Privacy and Organizational Persons
In A Corporate Right to Privacy, Elizabeth Pollman contributes to understanding an important set of issues that emerges from two large-scale developments in law and society.1 In this Article, we examine Professor Pollman’s contribution in the context of these larger developments, as well as her narrower claim regarding the interpretation of constitutional law. The first development concerns the notion of the “legal personality” of the institutions and organizations that compose the modern world, including: business firms; religious organizations; nonprofit associations; labor unions; and governments at different levels, ranging from cities to nation-states to combinations of nation-states in global bodies such as the European Union, the United Nations, and the World Trade Organization. A perennial question regarding all of these artificially created but socially real institutional “persons” concerns the appropriate scope of their legal powers and rights in different contexts.2 Recent United States Supreme Court opinions, for example, have expanded constitutional and statutory rights for business corporations. Citizens United recognized a constitutional right to contribute to political debates and elections in terms of “free speech” purchased with corporate money.3 Hobby Lobby found religiously oriented business corporations to qualify for legal exclusions from health care statutes of general application on grounds that forcing financial support of certain methods of contraception would violate a firm’s rights of “free exercise” of religion.4 The fascinating question Professor Pollman asks is whether these and other precedents might extend also to recognizing a constitutional “right of privacy” for corporate firms in various circumstances. The second large-scale development concerns the trajectory of legal and social concerns about privacy—and an expanding (or contracting) recognition of “rights of privacy.” The rise of individualism in Western societies—which has been exported unevenly to other parts of the world over the course of the last several centuries—has brought with it the idea that powerful social institutions, such as government, religious authority, and business firms, should observe limits with respect to individual autonomy, dignity, and “personal space.”6 This increasing concern for privacy has influenced constitutional law in the United States.7 Traditional privacy rights that protect “[t]he right of the people to be secure in their persons, houses, papers, and effects,”8 as recognized by the Fourth Amendment’s prohibition against unreasonable searches and seizures, have been supplemented by contemporary constitutional rights protecting personal decisions regarding sexual practices, pregnancy, reproduction, marriage, and family relationships.9 In addition, rights to privacy regarding some kinds of information—such as personal medical information or internet browsing history— may be emerging in constitutional law as well as in new statutes. In this Article, we recognize the enduring value of Professor Pollman’s contribution to understanding an important corner of the intersection of these two larger trends, namely, the specific question of whether “corporations” may claim a constitutional “right to privacy” in a manner analogous, for example, to the assertion of a constitutional right of freedom of speech under the First Amendment affirmed in Citizens United. Answering this question is no easy task. As Anita Allen, one of the foremost privacy scholars, has remarked, “fully explicating the reasons for denying . . . privacy rights to corporations is an occasion for abstract jurisprudence of a sort for which few have the time or temperament.”11 Pollman is an admirable exception. She collects the relevant legal materials and academic literature with confidence and evident mastery. Her ambition is impressive, and her approach is remarkably comprehensive. Her article will therefore serve as an excellent resource for courts and future scholars who will inevitably grapple with many new problems of “rights of privacy” as they arise in complex organizational situations. We could devote many pages to singing the praises of Pollman’s work, but instead we focus here on what we see as some of its conceptual limitations and make some recommendations for future research in this area. Our main criticism is that we do not think the conclusion that “most corporations in most circumstances should not have a constitutional right to privacy” is justified by the normative and legal arguments presented.12 We point out the range of uncertainty in previous and likely future cases regarding (1) the changing meanings of “privacy” in various contexts; (2) the different kinds of “corporations” as well as other organizational forms; and (3) the cogency of claims of corporate constitutional rights, especially privacy rights. We argue that significant variations in possible and likely future conceptual scenarios, as well as significant variations in likely factual circumstances, render any conclusion about “most corporations in most circumstances” tenuous and unsupported both normatively and empirically.13 We also question the jurisprudential claim that “rights” of corporations (or other human-created institutions) are always narrowly “derivative” in the sense employed by Pollman. Throughout, we assume that privacy rights are not fully reducible to other rights.14 We also assume that the distinctive interests that claims of “privacy” aim to cover are indeed worthy of protection. We organize our Article as follows. Part I elaborates some methodological concerns in approaching the general problem of “corporate rights of privacy.” Part II considers the conceptual relationship between corporations (and other organizational persons) and the idea of rights. We propose a framework that captures a difference between organizations asserting “primary” and “secondary” rights, which we believe will prove analytically helpful. Part III expands on the meaning of “privacy” and suggests that the broad conceptual scope, and indeed its many different meanings, counsels caution when answering whether a corporation may assert “a right of privacy.” Part IV discusses the wide range of meanings of “corporation” when used to refer to various types of associations and organizations—including business, nonprofit, and even government entities. We argue that nothing particularly special should attach to the corporate form with respect to whether rights regarding “privacy” should be recognized. Any organized group bestowed with the benefit of formal legal recognition should probably be included generically in the analysis of specific cases. Part V turns to consider the problem of organizational composition. Who counts as a member of an organization, and how does organizational membership translate into the normative language of privacy? We argue that complications involving group membership in organizations may often lead to different answers concerning privacy rights claims in different circumstances. Also, different kinds of organizations are created for different purposes, and these different purposes should also matter for legal and normative analysis.16 In Part VI, we point out another important dimension that falls outside of the scope of Pollman’s analysis but bears conceptually on a proper normative framing of the problem. In addition to questions of rights of privacy that may be asserted by organizations such as business corporations, it is important to consider the fact that many of these same organizations may find themselves tempted to violate the rights of privacy of individuals (or other organizations), especially in the brave new world of the internet. We thus highlight the threat to rights of privacy in the twenty-first century posed by large private organizations that have the ability to delve broadly and deeply into the digital archives of many people’s lives. We conclude that much work remains to be done in limning the lines of privacy with respect to organizational persons.