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Corporate Privacy Takes a Hit

The campaign to persuade the judiciary to apply personal privacy principles to corporations has suffered two recent body blows.

On March 1st, the U.S. Supreme Court held in Federal Communications Comm. v. AT&T, Inc., 2011 U.S. LEXIS 1899 (2011) that the exemption in the Freedom of Information Act for matter within one’s personal privacy was not available to business entities.

A trade association of AT&T competitors requested documents relating to an F.C.C. investigation of AT&T. The F.C.C. refused to apply on behalf of the corporation an exemption for “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The Third Circuit reversed, and the U.S. Supreme Court in turn unanimously reversed the Third Circuit.

In an opinion that was largely about semantics and statutory construction concerning the Freedom of Information Act (“FOIA”), the Court arrived at the unexceptional conclusion that the word “[p]ersonal” ordinarily refers to individuals. It noted that this conclusion was the probable intent of the statute because at the time the exemption was drafted the tort treatises were in agreement that a corporation, partnership or unincorporated association has no personal right of privacy. It also examined other portions of FOIA, noting that the word personal was used in another exemption to FOIA to refer to individuals. Justice Roberts closed his opinion by trusting that AT&T would not take the decision “personally”. Thus, the attempt to expand the scope of privacy protections beyond individuals was so resoundingly defeated that it has likely been extinguished for the foreseeable future.