Whether corporations may retain rights similar to individual privacy rights will be determined by the U.S. Supreme Court when it rules on AT&T’s assertions that documents it submitted to the Federal Communications Commission are confidential.
The Supreme Court heard oral arguments January 19 in FCC v. AT&T. At issue is whether documents from an FCC investigation of AT&T are subject to Freedom of Information Act (FOIA) requests. Recently named Supreme Court Justice Elena Kagan recused herself from the hearings because she filed the original Obama administration brief against AT&T in her previous position as an employee of the Department of Justice.
The Third Circuit appeals court ruled last spring in AT&T’s favor when the company sued the FCC, claiming FOIA requests for all documents filed with the FCC could reveal corporate secrets to AT&T’s competitors. The FCC and Obama administration argued such privacy rights belong to individuals and not corporations.
McCain-Feingold Redux?
The initial FOIA request was filed by COMPTEL, a trade group representing several telecommunications companies that directly compete with AT&T. The FCC subsequently released only those documents it determined would not violate AT&T trade secrets nor divulge personal information of individuals.
“Since [AT&T] deal[s] with Wi-Fi communications for cell phones, Blackberry, Bluetooth, and for data transfer such as text messages, images, music, and more, AT&T and similar companies would lose tons of money and profits over this,” said David Gagnon, an independent Canadian Web consultant.
AT&T submitted the documents to the FCC as part of an investigation into the company over allegations of billing irregularities for its part in the federal E-Rate program, which disburses money for Internet buildout and maintenance for schools and libraries. The investigation was resolved, but COMPTEL submitted a FOIA request, prompting AT&T’s lawsuit.
The case resembles closely the Supreme Court’s January 2010 decision overturning the controversial McCain-Feingold Act. That decision concluded corporations are groups of people who cannot be subjected to campaign finance contribution restrictions not enforced for individuals.
Justices Pose Questions
Justices Antonin Scalia, Stephen Breyer, and Ruth Bader Ginsburg reported gave the appearance of siding with Chief Justice John Roberts Jr. in opposing the Third Circuit Court’s decision during the oral arguments. Justice Samuel Alito Jr., according to reports from the hearing, was more receptive of AT&T’s arguments.
AT&T’s arguments included the assertion that the adjective “personal” contains the noun “person” in it. Therefore, argued the company’s attorneys, the phrase “personal privacy” should protect all entities included in the FOIA’s definition of “person,” including corporations as well as state and local governments.
Chief Justice Roberts, however, offered a different interpretation: “I tried to sit down and come up with other examples where the adjective was very different from the root noun,” he said. “Craft’ does not equate with ‘crafty’,” Roberts said. The Chief Justice elicited laughter when he observed that ‘squirrel’ and ‘squirrelly’ and ‘pastor’ and ‘pastoral’ differ etymologically,
The court is attempting to determine the ordinary meaning of a word, said Nick R. Brown, a research associate with libertarian think tank Digital Society. “The Third Circuit Court made the decision that the ordinary meaning of ‘personal privacy’ is that the word ‘personal’ comes from ‘person.’ The Freedom of Information Act defines ‘person’ to include corporations, and therefore AT&T had a right to privacy in withholding certain information. I would lean to the notion that the Supreme Court upholds the Third Circuit’s decision in the matter.”
Krystle Russin ([email protected]) writes from Texas.
