Appendix H DANIEL H. LUFKIN* I would to God thou and I knew where a commodity of good names were to be bought. -Falstaff If Falstaff had waited five hundred years, he would have had no difficulty at all in buying all the names he wanted, for names, like any other commodity, are bought, sold, rented, and traded in the lively, mercurial industry of direct-mail advertising. Probably no other application of electronic data processing has had a broader effect upon so large a population as the headlong computerization of the mailing list. The United States Postal Service handles slightly more than one piece of mail per day for every man, woman, and child in the country. About a quarter of the volume moves as third-class matter; i.e., printed material that is neither a periodical nor a book. In practice, nearly all third-class mail is advertising or appeals for funds. *Staff Consultant to the Committee Since its origin a century ago, the direct-mail industry has grown to represent an advertising expenditure of about $3 billion per year, or about one-seventh of the total national advertising volume. Mail advertising moves about $50 billion annually in goods and services, or roughly 5 percent of the Gross National Product. Divided among the 260,000 holders of Postal Service bulk third-class permits, this represents an average annual volume of business of about $200,000 per holder. A Department of Commerce estimate that only a tenth of all permit holders have more than 100 employees, and only half have more than 10, supports the industry's contention that it is dominated, numerically at least, by small firms operating locally. The largest single class of mailings, accounting for slightly less than 10 percent of the total, is magazine subscription offers. Although direct-mail advertising is one of the more common experiences of everyday life, public attitudes toward it are studded with inconsistencies and contradictions, likely reflecting the fact that few people give it much thought one way or the other until they are asked a specific question by an interviewer. Even then, the dissonance of being intruded upon by a survey on privacy may well distort the replies. In privacy-minded Britain, for example, only about 2 percent of the respondents in the Younger Committee's survey spontaneously mentioned that their privacy had been invaded through the mail, and much of that response was apparently prompted by recent (1970) saturation mailings advertising sex manuals and the Reader's Digest (in separate mailings, of course).1 In the United States, a Nielson survey found that 87 percent had no objection to being addressed as "occupant".2 In a survey on behalf of the American Federation of Information Processing Societies (AFIPS), however, 63 percent of the respondents voted for a decrease in "using computers to send mail advertisements to the home," and 84 percent felt that the Government should be concerned with that use.3 1Report of the Committee on Privacy, Rt. Hon. Kenneth Younger, Chairman, (London: H. M. Stationery Office), 1972, pp. 123, 125-127. 2 Factsheet: Direct Mail Advertising (New York: Direct Mail Advertising Association), 1973, p. 2. 3 American Federation of Information Processing Societies and TIME magazine, A National Survey of the Public's Attitudes Toward Computers (New York: AFIPS-TIME, Inc.), 1971. The summary is discussed in Alan F. Westin and Michael A. Baker, Databanks in a Free Society (New York: Quadrangle Books), 1972, pp. 481-484. Since privacy, like happiness, is essentially a subjective state, it is not easy to frame the arguments against direct-mail advertising in legal or procedural terms. The arrival of the mail itself is scarcely an intrusion, since one is free to throw it away unread. The argument on the simple ground of annoyance has not been upheld by the courts. The mail box, however noxious its advertising contents often seem to judges as well as other people, is hardly the kind of enclave that requires constitutional defense to protect "the privacies of life!""4 Iago's claim of "He that filches from me my good name Robs me of that which not enriches him And makes me poor indeed," is popular but fails on the grounds that one's name is not ordinarily damaged by use in a mailing list and that the use does indeed enrich the lister. In those exceptional cases in which the name does suffer damage because the character of the mailing holds the addressee in a false light, as when sexually oriented matter fails to arrive in a plain brown wrapper, the common law does afford the addressee the same rights of action as in any other case of defamation. A Federal statute furthermore allows a person to specify in advance of any intrusion that he does not wish to receive sexually oriented advertisements through the mail." An individual who desires to avoid receiving sexually oriented mail advertising fills out and submits a Postal Service Form 2201. Each adult of 19 or over must submit a separate form, but a parent may list up to four children on his own form. These forms are processed at Postal Service headquarters and prepared in list format as both magnetic tape and printed copy. The lists are made available for sale to firms that carry on sexually oriented advertising. The law provides a penalty for mailing such advertising to any person who has been on the Postal Service list for more than 30 days. (Note that this service would be practically impossible to administer without the use of a computer to compile the list and keep it up to 4 Lamont v. Commissioner of Motor Vehicles, 269 Fed. Supp. 880, 883 (S.D.N.Y. 1967). 5 Othello, III, iii,. 639 U.S.C. 3010-11. date.) The onus of deciding whether a given advertisement is sexually oriented is put on the advertiser, who, if he has any doubt at all, is unlikely to risk a mailing when he knows that the chance of a sale is practically nil, and that he risks criminal prosecution if a recipient whose name is listed considers the advertisement objectionable. Another, earlier, statute provides a means for an individual addressee to obtain a Postal Service order (i) prohibiting any particular mailer from sending him advertisements that the addressee, in his sole discretion, believes to be "erotically arousing or sexually provocative," (ii) directing the mailer to delete the addressee's name from all mailing lists owned or controlled by the mailer, and (iii) prohibiting the mailer from the sale, rental, exchange, or other transaction involving mailing lists bearing the addressee's name." The Direct Mail Advertising Association, Inc., the industry's largest trade organization, also makes a list of people who want to be removed from mailing lists. Since the Association excludes mailers of sexually oriented material from membership, its de-listing service is meant to affect ordinary commercial and charitable lists. Forms for taking advantage of the Association's "Mail Preference Service" are available from its headquarters at 230 Park Avenue, New York, New York 10017. According to the DMAA, a consolidated listing of those who "wish to get out of the mail mainstream” is distributed monthly to its approximately 1,600 members. Although the Association points out that no particular sanctions apply to the Mail Preference Service listings, most advertisers are glad to remove nonproductive names, since "cleaning" increases the trading and rental value of their lists. In fact, most mailers will cheerfully remove a name from a list, if the list they are using happens to be under their own control and not merely rented from a broker. Most mailers, DMAA members and independents both, find that requests to be removed from the lists average 3 or 4 persons per 10 thousand addressees per year. If getting off a list takes initiative and a degree of sophistication, getting on the list in the first place is so easy as to be practically inevitable for most people. To begin with, both the Direct Mail Advertising Association and a number of independent brokers oper 739 U.S.C. 3008. ate enlisting services. The Association's operation lends a symmetry to the Mail Preference Service by providing a form to get on mailing lists in any of 22 different categories. The independents usually place modest classified ads in popular magazines: "Receive BIG mails. Your name on 50 lists, 50 cents". As one might expect, lists compiled from this source include mostly curious teen-agers. Most persons join the lists through more indirect, but nonetheless effective, paths. Almost any action that puts a name and its associated address into the hands of a commercial or service organization will put that name on a mailing list-subscribing to a magazine, buying an item by mail from a magazine advertisement, buying air-travel insurance at an airport, joining a professional or scientific society, donating to a charity or a political campaign, returning the warranty card from a purchase, holding a credit card, or taking out a mortgage. In many cases, registering a car, getting born or married, going to school (public or private), being in the telephone directory, or qualifying for a license as a driver, pilot, or riverboat master will provide all the record an entrepreneur needs to add a name to his list.8 It is this industry practice of compiling lists from official records that seems to generate the most consistent opposition to the mailing-list industry. However, since administrative records are presumed to be public unless otherwise designated, and since openness of records serves well-recognized democratic ends, it seems an unnecessarily Procrustean solution to restrict access to public records merely to make life more complicated for advertisers. In fact, competitive pressure often forces commercial list agencies to abandon public records as too outdated and to develop other sources for the same data. Birth records in many jurisdictions, for example, often lag as much as 60 days, so that the psychological edge of a finehoned mailing to sell insurance to the new father, for instance, would be badly dulled. Most commercial birth lists are compiled from private agreements with hospitals (or with hospital employees), newspaper birth announcements, or from orders with diaper services or dairies. Some of the larger lists, particularly for See Sale or Distribution of Mailing Lists by Federal Agencies, Hearings before the Subcommittee on Foreign Operations and Government Information of the Committee on Government Operations, U.S. House of Representatives, 92nd Congress, 2d Session, June 13 and 15, 1972 (Washington, D.C.: U.S. Government Printing Office), 1972. |