MARKETERS WATCH PUBLIC-RECORDS CASE: U.S. SUPREME COURT ACCEPTS APPEAL OF CALIFORNIA LAW

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The U.S. Supreme Court has set the stage for what may be the most serious challenge yet to marketers' ability to tap public records as the backbone of mailing lists and consumer databases.

The high court's decision to hear a case this fall in which California attempted to impose limits on what public information could be used for "commercial purposes" poses the possibility the court will set a new guideline that lets states close off information from voting registration, real estate and drivers license records, said advertising and First Amendment lawyers.

Those data are now commonly available to marketers.

PUBLIC INFORMATION DEBATE

"If the court says this is OK, then this could be of great significance for the marketing industry," said Ron Plesser, a Washington attorney.

Dierdre Mulligan, staff counsel to the Center for Democracy in Technology, a technology think tank, noted that controversy over marketers' use of public information has been increasing as consumers using the Internet wake up to the amount of information about them now widely available.

In the California case, United Reporting Publishing Corp., a seller of the names and addresses of recently arrested people, successfully challenged the Los Angeles Police Department's compliance with a then-new state law that said such information couldn't be used "for commercial purposes" even though it was freely available to the public.

The U.S. Court of Appeals for the 9th Circuit in San Francisco agreed with the company's contention that once a state determines information is public, it can't pick acceptable uses for the information.

The circuit court said the state law was an attempt to halt usage of the data in direct mail and as such was an unconstitutional curb.

The Los Angeles Police Department appealed the case to the Supreme Court, arguing that courts in different jurisdictions had come down on opposite sides of the same issue.

MARKETERS' FEARS

Tom Goldstein, a Washington-based attorney who represents the city, said the case directly affects only situations in which states and the federal government have approved public disclosure of records to some people but not to others.

Advertising groups are concerned that a Supreme Court decision specifically allowing states to discriminate would prompt the states to close off to marketers other records that are now public.

"If the government has the right to pick and choose who can use public records, the weak-the ones whose message the government doesn't like-will be turned out," warned Guylyn Cummins, the San Diego attorney representing United

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