Neil M. Richards, an expert in the fields of privacy law and constitutional law and an associate professor of law at Washington University in St. Louis, is closely following the court cases surrounding the Federal Trade Commission's "Do Not Call" list. He says that this may not be the end of court action by telemarketers; they may appeal to the Supreme Court. Richards is currently working on a reconciliation of the right of data privacy with traditional First Amendment values. His comments follow:

"The Tenth Circuit's decision upholding the constitutionality of the 'Do Not Call' registry is a straightforward application of the Supreme Court's commercial speech jurisprudence, but this may not be the end of the 'Do Not Call' list cases," says Richards.

"It's likely that the telemarketers will petition the Supreme Court to take the case, and I think there's at least some chance that the Supreme Court might hear it," he says. "Supreme Court commercial speech doctrine is confusing, and this would be an opportunity to clear up some of the confusion."

Neil Richards

Richards notes that three important factors, dealing with both consumers and the telemarketers, were addressed in the Tenth Circuit decision.

"First, we're talking about people's residential privacy, which Anglo-American law has long protected against a wide variety of intrusions by both the government and private citizens," says Richards.

"Second, the Tenth Circuit considered it significant that the do-not-call list is not a blanket ban on all telemarketing, but instead is tailored to protect the privacy of those people who have decided they don't want telemarketers calling them.

Finally, the do-not-call list is targeted at the most egregious kind of telemarketers - commercial solicitations by businesses who have no prior relationship with the resident. Calls by companies with whom the resident has done business in the past, as well as political and charitable calls, are excluded from the program."