Should Companies Have A 'Privacy' Right To Shield The Release Of Damaging Info?

from the if-a-company-is-a-person... dept

Wed, May 26th 2010 4:10pm — Mike Masnick

Should companies have privacy rights? With recent legal rulings suggesting that companies have similar legal rights to individuals, does that include privacy rights? A bunch of groups, including Public Citizen and the EFF, have filed an amicus brief in a case that looks into that question. The lawsuit is between the FCC and AT&T. It seems that the FCC had done an investigation where it determined that AT&T -- the same company that has "helped out" the government by explaining how the feds could get around pesky oversight rules by using post-it notes -- has been over-billing the government.

That seems like pretty interesting information, and some others thought so -- which is why a Freedom of Information Act request was made to the FCC, and the FCC agreed to hand over the documents concerning the investigation. AT&T, in response, sued the FCC, saying that releasing this info would violate the company's "personal privacy." Huh? It's hard to see how a company has "personal privacy." You can understand not releasing confidential information that involves a trade secret, or other such information. But claiming that details of an investigation of how you may have bilked the government is "private" info seems a bit absurd. If that was the case, then any company could demand that any embarrassing information never be released.

Unfortunately, the Third Circuit Court of Appeals agreed with AT&T, suggesting that the exemption in the Freedom of Information Act for "personal privacy" does, in fact, apply to AT&T as well. The new brief urges the Supreme Court review the case:

Unless the Supreme Court takes the case and reverses the Third Circuit decision, records about safety violations at a coal mine, environmental problems at an offshore oil rig, filthy conditions at a food manufacturing plant, financial shenanigans at an investment bank and many other records like these may be the subject of so-called corporate privacy claims that could result in agencies withholding those records from the public under FOIA.

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Filed Under: companies, freedom of information act, privacy
Companies: at&t, fcc

22 Comments

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Anonymous Coward, 26 May 2010 @ 4:34pm

Bah, if it was me, I'd simply tell AT&T this: your doing business with the business entity known as the "Federal Government" and therefore, as an "owner" of the "Federal Government" (it derives its capital/income from our pockets in the form of taxes) anyone has the rights to see how our "company" is utilizing its "assets".
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Anonymous Coward, 26 May 2010 @ 4:54pm

You mean to tell me that someone's been overbilling the government and no involved party is treating the money like it's their own?

Shocking.

I bet these are the same types of people that would find your wallet at a restaurant and take the cash before giving it to the matradee. Who is responsible for this? I want names.
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foleymo, 26 May 2010 @ 4:57pm

Can of worms
Sweet! Does that mean I can seal my driving records so the insurance company can't see them. Seems like a privacy violation to me!
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Anonymous Coward, 26 May 2010 @ 4:59pm

I suspect Anontin "no right to privacy" Scalia will suddenly have a change of heart when it comes to Corporate privacy.
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Karl (profile), 26 May 2010 @ 5:09pm

Re:
Yeah, that's what doesn't make sense to me. They're not making public any internal records from AT&T. They're making public the documents concerning an investigation - which are from the government.

Since the FOIA already protects trade secrets, I don't know how they have a leg to stand on.
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Anonymous Coward, 26 May 2010 @ 5:16pm

So, uh, why can't we know who is doing a good job bilking again?
You mean to tell me that someone's been overbilling the government and no involved party is treating the money like it's their own?

Shocking.

I bet these are the same types of people that would find your wallet at a restaurant and take your cash before giving it to the matradee.

There seems to be this idea that we live in Mao's China and workers have the luxury of being able to hide behind a brand name. I really hope we learn who is responsible for this.
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Anonymous Coward, 26 May 2010 @ 5:25pm

I wouldn't mind if AT&T steals from other Governments, like the French, but this is absurd.
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Anonymous Coward, 26 May 2010 @ 5:27pm

Re: So, uh, why can't we know who is doing a good job bilking again?
Or they find your iPhone and sell it to Gizmodo.
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Anonymous Coward, 26 May 2010 @ 5:37pm

Speaking of worst phones ever, Check out

http://worstphoneever.com/
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Andrew F (profile), 26 May 2010 @ 5:42pm

Sky won't fall
So the way the FOIA personal privacy exemption works, I think, is that the government agency has to balance the public interest in seeing the information released vs. the privacy interest of the person who's information is released.

The Third Circuit's decision (582 F.3d 490) did NOT say that AT&T's right to privacy was greater than the public's interest in seeing the information released. All it said was that the FCC has to actually do the balancing test, rather than assume, as a matter of law, that companies automatically have no right to personal privacy under FOIA.

That's not super crazy. First, the FCC can still release the documents. It just has to say "after thinking about this a while, we think the public's interest in knowing this outweighs AT&T's interest." Second, you can think of hypotheticals where there might be some embarrassing information not related to the investigation that AT&T might not want leaking out -- e.g. 80% of its middle managements looks at porn on company computers during lunch breaks. Stuff like that.
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Cynyr (profile), 26 May 2010 @ 5:43pm

sure they can...
Sure if they want to be individuals, thats fine, but they are subject to all the laws I am. Someone speeds while "on the job", company gets the speeding ticket. Product unintentionally kills some one, manslaughter charges and "incarceration"(freeze assets/accounts, deny shipments, stocks stop trading, etc). You want to be people, fine, but you get the same rules, otherwise you are not people, and get your different rules.

More sanely, any dealing with the government are/should be available to all citizens/taxpayers, trade secrets(real ones, not client lists) excepted.
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interval, 26 May 2010 @ 5:43pm

For public companies? What's next; do they then get to shield their earning from shareholders? Is everyone forgetting why the founders of the US thought a free press was so important?
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Andrew F (profile), 26 May 2010 @ 5:45pm

Re: Re:
Well, you can think of a few things that might be "embarrassing" to a company but aren't trade secrets. For example, suppose the documents show that 75% of AT&T employees use Verizon phones because AT&T's coverage sucks. That's not a trade secret but it's also embarrassing for AT&T and completely unrelated to why the documents were requested in the first place.
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Spanky, 26 May 2010 @ 6:28pm

re
Companies should have no Constitutional rights at all. That includes things like corporate free speech. This is simply how some revisionists want to reinterpret the Constitution for their own benefit. Lotta that going around right now.

According to the founding fathers, rights are granted to us by God, because we are living human beings. The Constitution does not create or destroy these rights - it merely affirms them. Companies are not human (although some might say they are inhuman). Does anyone really think God was thinking about corporate rights?

Granting companies Constitutional rights was one of the worst things the courts ever did. You see what that hath wrought.
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Dude, 26 May 2010 @ 6:47pm

Typically, anything that has cost information on it is (or should be considered) proprietary information and the government cannot release that information under a FOIA request. You usually have to specifically label it as proprietary when you give it to the government though.
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Karl (profile), 26 May 2010 @ 7:48pm

Re: Re: Re:
Sure, I could see why AT&T wouldn't want info like that to come out. But if it isn't relevant to the investigation, it shouldn't be in the FCC's documents, in theory at least.
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Anonymous Coward, 26 May 2010 @ 8:33pm

Re: Sky won't fall
The citation is erroneous. The opinion is purportedly on the 3rd Circuit's site, but for some reason I cannot get the PDF file to download.

A brief summary of this case can be found at:

http://www.digitalmedialawyerblog.com/2009/10/att_v_fcc_3rd_circuit_rules_th.html

Since I am unable to read the opinion I cannot vouch for the accuracy of the summary. Nevertheless, it is not at all difficult to craft various scenarios where the disclosure of some information may very well be inappropriate, and especially if such disclosure may have a chilling effect on future investigations of this type.
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Andrew F (profile), 26 May 2010 @ 9:21pm

Re: Re: Sky won't fall
http://scholar.google.com/scholar_case?case=12356501765365311923
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Txknight (profile), 26 May 2010 @ 10:35pm

they do in Korea
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Mike Masnick (profile), 27 May 2010 @ 12:51am

Re: Sky won't fall
The Third Circuit's decision (582 F.3d 490) did NOT say that AT&T's right to privacy was greater than the public's interest in seeing the information released. All it said was that the FCC has to actually do the balancing test, rather than assume, as a matter of law, that companies automatically have no right to personal privacy under FOIA.

Ahah. Very useful information. Thanks!

That's not super crazy. First, the FCC can still release the documents. It just has to say "after thinking about this a while, we think the public's interest in knowing this outweighs AT&T's interest.

That does make some sense...

Second, you can think of hypotheticals where there might be some embarrassing information not related to the investigation that AT&T might not want leaking out -- e.g. 80% of its middle managements looks at porn on company computers during lunch breaks. Stuff like that.

This is where I'm not sure. I'm having trouble thinking of non-trade secret hypos that make sense. The one you bring up doesn't seem like it should be required to be kept secret.
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okwhen (profile), 27 May 2010 @ 5:37am

Should Companies Have A 'Privacy' Right To Shield The Release Of Damaging Info?
This is nothing new to me corporations are just being more open about how they control our government. If you apply these same laws to a regular John Doe they will not apply. If an individual steals something and is caught this person pays a price. However if a corporation is caught in the same manor the corporation is treated as a corporation meaning no individual is to blame. My point is corporations are granted privileges of a personal nature and of corporate. Why do corporations have more legal rights than a real person? The answer is elementary; the people making the laws are the same ones benefiting from them. Our government is not of the people it is of the corporations and we are mere ponds in the scheme of things.
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Anonymous Coward, 27 May 2010 @ 11:39am

Re: Re: Re: Sky won't fall
I commented on your post last evening and the site indicated that it had been submitted and would appear shortly. Obviously my comment did not make its appearance.

There are some important facts underlying this matter that I believe are quite relevant and should not go unmentioned.

This matter pertains to a contract with the US Government, and the matter came to light when a routine internal audit at AT&T revealed a possible conflict between the charges submitted and the incredibly arcane US Government's Ccost Accounting Standards (CAS). This is not a situation where the USG auditors reviewed submittals, raised questions, and began an investigation. This is a situation where AT&T discovered a possible problem, reported it to the contracting officer, and then worked in cooperation with the government to ascertain if in fact there was a problem with what is known as "mischarging".

In the conduct of investigations on such matters a contractor is expected to basically give the government free rein and access to documents in the possession of a contractor, many of which eventually turn out to have absolutely no bearing on the issue at hand. Doubtless, it is these type of documents that are of concern to a contractor, and especially when these documents have a real relationship to the privacy interests of individuals. It is not at all difficult to conjure up situations where non-disclosure truly is in the public interest for any number or reasons, not the least of which is that it fosters an environment where a contractor cooperates fully and openly.

Merely as a matter of interest, the summary to which I referred states that the FOIA request was submitted by a group of AT&T's competitors. In my extensive experience with FOIA not once have I seen a request by a competitor(s) made for any purpose other than trying to get a leg up on future contracts. It is all about gathering information concerning one's competitor, with not the slightest thought given to further disclosure to the public at large and the interests that may be served by such disclosure.

Quite frankly, in my view this is a clear abuse of FOIA in which the government is being used as a proxy for facilitating the abuse.
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