Thanks to Andrew Mirsky for contributing research and feedback to this post.
Does a corporation have the same rights as a person?
It really depends on the context. In the context of personal privacy, the answer is no.
In a unanimous ruling this month, the Supreme Court found that corporations are not entitled to the same “personal privacy” rights as individuals under the Freedom of Information Act (FOIA).
After a 2004 investigation by the Federal Communications Commission (FCC) into AT&T’s billing practices, a trade group including AT&T competitors submitted a FOIA request to the FCC seeking records of the inquiry. The FCC protected some of AT&T’s trade secrets and customers’ personal information, but refused AT&T’s request under the personal-privacy exemption in FOIA to protect certain other information. The FCC ruled that AT&T’s records should be publicly released under FOIA because the company could not claim “personal privacy.”
Upon a request of a review of the FCC’s decision by AT&T, the US Court of Appeals for the Third Circuit sided with AT&T – saying that “personal” was simply the adjective form of “person” and that corporations were, for many legal purposes, persons. “Corporations, like human beings, face public embarrassment, harassment and stigma,” the Third Circuit had ruled.
The Supreme Court, however, wholly disagreed. Chief Justice John G. Roberts Jr. writing for a unanimous court (Justice Kagan recused) said: “This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word ‘personal’ to describe them.”
Roberts also addressed why the release of such documents would not constitute an unwarranted invasion of “personal” privacy for the company. Roberts wrote, “personal privacy” suggests “a kind of privacy evocative of human concerns.” The Chief Justice had examples here, too. “We understand a golden cup to be a cup made of or resembling gold,” he wrote. “A golden boy, on the other hand, is one who is charming, lucky and talented. A golden opportunity is one not to be missed.”
It’s difficult – and precarious – to speculate on the significance of the Court’s ruling for other aspects of privacy law, but it seems limited. Commentary on the case has noted the narrowness of the ruling since the case covers only one law – FOIA – and only that law’s definition of “personal privacy”.
It seems more immediately instructive to take the narrow advice given by one business commentator, Andrew Lustigman, counseling businesses on a careful approach to future government disclosures: “Take away: Corporations responding to government investigations should consider that proprietary materials submitted may ultimately be disclosed to third parties pursuant to FOIA requests.”
But also not to be ignored is the success AT&T did have in limiting disclosure under trade secret protections, which protections remain intact for corporations. Perhaps companies will seek to posit more of their internal documents as trade secrets in order to avoid public disclosure under FOIA.
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