Privacy Rights Inc.
Your right to personal privacy is shrinking even as Corporate America's is growing.
Once upon a time, you had to be a person to assert a right to personal privacy. But more and more it seems that the demand for personal privacy flows from large blurry advocacy groups and even larger, blurrier corporations. This trend would be alarming under any circumstances. As it happens, individual privacy rights for real humans seem to be shrinking at the same time corporate privacy rights are expanding.
Disclosure of contributors to political campaigns, and campaign advertisements, used to be an unobjectionable proposition. Now, resisting it is a matter of highest principle. Bruce Josten, executive vice president for government affairs for the United States Chamber of Commerce, told Jake Tapper, "We're under no obligation, as any organization or association in the United States is, to divulge who its members are, who its contributors are." Why? Explained Josten: "We're not going to subject our contributors to harassment, to intimidation, and to threats and to invasions of privacy at their houses and at their places of business, which is what has happened every time there's been disclosure here."
Then there is the National Organization for Marriage, an anti-gay marriage group that regularly sues state governments for the right to run election ads (most recently in Rhode Island) without having to abide by the state's disclosure laws. NOM also claims that disclosure would lead to harassment of donors. NOM will not be heartened to hear about what happened to Human Life of Washington, which had challenged Washington state's public disclosure law using a similar argument. They lost.
But it's not just advocacy groups claiming that they need to protect their members' privacy rights from leagues of nameless nosy bullies. The Supreme Court has now agreed to hear a case in which AT&T prevailed in its efforts to evade a Freedom of Information Act request because Exemption 7(C) of FOIA, protecting "personal privacy," also now protects the privacy of corporate entities. The 3rd Circuit Court of Appeals held that FOIA "unambiguously indicates that a corporation may have a "personal privacy" interest within the meaning of Exemption 7 (C)" and noted in a footnote that "corporations, like human beings, face public embarrassment, harassment, and stigma."
It used to be the case that embarrassment, harassment, and stigma were the best check against corporate wrongdoing. But that was before corporations had feelings. Of course the 3rd Circuit's solicitude for the tender feelings of corporations might well eviscerate one of the core purposes of FOIA, but given the Supreme Court's solicitude for the First Amendment rights of corporations in Citizens United, perhaps it's time to recognize that for purposes of privacy rights, corporations are now people, too.
This growing deference to trembling corporate sensitivity would be merely amusing were it not for the fact that, as the idea of corporate privacy and dignity catches hold in the American judiciary, basic notions of privacy and dignity for actual human beings seem to be on the wane. I am thinking here, just for instance, of an Oklahoma statute that would make available on the Internet identifying information about women who have obtained an abortion. (An earlier version of the bill was struck down, but it was hastily enacted again.) The purpose of the Oklahoma law is to embarrass, harass, and stigmatize women seeking abortions—the precise argument now being used to bar the disclosure of the names of campaign contributors. How can it possibly be the case that campaign contributions are entitled to a greater measure of privacy and protection from alleged opponents than the personal information of women seeking to make the most difficult and intimate decision of their lives?
Or consider the meteoric rise of whole-body imaging—machines that produce virtual strip searches of air travelers. Or the Supreme Court's deeply weird and inconclusive holding in last year's big electronic-privacy case, finding that state employees don't have a reasonable expectation of privacy in the text messages sent on government-issued pagers. Or the recent Inspector General report that found the FBI had spied on American citizens who engaged in protests, demonstrations, or other activities protected by the First Amendment. Or North Carolina's efforts to force Amazon to disclose its customers' purchasing habits. I could go on.
Look. Nation. You can go ahead and anthropomorphize big corporations all you want. Pretend that AT&T has delicate feelings and that Wal-Mart has a just-barely-manageable phobia of spiders. But before we extend each and every protection granted in the Bill of Rights to the good folks at ExxonMobil, I have one small suggestion: Might we contemplate what's happened to our own individual privacy in this country in recent years? That the government should have more and more access to our personal information, while we have less and less access to corporate information defies all logic. It's one thing to ask us to give up personal liberty for greater safety or security. It's another matter entirely to slowly take away privacy and dignity from living, breathing humans, while giving more and more of it to faceless interest groups and corporations.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of abortion protests by Mandel Ngan/AFP/Getty Images.