Argument recap: Losing on a privacy claim?
on Jan 19, 2011 at 12:47 pm
Analysis
With a clarity that approached the blatantly obvious, the notion that federal law gives corporations a right of “personal privacy” in their internal records steadily lost support as argument on the point unfolded Wednesday in the Supreme Court. By the time the hour was nearly over, what was left of the concept vanished in a wry and almost comic comment by Chief Justice John G. Roberts, Jr. Only a profound change of heart in final deliberations among the Justices, it appeared, could save the day for the privacy claims of AT&T Inc. and its business supporters.
To be sure, the hearing on Federal Communications Commission v. AT&T (09-1279) looked somewhat promising for corporate privacy when companies turn over records to federal agencies, and someone in the public seeks access to them through the Freedom of Information Act. AT&T could take considerable hope, it seemed, as Justice Samuel A. Alito, Jr., opened the hearing with questions that precisely echoed points in the company’s legal brief. The promise was fleeting, as it turned out, when Justice Antonin Scalia joined in the questioning.
In a somewhat odd exchange with the FCC’s lawyer, Anthony A. Yang, an assistant to the U.S. Solicitor General, Scalia sought to undermine AT&T’s argument that the FOIA’s protection from disclosure for “personal privacy” under Exemption 7(C) extended to corporations.  Scalia noted that the Court had often said that exemptions to disclosure under the Act were to be “narrowly construed.” He would soon make clear he was trying to help Yang.
Yang said the government was not relying on that, and in fact would not embrace it. To narrowly interpret FOIA’s exemptions, the government attorney said, would be to “distort” the Act’s protection of “important interests.” He mentioned in passing a case now awaiting a decision in the Court — Milner v. Navy Department (09-1163) — in which the government had argued for a stronger FOIA shield against disclosure — AT&T’s basic point in Wednesday’s case. Yang went so far as to say, to Justice Sonia Sotomayor, that the Court should not put “a thumb on the scale” in favor of the narrowest reading of the exemptions. (NOTE TO READERS: The preceding paragraph has been modified to note that Yang mentioned the Milner case specifically to illustrate his reluctance to argue for a narrow reading of FOIA exemptions.)
That immediately led Scalia to protest, first saying that would not be putting a thumb on the scale, but would be giving meaning to the Act’s ambiguous language. Stirred up, Scalia then flatly accused the government of abandoning the long-held principle of narrow readings of the exemptions. Yang conceded that that principle would help the government’s case against AT&T, but he added that the government has broader interests. The Court, Scalia shot back, is not going to help the government if it did not want the help. “We should leave you where you put yourself,” the Justice remarked tartly.
As Yang’s part of the argument went on, he made clear that, in this case, the FCC was focusing solely on the language of the Act at issue — that is, the meaning, in its own terms and in terms of history and judicial interpretation, as well as everyday parlance, of the phrase “personal privacy.” Those words, he said emphatically, had never been understood to mean that corporations had “personal” interests in privacy. “The key point,” Yang said at several points, was that Congress “had no reason to think” that phrase referred to corporations.
As the FCC’s lawyer sat down, it was not clear that he had succeeded in bringing the Court back to that “key point.”  The trend was already running against AT&T’s claim, it seemed, even without that point.
When AT&T’s lawyer, Washington attorney Geoffrey M. Klineberg, took the podium, only moments passed before Justice Scalia moved in to take control. When the Justice demanded to know what kind of corporate activity was entitled to privacy, Klineberg said internal conversations that were engaged in with the expectation they would remain private, which might be used to harm the company’s reputation or customer good-will.
Scalia demanded more examples, but, without waiting for the lawyer to respond, ticked off several of his own, pointing the other way: “personal characteristics,” he said, is a phrase that does not apply to General Motors, neither does “personal qualities,” nor “personal privileges.”  To suggest that “personal privacy” would apply to a corporation, the Justice said, would be “a very strange concept.”
Soon, Justice Stephen G. Breyer was asking for examples, over the past 35 years, when government agencies had released files that would harm corporations’ privacy, suggesting that there were none. Klineberg said he was “puzzled why it has taken35 years for that issue to emerge, but that only prompted both Breyer and Scalia to suggest that it had not arisen because no one previously thought of it.
After Scalia bluntly told Klineberg that it was AT&T’s burden to show that corporate privacy was included in the Act’s phrase on “personal privacy,” Chief Justice Roberts stepped in with a devastating retort to what he called Klineberg’s “central argument.” That was AT&T’s contention that the word “personal” is simply the adjective form of “person,” and, since FOIA in one exemption refers to a corporation as a “person,” that must mean that corporations have “personal privacy.”
Roberts said he had tried to come up with instances “in which the adjective is very different from its root.” His examples: “craft and crafty,” “squirrel and squirrelly,” “pastor and pastoral.”  Klineberg said his client was only trying to suggest a mode of legal interpretation of the FOIA phrase, and added that AT&T “did not sign on” to the “grammatic imperative” that his brief had implied the company did embrace, because the Third Circuit Court had used it in ruling in AT&T’s favor.
The argument thereafter trailed off, so much so that Yang felt no need to use much of the six minutes that he had remaining for rebuttal. That was a sensible choice.
