Court Weighs Whether Corporations Have Personal Privacy Rights

Thursday, 20 January 2011 11:24 By Adam Liptak, The New York Times News Service | Report | name.

Washington - The claim that corporations have personal privacy rights met with widespread skepticism on Wednesday during a lively Supreme Court argument.

A year ago, the court ruled in the Citizens United decision that corporations and unions had a First Amendment right to spend money in candidate elections. But that decision, which involved a question of constitutional law, did not come up at the argument on Wednesday, which considered the quite different issue of what Congress meant when it exempted some files from disclosure under the Freedom of Information Act.

The exemption at issue in the case, Federal Communications Commission v. AT&T Inc., No. 09-1279, protects information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

AT&T invoked the exemption in seeking to block the release of documents it had provided to the F.C.C., which conducted an investigation into claims of overcharges by the company in a program to provide equipment and services to schools. The documents were sought by a trade association representing some of the company's competitors.

The United States Court of Appeals for the Third Circuit, in Philadelphia, had ruled for the company, relying in part on a definition of "person" in the law that included corporations.

But several justices said it was too much of a leap to go from saying that corporations might be "persons" for some purposes to saying that their "personal privacy" could be invaded.

Chief Justice John G. Roberts Jr. said he could think of many instances "where the adjective was very different from the root noun."

"You have craft and crafty," he said. "Totally different. Crafty doesn't have much to do with craft. Squirrel, squirrelly. Right?"

"Pastor and pastoral," he went on. "Same root, totally different."

Justice Ruth Bader Ginsburg asked whether the fact that state, local and foreign government also fell under the statutory definition of persons meant that they, too, had personal privacy rights.

Geoffrey M. Klineberg, a lawyer for AT&T, said yes.

In 1981, Justice Antonin Scalia, then a law professor, told a Senate committee that the exemption did not apply to corporations. It was plain on Wednesday that the intervening years had not caused him to change his mind.

"Can you give me any examples in common usage where people would refer to the personal privacy of a corporation?" Justice Scalia asked Mr. Klineberg. "Do you have any examples from The New York Times, from, you know, Boswell, from anywhere, that anybody refers to the interests of a corporation as the 'personal privacy' of General Motors?"

Mr. Klineberg said he was not aware of such a use of the phrase "certainly in any statutory context."

Justice Scalia offered the lawyer for the government, Anthony A. Yang, more help than he seemed to want, saying that exemptions in the freedom of information law should be read narrowly.

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Mr. Yang said he did not want to win on that ground, as the government often resists requests under the law. "We do not embrace that principle," Mr. Yang said.

"Well," Justice Scalia responded, "I'm not going to help the government's position if the government doesn't want to be helped."

Mr. Klineberg said it would be a mistake to allow the law "to be a tool for an organization's adversaries to obtain access to harmful or embarrassing documents" that do not inform the public about the government's activities.

For instance, he said, corporations have reputational interests in not having their disparaging remarks about regulators or customers disclosed to competitors. A ruling against AT&T, he said, could require disclosure of documents concerning, say, "an environmental nonprofit organization talking about their political strategies for defeating an amendment to the Clean Air Act."

Justice Stephen G. Breyer asked for real-world examples of such disclosures, and Mr. Klineberg said he was aware of none.

Mr. Yang, seeming confident of victory, concluded his argument with a brief summary and sat down early.

"AT&T can provide no example of any problems that have arisen in over 35 years of the government's consistent administration of this provision," he said. "In fact, all indications point in simply one direction. Personal privacy applies only to individuals."

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Last modified on Thursday, 20 January 2011 11:27