TCS Daily

Do Not Do Not Call

By Radley Balko - August 21, 2003 12:00 AM

Last week, Pejman Yousefzadeh made a spirited defense of the national "do not call" list here at Tech Central Station. Yousefzadeh's basic premise: despite the fact that the list was the result of federal regulation and legislation, it's still presents an acceptable -- even desirable -- outcome for conservatives and libertarians, because it gives consumers the choice of whether or not to allow themselves to be solicited by telemarketers. Here are three reasons Yousefzadeh is mistaken.


The Commerce Clause


The most obvious reason proponents of limited government and constitutional originalists should oppose the do-not-call list is the very reason we oppose virtually every other piece of legislation that comes out of Congress -- it isn't authorized by the Constitution.


The Commerce Clause was intended to make regular commerce between the states -- that is, it was meant to facilitate commerce, not to inhibit it. It was designed to set up a kind of "free trade zone" among the states so that, for example, Mississippi couldn't impose a tariff on any non-Mississippi cotton en route to other destinations along the Mississippi River. Even then, congressional power was limited to the transport of goods, not their production, or the contract made to produce them in the first place.


To be fair, constructionist readings of the Commerce Clause for all intents and purposes fell ill in the mid-1800s and were all but dead by the New Deal era. In Gibbons v. Ogden, Chief Justice Marshall rightly struck down an attempt by New York state to monopolize steamships traveling between New York and New Jersey, but also refused to allow Congress to institute a quarantine law on ships once they'd docked in a particular state. But Marshall also left seeds in his opinion that more statist jurists have since used to justify federal intrusion into nearly ever fact of our lives.


(Fore a more detailed discussion of the Commerce Clause, check my website here, and see libertarian rebuttals by Reason's Julian Sanchez here, and by Cal-State Northridge Professor Glen Whitman here.)


Even conceding, however, that asking Congress to find constitutional justification for actions is today a bit naïve and esoteric, there are other reasons conservatives, and particularly libertarians, should have opposed the do-not-call list.


Government as Nanny


There's a reason telemarketers call thousands and thousands of names, despite the hang-ups, agitated voices on the other line and occasional anti-telemarketer backlash.


That reason? Telemarketing works. It has to. Or telemarketers wouldn't telemarket.


No matter how irritating we find telemarketers, there are those among us who do occasionally patronize them -- a percentage sizeable enough, in fact, to make the whole endeavor worthwhile. In other words, telemarketers wouldn't call people who don't want to be bothered if, every now and then, a few of them didn't occasionally give in and buy what the telemarketer was selling. I know that in college, I switched long distance carriers four or five times, thanks largely to aggressive telemarketing campaigns by the major carriers. For a while, the large carriers were actually paying consumers to switch loyalties. If you'd asked me at the time if I wanted to get bothersome calls from long distance carriers, I'd certainly have said "no." But in the end, I benefited from those calls, and had there been a no-call list at the time, and had my number been on it, I never would have seen those benefits.


I suspect a large percentage of people who have put themselves on the do-not-call list, then, have added their phone numbers to protect themselves from being propositioned with business offers they may not be able to turn down. They're using it to protect themselves from themselves. Were this a private remedy, I'd have no problem with that.


But it isn't.


"Do not call" proponents have asked the federal government to save them from themselves. And while conservatives may not see a problem here, it ought to set alarm bells off for libertarians. It isn't the responsibility of the state -- and most certainly not the federal government -- to enact policies that inhibit private contracts. Even contracts we may later wish we had never entered into.


Property Rights and "Market Failure"


The most common argument from the right in favor of the do-not-call registry is that it is a defense of property rights. Telemarketers are extracting a resource (time, I guess) from unwitting consumers without their permission. They're coming into our homes, co-opting our telephones, and forcing us to turn them down during dinner. Some libertarians have likened the "do not call" registry to putting a "no trespassing" sign on your front lawn.


But there are some important differences. A "no trespassing" sign isn't enforced by the federal government. If at all, it's enforced at the local level, and even then, only if someone violates your sign to the point of harassing you. Cops aren't likely to arrest someone, for example, for cutting across your lawn a time or two, or a Jehovah's Witness who ventures to your door for a one-time attempt at conversion.


In choosing to buy a telephone, in hooking that telephone up, and thus connecting to the nationwide grid of telephone lines, I'd submit that you are thereby making yourself available for -- prepare for the obvious, here -- telephone calls. You understand that the minute you submit to a land line, there is a sequence of numbers anyone in the world can enter into their own telephone which will cause your telephone to ring, at which time you may choose whether or not you wish to answer it. I'd also submit that in making that decision, you also understand that, from time to time, someone may get access to that sequence of numbers that you'd rather didn't.


It's no different than buying a television. You understand that there's a spectrum out there that's publicly owned (we can disagree on this, but that's another argument). You buy a TV, you plug it in, and you understand that even though it's your television, you will from time to time be subject to solicitations from advertisers.


Or how about the Internet? Yes, it's your computer. And it's in your home. But the moment you tap into the World Wide Web, you understand that Nigerian scam artists are going to solicit you via email, and the X-10 is going to force you to close pop-up windows that pitch high-resolution, low-maintenance web cameras.


The common response to all of this is that the market has yet to come up with an adequate solution to telemarketers (and spam, for that matter). So it's time for government to step in.


Three answers to that:


First, there are private solutions to telemarketing calls. I haven't had a telemarketing phone call in the eight months since I ditched my land line and started to rely exclusively on my cell phone. Another option would be to invest in caller ID, and only answer those calls coming from numbers you're familiar with. Anyone else can leave a message (and telemarketers don't generally leave messages).


Second, if you don't find any of those solutions adequate, it isn't because the market has failed, it's because the market for anti-telemarketing services just doesn't exist yet. That is, much as telemarketers annoy us, they don't annoy us enough to pay, say, $50 per month for some sort of call-screening service that would keep unwanted phone pitchmen out of our homes. And again, enough of us are patronizing telemarketers to create a market for them.


In other words, this means that the market for telemarketed services is at present on stronger legs than the market for services that keep telemarketers away from us. So what good pro-market libertarian or conservative can advocate state interference? Why is the market that's not working right now more desirable than the market that is? And why should we bring government in to create the former at the expense of the latter?


Finally, let's concede for a moment that there is market failure in the case of telemarketing. The problem is, as with most any case of alleged market failure, that the government solution really isn't any better. It's usually worse. And the do-not-call list is no exception.


The current registry has loopholes for charities, telephone surveyors, pollsters, and, of course, politicians (who curiously get exempted from most every law they pass). Your credit card company (to pitch better offers to you), your phone company, your bank (need a new mortgage?), or your cable company (want to upgrade to 12 HBOs instead of 10?) can still call with new offers, too. In fact, any company you've ever done any kind of business with is free to call you to pitch new offers, new services, or to win you back. Long distance carriers, airlines, and insurance companies are also exempt -- and in these cases, even those you've never done business with.


Worse, the FCC has now applied the do-not-call list to unsolicited faxes as well, only reversing the individual choice aspects of the original lists libertarians like Yousefzadeh championed. With faxes, it's up to individual businesses to obtain written permission from fax recipients for each individual fax machine, placing a huge burden on trade groups, charities and network-oriented businesses, and erasing years of work compiling targeted fax lists.


Proponents of the do-not-call registry will counter that this is a problem with the way the law was crafted, not with the idea for the do-not-call registry itself. But that's precisely the point: Our laws aren't made by all-knowing, altruistic philosopher kings. They're made by congressmen, they're enforced by regulators, and both are subject to the cajoling, wheedling, and political pressure of interest groups and lobbyists.


Consumers will still get phone calls they don't want. Protected industries and vote-seeking politicians can still interrupt your dinner. The only real losers here are those businesses that rely on telemarketing, but that didn't have a strong enough lobbying presence in Washington to have carved out loopholes for themselves when the law was being written.


The lesson for libertarians here isn't that markets are perfect solutions to all problems for all people. They aren't. But they're always better than top-down solutions from Washington. Bringing the federal government in to resolve perceived market failures only widens the role the state plays in our lives. And more often than not, the solutions offered up by our politicians not only don't address the problems they were meant to solve; they usually create a bevy of new ones.


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