When the Supreme Court was given the opportunity to extend the realm of privacy for corporations, it failed, 8-0. The case of FCC v. AT&T, which began nearly seven years ago, concerned a malfeasance by AT&T and schools in New London, Connecticut, and was resolved, briefly, by the payment of a fine to the FCC.
In 2005, however, CompTel, a trade association made up of some of AT&T’s competitors, petitioned the FCC under the Freedom of Information Act (FOIA) to release the information they had gathered in the course of the investigation. The obvious purpose was to obtain inside information not available elsewhere to be used as a competitive advantage over its rival. AT&T sued to keep all the information from going out to its competitors. The case eventually wended its way to the Supreme Court which, on Tuesday, pronounced that “corporations do not have a right of personal privacy…” even though the FOIA contained an explicit exemption concerning disclosures that “could reasonably be expected to constitute an unwarranted invasion of personal privacy. ”
That is the core of the issue. Do corporations have a right to privacy, or don’t they? A reading from the Supreme Court’s decision in Citizens United would lead one to conclude that the high court had safely, accurately, and conclusively agreed that corporations have First Amendment rights to speak freely on political matters, and Fourth Amendment rights to keep lists of their donors private. The U.S. Court of Appeals for the Third Circuit concluded in its decision which was just reversed by the Supreme Court:
The FOIA (Freedom of Information Act) exempts from mandatory disclosure “records or information compiled for law enforcement purposes…to the extent that the production of such enforcement records of information…could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
FOIA does not define “personal,” but it does define “person” to “include an individual, partnership, corporation, association, or public or private organization…
AT&T argues that the plain text of Exemption 7C indicates that it applies to corporations. After all, “personal” is the adjectival form of “person,” and FOIA defines “person” to include a corporation. We agree.
The Supreme Court did not, and reversed the lower court’s decision. In his opinion, Chief Justice John Roberts held that AT&T’s arguments “were too far afield to be of help here. ” With that, Roberts then took 12 pages to explain to the ignoranti that when Congress wrote the FOIA, it really didn’t mean to give corporations “personal” rights, that corporations “are not entitled to the same privacy as human beings enjoy,” as noted by commentator Lyle Denniston.
Roberts used a number of examples in his opinion to wiggle around the meaning of words, noting that “corny” has little to do with corn, that while corporations are in some sense “persons,” and that they do have, in some sense, “privacy,” Congress never intended to put the two words together to guarantee that a corporation had personal privacy. The big wiggle in his opinion stated:
This case does not call upon us to pass on the scope of a corporation’s “privacy” interests as a matter of constitutional or common law. The discrete question before us is instead whether Congress used the term “personal privacy” to refer to the privacy of artificial persons.
As a result of this decision, AT&T cannot block the FCC from providing its competitors access to sensitive inside corporate information: all manner of private company documents and records, including invoices, internal emails, billing information, names of employees possibly involved in the New London breach, as well as the company’s own assessment as to whether such employees violated any of its internal codes of conduct. By now, of course, such information is ancient history and likely of little use by AT&T’s competitors to take advantage of the company.
Two points not to be missed by this decision, however, are first that the FOIA can now be successfully used as a hammer (real or implied) by parties interested in forcing compliance onto reluctant companies who would otherwise prefer to keep such inside information private. And second, the Supreme Court’s facile use of words and definitions to fit its own prerogatives and preconceived objectives is on full and unnerving display.
So arrogant was Roberts’ denial of AT&T’s right to “personal privacy” that he noted at the end of his 12-page explanation and justification for the court’s unanimous (Kagan was absent) decision that “the protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T [get ready!] will not take it personally.” [Emphasis added.]