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showing results for: January, 2011

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  • AT&T says it's a person under the law and should enjoy the right to personal privacy. What's wrong with this picture?

    AT&T wants us to believe that corporations are people, just like you and me, and that just like us, they have a constitutional right to privacy. Their case, argued before the Supreme Court last week, hinges in part on the relationship between an adjective and the noun it derives from. To prove their point, AT&T wants us to look both at the law and at the dictionary.

    Here’s the law. The U.S. Supreme Court held in Citizens United v. Federal Election Commission (2010) that corporations were persons under the law, and as persons their contributions to political campaigns constituted speech that is protected by the First Amendment.

    In Federal Communications Commission v. AT&T, which was argued before the Court this week, the telecommunications giant has asked the Court to go one step further and rule that, since corporations are persons, and since personal is simply the adjectival form of person, then corporations like AT&T enjoy a right to personal privacy.

    At issue is exemption 7(c) of the Freedom of Information Act, which protects from public disclosure “records or information compiled for law enforcement purposes . . . [that] could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

    Here’s what that means for an individual’s personal privacy. Suppose you complained to the National Highway Traffic Safety Administration that your 1947 Hudson Hornet experienced sudden, uncontrolled acceleration. Looking into that complaint, NHTSA finds that on the same day you experienced sudden acceleration you also got an unrelated speeding ticket which your friend the mayor subsequently tore up. Some months later, a reporter files a FOIA request to see complaints about uncontrolled vehicular acceleration. Under exemption 7(c), the agency couldn’t tell the reporter about your speeding ticket or your political clout, because even though that information was gathered pursuant to a law enforcement investigation, its release would be an unwarranted invasion of your personal privacy.

    AT&T wants to be covered by exemption 7(c) as well, to suppress incidental information that might turn up, for example, in the course of an antitrust investigation—perhaps two executives said something negative about a client, which, if it became public knowledge, might help a competitor like Verizon. By AT&T’s logic, if corporations are persons, as they are in Citizens United, then they too have a right to personal privacy.

    The telephone company has a troubled history when it comes to issues of personal privacy. In the early days of telephony, operators had to listen in on telephone conversations so they could manually disconnect the call when it was done. If an operator overheard anything off-color or that otherwise violated company policy, as when a subscriber let a guest use the phone, she (in those days operators, called “hello girls,” were always women) could disconnect the call, and for repeated violations the utility could threaten to yank out the telephone.

    With such invasions of personal privacy, it’s not surprising that a folk mythology arose about telephone police who could enter your house without a warrant and remove any illegal extension phones they found there. The phone company managed to collect all sorts of private information about its customers, as well, and television audiences found Ernestine, the operator created by Lily Tomlin, both funny and frightening when she told one customer upset about the phone company’s ability to access his bank and brokerage accounts, “We are not subject to city, state, or federal regulation . . . . We are omnipotent.” In another skit, Ernestine tells a caller complaining about poor service, “We don't care. We don't have to. We’re the Phone Company.” Now it’s the phone company’s turn to complain about the public’s ability to access its secrets.

    Lily Tomlin plays her signature character, Ernestine, on Saturday Night Live

    Lily Tomlin, as Ernestine, tells a customer with a delinquent phone bill, “According to our files, your present bank balance plus stocks, securities, and other holdings, amounts to exactly three hundred and . . . .” The customer hangs up at this point, but Ernestine immediately redials and starts to discuss to his federal tax return for 1965. Now it’s the phone company’s turn to complain about the public’s ability to access its secrets.

    FOIA is designed to make government operations more transparent and government agencies more publicly accountable, but it recognizes that in the interests of national security and to protect individuals from prying eyes, some information may be held back. The law's exemption 6, for example, permits the government to withhold all “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Here personal privacy can only refer to people. Corporations never get blood tests or x-rays, and they are never late to work.

    But the Third Circuit of the U.S. Court of Appeals, which sided with AT&T, ruled it is a “grammatical imperative” that “a statute which defines a noun has thereby defined the adjectival form of that noun.” In other words, if corporations are persons, under the law, then they have personal qualities.

    Here's where the dictionary comes in. The Oxford English Dictionary explicitly defines personal to exclude ‘corporate’: “Of, relating to, concerning, or affecting a person as a private individual (rather than as a member of a group or the public, or in a public or professional capacity); individual, private; one's own.” But in its brief, AT&T cites Webster’s Third, the standard dictionary of American courts, which simply says, “[o]f or pertaining to a particular person.” AT&T then argues that, since the dictionary defines personal as referring to person, and the Court has defined person to include corporations, personal must also refer to them, and “Thus, as used in FOIA, ‘personal’ means ‘of or pertaining to a particular’ ‘individual, partnership, corporation, association, or public or private organization.’”

    However in oral arguments, Justice Scalia, who is usually on the side of big business, suggested that corporate personal privacy was not idiomatic. In Washington, D.C., v. Heller (2008), Scalia had dismissed extensive linguistic evidence proving that the phrase bear arms almost always suggests a military context, because he wanted to interpret the Second Amendment as establishing an individual right to own firearms. Other uses of bear arms are just not idiomatic. As the historian Garry Wills put it, “One does not bear arms against a rabbit.” But while in some future case before the Court, J. Scalia may award corporations the right to bear arms, in the present case he seemed reluctant to award them personal privacy, asking AT&T’s lawyer Geoffrey Klineberg, “Can you give me any examples in common usage where people would refer to the personal privacy of a—of a corporation? It’s a very strange phrase to me.”

    Chief Justice Roberts similarly rejected AT&T’s dictionary definition:

    Your central argument is that because “person” is defined to include corporation, “personal” in the same statute must include corporate. . . . 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. So I don’t understand—I don’t think there’s much to the argument that because “person” means one thing, “personal” has to be the same relation. [35]

    Justice Ginsberg then cited an amicus brief with “dozens and dozens of examples to show that, overwhelmingly, ‘personal’ is used to describe an individual, not an artificial being” (36). But despite this barrage from both ends of the judicial spectrum, Klineberg continued feebly to insist that “‘Person’ is, then, defined by Congress as—to include not only individuals, but—but corporations and other associations” (36).

    The Court will issue its decision in FCC v. AT&T later this Spring. If the oral arguments are any indicator, it may choose not to take its Citizens United precedent further, declining to rewrite the legal definition of personal privacy to include corporations. But while the Court deliberates, it would be well for it to note that the Freedom of Information Act itself twice distinguishes between persons and entities,

    In this clause, the term “a representative of the news media” means any person or entity that gathers information of potential interest to a segment of the public. [5 USC § 552 (4)(a)(ii)(III), emphasis added]


    “Submitter” means any person or entity who provides confidential commercial information to the government [Ex. Ord. No. 12600 Sec. 2(b)]

    The language of FOIA suggests that while Congress recognizes a corporate right to guard trade secrets and to keep other proprietary information out of the public eye, it did not intend for corporations, which are entities, even though they are sometimes permitted to act like persons, to enjoy the benefits of personal privacy. That should reassure those persons alarmed that a company with a long history of disregard for personal privacy now seeks to claim the benefits of personal privacy for itself. Between the skepticism of the Court toward AT&T’s definition of personal and the fact that AT&T is also about to lose its monopoly on the iPhone, it may turn out that, Ernestine notwithstanding, the telephone company is not omnipotent after all.

    UPDATE: On Mar. 1, 2011, the Supreme Court ruled unanimously in FCC v AT&T that corporations, though persons under the law, do not have "personal privacy." Chief Justice Roberts, in his opinion, writes,

    We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. 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. . . . In fact, we often use the word "personal" to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view.

    And--apparently I'm not the only snarky language commentator--the Chief Justice ends his opinion with a little joke:

    [P]ersonal privacy does not extend to corporations. We trust that AT&T will not take it personally.


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