain control over the disclosure of
personal information, such as one's phone number, is central to the protection
of privacy. The importance of this right has increased, not diminished, as
technology now makes possible the rapid linking of discrete data. To reveal
your phone number when making a call today may mean disclosing far more than
your name, it may also disclose your address, income, age, profession, marital
status, and a host of other personal characteristics.
Importance of Privacy Protection
The most recent poll on privacy conducted by Lou Harris and Associates
indicated that American greatly value the right of privacy and are aware that
new information practices engendered by computer technology threaten this
right. Regarding the Caller ID service specifically, more respondents
indicated that the Caller ID service should be prohibited altogether than
offered without at least per-call blocking. (According to the Harris poll, 23%
of the respondents said that Caller ID should be available to subscribers
without any limitations, 27% said that it should be forbidden by law as too
intrusive. Among those with unlisted numbers, the opposition to Caller ID was
greater: 20% said that Caller ID should be available without restrictions, 30%
said it should be prohibited. The Equifax Report on Consumers in the
Information Age 82 (1990).
The consequences of the disclosure of the phone number are also
generally understated. For the residential phone subscriber with Caller ID,
the disclosure of the number of the calling party may be sufficient to
determine whether to answer a call. As most people recognize, in many settings
this is hardly an intrusive act. But in many other settings, the consequences
can be severe.
It is also apparent from the marketing of Caller ID that the
implications for the calling party of the compelled disclosure of personal
information have been generally ignored. To the best of my knowledge, no
television commercial has ever shown a doctor trying to remember the code for
blocking before returning a call to a patient from home or a domestic shelter
volunteer be reminded by a professional counselor not to use a phone at home to
make work-related calls. More generally, 800 and 900 services that make use of
Automatic Number Identification do not advertise that when callers to these are
made the identity of the caller is captured and, in some instances, sold to
direct marketing firms.
The burden therefore falls on the state utility regulators to protect
privacy, and to ensure that well established principles of privacy protection
are not diminished by new service offerings. It may also require that state
regulators should explore proactive measures for enhancing the privacy of
communications, such as the use of cryptography, or limitations on the sale of
personal information acquired through the phone network.
Congress has Protected Privacy as Technology has Evolved
It is worth noting that the Congress has played a significant role in
carving out privacy rights in areas involving the use of new technologies. In
1984 Congress passed legislation to protect the privacy of cable subscriber
records. In 1986 Congress passed the Electronic Communications Privacy Act to
extend wiretap coverage to digital communications and stored computer messages.
In 1988, Congress passed the Video Privacy Protection to protect the rental
records of video store customers. These laws reflect a willingness on the part
of federal lawmakers to examine the privacy implications of new technologies
and to craft safeguards that protect important public interests.
Technological developments create new challenges for regulatory and
legislative authorities. It may be that some technologies -- and, more
precisely, some information practices -- tend to erode privacy. But other
technologies may enhance privacy. Cryptography for example is an effective
safeguard to protect the confidentiality of electronic communications.
Regulatory agencies should approach these technological developments
with a willingness to imagine the future without forgetting the past.
12. Do you have an opinion as to the relative attractiveness to the consumers
of Caller Services with per-call and per-line blocking (as compared to only
per-call blocking) available? If per-line blocking were available to selected
customer segments, how would that affect customer interest in the service?
It is likely that the widespread availability of per-line blocking
would lessen interest in the service. The Cabot Communications survey
suggested that one of the concerns of Caller ID subscribers polled was that the
availability of blocking would make the service less useful. If per-line
blocking were made available to selected customer segments, the impact on
Caller ID subscribers would be minimal, particularly if these were customer
groups that would traditionally not disclose phone number when making calls,
such as women calling from domestic violence shelters. However, limiting
per-line blocking to certain segments may raise substantial due process
problems. How is the determination to be made about which customer segments
are entitled to per-line blocking? Will the decision be appealable? A
Pennsylvania court rejected a tariff proposal that would have provide special
protection for certain groups. The court noted that "[a]fter recognizing that
certain individuals may require blocking to maintain their personal safety, the
Commission created a certification process to identify those individuals
entitled to blocking." The Pennsylvania Court rejected this procedure and said
that it "constitutes arbitrary government action and creates a procedure
lacking in due process protections." Barasch v. Public Utility Commission, 576
A.2d 79, 89 (Pa. Cmwlth 1990).
Needs of Domestic Violence Shelters
The record in this proceeding reveals substantial concern on the part
of several of the witnesses about the adequacy of per-call blocking. Ms. Wanda
Bezia, of Women Helping Battered Women in Burlington, testified before the
Public Service Board on March 12, 1991 that the problem with per-call blocking
was how "to communicate to that many people how call blocking was to happen
each time if they were to manually push in or punch in numbers was phenomenal.
And a lot of times when calls are made, they're made in haste and under
stressful conditions, and that prefix would easily be forgotten a lot of the
time." Tr. 13. Ms. Bezia also stated that the risk to shelter workers "that
their identity could be disclosed to a batterer is very endangering to their
safety." Tr. 25.
There was some disagreement on the adequacy of the NET's response to
privacy concerns expressed by the organizers of the violence shelters.
According to the testimony of Ms. Bezia, the NET subsequently provided per-line
blocking. However, Ms. Bezia indicate that she would still advocate per-line
blocking for the general public. Ms Harrison said that the assistance of the
phone company has "been mediocre, if not poor, and it's primarily because
they're not well versed in dealing with small, grass roots, poor
organizations." Tr. 61. She said that she didn't believe "their public
education campaign has been sufficient . . . ." Tr. 63.
One of the points that becomes clear from the testimony of Ms. Bezia is
that domestic violence shelters oftentimes rely on the assistance of interns
and volunteer workers, who may lack familiarity with the Caller ID service or
the requirements for per-call blocking. Ms. Garnett Harrison, the coordinator
of the Vermont Network Against Domestic Violence, testified that there were
more than 400 volunteers throughout the state network and that they have all
received "a promise of confidentiality." Tr. 40. Ms. Harrison further
testified that "their safety would be severely jeopardized . . . if their
status . . .was released to the public." Tr. 40. Ms. Harrison described in
particular detail the harm that might result if a volunteer, calling from her
home, were to call the home of a victim when there was a Caller ID device if
the husband learned of the call. Tr. 52-54.
It should be clear that the ability of the shelters to render services
could be jeopardized if individuals who attempt to contact family and children
cannot be assured that their identity or location will be protected. Ms.
Harrison also indicated that it could substantially threaten the ability of the
network to retain volunteers. "I think we're going to have a real hard time
keeping volunteers, you know, when their confidentiality is challenged, or
safe home providers, especially." Tr. 55.
These sentiments were also clear from the survey conducted by the
Vermont Network Against Domestic Violence and Sexual Assault, Vermont PIRG and
the ACLU, and many of the letters received by the Public Service Board. See,
e.g., Letter to Susan M. Hudson, Vermont Public Service Board from Deborah
Fowler, President, Umbrella Inc. (July 24. 1990).
There were several letters submitted to the Public Service Board and to
the New England Telephone Office in Burlington by Caller ID subscribers which
indicated that these subscribers were displeased by the proposed offering of a
call block service. See, e.g., Letter to Chairman Cowart from B.G. Linder to
R.A. Linder (September 24, 1990). However, none of the letters that I reviewed
said that the subscriber would discontinue the Caller ID service because of the
availability of call blocking. Mr. David J. Usher, Director of External
Affairs indicated in his testimony that there had been little objection to the
introduction of Caller ID.
13. Do you have any views as to the feasibility of providing greater privacy
protection for certain customers who demonstrate a need for automatic (i.e.,
per-line) blocking?
Technical feasibility would probably not be a significant obstacle to
providing per-line blocking. The alteration in the software is minor. The
hearing record indicates that there are a variety of ways to protect the
disclosure of personal information, including dialing through an operator.
The more difficult question is whether the privacy protection in place
when the VTA was signed should be ensured through the availability of per-line
blocking to the general public. A related question is whether a per-line
blocking right should be made available to particular phone subscribers based
on a determination by either the Department or the NET.
If some customers are not provided per-line blocking, it appears that
there will be a severe risk of harm. In the area of domestic violence for
example, the hearing record indicates that there are approximately 150 safe
homes that are available to women. Tr. 45. Presumably, these homes provide
services to women similar to these that are available at the domestic violence
shelters. And the women who stay at these homes will have similar needs for
telephone services. But even a system that provides for "safe" phone at
domestic shelters is unlikely to protect callers from these homes. Is it
reasonable to expect that victims of domestic abuse must determine whether a
phone is safe before making a call? I believe that this places an unnecessary
burden on this group.
Mr. David J. Usher, director of external affairs for NET
acknowledged that there may be special agencies which have particular needs for
confidentiality in their work. Mr. Usher suggested that some of the obvious
groups would include "abuse victims' shelters, certain 'hot line' providers'
and undercover police activities." (January 7, 1991, p. 5). Dr. Marc Cooper
testified that there may be a number of groups, including, doctors and
psychiatrists, that would need special blocking services. Tr. 172. Ultimately,
however, he concluded that neither "the commission nor the company" should set
up qualifications criteria. He said that the decision "ought to be at the
option of the affected parties." Tr. 173.
Mr. Usher indicated that there are a variety of ways that Special
Agencies could be accommodated. He suggested that there could be a procedure
"whereby operators will place a local or long distance call within Vermont
without the normal operator surcharge when a certain codeword is used by the
caller. Secondly, NET will install a line equipped for outgoing service only
at these agencies. . . . Lastly, NET could arrange service in such a manner
that incoming calls to a certain number would trigger a distinctive ringing
signal which the agency could choose to answer or not." pp. 5-6.
While facially attractive, these solutions are probably impractical and
would narrow the scope of actual protection. Two of the suggestions are
location specific, which is to say that if a call is made by an employee or
volunteer of a domestic violence shelter from a home rather than from the
shelter, there would be no safeguard. The third solution, providing a codeword
to the operator will be difficult to manage as more phone subscribers look for
ways to protect the disclosure of their phone numbers.
14. Please comment on whether the availability of Call Trace to deter
harassing telephone calls makes that characteristic of Caller ID less
important? Are there aspects of Caller ID service that provide benefits in
this regard that Call Trace does not?
The Call Trace feature as offered by the NET appears to address the
concern about deterring harassing and obscene calls without raising the privacy
problems of Caller ID. While the Caller ID service will provide the call
recipient with the number of the calling line, the burden will still fall on
the receiver of the call to take affirmative measures, such as contacting the
caller to express a complaint. This runs counter to the advice previously
provided by the phone company which was to hang up immediately when a call from
a harassing phone caller is received. Responding to an obscene or harassing
phone caller directly, rather than referring the matter to an agency with
specific expertise to handle these problems, may also place the call recipient
in unnecessary risk..
15. How have other states resolved any privacy concerns raiseD by Caller ID
service? Have any required that per-call or per-line blocking be available?
If so, were specific customer segments identified for eligibility for blocking
services? Please note whether any states you refer to have relaxed regulation
for non-basic or discretionary services offered by the local exchange company.
[See Attachment 1]
16. Have you considered the federal and Vermont Constitutional ramifications
of NET's PHONESMART services and their impact on privacy rights? Please
comment.
In the most extensive review of the Caller ID service in the country,
the state of Pennsylvania found that the service violated not only the state
wiretap statute, but also the state constitutional right of privacy. The case
is noteworthy in this proceeding because it raises the question of whether a
Vermont court could reach a similar holding.
In Pennsylvania, the Court ruled against the proposed service offering
for three reasons. First, it found that use of caller identification service
with or without blocking violated the Pennsylvania state Wiretapping and
Electronic Surveillance Act. Second, it determined that the commission's
authorization of the service with a blocking mechanism violated the state
constitutional right of privacy . Third, it held that the offering a blocking
service to specific segments violated constitutional due process safeguards and
was unlawfully discriminatory.
It is unlikely that a right to control the disclosure of the
phone number would currently be found in the federal Constitution. In Smith v.
Maryland, 442 U.S. 735 (1979), the Supreme Court rejected a claim that there
was a Constitutional interest in the disclosure of telephone number, However
this holding has been criticized by experts on Constitutional law, see, e.g.
Laurence Tribe, American Constitutional Law 1390-1392 (1988), and was sharply
criticized in a dissent by Justice Marshall that may well have some bearing in
the current proceeding. Justice Marshall wrote that "whether privacy
expectation are legitimate within the meaning of Katz [the 1967 wiretap case
that found a Fourth Amendment privacy right in telephone communications] [ought
to] depend not on the risks an individual can be presumed to accept when
imparting information to third parties, but on the risks he [or she] should be
forced to assume in a free an open society." 442 U.S. at 750.
Justice Marshall's view on the right to privacy suggests that a
Constitutional claim could well be protected at some point in the future. Such
a claim could be buttressed by an observation made by Justice Brennan in
another case involving computer privacy. In Whalen v. Roe, 429 U.S. 589, 607,
Justice Brennan wrote in concurrence that "the central storage and easy
accessibility of computerized data vastly increases the potential for abuse of
. . . information, and I am not prepared to say that future developments will
not demonstrate the necessity of some curb on such technology."
While it is unlikely that a challenge to Caller ID would prevail under
the federal Constitution today, the issue is hardly closed. As Professor Tribe
recently noted, computer privacy will be one of the key issues facing the
Supreme Court in the next century. "'Natural Law' and the Nominee," The New
York Times, July 15, 1991.
17. Are your conclusions in this testimony based on any specific analysis of
Vermont?
My conclusions are based on a review of the orders filed in this
proceeding, the testimony of the witnesses and the various attachments, the
December, 1990 survey conducted by the Vermont Network Vermont PIRG and the
ACLU, the extensive number of letters received by the Public Service Board that
were forwarded to me, and a review of the Vermont Telecommunications Agreement
and the associated orders.
Attachment 1
STATUS OF CALLER ID
Six Tables follow:
I. Caller ID is Prohibited
II. Per-line Blocking is Required
III. Per-Call Blocking is Required
IV. Caller ID is Offered without Blocking
V. Caller ID Tariff is Pending / Trials Underway
VI. No Caller ID Tariff Filed
Sources: Summary of Caller-ID Activity: North Carolina Attorney General
and Public Staff, March 15, 1991; Nationwide Status: Caller Identification
Services, March 3, 1991 (Bell Atlantic); Communications Daily.
Note: Primary source materials are current through March, 1991. More recent
developments may not be included in these tables.
Table I
Caller ID is Prohibited
Pennsylvania
State court ruled that proposed Caller ID service violated state
wiretap statute, state constitutional right of privacy, and constitutional due
process safeguards. (5/30/90) Decision is on appeal.
Table II
Per-line Blocking is Required
STATE
Alabama Caller ID approved with free universal per-call and per-line
blocking (12/4/90)
Florida PSC required free per-line blocking for domestic violence
shelters and law enforcement agencies (6/25/91)
Idaho PUC ordered US West to liberalize line-blocking policy (2/18/91)
US West wants to offer per-line blocking as a premium service. During trial
period free, per-line blocking has been available
Maryland PSC ordered free, per-call blocking and directed company to
keep Special Indentification Arrangement tariff which provides free, per-line
blocking(11/20/90). Special Identification Arrangements is provided to
certified individuals and agencies.
New York Legislature passed measure to require free, per-call
blocking, make per-line blocking available to all customers, make free per-line
blocking available for law enforcement and crisis intervention centers (AB
6054-B 7/3/91) Bill awaits Governor's signature.
North Carolina PSC approved Caller ID with free per-line blocking
(6/91) State Attorney General determined that Caller ID violated North
Carolina and federal wiretap statutes (7/90)
Table III
Per-Call Blocking is Required
STATE
STATUS COMMENTS
District of Columbia PSC ordered free, per-call blocking (1/30/91)
Delaware PSC ordered free per-call blocking(1/22/91)
California Legislation requiring free blocking passed in
1989. Three bills now pending that would require free per-line blocking.
Hearings before PSC currently underway.
Georgia PSC approved a one year trial of Caller ID with free
per-call blocking for law enforcement and crisis intervention centers (12/4/90)
Maine Approved with free, per-call blocking (11/20/90)
Table IV
Caller ID is Offered without Blocking
STATE
New Jersey Approved caller ID without blocking (12/88) Bill pending in
state assembly that would mandate blocking for all non-published telephone
numbers, with a blocking option available to all other telephone subscribers
South Carolina PSC ordered free per-call blocking (1/30/91). State court
ruled that Caller ID did not violate state wiretap statute or state
constitution (11/20/90)
Tennessee PSC approved without blocking (11/7/89)
Virginia PSC approved C&P Caller ID offering (10/89), C&P approved
United offering (9/90) C&P is offering safeguards to groups with special needs
West Virginia Approved Caller ID without blocking (6/89)
Table V
Caller ID Tariff is Pending / Trials Underway
STATE
STATUS COMMENTS
Arkansas No determination. Commission staff recommended per-call
blocking.SW Bell Policy is to support free per-call blocking
Illinois Caller ID tariff filed 12/4/90. No determination Ameritech
opposes call blocking
Indiana Caller ID tariff filed 4/12/90, No determination. Ameritech opposes
call blocking
Nebraska Trial began (8/90)
Oklahoma SW Bell Policy is to support free per-call blocking
Washington State Attorney general issued an opinion stating that ANI Service
probably violates state wiretap statute
Table VI
No Caller ID Tariff Filed
STATE
STATUS COMMENTS
Arkansas
Alaska
Arizona US West supports free per-call blocking
Colorado US West supports free per-call blocking
Connecticut Bell Atlantic Policy is "All Number Delivery"
Hawaii 1991 bill to require adoption of unrestricted Caller ID
defeated
Kentucky
Louisiana South Central Bell announced service offering (5/91)
Michigan
Oregon Hearings underway
Rhode Island
South Dakota US West supports free per-call blocking
Texas SW Bell supports free, per-call blocking
Utah US West supports free per-call blocking
Washington PUC has advised legislature that it will require optional, free
per-call blocking. US West policy is to offer free per-call blocking in
service area. Caller ID may be prohibited under Washington wiretap statute.
Wisconsin Ameritech opposes call blocking. A legislative
committee on privacy is recommending: (1) free per-line blocking as the
standard- customer has to opt to be unblocked and (2) "Double-blocking" if
Caller blocks then recipients Caller ID device refuses call
Wyoming US West supports free per-call blocking
