Court upholds Do Not Call list

In a 3-0 ruling, the 10th U.S. Circuit Court of Appeals in Denver rejected direct marketers' claims that their First Amendment rights were violated when the FTC and the Federal Communications Commission set up a registry for Americans who do not want commercial telephone solicitations. "Just as a consumer can avoid door-to-door peddlers by placing a 'No Solicitation' sign in his or her front yard, the 'do not call' registry lets consumers avoid unwanted sales pitches that invade the home via telephone," the court ruled in a 50-page decision. "The First Amendment does not prevent the government from giving consumers this option."

Under the federal Can-Spam law that took effect Jan. 1, the FTC has until mid-May to send Congress a preliminary plan for establishing a national do-not-e-mail registry. That plan must cover "any practical, technical, security, privacy, enforceability, or other concerns" that the FTC has, as well as discussing how the sensitive issue of how childrens' e-mail addresses would be handled.

In addition, the FTC may--but is not required to--set up a do-not-e-mail registry without explicit approval from Congress. But it would not take effect until mid-August at the earliest.

"It provides a road map for agencies should they decide to go forward with a do-not-e-mail list," Larry Blosser, a communications attorney of counsel to the Gray Cary law firm, said of Tuesday's decision.

In a move that could presage another lengthy court struggle, direct marketers have steadfastly opposed a do-not-e-mail list.

The Direct Marketing Association (DMA) could not immediately be reached for comment, but it recently said that it and the American Association of Advertising Agencies both oppose "the creation of a 'Do Not E-mail' registry." In a statement on Tuesday, the DMA said it will abide by the court's decision while "considering its options" for appeal.

"The constitutionality of a do-not-e-mail list would very much track with precedent on Do Not Call lists and other restrictions on telemarketing," said Ray Everett-Church, an attorney with ePrivacy Group who follows spam laws. "The different arguments that you would make in opposition to a do-not-e-mail list would be similar to those raised by the telemarketing industry in this case. I imagine a court would have to be strongly guided by the 10th Circuit decision today."

A do-not-e-mail list, however, is considerably trickier to establish and maintain than a list of telephone numbers. For one thing, phone numbers are merely sequential digits, but e-mail addresses are private, and some Internet users intentionally choose addresses that cannot be easily guessed by spammers.

Under the current Do Not Call regulations, direct marketers are handed the list of households that have opted out of receiving unsolicited phone calls. If that happened with a do-not-e-mail list, it would take only one unscrupulous marketer or hacker to leak millions of private addresses to the Internet.

Gray Cary's Blosser said if the FTC goes forward, it may be emboldened enough to create a do-not-e-mail list broader than the telephone registry, which covers only commercial solicitations. "I would think that they might be tempted to sweep a little bit more broadly in the do-not-e-mail list than the Do Not Call list where they were somewhat more constrained by the statutory language. It's possible that they would go for noncommercial e-mail, or mix commercial and noncommercial e-mail."

Last week, the FTC alleged that the "www.unsub.us" site was a "scam" not operated by the U.S. government. The site is now offline.

CNET News.com's Paul Festa contributed to this report.