EFF Brief: “Privacy” Protections for Corporations Undermines Government Transparency

EFF and a coalition of public interest groups urged the U.S. Supreme Court in an amicus brief Tuesday to reject so-called “privacy” protections for corporate entities under the Freedom of Information Act (FOIA).

The case, Federal Communications Commission v. AT&T, started when the company tried to block disclosure of records about its participation in the federal government’s E-Rate program. AT&T, invoking FOIA exemptions that were created to protect an individual’s private data like physical address or email address, argued that it was a “corporate citizen” entitled to “personal privacy.”

Surprisingly, a federal appeals court agreed with AT&T, setting up this Supreme Court battle with unusually high stakes for transparency and accountability. In the amicus brief filed Tuesday, EFF and co-amici argue that the intent of FOIA’s privacy provisions are unmistakably to protect individuals, not corporations, and that is how the law has always been interpreted. If AT&T is allowed to expand the law’s privacy protections to “corporate citizens” then broad new swaths of previously public records will be hidden from view. It’s not hard to imagine how documents on the BP oil spill, or coal mine explosions, or the misdeeds of Bernie Madoff’s investment firm might be significantly harder to find if AT&T’s misguided arguments prevail.

But this is only the most obvious problem with the idea of “personal privacy” for “corporate citizens.” Currently, government agencies routinely post reports and data about corporate activities on their websites without a specific FOIA request. But under the appeals court decision, this kind of free flow of information will be chilled by the fear of a lawsuit. Additionally, this interpretation of the FOIA would require government agencies to consult with corporations before the release of any information that arguably implicated their “privacy” interests. This would create more delays in an already lengthy FOIA process, and allow even more opportunities for corporations to block important records from the public eye. Tellingly, corporate entities would end up enjoying more privacy protections than the law currently affords individuals, who are not given any notice about potential record releases under FOIA.

FOIA already grants substantial protection to corporations’ interests, allowing for corporations to protect trade secrets and other confidential information. Expanding the Act’s exemptions in the extreme manner urged by AT&T is not what lawmakers intended — instead of facilitating transparency and accountability, it would morph into a broad shield preventing the public from knowing what the government is up to.

For EFF, the FOIA is a critical tool for exposing the government’s expanding use of new technologies that invade Americans’ privacy, and we are very proud of the breadth of information EFF’s transparency work has brought to light. We hope the Supreme Court protects open government and Americans’ right to know in this case.

The other organizations joining Tuesday’s amicus brief include the Citizens for Responsibility and Ethics in Washington (CREW), the American Civil Liberties Union (ACLU), the American Library Association (ALA), the Association of Research Libraries (ARL), the National Security Archive, and OpenTheGovernment.org.

This article was written by Rebecca Jeschke of the Electronic Frontier Foundation.

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