FCC v. AT&T: The Idolatry of Corporations and Impersonal Privacy
Harvard Law & Policy Review, Forthcoming
16 Pages Posted: 15 Jul 2011
Date Written: July 13, 2011
This term, in FCC v. AT&T, the United States Supreme Court held that Exemption 7(C) of the Freedom of Information Act does not extend a right of “personal” privacy to corporations, based on a “plain meaning” analysis of the statute. The rationale is surprising. In most corporate rights cases, the Court ignores plain meaning, and it offers no explanation for why this one is different.
The result, however, is easily defended, unlike the Constitutional decisions from which it departs. Individual privacy is a core right of modern liberal democracies. Corporations, however, are not individuals. Instead, for purposes of rights analysis, they are closer to state agencies. Like state agencies, they are powerful tools to improve human well-being – but never ends in themselves. The FOIA and liberal political theory aim to protect citizens from organizations such as corporations. To decide what privileges to extend to corporations, we must examine carefully their internal workings and, in particular, which participants will be empowered by group rights. Organizational secrecy protects fiduciaries from accountability to their constituents. To grant business corporations the same privacy rights as individuals would be a form of idolatry – setting our own creations above us.
Keywords: corporate law, constitutional law, privacy, FOIA
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