AT&T slips into the Supreme Court chamber this morning, moments before arguments are set to start. He feels slightly affronted that nobody seems to notice him. (AT&T is a very emotional guy.) AT&T is handsome in the obvious way. (He has the Nights and Weekends plan). After these same justices ruled almost a year ago to the day that he had the same political-speech rights as human people, he's feeling a lot more corporeal than he used to. If things go his way today, in the coming years he will enjoy not only free speech and personal privacy rights but the right to bear arms as well.
FCC v. AT&T is his story, and AT&T prefers to tell it his own way: Back in 2004 he discovered (embarrassing!) that he may have been overcharging the federal government for the E-Rate program that was meant to bring technology into classrooms. The FCC launched an investigation, collecting AT&T's various corporate documents, e-mails, and other information. The matter was resolved and a $500,000 settlement reached, but then CompTel, a trade association made up of AT&T competitors, filed a request under the Freedom of Information Act to look at all the investigation files. FOIA was enacted in 1966 to give private citizens greater access to government records.
But AT&T felt, passionately, that turning over these materials would violate the corporation's "personal privacy." One of the exemptions to FOIA—exemption 7(C)—provides that records may be withheld if their release would represent an unwarranted invasion of "personal privacy." But since this exemption has only ever been invoked to protect human privacy rights, never corporate ones, AT&T has to persuade the courts to extend the right to "personal privacy" to corporations as well as people. So it's a big day: Because today the Supreme Court will decide whether AT&T is people, too.
AT&T finds himself slightly uncomfortable at all the attention he's getting today. He sort of wishes his friends BP and Exxon could be here. They could tell these justices a thing or two about corporate embarrassment. The 3rd Circuit Court of Appeals agreed with him, by the way, about the tender feelings of large telecommunication companies, finding that "[c]orporations, like human beings, face public embarrassment, harassment and stigma because of that involvement."
Things get off to a swoony start for AT&T when the Court opens the session with the announcement that in a new 8-0 decision, NASA contract employees have no privacy right to be free of embarrassing drug questions in their background checks. This is great news because in AT&T's experience, whenever the court takes privacy rights away from the humans, it usually grants them to corporations.
Then Anthony A. Yang, an assistant to the U.S. Solicitor General, gets up to argue the FCC's side in the case, specifically, that "it's long been well established that corporations have no personal privacy."* AT&T finds himself tearing up a little when Justice Samuel Alito nips that little fallacy in the bud. Alito notes that since the Administrative Procedure Act, which covers FOIA, defines a "person" to include a "corporation," it's clear that "in the law, [person] is sometimes used to refer to a corporation."
Chief Justice John Roberts adds that privacy in the law isn't limited to humans: "Corporations have private property. They have private documents." Justice Antonin Scalia gets into a fight with Yang about how broadly the Justice Department wants to define the FOIA exemptions. Scalia appears to be trying to help the government win its case and the government seems to be insistent in remaining un-helped so it can win future cases.
Chief Justice Roberts muses, "I suppose families have rights of personal privacy … So in some contexts, personal privacy does go beyond the individual?"
AT&T shivers in delight at hearing these words come from the Chief Justice's lips. Because that's all he is, really. A family. A family of people who just really like telephones.
Things start to get ugly, however, when AT&T's lawyer, Geoffrey M. Klineberg, approaches the podium. Ruth Bader Ginsburg immediately asks him whether "foreign governments, State and local governments," are persons, too. Klineberg says they are. "Wait just a minute," thinks AT&T. "Luxembourg is a person? I don't think so."
Ginsburg then points out that FOIA exemptions already exist to protect trade secrets and confidential business information and personal information about individual employees. She wonders what kind of information falls within the corporate privacy exception that isn't protected by these exemptions. Klineberg replies that one example would be "a series of e-mails among corporate officers [engaged] in a frank exchange about the competence and intelligence of a would-be regulator of the corporation."
To AT&T's horror, Justice Scalia jumps in: "Why does that relate to the corporation's privacy interest? Anything that would embarrass the corporation is a privacy interest?" And then Scalia pulls out the long knives: "The word personal," he says, "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." He asks Klineberg, "Can you give me any examples in common usage where people would refer to the personal privacy of a corporation? It's a very strange phrase to me."
AT&T can no longer feel his hands and feet.
Ginsburg observes that "overwhelmingly, personal is used to describe an individual, not an artificial being," and so Klineberg offers up another scenario in which corporate privacy could be violated by a narrow reading of "personal privacy." Imagine, he says, a FOIA request seeking "internal documents within, say, an environmental nonprofit organization talking about their political strategies."
Justice Stephen Breyer asks whether Klineberg has any examples of this ever happening in the past 35 years. When Klineberg can't think of one, Breyer suggests that "[m]aybe one reason this has really never been a problem is because all … these organizations that have interests in privacy are actually taken care of by the other 17 exemptions here." And Scalia adds for good measure: "Another reason might that nobody ever thought that personal privacy would cover this."
Klineberg explains that "increasingly, FOIA is being used by competitors and legal adversaries to obtain information—not about what the government is doing, but about what evidence the government might have gathered from private parties." Ginsburg wonders whether that alone is a reason to change the definition of the exemptions.
AT&T dies a little inside when Scalia asks: "Did some members of Congress who had passed FOIA say, 'This is outrageous; what about the personal privacy of General Motors?' I'm not aware of any objections along those lines."
The chief justice isn't done, either. He takes up AT&T's claim that since "person" is defined elsewhere in FOIA to include corporations, "personal" should be applied to corporations, too. Mulls Roberts: "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."
As Klineberg suggests that AT&T doesn't adhere to the "grammatic imperative" used in the 3rd Circuit ruling, AT&T seems to understand that somewhere along the line, he has lost the confidence of the chief justice. Maybe he isn't a real person, capable of dignity and shame and other strong emotions after all. Maybe if you prick him, he does not bleed. If you tickle him he does not laugh. If you poison him, well. AT&T rises to leave the room. But he suddenly finds that he has no legs to stand on.
Disclosure:I am a trustee of the Reporters Committee for Freedom of the Press, which filed an amicus brief on the government side of this case.
Correction, Jan. 20, 2011: This article originally gave the wrong middle initial for Anthony A. Yang. ( Return to the corrected sentence.) Additionally, several references to Geoffrey M. Klineberg's last name were misspelled as Kleinberg.