VOTE “NO” ON S. 2389, THE “PROTECTING CONSUMER PHONE RECORDS ACT.”

Dear Senator:

On behalf of the ACLU, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we urge you to vote “no” when S. 2389, the Protecting Consumer Phone Records Act, comes to the floor. This bill may be considered on its own, or as part of S. 2178, the Consumer Telephone Record Protection Act.  This legislation would pre-empt pending investigations in at least 10 states into whether telecommunications companies violated the privacy rights of their customers by providing sensitive personal information about their telephone calls to the National Security Agency.

While we support prohibitions on telephone “pretexting,” a deceptive practice used by identity thieves to impersonate businesses’ customers to steal the customers’ identities, S. 2389 includes extraneous provisions that would damage personal privacy.  S. 2389 both preempts stronger state privacy laws and would eliminate the rights of independent state agencies to investigate pretexting and the facilitation of warrantless spying by telecommunications companies.  In short, S. 2389 makes bad policy because it would: (i) nullify pending state investigations into whether telecom companies illegally provided to the NSA sensitive information about consumers’ telephone calls, and weaken the states’ own enforcement efforts, and (ii) limit existing consumer privacy protections. 

Section 8 of the bill would extinguish ongoing state investigations in at least 10 states. Five states currently have pending investigations in various stages regarding whether telecommunications carriers in their states violated state laws in providing customer information to the NSA.  Requests for investigations have been filed in an additional five states.  Section 8(a)(1) would explicitly “preempt any – statute, regulation, or rule of any State” that requires telecommunications or Internet phone providers to provide privacy rules for “protecting the confidentiality of customer proprietary network information.”  Further, § 8(a)(2) would preempt any state “statute, regulation, or rule, or judicial precedent of any State court under which liability is imposed on a telecommunications carrier or” Internet phone provider.  In short, this bill would undercut the pending state investigations of whether state laws were violated and block any imposition of liability for that wrongdoing.  The result would be to leave consumers with little or no recourse for privacy violations.

In addition, Section 2(b)(2) of the bill exempts from privacy protection “lawful” actions by intelligence agencies.  However, it does nothing to establish a regime by which the lawfulness of those actions could be tested. And, because those actions are conducted secretly, the effect of this provision is unclear. 

Section 7 of S. 2389 would create onerous requirements for states which wish to enforce the federal pretexting provisions by blocking any state investigation or suit if the Federal Communications Commission or Federal Trade Commission are investigating. Thus, the provisions would prevent a state from determining whether the state’s laws were violated.   Oftentimes, state privacy laws provide better protection for individuals’ privacy than do federal laws.  Furthermore, states often lead the way in enacting new pro-privacy laws and regulations to respond to emerging identity theft schemes.  This well-established pattern makes states more likely to react quickly than can the federal government. Thus, Congress should not enact a law that delays states’ independent investigations of whether their own laws were broken.

We urge the Senate to pass wise anti-pretexting legislation that increases consumer privacy, but S. 2389’s state pre-emption provisions should not be part of any legislation.  Rolling several bills into one, then proceeding to adopt the final bill on a unanimous consent agreement leaves little time for the reflection and contemplation for which the Senate is known. We therefore urge you to vote against the bill at this time.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Tim Sparapani
Legislative Counsel