Do Corporations Have Personal Privacy Rights?

The Supreme Court will decide next year whether corporations are entitled to “personal privacy” and whether they may prevent the release of records under the Freedom of Information Act on that basis.  FOIA advocates say that assigning personal privacy rights to corporations could deal a crippling blow to the Act.

The case before the Court — known as FCC v. AT&T — arose from a FOIA request to the Federal Communications Commission for records of an investigation of a government contract held by AT&T.  The FCC found that the requested records were subject to release under FOIA.  But AT&T challenged that decision and won an appeals court ruling that the documents were law enforcement records that were exempt from disclosure because their release would constitute “an unwarranted invasion of personal privacy” — namely, the “personal privacy” of AT&T.

The appeals court noted that the word “person” is defined in the Administrative Procedures Act (APA) to include corporations, and it went on to infer from this that the FOIA exemption for “personal privacy” in law enforcement records must logically extend to corporations as well.

But “that analysis does not withstand scrutiny,” the government argued in its petition (pdf) to the Supreme Court for review of the case.  Personal privacy can only apply to individual human beings, it said, and not to other entities.  “The court of appeals’ novel construction would erroneously create a new and amorphous ‘privacy’ right not only for corporations but also for local, state, and foreign governments [which also fall under the APA definition of ‘person’].”

A concise description of the pending case as well as key case files and amicus briefs filed with the Supreme Court by several FOIA advocacy organizations are conveniently available from the Electronic Privacy Information Center.  (EPIC prepared one of the amicus briefs and I was among the signatories to it.)

Corporate information that qualifies as a “trade secret” has long been exempt from disclosure under the FOIA.  But prior to this case, no court had ever held that a corporation also has personal privacy rights.

If affirmed by the Supreme Court, the appeals court ruling “could vastly expand the rights of corporations to shield their activities from public view,” said Sen. Patrick Leahy this week, and it “would close a vital window into how our government works.”

“Congress never intended for this [personal privacy] exemption to apply to corporations,” he said.  “I also fear that extending this exemption to corporations would permit corporations to shield from public view critical information about public health and safety, environmental dangers, and financial misconduct, among other things — to the great detriment of the people’s right to know and to our democracy.”

“I sincerely hope that our nation’s highest Court… will narrowly construe the personal privacy exemption, consistent with congressional intent,” said Sen. Leahy. “Should the Court decide to do otherwise, I will work with others in the Congress to ensure that FOIA, and specifically the personal privacy exemption for law enforcement records, remains a meaningful safeguard for the American people’s right to know,” he said.

FCC v. AT&T is scheduled to be argued before the U.S. Supreme Court on January 19, 2011.

Intelligence Issues in Congress

Director of National Intelligence James R. Clapper went a little out of his way to praise the Government Accountability Office at a Senate hearing on security clearance reform on November 16. “I’d be remiss if I didn’t recognize the crucial role that GAO continues to play in keeping the heat on the executive branch for security clearance reform and, also, on areas they have identified where more work is required,” DNI Clapper told a subcommittee hearing chaired by Senator Daniel Akaka.

As required by the FY2010 intelligence authorization act, the DNI is preparing a directive to authorize and regulate GAO access to intelligence information, a step that should portend an increased role for GAO in intelligence oversight. In the future, GAO access to intelligence “will be similar to the GAO’s access to the Department of Defense’s Special Access Programs,” suggested Sen. Rockefeller.

In pursuing a new cybersecurity agenda, “the government must be as transparent as possible with the American people,” said Sen. Sheldon Whitehouse yesterday. “I doubt very much that the Obama administration would abuse new authorities in cyberspace to violate Americans’ civil liberties. But on principle, I firmly and strongly believe that maximum transparency to the public and rigorous congressional oversight are essential. We have to go about this right.”

Retiring Senate Intelligence Committee Vice Chairman Christopher Bond offered his valedictory thoughts on intelligence policy on the Senate floor yesterday, launching darts in multiple directions.  Among other recommendations, he called for an increased number of prosecutions to combat leaks.

“We must first deter and neutralize the leakers. There should be significant criminal, civil, and administrative sanctions that can be imposed on leakers. Leakers should face significant jail time, pay heavy fines, forfeit any profits, lose their pensions, and be fired from their jobs. We should also not allow the first amendment to be used as a shield for criminal activity. It should be a crime to knowingly solicit a person to reveal classified information for an unauthorized purpose or to knowingly publish or possess such information. Leaks will not stop until a significant number of leakers have been appropriately punished,” Sen. Bond said.

Technically, any alert reader of national newspapers “possesses” classified information and would therefore be criminally liable under Senator Bond’s rash formulation.

The Sonnenberg Phenomenon

Investment banker Maurice Sonnenberg was appointed this week to the National Commission for the Review of the Research and Development Programs of the U.S. Intelligence Community.  The most surprising thing about the appointment was its predictability.

If national commissions on intelligence were a TV game show, Maurice Sonnenberg would be Kitty Carlisle or Orson Bean.  In other words, he is a perennial member of a seemingly endless series of blue-ribbon panels, task forces and commissions.

He was senior adviser to the 1996 Commission on the Roles and Capabilities of the U.S. Intelligence Community (the Aspin-Brown Commission), a member of the 1997 Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission), the Vice Chairman of the 2000 National Commission on Terrorism (the Bremer Commission), and an original member of the 2003 National Commission for the Review of the Research and Development Programs of the U.S. Intelligence Community, which lapsed in 2004. The latter Commission has recently been revived, and Mr. Sonnenberg’s reappointment to it is what was announced this week.  He also previously served on the President’s Foreign Intelligence Advisory Board during the Clinton Administration.

Mr. Sonnenberg accepts his role with grace.  “I’m quite content that people ask me for my views,” he told the New York Sun in 2005. “But does that elevate me to the pantheon of great thinkers? I doubt it. My hat size hasn’t changed. If I take a bus, it still costs me $2 a ride.”

“It’s sometimes helpful to talk to people who’re at the levers of power,” he admitted. “Perhaps that way one has enjoyed some influence on policy.”

The new National Commission was restored by Congress to perform a “review of the full range of current research and development programs within the responsibility of the Intelligence Community with the goal of ensuring a unified research and development program across the entire Community.”

Books Received

“Litigation Under the Federal Open Government Laws 2010” is the latest edition of a classic handbook for Freedom of Information Act litigants.  It provides an updated summary of the relevant case law and a discussion of many of the most commonly encountered issues and obstacles a FOIA litigator may face.  Any FOIA requester or attorney who is contemplating a FOIA lawsuit will want to study it closely. The new edition was edited by Harry A. Hammitt, Ginger McCall, Marc Rotenberg, John A. Verdi, and Mark S. Zaid.

“These Guys: Cold War Stories told by Cold War Warriors” is an anthology of personal reminiscences from former members of the U.S. Air Force Security Service concerning their experiences in U.S. military and intelligence service.  It was edited by Trish Schiesser.

“The Dangers of Dissent” by Ivan Greenberg explores the modern history of FBI domestic surveillance, bolstered by records obtained by the author through FOIA litigation. The book “traces the evolution of FBI spying from 1965 to the present through the eyes of those under investigation.”

New START Delay: Gambling With National and International Security

A few Senators are preventing US inspectors from verifying the status of Russian nuclear weapons.

By Hans M. Kristensen

The ability of a few Senators to delay ratification of the New START treaty is gambling with national and international security.

At home the delay is depriving the U.S. intelligence community important information about the status and operations of Russian strategic nuclear forces. And abroad the delay is creating doubts about the U.S. resolve to reduce the number and role of nuclear weapons, doubts that could undermine efforts to limit proliferation.

New START may not be the most groundbreaking treaty ever, but it is a vital first step in moving U.S.-Russian relations forward and paving the way for additional nuclear reductions and nonproliferation efforts. Essentially all current and former officials and experts recommend verification of New START, and after more than 20 hearings and nearly 1,000 detailed questions answered it is time for the Senate to ratify the treaty. Continue reading

FAS Podcast: Debunking Common Misconceptions About Iran

Listen to a new edition of the FAS Podcast: “A Conversation With An Expert,” featuring Ms. Ivanka Barzashka and Dr. Ivan Oelrich, FAS experts on Iran. Topics discussed include an overview of nuclear negotiations between Iran and the West over the last year, the differences between FAS analysis and the points of view put forward by others in the NGO community and mainstream media, the biggest common misconception about the fuel deal, and much more!

Click here to download podcast.

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FAS Conference Call: A Conversation With An Expert

Listen to an FAS Conference Call: “A Conversation With An Expert”, that I recently had with FAS members. The conference call took place on November 4, 2010. The discussion centered around my recent article in the Bulletin of Atomic Scientists, titled “Next customer, please: The risk in conventional arms sales along with nuclear energy deals.” You can look for this article in the November/December BAS edition. FAS members and I discuss certain nuclear energy deals that could result in changing security perceptions and alliances.

Please give me your feedback! I will reply here to your questions and comments about the conference call and my article.

Subscribe to the FAS Podcast on Itunes here.

Thank you to all the FAS members who participated!

If you are not yet an FAS member, and would like to gain access to the next FAS Conference Call, join FAS today.

Thank you for your support!

FAS Podcast: Charles Ferguson, A Nuclear Energy Conference Call

Listen to an FAS Conference Call: “A Conversation With An Expert”, featuring FAS President Dr. Charles Ferguson. The conference call took place on November 4, 2010 with FAS members. The discussion centered around his recent article in the Bulletin of Atomic Scientists, titled “Next customer, please: The risk in conventional arms sales along with nuclear energy deals.” You can look for this article in the November/December BAS edition. Dr. Ferguson and FAS members discuss certain nuclear energy deals that could result in changing security perceptions and alliances.

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Better Oversight Due on Unclassified Control Markings

The use of access control markings such as the Transportation Security Agency’s “Sensitive Security Information” (SSI) to limit disclosure of unclassified records has been criticized from time to time as arbitrary and self-serving.  But now, due to a subtle change in the recent executive order on “Controlled Unclassified Information,” SSI and other such markings should receive new oversight and scrutiny.

In a preliminary draft (pdf) of the new executive order 13556 on Controlled Unclassified Information (at section 1.3b), four existing control markings were “grandfathered” into the new CUI system — Sensitive Security Information, Critical Infrastructure Information, Chemical Vulnerability Information, and Safeguards Information.  This means that they were presumptively approved for future use without any further review.

But in the final draft of the executive order approved by the President on November 4, that provision and those presumptive approvals were withdrawn.  Consequently, SSI and the other control markings will have to go through the same external review and approval process as other controls on unclassified information in order to qualify as CUI.

SSI and several other unclassified control categories are authorized in statute, so they cannot be categorically eliminated or disapproved by the CUI Executive Agent.  But what the CUI review process can do is to help ensure that what agencies claim is SSI really does fall into that category.

This became a live issue recently when the Transportation Security Administration moved to seal a lawsuit brought by a former TSA air marshal by claiming that the names of officials who disciplined and removed the air marshal are themselves SSI.  To outside observers, this appeared to be an abuse of the SSI control marking to gain tactical advantage in the lawsuit.  See “Why Is the TSA Keeping Air Marshal Employment Disputes Under a Veil of Secrecy?” by Nick Schwellenbach, Project on Government Oversight (POGO), November 2, 2010.

Eliminating the a priori approval of SSI markings from the CUI system should mean more scrupulous use of such markings, according to a government official involved in drafting the new executive order. “Treating them as any other allows oversight…to at least try to avoid the sort of alleged absurd decisions highlighted by POGO,” the official said.

A Good Leak: DoJ Report on History of Nazi-Hunting

In a revealing failure of Administration commitments to transparency, an official history of the U.S. government’s post-war pursuit of (or sometimes accommodation with) Nazi war criminals was obtained by the New York Times after the Department of Justice refused to release an unexpurgated version under the Freedom of Information Act.

The secret history was reported in “Nazis Were Given ‘Safe Haven’ in U.S., Report Says” by Eric Lichtblau in the New York Times, November 14.  The Times also posted the complete text of the document online.

A side-by-side review of the leaked and the redacted versions compels the conclusion that the Department of Justice exceeded its authority to withhold information from the public, and violated the disclosure requirements of the Freedom of Information Act. “Now that we can compare the redacted document with the complete text of the original report, it is clear that the Justice Department is withholding information without legal justification,” said attorney David Sobel, who represented the National Security Archive in its request for the document. “For an administration — and an Attorney General — supposedly committed to an ‘unprecedented’ level of transparency, this case provides a troubling example of how far the reality is from the rhetoric.”

But in a paradigmatic example of “a good leak” that advances the public interest, the unauthorized disclosure of the document succeeded where normal disclosure procedures failed.