Commerce Committee Approves Phone Records Legislation

The committee approved an amendment sponsored by Sen. Boxer (D-Cal.) requiring wireless carriers to get customers’ permission before including their wireless phone numbers in a 411 directory. Wireless carriers have concerns about the amendment. “Customers have always had control as to who has access to their numbers,” Boxer said: “A wireless directory threatens that control… I hope we can act now before wireless carriers roll out a wireless directory. We don’t want to wait until millions of our constituents are calling our numbers, cell numbers, off the hook, saying please protect my privacy.”

Stevens asked Boxer to withdraw the amendment. He said he would be happy to mark up just the amendment as a stand- alone bill. “This is the 3rd Congress we've tried to do this, the 3rd Congress,” Stevens said. “It will not pass with this amendment in it… This bill itself ought to go to the floor and pass.” Boxer replied that the committee shouldn’t allow itself to be “blackmailed… I hate to see us not put something in a bill that’s important simply because we are fearful one of our colleagues will put a hold on it.”

“It won’t move with that in it,” Stevens told reporters after the markup. “We're going to discuss it with Senator Boxer further. We wanted to get the bill out of here now… More people talk to me about this than anything else and I would like to get it to conference with the House.”

Sen. Allen said that “based on the past record of the Senate” the Boxer amendment would weigh down the cellphone privacy legislation. “I personally don’t have much heartburn one way or another with what she’s doing,” Allen said. “But there’s too many people whose telephone records are getting obtained and being sold for very little amount of money with insufficient enforcement, insufficient penalties, for us to dawdle.”

The committee also approved an amendment by Sen. Pryor (D-Ark.) that allows lawsuits against pretexters by those harmed. The legislation as drafted allows only phone companies to sue pretexters. Two Republicans, Smith (Ore.) and Snowe (Me.), crossed party lines to vote with Democrats.

“The phone companies are comfortable with it, because we've written into the underlying law that they can’t be sued by consumers” Pryor said: “The consumer groups are actually for this amendment in a very strong way… One element I want everybody to understand is it has a requirement that the consumer must show harm. It’s not just the fact that their records have been taken.”

But Stevens said the amendment is unnecessary, since in many cases consumers can sue in state court and the legislation specifically doesn’t preempt those lawsuits. “The question is whether we want to make it a matter that’s actionable in federal courts,” he said: “The state laws and consumers are not hindered by this bill at all.”

Sen. Dorgan (D-N.D.) told us the committee views the legislation as significant, but the Senate’s Republican leadership has yet to weigh in. “The reason we're marking up legislation is because we think it’s important and we think the American consumers deserve this protection,” Dorgan said: “You've got some unscrupulous people pretexting and buying and selling lists of proprietary information. Most members of the Congress understand that we have to do something.”

Asked if he expects a floor vote, Dorgan said that decision must be made by Majority Leader Frist (R-Tenn.). “It’s one of the priorities of the committee to move to the floor,” he said. “The question of when it gets to the floor and how it gets to the floor is a function of Senator Frist and what he’s willing to schedule. The reason we're holding the markup is we think it’s a very important issue that needs correction.”