Sorry, AT&T: Corporations Probably Don't Have 'Personal Privacy'
For the past 35 years, whenever someone has used the Freedom of Information Act to ask for documents the government obtained as part of a law enforcement investigation, the government has had to assess whether their release would violate a human being's personal privacy. If so, the government had to redact or withhold the documents.
On Wednesday, AT&T tried to convince the Supreme Court that documents violating a corporation's personal privacy should be withheld too. Thankfully, the justices' questions were so deeply skeptical of this concept that it's hard to imagine the court agreeing with AT&T (T) when it ultimately decides the case later this year.
AT&T's core argument was this: Since a corporation is often defined in law -- including a case-relevant one -- as a "person," and "personal" is the adjectival form of "person," then the "personal privacy" exemption to the Freedom of Information Act must apply to corporations too. The argument was persuasive to the Circuit Court of Appeals for the Third Circuit, which ruled for AT&T.
Chief Justice John Roberts dismantled that logic this way:
I tried to sit down and come up with other examples where the adjective was very different from the root noun. It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn't have much to do with craft. Squirrel, squirrely. Right? I mean, pastor -- you have a pastor and pastoral. Same root, totally different.
Justice Antonin Scalia took the linguistic criticism of AT&T's claim a step further, saying:
"Personal," yes, can indeed apply to corporations sometimes; but there are certain phrases where it certainly does not. For example, you talk about personal characteristics. That doesn't mean the characteristics of General Motors. You talk about personal qualities. It doesn't mean the qualities of General Motors. You talk about a point of personal privilege. It's not a privilege of a corporation. And I think personal privacy is the same thing. Can you give me any examples in common usage where people would refer to the personal privacy of a -- of a corporation?
AT&T's unlucky attorney could not find a way to say yes.
Justice Ruth Bader Ginsburg was baffled by what kind of information a corporate personal privacy exemption would protect, since trade secrets, financial information and other confidential information are already protected, and employees' personal privacy is protected. When she asked for an example, AT&T's attorney suggested
for example, a series of e-mails among corporate officers -- granted, whose own personal names and identifying information have been redacted -- but in those e-mails, they may engage in a frank exchange about the competence and intelligence of a would-be regulator of the corporation.
That suggestion prompted Justice Antonin Scalia to pounce:
Excuse me. Why does that relate to their privacy? I don't understand that. Why does that relate to the corporation's privacy interest? Anything that would embarrass the corporation is -- is a privacy interest?
AT&T's counsel basically said yes, meaning the government should have to weigh the potential corporate embarrassment against the public's right to know. The justices were not impressed.
Win or Lose, AT&T's Already Won
After further questioning, AT&T's lawyer fessed up to AT&T's real motive in the case: It wanted to shield information from its competitors that the exemptions for confidential, trade secret and financial information didn't cover. AT&T's lawyer claimed that over the years, the courts had made those exemptions too narrow. So now AT&T wanted to start using the personal privacy exemption to widen them. So it should come as no surprise that this case came about because a trade group representing AT&T competitor asked the government for documents from a government's investigation of AT&T, in this case for overcharging the city of New London, Conn., for telecommunications equipment.
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Given that the case has taken six years to get this far, and the documents have not been turned over yet, perhaps even in losing the war, AT&T will have won the battle -- the information that was being sought is undoubtedly pretty stale now.
The case is a good reminder, however, of just how far our legal system has gone in equating corporations and people. Remember, AT&T won at the appellate court level.
On the other hand, if the justices follow through on the inclinations expressed during Wednesday's argument and vote against AT&T, it's a good reminder that the Roberts Court isn't uniformly pro-corporate, despite its Citizens United decision. That case, which eliminated restrictions on corporate campaign contributions, is being "celebrated" Friday by a two-pronged event near the Capitol in Washington D.C., the "We the Corporations" vs. "We the People" Rally.
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