Monday, January 24, 2011

Do corporations have a right to privacy?

The Supreme Court will rule later this year in a case that seeks to grant personal privacy rights to corporations by relaxing a provision in the Freedom of Information Act, although at this point justices seem unconvinced that the concept of corporate personhood extends that far. Let's hope they stick to that opinion.

Published January 22 by The Los Angeles Times
In a case that could erect new barriers to public access to government information, the Supreme Court this week was asked to hold that corporations have a right to "personal privacy." Fortunately, justices from across the ideological spectrum appeared skeptical that such a counterintuitive concept could be found either in the law or in a dictionary.

At issue is whether the Federal Communications Commission will release information about AT&T under the Freedom of Information Act. That law provides several exemptions, including one for trade secrets and another for information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy" — an obvious reference to individual privacy.

AT&T is claiming the "personal privacy" protection in connection with a settlement it reached with the FCC over possible overbilling for work on a communications technology program for schools. A trade association representing some of AT&T's competitors is seeking the information.

Unlike last year's Citizens United ruling, this case doesn't deal with whether corporations have constitutional rights. The issue instead is whether the courts should award corporations an exemption to the Freedom of Information Act that Congress didn't see fit to grant them.

Nor should it have: Corporations already receive protection in the form of an exception for trade secrets, and individual employees can invoke the personal privacy exception. That wasn't enough for AT&T, whose lawyer told the court that a ruling for the FCC might lead to the release of embarrassing e-mails disparaging customers or government regulators.

For some purposes, corporations have been considered "persons" under the law. But AT&T's argument that that theory should be extended to grant "personal" privacy rights to companies is unpersuasive. Chief Justice John G. Roberts Jr. offered several examples of situations in which a noun and the adjective based on its root had different meanings. "You have 'craft' and 'crafty,' " he said. "Totally different."

Grammar aside, the notion of corporate personal privacy is a novel one. After asking AT&T's lawyer for an example of anyone who referred to the "personal privacy" of General Motors, Justice Antonin Scalia said: "I cannot imagine somebody using the phrase like that."

If the justices don't want to pore over dictionaries or conduct a poll about the use of "corporate personal privacy," they can decide this case by considering the purpose of the law they are interpreting. The Freedom of Information Act is designed to make documents available to the public with only limited exceptions. Any ambiguity in the law should be resolved in favor of disclosure. A decision to do so would be an example of judicial craft, not craftiness.

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