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However, it's tough to say how the courts will see it, Anfinson adds. "This is an emerging area of law without many clear precedents," he says, "Eventually, the law usually tracks with people's gut reactions and will end up deciding the whole future of the information age. With the new data-collection technologies soon they'll know something about us all. The question then becomes what rights do we have to restrict private use."
MCI Attorney Bruce J. Ennis Jr. is among those who don't see this debate as an issue of free speech. It's about money, he says. "Local Bell operating companies such as US West currently enjoy a virtual monopoly, " he writes. "There is no question that this data--including details about customers' calling patterns and the amounts they spend on telephone service--would be invaluable marketing tools to a [Baby Bell] marketing its new long-distance service."
The final irony in this debate is that if US West wins the right to use previously protected data to sell its new products, it says it won't share the information with or sell it to other companies. Krause argues that people expect contact from a phone company with which they already have a relationship, but don't expect the company to share that information with anyone else.
It's this inconsistency that may ultimately undo US West's argument, some debate-watchers predict. "If it's a First Amendment priority, why is there protection on it in the first place," asks Neumeister. "If it's a First Amendment right, they would be able to do with it as they want--share it with the police or anyone at any time. If it's already protected, I don't think the First Amendment argument is there."