Ethics class

Article

A C o r p o r a te R ig h t to P r iv a c y

Elizabeth Pollman1

Do corporations have a constitutional right to privacy? Could a corporation claim a constitutional right to the nondis­ closure of its information, as AT&T might have argued in its recent Freedom of Information Act case? Might a corporation have a privacy claim if the Securities and Exchange Commis­ sion required it to disclose health information about its CEO, as Apple resisted disclosing information about Steve Jobs’s declin­ ing health? Does the ACLU have a right to privacy that is vio­ lated by the government’s mass collection and surveillance of its phone call metadata? Should corporations have such a right to privacy?

The Supreme Court has never squarely answered the cor­ porate right to privacy question. A 1950 case, United States v. Morton S alt Co., has been cited for the proposition that corpo­ rations have no constitutional right to privacy, but that was not the holding of the case, which notably predated the Court’s dec­ laration of a constitutional right to privacy.1 More recently in

t Associate Professor of Law, Loyola Law School, Los Angeles. For help­ ful comments and conversations, I thank Kelli Alces, Aditi Bagchi, Will Baude, Margaret Blair, Sam Bray, Ryan Calo, Nathan Chapman, Beth Colgan, Wendy Couture, Dick Craswell, Diane Lourdes Dick, Michael Dorff, Jared Ellias, Mi­ chael Guttentag, Michelle Harner, Joan Heminway, Paddy Ireland, Kate Judge, Mark Kelman, Kathleen Kim, Michael Klausner, Kevin Lapp, Jessica Levinson, Justin Levitt, Kaipo Matsumura, Ben Means, Sasha Natapoff, James Nelson, Priscilla Ocen, Dale Oesterle, Stefan Padfield, Terrill Pollman, Victoria Schwartz, Shirin Sinnar, Judy Stinson, Marcy Strauss, Anne Tucker, Michael Waterstone, and Adam Zimmerman. Thanks also to participants at the 2013 Annual Meeting of the Law and Society Association, the 2013 Na­ tional Business Law Scholars Conference at The Ohio State University Moritz College of Law, the Pacific West Business Law Scholars Conference at the University of Oregon School of Law, and the Junior Business Law Conference at the University of Colorado-Boulder Law School. Copyright © 2014 by Eliza­ beth Pollman.

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FCC v. AT&T, in which AT&T claimed a “personal privacy” ex­ emption under the Freedom of Information Act (FOIA) to shield its documents from public disclosure, the Court decided the case as a matter of statutory interpretation, specifically noting that the corporation had made no constitutional privacy claims. 1 2 Other federal and state courts have diverged on the is­ sue of a corporate constitutional right to privacy—some courts have rejected claims in opinions with little or flawed reasoning, and some have recognized a limited corporate right to privacy under the Federal Constitution in contexts like discovery and subpoenas, but have left the contours of the corporate right un­ defined. 3

This Article explores this question and attempts to provide a principled approach for answering it. Scholars have mined the depths of other topics such as whether corporations should have privacy rights at common law, 4 whether trade secret law resembles common law privacy torts, 5 and, most relatedly, whether corporations should have Fourth Amendment protec­ tions. 6 Others have conducted an economic analysis of privacy. 7 And scholars have examined privacy concerns, constitutional and otherwise, in various specific contexts such as litigation

1. United States v. Morton Salt Co., 338 U.S. 632 (1950) (establishing the standard under the Fourth Amendment for judicial enforcement of admin­ istrative subpoenas); see infra P art I.A.

2. FCC v. AT&T, 131 S. Ct. 1177, 1184 (2011). The case turned on the meaning of the word “personal” for purposes of the FOIA “personal privacy” exemption. The Court concluded th at corporations may not claim the FOIA personal privacy exemption because although the statute defines “person” to include corporations, adjectives like “personal” do not necessarily reflect the ordinary meaning of their corresponding nouns and the context of the statute does not support a reading th at would include corporations. Id. at 1181-85.

3. See infra P art I.B. 4. Anita L. Allen, Rethinking the Rule Against Corporate Privacy Rights:

Some Conceptual Quandaries for the Common Law, 20 J. MARSHALL L. Rev. 607 (1987).

5. Kim Lane Sc h e ppe l e, Legal Secrets 231-47,253-56 (1988). 6. See, e.g., William C. Heffeman, Fourth Amendment Privacy Interests,

92 J. Crim. L. & CRIMINOLOGY 1, 76-80 (2002); Christopher Slobogin, Citizens United & Corporate & Human Crime, 14 GREEN BAG 2d 77, 83-84 (2010); Christopher Slobogin, Subpoenas and Privacy, 54 De Paul L. Rev. 805, 814-19 (2005) [hereinafter Slobogin, Subpoenas],

7. E.g., Richard A. P osner, The E conomics of J ustice 231-47 (1981); Richard S. Murphy, Property Rights in Personal Information: An Economic De­ fense o f Privacy, 84 GEO. L.J. 2381 (1996); Richard A. Posner, The Right of Privacy, 12 Ga . L. Rev. 393 (1978).

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discovery, 8 subpoenas, 9 bank secrecy, 10 and FOIA exemptions, including the recent FCC v. AT& T case concerning the “per­ sonal privacy” exemption. * 11 Yet scholars have all but overlooked whether a corporate constitutional right to privacy exists as such. 12

8. Jordana Cooper, Beyond Judicial Discretion: Toward a Rights-Based Theory o f Civil Discovery and Protective Orders, 36 RUTGERS L.J. 775, 779-81, 810-13 (2005); Elizabeth A. Rowe, Trade Secret Litigation and Free Speech: Is I t Time To Restrain the P laintiffs?, 50 B.C. L. REV. 1425, 1426 (2009); see also Ronald J. Allen & Cynthia M. Hazelwood, Preserving the Confidentiality o f I n ­ ternal Corporate Investigations, 12 J. CORP. L. 355, 357 (1987). See generally J erome G. Snider et al., Corporate Privileges and Confidential In­ formation (2014) (describing the apphcation of privacy case law to corporate litigation).

9. See, e.g., Slobogin, Subpoenas, supra note 6, at 809-10; Abraham Tabaie, Note, Protecting Privacy Expectations and Personal Documents in SE C Investigations, 81 S. CAL. L. REV. 781, 815 (2008).

10. See, e.g., Bradley J. Bondi, Don’t Tread on Me: Has the United States Government’s Quest for Customer Records from UBS Sounded the Death Knell for Sw iss B ank Secrecy Laws?, 30 Nw. J. INT’L L. & BUS. 1, 1, 3-7 (2010); Laura Szarmach, Note, Piercing the Veil o f B ank Secrecy? Assessing the United States’ Settlem ent in the UBS Case, 43 CORNELL INT’L L.J. 409, 431 (2010).

11. See Daniel Greenwood, FCC v. AT&T: The Idolatry o f Corporations and Impersonal Privacy (Hofstra Univ. Legal Research Paper Series, Research Paper No. 11-16, 2011), available a t http://papers.ssm.com/sol3/papers.cfin? abstract_id=1884965; Scott A. Hartman, Comment, Privacy, Personhood, and the Courts: FOIA Exemption 7(C) in Context, 120 YALE L.J. 379 (2010); Maeve E. Huggins, Comment, Don’t Take It Personally: Supreme Court Finds Corpo­ rations Lack Personal Privacy Under FOIA Exemptions, 19 COMMLAW CON­ SPECTUS 481 (2011); Kathleen Vermazen Radez, Survey, The Freedom o f I n ­ formation A ct Exemption 4: Protecting Corporate Reputation in the Post-Crash Regulatory Environment, 2010 COLUM. BUS. L. REV. 632, 650-51, 663 (2010). Commentators on the recent A T & T case asserted with httle explanation that corporations have no, and ought to have no, right to privacy. E.g., Dahlia Lithwick, Privacy Rights Inc., SLATE (Oct. 14, 2010, 6:42 PM), http://www.slate.com/id/2270956/; Nell Minow, Supreme Court to Consider Corporate “Privacy” Rights, DAILY VIEWPOINT (Nov. 18, 2010), http:// www3 .gmiratings .com/home/2010/11/supreme-court-to-consider-corporate -privacy-rights/; Alan B. Morrison, Privacy for People, N ot Corporations, PO­ LITICO (Dec. 30, 2010, 4:31 AM), http://www.politico.com/news/stories/1210/ 46901.html.

12. There is a very small literature examining this question and it is lim­ ited in approach. See EDWARD J. BLOUSTEIN, INDIVIDUAL & GROUP PRIVACY 140-46 (2d prtg. 2004), discussed infra P art III .A; RUSSELL B. STEVENSON, J r ., Corporations and Information: Secrecy, Access, and Disclosure 6, 69-75 (1980) (discussing corporate interest in preserving the security of in­ formation and arguing th at a corporate right to privacy is “on its face an ab­ surdity” because privacy involves human values that a corporation cannot claim); William C. Lindsay, Comment, When Uncle S a m Calls Does Ma Bell Have To Answer?: Recognizing a Constitutional R ight to Corporate Inform a­ tional Privacy, 18 J. MARSHALL L. Rev. 915 (1985) (arguing th at corporations should have a constitutional right to informational privacy under Whalen v.

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The question of whether corporations have, or should have, a constitutional right to privacy merits more consideration. Privacy can facilitate both socially beneficial and harmful activ­ ity. 13 Businesses would be impaired without some ability to con­ trol access to their information and affairs. 14 Trade secret, cor­ porate privileges, and other statutory and common law protections may fill this need, though, and constitutional priva­ cy interests may not be implicated in these business circum­ stances. 15 Some corporations are not large businesses, however; they may be formed by small groups of individuals associating to pursue social, political, or religious goals. The corporation may be better positioned or the only effective actor to vindicate the privacy interests of these individuals acting in association. Further, the freedom to associate, a right that is understood to extend to groups including corporations, is linked to the concept of privacy. 16 In NAACP v. Alabama ex rel. Patterson, in which the Supreme Court held that state-compelled disclosure of the civil rights group’s membership list was invalid as restraining the members’ freedom of association, the Court recognized “the vital relationship between freedom to associate and privacy in one’s associations. ” 17 Constitutional rights are interdependent with and constrain government power. 18 Thus, there are rea-

Roe, 429 U.S. 589 (1977)). Stevenson asserts th at “[corporations can no more be injured by an invasion of their ‘privacy’ than they can swear, scratch, make love, or engage in any of the other flesh-and-blood activities th a t the walls of privacy serve to protect from unwanted observation.” STEVENSON, supra, at 69.

13. Anita L. Allen, Uneasy Access: Privacy for Women in a Free So­ ciety 40 (1998) (“Privacy can be used for good or ill, to help or to harm.”); Daniel J. Solove, Understanding Privacy 99 (2008) (“Privacy facilitates many activities, from the worthy to the wicked.”).

14. See, e.g., Privacy and the Rights o f Federal Employees: Hearing on S. 3779 Before the Subcomm. on Constitutional Rights of the S. Comm, on the Judiciary, 89th Cong. 818 (1967) (“If all written memos and policy discussions were subject to immediate publication, or if private organizations knew they were under continuous monitoring by government agents, much of the debate would automatically become formalized. . . . [G]radual accommodation of di­ vergent views within the organization would be hampered.”).

15. See SCHEPPELE, supra note 5, at 231-47. 16. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958). 17. Id. 18. Richard H. Fallon, Jr., Individual Rights and the Powers o f Govern­

ment, 27 GA. L. REV. 343, 343-45 (1993); see also Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitu­ tionalism, 27 J. LEGAL Stud. 725, 725 (1998) (“Most often, rights police the kinds of justifications government can act on in different spheres rather than protecting atomistic interests in autonomy, or liberty, or dignity. Rights there-

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sons to believe a constitutional right to privacy may be an im­ portant check against government power for individuals who act together through the corporate form, but that according such a right to all corporations would be unfounded and could powerfully shield them from investigation or regulation. 19

Any extension of the right to corporations indeed requires particularly careful analysis as the Federal Constitution in­ cludes no express reference to a right to privacy and it is one of the least defined rights in the law. 20 Courts have found roots for privacy in a variety of provisions and their “penumbras. ” 21 In Griswold v. Connecticut, the Supreme Court’s first recognition of an independent right to privacy, the Court famously located the right in “zones of privacy” emanating from the First, Third, Fourth, Fifth, and Ninth Amendments. 22 Since then, the Court has expanded this line of cases concerning autonomy in making certain important decisions by relying on the Equal Protection Clause of the Fourteenth Amendment and the Due Process

fore serve as tools courts use to evaluate the social meanings and expressive dimensions of governmental action.”); cf. RONALD DWORKIN, Rights as Trumps, in THEORIES OF RIGHTS 153-67 (Jerem y Waldron ed., 1984) (charac­ terizing rights as “trum ps” th a t protect individual interests against collective goals or m ajoritarian preferences); RONALD DWORKIN, TAKING RIGHTS SERI­ OUSLY 184-205 (1977) (same); JOHN HART ELY, DEMOCRACY AND DISTRUST 36 (1980) (conceiving of rights as “trum ps” th a t “can cut across or ‘tra m p ’ pow­ ers”). For a discussion of w hat it m eans for a right to have constitutional sta ­ tus, see Richard Prim us, Unbundling Constitutionality, 80 U. CHI. L. REV. 1079, 1087 (2013) (“[T]he attrib u tes of constitutionality behave more like sticks in a bundle th a n like a set of necessary bases and th e payoffs th a t follow . . . .”).

19. This Article uses the term “rights” as understood in popular usage; a right privileges or protects the interest or claim of the right holder, but is not absolute because in a particular instance a rival interest could prevail. See Roderick M. Hills, Jr., The Constitutional Rights of Private Governments, 78 N.Y.U. L. REV. 144, 154 (2003).

20. See RICHARD CLAYTON & HUGH TOMLINSON, PRIVACY AND FREEDOM OF EXPRESSION 1 (2010). Privacy law is a patchwork of legal sources: th e Con­ stitution, state constitutions, federal and state statu tes, and common law. See generally ALAN F. WESTIN, PRIVACY AND FREEDOM 330-64 (1967) (discussing various historical developments in U.S. privacy law). Depending on the cir­ cumstances, different legal doctrines may govern the resolution of a claimed privacy right. This Article concerns a right of privacy under th e Federal Con­ stitution.

21. Griswold v. Connecticut, 381 U.S. 479, 483-84 (1965). See generally Laurence H. Tr ib e, American Constitutional Law 1308-12 (2d ed. 1988) (discussing the sources of protected rights of “personhood”); WESTIN, supra note 20, at 349-56 (describing Griswold in the context of a historical review of American privacy law).

22. 381 U.S. at 484.

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Clauses of the Fifth and Fourteenth Amendments. 23 The Court has also raised the possibility of a separate privacy interest premised on nondisclosure of information that stems from the Fourth and Fourteenth Amendments. 24

This Article argues that most corporations in most circum­ stances should not have a constitutional right to privacy. There is simply no natural person, or persons, associated in a corpora­ tion with a privacy interest at stake and a need for the corpora­ tion to vindicate it. Yet because corporations are not monolith­ ic, but rather exist along a spectrum, this Article also highlights that some nonprofit and private corporations could present a stronger claim in limited circumstances given their varying purposes and dynamics, particularly in social, political, and religious realms. 25

The Article develops this analysis in three parts. Part I shows it is an open question in Supreme Court jurisprudence whether corporations have a constitutional right to privacy and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on this unresolved issue. Part II examines corporate rights jurisprudence, showing that the Court has not developed a coherent method or test for these determinations, but has often relied on a view of the corpora­ tion as an association in extending rights to corporations on a derivative basis. Building on the underlying framework of the jurisprudence, and the closest articulations of a test the Court has made, this Article asserts that in determining whether to accord a right to a corporation, we should look to whether the purpose of the right is served by according it to the corporation in question—that is, whether it is necessary in order to protect natural persons—and whether the right is of a type that inheres only in an individual in his or her individual capacity.

23. See Lawrence v. Texas, 539 U.S. 558, 564-76 (2003) (discussing priva­ cy case law history).

24. See infra P art III.A. 25. As this Article was in the publication process, the Supreme Court

handed down its opinion in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), holding th at federal regulations requiring employers to provide insurance coverage for certain forms of contraception violate the Religious Freedom Restoration Act of 1993 (RFRA) as applied to certain closely held corporations, each owned and controlled by members of a single family with sincerely held religious beliefs. Notably, the Court based its decision on statu­ tory grounds under RFRA rather than the First Amendment. For a critical discussion of the case, see Margaret Blair & Elizabeth Pollman, The Derivative Nature o f Corporate Constitutional Rights, 56 WM. & MARY L. REV. (forthcom­ ing 2015) (on file with author).

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Using this approach, Part III explores whether the right to pri­ vacy should extend to corporations. Specifically, the analysis looks to whether a corporate right to privacy would protect the privacy interests of the people involved, such as shareholders, directors, and officers, or other participants such as employees. This approach keeps in focus that people are the object of con­ stitutional protection; granting rights to corporations makes sense only as a means to protect people and carry out the pur­ pose of the right. Finally, Part III explores deeper issues raised by the inquiry—whether there is something specific about the right to privacy or the corporate form that would categorically foreclose all corporations from having such a right—and con­ siders what the future may hold in this area.

I. THE OPEN QUESTION OF CORPORATE PRIVACY The existing case law addressing whether corporations

have a constitutional right to privacy is in disarray and has, to date, escaped scholarly attention. Above all, the existing case law shows that the Supreme Court has not squarely answered the question and that there is a small, but growing body of con­ flicting law in the lower federal courts and state courts on this unresolved issue. This Part examines the case law, which shows the growing importance of the issue and the need for a more coherent approach to the corporate privacy question and to corporate rights jurisprudence more generally. 26

26. Although there is a short line of cases that use the term “commercial privacy” in their rationale, these cases concern trade secret or unfair competi­ tion law and do not clearly implicate a constitutional right. See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 487 (1974) (“A most fundamental human right, that of privacy, is threatened when industrial espionage is condoned or is made profitable; the state interest in denying profit to such illegal ventures is unchallengeable.” (footnote omitted)); E.I. duPont de Nemours & Co. v. Christopher, 431 F.2d 1012, 1016 (1970) (“Commercial privacy must be pro­ tected from espionage which could not have been reasonably anticipated or prevented.”); BLOUSTEIN, supra note 12, at 129, 145-46 (citing Kewanee Oil in support of a corporation’s right to protect trade secrets); M. Ryan Calo, The Boundaries of Privacy Harm, 86 IND. L.J. 1131, 1134 n.13 (2011) (noting that the invasion of “commercial privacy” in duPont might have been better de­ scribed as unfair competition); Rowe, supra note 8, at 1434—35 (noting that although Kewanee Oil and duPont “appear to have laud the foundation for commercial privacy in trade secret jurisprudence, the concept has remained undefined”).

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A. S u p r e m e C o u r t : Un i t e d S t a t e s v . M o r t o n S a l t C o . Morton Salt is the Supreme Court’s primary decision that,

at least notionally, addresses whether corporations have a con­ stitutional right to privacy. 27 In it, the Court stated, “corpora­ tions can claim no equality with individuals in the enjoyment of a right to privacy. ” 28 That phrase, and the few paragraphs of discussion around it, has received little to no scrutiny, however, and later courts have relied on it to inconsistently reject and recognize a corporate right to privacy. 29 This section explores the ways in which Morton Salt left open the question of wheth­ er corporations have a constitutional right to privacy.

The case concerned whether the Federal Trade Commis­ sion could require Morton Salt, a corporation, to file reports showing compliance with an earlier order to stop engaging in certain trade practices. 30 Much of the Supreme Court’s opinion focused on three of Morton Salt’s claims regarding jurisdiction and the Administrative Procedure Act; only a small sliver ad­ dressed Morton Salt’s other argument, that the order was “nov­ el and arbitrary and violate [d] the Fourth and Fifth Amend­ ments to the Constitution. ” 31

The Court began that sliver of explanation by framing pri­ vacy, the “right to be let alone,” as only concerning Fourth Amendment search and seizure protections and the Fifth Amendment privilege against self-incrimination. 32 This narrow

27. United States v. Morton Salt Co., 338 U.S. 632 (1950). California Bankers A ss’n v. Shultz, 416 U.S. 21 (1974), is occasionally also cited in con­ nection with the concept of corporations’ constitutional privacy. E.g., Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 486 n.10 (Minn. 1985). Cali­ fornia Bankers concerned the constitutionality of the Bank Secrecy Act of 1970, which required financial institutions to keep records of some customers and large transactions. Cal. Bankers, 416 U.S. at 30-41. The Court focused on the plaintiffs’ specific claims rather than a right to privacy as such, holding the First Amendment claim was premature, the Fourth Amendment claim failed because the regulations did not impose an unreasonable reporting re­ quirement (citing Morton Salt), and the Fifth Amendment claim failed because corporations have no privilege against self-incrimination and the banks did not have standing to assert claims on behalf of customers. Id. at 41-43, 52, 56-57, 66-67, 71.

28. Morton Salt, 338 U.S. at 652. 29. See infra P art I.B. 30. Morton Salt, 338 U.S. at 634. 31. See id. at 638, 651—54. Morton Salt is often cited for its rule regarding

the scope of issues th at may be litigated in a subpoena enforcement proceed­ ing. See, e.g., In re McVane, 44 F.3d 1127, 1135 (2d Cir. 1995).

32. Morton Salt, 338 U.S. at 651-52 (citations omitted). There is a history of Fourth and Fifth Amendment claims in this vein. See POSNER, supra note 7,

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view reflects the early state of privacy jurisprudence at the time. 33 Notably, this case predated the Court’s recognition in Griswold v. Connecticut of an independent right to privacy based on a variety of Bill of Rights provisions creating a “zone of privacy” and the Court’s case law concerning a constitutional right to privacy in nondisclosure of personal information. 34 Thus, Morton Salt tells us little, if anything, about whether the Court would conclude that corporations have a right to privacy, as currently understood.

Further, besides predating the Court’s privacy jurispru­ dence, Morton Salt also presented particularly weak circum­ stances for finding a privacy interest with the corporation’s at­ tempt to completely avoid the Commission’s valid request for information about its trade practices. With the Court’s narrow framing of privacy in place, it very quickly rejected Morton Salt’s Fourth and Fifth Amendment claims. 30 The Court cited Oklahoma Press, in which it had ruled in similar circumstances that no actual search or seizure occurred where the Commis­ sion properly subpoenaed corporate records pursuant to a valid statute. 36 Like Morton Salt, the corporations there had not ob­ jected to a specific defect in the breadth or terms of the request for corporate records, and so the Court rejected their claims as effectively seeking total immunity from the statute. 37 The Court also cited Hale v. Henkel, which established that corporations cannot claim a Fifth Amendment privilege against self­ incrimination, and that corporations are not beyond the reach of congressional and judicial power. 38

at 311 (“Long before the tort right of privacy came before the Supreme Court, and even before Warren and Brandeis wrote their famous article on privacy, the Court was confronted with claims to the protection of privacy under the Fourth and Fifth Amendments.”).

33. See infra Part III. A for a discussion of Supreme Court privacy juris­ prudence. See also Daniel B. Yeager, Search, Seizure, and the Positive Law: Expectations of Privacy Outside the Fourth Amendment, 84 J. CRIM. L. & CRIMINOLOGY 249, 277-78 (1993) (“In the 1940s and ’50s, the Court spoke of­ ten of the Fourth Amendment’s protection of a right of privacy”).

34. Griswold v. Connecticut, 381 U.S. 479, 484 (1965). See infra Part III.A for a discussion of Supreme Court privacy jurisprudence.

35. Morton Salt, 338 U.S. at 651-54. 36. Id. at 651-52 (citing Okla. Press Publ’g Co. v. Walling, 327 U.S. 186

(1946)). 37. Okla. Press, 327 U.S. at 195-96; see Morton Salt, 338 U.S. at 653-54. 38. Morton Salt, 338 U.S. at 651-52 (citing Hale v. Henkel, 201 U.S. 43,

70 (1906)); see also Okla. Press, 327 U.S. at 196 (“Petitioners’ plea that the Fourth Amendment places them so far above the law that they are beyond the reach of congressional and judicial power as those powers have been exerted

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The subsequent paragraph of the opinion, following the Court’s compact rejection of Morton Salt’s claims, is home to the Court’s oft-quoted statement that “corporations can claim no equality with individuals in the enjoyment of a right to pri­ vacy”:

While they may and should have protection from unlawful de­ mands made in the name of public investigation, corporations can claim no equality with individuals in the enjoyment of a right to pri­ vacy. They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. Even if one were to regard the request for information in this case as caused by noth­ ing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves th at corporate behavior is consistent with the law and the public interest.39

Taken out of context the “no equality” phrase has been wrongly understood as establishing that corporations have no right to privacy. 40 The plain language of the phrase does not establish such a proposition; it says only that such a right is not equal to that of individuals. In addition, the above paragraph shows that before the “no equality” phrase, the Court recognized that there are some limits to the government’s access to corporate information in investigations. 41 Thus, the language, textual

here only raises the ghost of controversy long since settled adversely to their claim.”).

39. Morton Salt, 338 U.S. at 652 (citations omitted). 40. In dicta in two concurrences, a Supreme Court Justice has taken Mor­

ton Salt as establishing th at corporations have not ju st an unequal right, but no right to privacy. Browning-Ferris Indus, of Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 284 (1989) (O’Connor, J., concurring in part and dissenting in part); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 184 (1951) (Jack- son, J., concurring). Without providing a citation, Justice Rehnquist stated in a dissent in which he argued against negative free speech rights for corpora­ tions: “This argument is bolstered by the fact th at the two constitutional liber­ ties most closely analogous to the right to refrain from speaking—the Fifth Amendment right to remain silent and the constitutional right of privacy— have been denied to corporations based on their corporate status.” Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1, 34 (Rehnquist, J., dissent­ ing). In addition, other courts have also cited Morton Salt or other cases for the proposition th at corporations have no right to privacy. See infra note 43; see also RESTATEMENT (SECOND) OF TORTS § 652IA, cmt. c (1977) (citing Mor­ ton Salt for the proposition th at “[a] corporation has no such right of privacy”).

41. For the proposition th at corporations “may and should have protection from unlawful demands made in the name of public investigation,” Morton Salt, 338 U.S. at 652, the Court cited American Tobacco, an opinion by Justice Holmes holding th at the Federal Trade Commission did not have unlimited access to corporations’ papers in connection with an investigation about possi-

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context, and more general jurisprudential context show the Court did not hold that corporations have no right to privacy, but rather suggested that corporations have a Fourth Amend­ ment right unequal to that of individuals. 42

In sum, with its dated view of privacy and “no equality” phrasing, Morton Salt did not squarely resolve whether corpo­ rations have a constitutional right to privacy. While it rejected equality in privacy protection for corporations with regard to Fourth Amendment protection for the type of agency order it was addressing, it did not answer the question more generally or with regard to other privacy interests.

B. P o s t -M o r t o n S a l t : C o n f l i c t in t h e F e d e r a l a n d S t a t e C o u r t s

Lower courts have relied on Morton Salt in reaching diver­ gent answers to the question of whether a corporation may claim a constitutional right to privacy. Their disparity under­ scores that Morton Salt left much unresolved and their reason­ ing—often conclusory, formalistic, or undeveloped—shows that the area needs greater illumination.

ble unfair competition practices. FTC v. Am. Tobacco Co., 264 U.S. 298 (1924). There, the Court noted th at while the Commission could access documentary evidence it could not consistent with the Fourth Amendment “direct fishing expeditions into private papers on the possibility th a t they may disclose evi­ dence of crime” because it would be “contrary to first principles of justice.” Id. at 306.

42. As a m atter of precedential weight, it is worth noting th a t some jurists and commentators might additionally view the Morton Salt reasoning, based on the “concession” view of the corporation, as problematic. The “concession” view of corporations as creatures of the state, artificial beings subject to en­ hanced regulation, was developed and popularized between the seventeenth and nineteenth centuries, but the Supreme Court had largely shifted away from that view by 1950, and the Court has since called it an “extreme posi­ tion.” See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 778 n.14 (1978) (characterizing the argument that “corporations, as creatures of the State, have only those rights granted them by the State” as an “extreme position”); see also, e.g., Reuven S. Avi-Yonah, Citizens United and the Corporate Form, 2010 WlS. L. REV. 999, 1011-12 (discussing the decline of the concession view in the mid-nineteenth century). For arguments that the “concession” view of the corporation should be rehabilitated, see David Ciepley, Neither Persons nor Associations: Against Constitutional Rights for Corporations, 1 J.L. & CTS. 2 (2013); Reza Dibadj, (Mis)conceptions of the Corporation, 29 Ga. St. U. L. REV. 731 (2013); Stefan Padfield, Rehabilitating Concession Theory, 66 OKLA. L. REV. 327 (2014).

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1. Cases Rejecting a Corporate Constitutional Right to Privacy Nearly a dozen courts have cited Morton Salt, with little

explanation, for the proposition that corporations do not have a constitutional right to privacy.43 The Ninth Circuit has come to

43. Arnold v. Pa. Dep’t of Transp., 477 P.3d 105, 111 (3d Cir. 2007) (stat­ ing th at “[t]he District Court correctly found that, as an entity, Baker clearly had no privacy interest capable of protection at stake here” and citing Morton Salt (internal quotation marks omitted)); Crum & Crum Enters., Inc. v. NDC of Cal., L.P., Civ. No. 09-145 (RBK), 2011 WL 886356, at *3 (D. Del. Mar. 10, 2011) (stating “business entities do not have a right to privacy” and citing A r­ nold with internal citation to Morton Salt); Fla. Ass’n of Profl Lobbyists, Inc. v. Div. of Legislative Info. Servs., 431 F. Supp. 2d 1228, 1236 (N.D. Fla. 2006) (rejecting privacy claims of lobbying firms because the federal constitutional right to privacy extends only to natural persons, and citing California Bankers Ass’n v. Shultz, 416 U.S. 21, 65 (1974), with internal quotation to Morton Salt); Muratore v. Dep’t of Treasury, 315 F. Supp. 2d 305, 310-11 (W.D.N.Y. 2004) (quoting as binding authority Justice O’Connor’s concurrence in Brown- ing-Ferris which relied on Morton Salt: “[T]he Supreme Court has held th at ‘a corporation has no . . . right to privacy.’ A demand for ESI’s corporate docu­ ments, then, does not implicate the Fourth Amendment.” (citation omitted)); Doe v. Veneman, 230 F. Supp. 2d 739, 750 n.5 (W.D. Tex. 2002) (“[A] business organization is a person only by legal fiction. It is not an individual with Con­ stitutionally protected rights.” (citing Morton Salt, 338 U.S. at 651-52)), over­ ruled on other grounds, 380 F.3d 807 (5th Cir. 2004); Clinton Cmty. Hosp. Corp. v. S. Md. Med. Ctr., 374 F. Supp. 450, 456 (D. Md. 1974) (holding th at a corporation cannot assert an injury to its aesthetic enjoyment of the environ­ ment under NEPA, and citing Morton Salt for the proposition th at “[i]t is clear th at corporations do not enjoy a right to privacy”); Warner-Lambert Co. v. Execuquest Corp., 691 N.E.2d 545, 548 (Mass. 1998) (denying a corporation a state statutory right to privacy, stating that “[c]ases from other jurisdictions unanimously deny a right of privacy to corporations,” and citing Morton Salt); Health Cent. v. Comm’r of Ins., 393 N.W.2d 625, 630 (Ct. App. Mich. 1986) (stating th at “the right of privacy is primarily designed to protect the feelings and sensibilities of human beings and does not protect artificial entities” and citing Morton Salt); see also Oasis Nite Club, Inc. v. Diebold, Inc., 261 F. Supp. 173, 175 (D. Md. 1966) (stating th at as a corporation the plaintiff “cannot be said to possess a right of privacy” and citing Morton Salt, despite the case at hand being a civil suit between private parties) (internal quotation marks omitted); Ass’n for Pres, of Freedom of Choice, Inc. v. Emergency Civil Liber­ ties Comm., 236 N.Y.S.2d 216, 218 (N.Y. Sup. Ct. 1966) (rejecting a corpora­ tion’s claim for privacy and citing Morton Salt for the proposition that “[t]here are statements in cases decided elsewhere th at a corporation has no right of privacy"); supra note 40 (discussing dicta in two Supreme Court concurrences th at reference Morton Salt as establishing th at corporations have no right to privacy); cf. Regency Catering Servs., Inc. v. City of Wilkes-Barre, 640 F. Supp. 29, 30—31 (M.D. Pa. 1985) (rejecting a catering corporation’s privacy claim based on city disclosure of mouse infestation because constitutional pri­ vacy cases involved “intensely personal aspects of the private lives of individu­ als’ and plaintiff failed to cite any case which held a corporation could claim a right to privacy); In re Food Int’l, Inc., Nos. 97-27194 JKF, 98-2173, 1999 WL 1052525, at *6 (Bankr. W.D. Pa. Nov. 19, 1999) (following Regency Catering in

2014] CORPORATE RIGHT TO PRIVACY 39

the same result, while providing a bit more reasoning. In Fleck & Associates, Inc. v. City of Phoenix, the Ninth Circuit rejected a corporation’s claim that a city ordinance prohibiting the oper­ ation of live sex act businesses violated its constitutional right to privacy. 44 The corporation, a social club for gay men, specifi­ cally identified the source of its privacy right as the liberty guarantee described in Lawrence v. Texas. 45

The Ninth Circuit started its analysis with Morton Salt’s statement that “corporations can claim no equality with indi­ viduals in the enjoyment of a right to privacy. ” 46 It then rea­ soned that because corporations are not entitled to “purely per­ sonal guarantees” 47 and because “it is hard to imagine a constitutional guarantee that could be more inherently person­ al and therefore unavailable to a corporate entity” than priva­ cy, corporations have no right to privacy. 48 The court quoted Chief Justice Marshall’s well-known characterization of a cor­ poration as “an artificial being, invisible, intangible, and exist­ ing only in contemplation of law. ” 49 And in its own words, the court further explained: “Corporations are not self-defining au­ tonomous creatures worthy of respect and dignity in the rele­ vant sense. Neither do they have private lives, let alone ‘private lives in matters pertaining to sex’ as Fleck would have it. ” 60 Thus, the court formalistically reasoned that because a corpo­ ration is an artificial being and not the type of creature that has a private life, corporations do not have a cognizable right to privacy. For this reason, the court ruled that the corporation had failed to plead “the invasion of any cognizable right,” and so had failed to establish standing. 61

rejecting a privacy claim of a restaurant corporation that had an incident pub­ licized about its cook allegedly spitting in a police officer’s food).

44. 471 F.3d 1100 (9th Cir. 2006). 45. Id. at 1104 (citing Lawrence v. Texas, 539 U.S. 558 (2003)). 46. Id. (quoting Morton Salt, 338 U.S. at 652). 47. Id. (quoting Bellotti, 435 U.S. at 778 n.14). 48. Id. at 1104-05. 49. Id. at 1105 (quoting Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4

Wheat.) 518, 636 (1819)). 50. Id. 51. Id. at 1104. The court stated th at Fleck’s claim was “really just a

claim th at Fleck should be allowed to champion the liberty interests of its cus­ tomers,” and th at it could not do so under traditional standing doctrine be­ cause it failed to meet the constitutional requirements for standing. Id. at 1105. Fleck also could not obtain associational standing because it did not have “members” as required by the doctrine because its “members” were mere­ ly customers and the purpose of the “association” was for profit, not to ‘“ex-

40 MINNESOTA LAW REVIEW [99:27

2. Cases Recognizing a Limited Corporate Constitutional Right to Privacy

In contrast to the various state courts, federal district courts, and the Ninth Circuit, which have stated that corpora­ tions lack a right to privacy, either with a conclusory approach or based on the notion that corporations are artificial and un­ like natural persons, the D.C. Circuit and California state courts have recognized a limited corporate right to privacy.62 These cases accord a lessened privacy right to corporations, giv­ ing a nod to Morton S a lt’s “no equality” phrase, but nonetheless recognizing a right.53

The beginning of this line of cases goes back over thirty years and involves a battle with the Church of Scientology over sealing and returning seized documents. In United States v. Hubbard, the D.C. Circuit found that the Church, a corporation and third party to the underlying litigation, had a privacy in­ terest in preventing its seized documents from becoming pub­ lic.04 The court left undefined the source of the privacy interest, but stated that it was at least partly a constitutional matter.55

press the collective views and protect the collective interests’ of their mem­ bers.” Id. at 1105-06 (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 345 (1977)).

52. A 1979 case from the District of Puerto Rico also suggested th at corpo­ rations enjoy a limited privacy right. Colegio Puertorriqueno De Ninas, Liceo Ponceno, Inc. v. Pesquera De Busquets, 464 P. Supp. 761, 765-66 (1979). There, several private schools and a professional organization of private schools claimed th a t a state inquiry into the cost of running the schools violat­ ed their privacy rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Id. at 763. The court examined the right to privacy case law and stated: “The foregoing does not mean th at corporations or other entities which do not possess human individuality do not enjoy privacy rights. However, their sphere of protected privacy is lesser in scope than th at of individuals.” Id. at 765 (citation omitted). The court concluded th at the state inquiry there did not transgress the bounds of any constitutional guarantees, including a privacy interest in nondisclosure under Whalen v. Roe, 429 U.S. 589 (1977). Pesquera De Busquets, 464 F. Supp. at 766-68.

53. See supra P art I.A. 54. 650 F.2d 293, 307 (D.C. Cir. 1980). 55. Id. at 302-03 (“Although we decline the Church’s invitation expressly

to ground the Church’s protectible interests in the Constitution’s provisions, we find the kinds of interests asserted to have some constitutional footing, both cognate to and supportive of, constitutional rights.”). The court supported this assertion by noting that corporations have rights under the Fourth Amendment which “protect [s] legitimate expectations of privacy,” and it also generally referred to the right to privacy as stemming from the Fourteenth and Fifth Amendments which protect against deprivations of liberty and “en­ croachment upon a constitutionally recognized sphere of personal privacy.” Id. at 304-05.

2014] CORPORATE RIGHT TO PRIVACY 41

Referencing Morton Salt as well as a mix of state and federal cases, 56 the court concluded that while the “public attributes of corporations may indeed reduce pro tanto the reasonability of their expectation of privacy,” a bright line could not be drawn at the corporate structure. 57 Instead, “the nature and purposes of the corporate entity and the nature of the interest sought to be protected will determine the question whether under given facts the corporation per se has a protectible privacy interest. ” 58 Finally, without deeper explanation or greater specificity, the court emphasized that the corporation at hand was a church: “]W]hether acting for itself or on behalf of its members, surely the privacy interests of a ‘church’ must be assessed somewhat differently from the privacy interests of other sorts of ‘corpora­ tions. ’” 59

Although later vacated on other grounds, another case from the D.C. Circuit also recognized a corporation as having a constitutional privacy interest in the nondisclosure of docu­ ments. 60 In Tavoulareas v. Washington Post Co., non-party Mo­ bil Oil sought to seal its documents obtained in discovery and not used at trial. 61 The panel reasoned that a court might impli­ cate a constitutional privacy interest in nondisclosure when it forces disclosure of personal information in the discovery con­ text, and in those circumstances a corporation’s interest would be “essentially identical” to an individual’s . 62

56. Id. at 305-06. The Hubbard court referred to privacy as having been embraced both in D.C. and in California, seemingly because the documents seized from the Church of Scientology were from church buildings in Los An­ geles. Since Hubbard, California courts have clarified th at corporations may not claim a right to privacy under the California Constitution. Roberts v. Gulf Oil Corp., 147 Cal. App. 3d 770, 791 (1983).

57. Hubbard, 650 F.2d at 306. 58. Id. 59. Id. (“[A]t least certain types of organizations—corporate or non­

corporate—should be able to assert in good faith the privacy interests of their members”).

60. Tavoulareas v. Wash. Post Co., 724 F.2d 1010 (D.C. Cir. 1984), vacat­ ed on other grounds, 737 F.2d 1170 (D.C. Cir. 1984) (en banc) (per curiam).

61. Id. at 1014-15, 1023, 1028-29. 62. Id. at 1021-22, 1025-29 (recognizing th at corporations have an une­

qual Fourth Amendment expectation of privacy, but th at qualification is “to allow adequate policing of corporate conduct” which is not the purpose of dis­ covery; “The purpose of discovery is not affected by the fact that a party to the suit is a corporation.”). On rehearing, the en banc court vacated the panel de­ cision and remanded the case to the district court for reconsideration in light of a then-recent Supreme Court case, Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). The en banc court left open its view of the panel’s decision regarding privacy; subsequently, other courts have continued to cite or discuss the pan-

42 M IN N ESO T A L A W R E V IE W [99:27

The California line of cases has relied on and amplified the D.C. Circuit case law. Most notably, in Roberts v. G u lf Oil Corp. , concerning a subpoena duces tecum seeking information from a corporate taxpayer about its property, a California ap­ pellate court held th a t corporations do not have a right to p ri­ vacy under th e California Constitution, nor a fundam ental rig h t to privacy, b u t do have a “general rig h t to privacy.”63 The court lodged this in “some combination of th e F ourth Amend­ m ent, the F ourteenth Am endm ent’s protection against arbi­ tra ry or unjustifiable state deprivations of liberty and th e Fifth Am endm ent.”64 The court quoted a t length from Morton Salt, and th en citing th e D.C. Circuit’s Hubbard case, stated: “Alt­ hough corporations have a lesser right to privacy th a n hum an beings and are not entitled to claim a rig h t to privacy in term s of a fundam ental right, some right to privacy exists. Privacy rights accorded to artificial entities are not stagnant, b u t de­ pend on the circum stances.”65

The Roberts court th en recognized two factors for determ in­ ing the stren g th of a business entity’s privacy right: (1) the stren g th of the nexus between th e entity and th e hum an be­ ings, and (2) th e context of th e controversy.66 Applying this test, th e court noted th a t “[w]ithout denigrating the fact th a t a cor­ poration does enjoy a right to privacy in some circum stances,” Gulf Oil did not in th e case a t hand because there was no nexus to an individual’s privacy and a privacy right would have been “unreasonable” in the context of determ ining Gulf Oil’s “fair share of taxes.”67

el’s decision in Tavoulareas, despite its procedural infirmity. See, e.g., Lank­ ford v. City of Hobart, 27 F.3d 477, 479 (10th Cir. 1996); Cook v. Yellow Freight Sys., Inc., 132 F.R.D. 548, 550-51 (E.D. Cal. 1990), overruling recog­ nized on other grounds, Chatman v. Felker, No. Civ. S-03-2415 JAM, 2009 WL 173515 (E.D. Cal. 2009); Avirgan v. Hull, 118 F.R.D. 257, 262 (D.D.C. 1987). But see Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286, 293 (D.C. Cir. 1993) (“The court, sitting en banc, vacated the panel’s decision in Tavoulareas, and it therefore has no precedential value.”).

63. Roberts v. Gulf Oil Corp., 195 Cal. Rptr. 393, 406-12 (Ct. App. 1983). The court reasoned th at Gulf Oil’s rights were not so fundamental as to re­ quire meticulous scrutiny because “[t]he interest of a taxpayer to be free from incursions into his or her files is not of the same constitutional significance as the personal right to determine whether to beget a child.” Id. at 410 (citing Morton Salt).

64. Id. at 410 (citations omitted). 65. Id. at 411. 66. Id. 67. Id. at 412. The court wove a bit of concession theory into its analysis

(“Gulf is a corporation which exists at the pleasure of the state.”), but its con-

2014] CORPORATE RIGHT TO PRIVACY 43

Other California courts have followed Roberts,™ although sometimes assuming that corporations have such a right with­ out deciding the issue on the merits. 69 Although the California case law consists of multiple cases spanning decades, the courts have not developed a framework for better understanding the

elusion seems largely driven by the context of a corporation asserting a privacy right to prevent a tax assessor from obtaining information to determine its corporate taxes.

68. Lazaro v. Lomarey, Inc., No. C 09-02013 RMW (PVT), 2010 WL 3636207, at *2 (N.D. Cal. Sept. 14, 2010) (granting motion to compel against corporate defendant, but noting th at corporations have some right to privacy); Saca v. J.P. Molyneux Studio Ltd., No. CIV-S06-2818 MCE EFB, 2008 WL 62181, at *4-5 (E.D. Cal. Jan. 4, 2008) (noting th at “[t]he privacy rights of businesses are accorded . . . less weight” and including business entities’ pri­ vacy interests in balancing analysis); Whittall v. Henry Schein, Inc., No. CIVS051629 WBJ BCH, 2006 WL 902571, at *3-4 (E.D. Cal. Apr. 5, 2006) (balancing “[b]oth corporate and individual privacy rights . . . at issue”); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co., 112 Cal. Rptr. 3d 40, 50 (Ct. App. 2010) (interpreting an insurance provision using the phrase “a person’s right to privacy” with reference to California’s line of privacy cases stemming from the context of discovery and subpoenas); Ameri-Med. Corp. v. Workers’ Comp. Appeals Bd., 50 Cal. Rptr. 2d 366, 383-84 (Ct. App. 1996) (holding re­ spondents had a legitimate interest in determining whether non-reimbursable fees were included in a medical bill pertinent to their workers’ compensation claim, but they “[did] not have an automatic right to unfettered access to books and records regarding the medical clinic’s overall business operation” and the clinic corporation “retain [ed] a privacy interest in financial and employment information”).

69. Conn. Indem. Co. v. Superior Court, 3 P.3d 868, 874-75 (Cal. 2000) (assuming without deciding th at corporate entities had constitutional privacy rights where the trial court had not yet ruled on the privacy claims in a case concerning the validity of subpoenas issued by a city council investigating groundwater contamination); 420 Caregivers, LLC v. City of Los Angeles, 163 Cal. Rptr. 3d 17, 42 (Ct. App. 2012) (assuming, without deciding, th at medici­ nal marijuana collectives “have certain privacy expectations in the records subject to disclosure” pursuant to a city ordinance, but holding there was no invasion of privacy “given the heavily regulated area in which the collectives operate”); Zurich Am. Ins. Co. v. Superior Court, 66 Cal. Rptr. 3d 833, 846-47 (Ct. App. 2007) (“While we recognize there are serious questions as to the ap­ plication of a federal right of privacy to corporations, we follow the approach adopted by the court in Connecticut Indemnity Co. v. Superior Court, and de­ cline to address the merits of the issue in this case . .. .” (citation omitted)); see also Hecht, Solberg, Robinson, Goldberg & Bagley v. Superior Court, 40 Cal. Rptr. 3d 446, 457 (Ct. App. 2006) (assuming without deciding th a t a limited liability partnership has privacy rights). In rejecting a corporation’s privacy claim under the Fifth and Fourteenth Amendments, a recent case in the Southern District of Florida likewise seemed to assume that a corporation could claim such a right to privacy. See Palmat Inti., Inc. v. Holder, No. 12- 20229-CIV, 2013 WL 594695, at *4-5 (S.D. Fla. Feb. 14, 2013) (rejecting an individual and corporation’s claim th a t releasing bank records pursuant to a treaty between Argentina and the United States would violate their right to informational privacy under the U.S. Constitution).

44 MINNESOTA LAW REVIEW [99:27

constitutional footing or definition of the right for corporations, the different forms of constitutional privacy or contexts in which a corporation’s privacy interests might be implicated, and what it means to grant the corporation a privacy right at the entity level.

II. APPROACHES TO CORPORATE CONSTITUTIONAL RIGHTS

The preceding Part showed that whether corporations have a constitutional right to privacy is an open question, and it highlighted the divergent approaches and results in the lower courts that have previously gone unexamined. Courts have struggled to find a coherent way of thinking about this chal­ lenging issue as it involves the amorphous and indeterminate right to privacy and the theoretical and doctrinal difficulty of corporate rights analysis.

The importance of this observation is two-fold: first, it shows there is an opportunity for scholarly insight to be brought to bear on this jurisprudential issue and second, it il­ lustrates the deeper problem that courts lack a coherent ap­ proach to determining the scope of corporate constitutional rights. The remainder of this Article aims to shed light on the corporate privacy question, and in so doing, to provide more generalizable insights for other timely topics such as corporate speech and free exercise rights. 70

As a starting point, in order to understand why most cor­ porations in most circumstances should not have a right to pri­ vacy, it is helpful to first understand why corporations receive any constitutional protection and how the Supreme Court has approached these questions in the past.

A. Corporate Rights J urisprudence The U.S. Constitution does not specifically mention corpo­

rations. As a matter of constitutional text, no explanation is provided regarding the application of constitutional provisions

70. For a discussion of whether business corporations have free exercise rights, see Ronald J. Colombo, The N aked Private Square, 51 HO US. L. Rev. 1 (2013); James D. Nelson, Conscience, Incorporated, 2013 M ICH . ST. L. REV. 1565 (2013); Elizabeth Sepper, Contraception and the B irth o f Corporate Con­ science, 22 AM. U. J. Gender Soc. PO L ’Y & Law 303 (2014); Mark Tushnet, Do For-Profit Corporations Have Rights o f Religious Conscience?, 99 CORNELL L. REV. ONLINE 70 (2013), http://cornelllawreview.org/files/2013/12/99CLRO70 -November.pdf.

2014] CORPORATE R IG H T TO PRIVAC Y 45

to corporations.71 It was th u s left to the courts to decide w heth­ er corporations were th e subject of constitutional protections, or holders of rights, and w hether those rights were coextensive w ith the scope of individual rights.

The Supreme Court first addressed these questions in the early nineteenth century in cases involving Article III diversity jurisdiction, the Contract Clause, and the Privileges and Im ­ m unities Clause of Article IV. The Court showed a willingness to extend constitutional protections to corporations in order to protect rights of the people composing the corporation. For ex­ ample, in th e 1809 case B ank o f the United States v. Deveaux, th e Supreme Court stated th a t th e corporate entity was not a “citizen” for purposes of Article III diversity jurisdiction, but th a t it could look to th e n a tu ra l persons composing a corpora­ tion and find th a t diversity jurisdiction exists w here there is complete diversity of state citizenship between th e sharehold­ ers of a corporate party and the opposing p arty .72 In th e 1819 case of Trustees o f Dartmouth College v. Woodward, the Court held th a t a state legislature’s act to unilaterally alter a corpo­ ra te ch arter violated th e Contract Clause.73 The Court ex­ plained th a t although incorporation required a government grant, th e corporation had been “endowed by private individu­ als” and represented a contract covered by the protection of the C ontract Clause.74

The C ourt’s willingness to extend protections to corpora­ tions in order to protect the constitutional rights of th e individ­ uals behind the corporation was limited, however. In th e 1839 case of B ank o f Augusta v. Earle, the Court ruled th a t while corporations may, according to the citizenship of th eir individ­ ual members, be tre a ted as “citizens” for purposes of Article III diversity jurisdiction, they are not “citizens” for purposes of Ar-

7 1 . ASHUTOSH BHAGWAT, T H E MYTH OF RIGHTS: TH E PURPOSES AND L IM ­ ITS o f C o n s t i t u t i o n a l R i g h t s 10-15 (2010) (noting the absence of textual reference or explanation of the treatment of corporations in the Constitution).

72. Bank of the U.S. v. Deveaux, 9 U.S. (5 Cranch) 61, 86 (1809), over­ ruled by Louisville, Cincinnati, & Charleston R.R. v. Letson, 43 U.S. (2 How.) 497 (1844) (holding that a corporation is treated as a “citizen” of the state in which it is incorporated for purposes of diversity jurisdiction); Marshall v. Bal­ timore & Ohio R.R., 57 U.S. (16 How.) 314 (1854) (establishing a conclusive presumption th at all shareholders of a corporation are citizens of the state of incorporation for purposes of diversity jurisdiction).

73. Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 650 (1819).

74. Id. at 632-39, 641-50.

46 MINNESOTA LAW REVIEW [99:27

tide I Vs Privileges and Immunities Clause. 78 The Court ex­ pressed concern that if it were to look through the corporate form to the persons composing the corporation, it would un­ dermine the limited liability protections that were gaining ac­ ceptance at the time and give those operating through the cor­ porate form “far higher and greater privileges than are enjoyed by the citizens of the state itself. ” 76 Thus, in some instances, the characteristics of the corporate form prevented the Court from according corporations some constitutional protections.

In the later part of the nineteenth century, the Court rec­ ognized equal protection and due process protections for corpo­ rations under the Fourteenth and Fifth Amendments. 77 The Court gave little explanation for these rulings, but justified this extension of constitutional protection on the basis that it pro­ tected the property interests of the people associating through the corporate form. 78 Justice Field explained, for example: “Pri­ vate corporations are, it is true, artificial persons, but with the exception of a sole corporation, with which we are not con­ cerned, they consist of aggregations of individuals united for some legitimate business. ” 79 Further, “[i]t would be a most sin­ gular result if a constitutional provision intended for the pro­ tection of every person against partial and discriminating legis­ lation by the states, should cease to exert such protection the moment the person becomes a member of a corporation. ” 80

75. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 586 (1839). 76. Id. 77. See Noble v. Union River Logging R.R., 147 U.S. 165, 274 (1893); Min­

neapolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26, 28 (1889); Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 188-89 (1888); Santa Clara Cnty. v. S. Pac. R.R., 118 U.S. 394, 396 (1886) (headnotes). For a discussion of the Santa Clara case, see Elizabeth Pollman, Reconceiving Corporate Personhood, 2011 UTAH L. REV. 1629, 1642-45.

78. See Blair & Pollman, supra note 25; Pollman, supra note 77, at 1644- 45.

79. This quote comes from Justice Field’s lower court opinion, sitting by designation in County of San Mateo v. Southern Pacific Railroad, 13 F. 722, 743 (C.C.D. Cal. 1882), which was related to County of Santa Clara v. South­ ern Pacific Railroad, 18 F. 385, 402 (C.C.D. Cal. 1883). See also Pembina Consol. Silver Mining & Milling Co., 125 U.S. at 189 (“[Clorporations are merely associations of individuals united for a special purpose . . . .”); Blair & Pollman, supra note 25, (manuscript at 12-20) (discussing the rationale of Su­ preme Court jurisprudence from the late nineteenth century recognizing cor­ porations as having equal protection and due process protections under the Fourteenth and Fifth Amendments concerning property interests).

80. Cnty. o f San Mateo, 13 F. at 744.

2014] CORPORATE RIGHT TO PRIVACY 47

Notably, the Court again extended these protections in the context of protecting the property interests of shareholders and based on a view of the corporation as an association. Again the Court also limited the scope of protection where the right, or a portion of the right, at issue could not be held derivatively by the corporation. The Court, for example, clarified that while due process protections extend to protect corporate property, the liberty protected by the Fourteenth Amendment is “the lib­ erty of natural, not artificial persons. ” 81 Further, as with Article IV, the Court held that corporations are not “citizens” for pur­ poses of the Privileges or Immunities Clause of the Fourteenth Amendment. 82 Thus, while the Court extended protections to corporations to protect the property interests of the persons as­ sociating through the corporate form, it did not confuse corpo­ rations with “citizens,” and it recognized limits to maintain states’ power to regulate corporations for the public good. 83 Jus­ tice Field explained that due process protection extended to corporations for property “because the property of a corporation [was] in fact the property of the corporators,” but that life and liberty protections did not because “the lives and liberties of the

81. Nw. Nat’l Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906); see also Hague v. Comm, for Indus. Org., 307 U.S. 496, 527 (1939) (noting “the liberty guaranteed by the due process clause is the liberty of natural, not artificial, persons”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925) (explaining that corporations “cannot claim for themselves the liberty which the Fourteenth Amendment guarantees,” but they can claim protection for their business and property); W. Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907) (“[T]he liberty guaranteed by the Fourteenth Amendment against deprivation without due process of law is the liberty of natural, not artificial, persons.”); Ruth H. Bloch & Naomi Lamoreaux, Corporations and the Fourteenth Amendment 4—23 (un­ published manuscript) (on file with author) (discussing how the Court parsed the Fourteenth Amendment in the late nineteenth and early twentieth centu­ ries so th at the due process protection for liberty did not extend to corpora­ tions).

82. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 178-82 (1868). 83. See Bloch & Lamoreaux, supra note 81, at 8-23 (explaining th at the

Court “articulated limits on the applicability to corporations of the due-process and privileges-and-immunities clauses” in the same cases th at extended the Fourteenth-Amendment guarantee of equal protection to corporations); see al­ so Blake v. McClung, 172 U.S. 239, 257 (1898) (“Nor must we be understood as saying th at a State may not, by its courts, retain within its limits the assets of a foreign corporation, in order th at justice may be done to its own citizens; nor, by appropriate action of its judicial tribunals, see to it th at its own citizens are not unjustly discriminated against . . . .”); Paul, 75 U.S. at 181 (explaining th at applying the Privileges and Immunities Clause to corporations would be “utterly destructive of the independence and the harmony of the States”).

48 M IN N ESO T A L A W R E V IE W [99:27

individual corporators are not the life and liberty of th e corpo- „8 4ration.

In the early tw entieth century, the Court recognized corpo­ rations as subject to corporate crim inal liability.3’ In Hale v. Henkel, the Court held th a t corporations enjoy F ourth Amend­ m ent protections against unreasonable searches and seizures b u t may not claim th e Fifth Am endment privilege against self­ incrim ination.86 The Court justified F ourth Am endm ent protec­ tion for corporations again on the basis th a t corporations are associations of individuals w ith rights: “A corporation is, after all, b u t an association of individuals u nder an assum ed nam e and w ith a distinct legal entity. In organizing itself as a collec­ tive body it waives no constitutional im m unities appropriate to such body.”37 B ut th e Court explained th a t a corporation cannot claim the Fifth Am endm ent privilege against self-incrimination because th a t right “is purely a personal privilege of th e w it­ ness.”88 The Court explained “ [i] t was never intended to perm it him [the corporate agent] to plead the fact th a t some th ird per­ son m ight be incrim inated by his testim ony, even though he were the agent of such person.”89 The Court th u s drew a line be­ tw een th e rights th a t corporations derived from th e people composing them and the rights th a t belonged to people only as individuals.

Over time, th e Court’s distinction between the property and liberty protections for corporations faded. This started in 1936 w ith th e Court’s selective incorporation and extension of speech and press rights to new spaper corporations in Grosjean v. American Press Co.,90 and was fu rth er developed in the 1950s and 60s w hen the Court began to recognize associational and speech rights of nonprofit organizations such as th e NAACP91

84. Cnty. o f San Mateo, 13 F. at 747. 85. N.Y. Cent. & Hudson River R.R. v. United States, 212 U.S. 481, 494—

96 (1909). 86. 201 U.S. 43, 69-70, 75-76 (1906). 87. Id. at 76. 88. Id. a t 69. 89. Id. 90. 297 U.S. 233, 242-51 (1936). 91. See NAACP v. Button, 371 U.S. 415, 428 (1963) (validating the

NAACP’s claim th at a state statutory ban on improper solicitation of legal business abridged “the freedoms of the First Amendment, protected against state action by the Fourteenth”); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (validating the NAACP’s freedom of association and not­ ing th at “freedom to engage in association for the advancement of beliefs and

2014] CORPORATE RIGHT TO PRIVACY 49

and continued to extend speech and press rights to media cor­ porations such as The New York Times.92 The cases involving media corporations paid little attention to the corporate identi­ ty of th e parties, b u t ra th e r emphasized th e purpose the press serves “as a vital source of public inform ation.”93 The NAACP cases relied heavily on the associational n a tu re of the p articu­ la r corporation, which was understood as engaging in “coopera­ tive, organizational activity”94 and asserting th e rights of its members ra th e r th a n having personhood of its own.95

Following this recognition of constitutional protections for media corporations and nonprofit m em bership corporations came the C ourt’s extension of F irst Amendment protections to corporations through the commercial speech doctrine96 and in the context of corporate political spending.97 This period from the 1970s to th e present h as represented a significant expan­ sion of constitutional protections for ordinary business corpora­ tions, as th e Court has come to see them as capable of asserting rights to participate in th e m arketplace of ideas and as a source of inform ation th a t is useful to consumers.98 While these deci­ sions are subject to im portant criticism on a num ber of grounds, for th e purposes a t hand we can observe th a t the Court has continued to rely on the associational rationale in ex­ tending rights to corporations, deriving rights for corporations from those of its members or participants, in addition to de­ pending on the rights of consumers and listeners in hearing the speech or information of the corporation." The commercial

ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech”).

92. N.Y. Times v. Sullivan, 376 U.S. 254, 264 (1964). 93. Grosjean, 297 U.S. at 250; see also id. at 243 (emphasizing the im­

portance of “the natural right of the members of an organized society, united for their common good, to impart and acquire information about their common interests”); id. at 245-51 (discussing the history and importance of freedom of press).

94. Button, 371 U.S. at 430. 95. Patterson, 357 U.S. at 458. 96. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447

U.S. 557, 561 (1980); Ya. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976).

97. Citizens United v. FEC, 130 S. Ct. 876, 916 (2010); FEC v. Mass. Citi­ zens for Life, Inc., 479 U.S. 238, 263 (1986); First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 777 (1978).

98. See Blair & Pollman, supra note 25, (manuscript at 40-50) for further analysis of the Court’s notable expansion of constitutional protections for business corporations from this period.

99. See id. (manuscript at 35-54); Adam Winkler, Citizens United, Per-

50 MINNESOTA LAW REVIEW [99:27

speech cases, for instance, are grounded in consumers’ right to receive information, 100 and corporate political spending cases refer to corporations as “associations” and “associations of citi­ zens,” as in Citizens United v. FEC, and base their reasoning in large part on the rights of listeners. 101

B. M e t h o d f o r D e t e r m i n i n g C o r p o r a t e R ig h t s

As we have seen, the Court has confronted issues concern­ ing the applicability and scope of constitutional protections for corporations for over two hundred years. In all of this time, it has failed to articulate a test or standard approach for its rul­ ings. Sometimes the Court has looked to the purpose and histo­ ry of the right at issue to determine whether to accord it to a corporation, while at other times the Court simply accorded a right to corporations without explanation or in a conclusory oral remark. 102 Often the Court’s reasoning reflects a concept of the corporation—as a concession from the state, as an aggre­ gate of people, or as a real entity—that seemingly justifies the grant or denial of the right. None of these conceptions of the corporation succeed, however, in both accurately describing the wide range of modern corporations and justifying why corpora­ tions would hold rights. 103

sonhood, and the Corporation in Politics (unpublished manuscript) (manu­ script at 3-5) (on file with author).

100. E.g., Va. State Bd. of Pharmacy, 425 U.S. at 763-65. 101. Citizens United, 130 S. Ct. at 900, 904, 907, 908 (referring to corpora­

tions as “associations” and “associations of citizens”); see id. at 900 (“Corpora­ tions and other associations, like individuals, contribute to the discussion, de­ bate, and the dissemination of information and ideas th at the First Amendment seeks to foster. The Court has thus rejected the argument that political speech of corporations or other associations should be treated differ­ ently under the First Amendment simply because such associations are not natural persons.” (citations omitted) (internal quotation marks omitted)); Bellotti, 435 U.S. at 777 (“It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.”).

102. For discussions of the Supreme Court’s various approaches to deter­ mining the scope of corporate rights, see Carl J. Mayer, Personalizing the Im ­ personal: Corporations and the Bill o f Rights, 41 HASTINGS L.J. 577, 629 (1990); Darrell A.H. Miller, Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights, 86 N.Y.U. L. Rev. 887, 908-30 (2011); Pollman, supra note 77, at 1635-61.

103. For further discussion of these conceptions of the corporation and the difficulty of using them as a justification for determining the scope of corpo­ rate rights, see Pollman, supra note 77. For an argument th at corporate con­ stitutional rights should be determined with reference to the Article III stand­ ing doctrine, see Brandon L. Garrett, The Constitutional Standing of

2014] CORPORATE RIGHT TO PRIVACY 51

In addition, the so-called doctrine of corporate personhood does not provide guidance for determining the scope of corpo­ rate rights. Contrary to public belief, 104 the Court’s jurispru­ dence extending constitutional protections to corporations does not do so on the basis that corporations themselves, as legal en­ tities, are like natural persons. Rather, the doctrine of corpo­ rate personhood merely stands for the principle that a corpora­ tion can be accorded protections in order to protect the rights of the individuals associated through the corporate form. 105 It does not provide a method for determining the scope of protections— that is, the doctrine does not instruct courts to formalistically apply the legal conclusion that the corporation is a “person” as a mode of reasoning. The Ninth Circuit made this mistake in Fleck, reasoning that corporations have no constitutional right to privacy because corporations are not the type of creature that has privacy; they are not “self-defining autonomous crea­ tures worthy of respect and dignity” and they have no “private lives. ” 106 To be sure, if we define privacy as autonomy or liberty

Corporations, 163 U. PA. L. REV. (forthcoming 2014), available at http://papers.ssm.com/sol3/papers.cfm?abstract_id=2330972.

104. E.g., Paul Ke n s, Th e Suprem e Court Under Morrison R. Wa ite, 1874—1888 124 (2010) (“The standard interpretation today is th at the Santa Clara case established a doctrine of corporate personhood that eventually gave corporations most of the rights held by natural persons.”); Adam Winker, Yes, Corporations Are People, SLATE (Mar. 17, 2014, 11:52 AM), http://www .slate.com/articles/news_and_politics/jurisprudence/2014/03/corporations_are_ people_and_that_s_why_hobby_lobby_should_lose_at_the_supreme.html (not­ ing popular misunderstanding of corporate personhood). For an example of common phrasing in the media, see Adam Schiff, The Supreme Court Still Thinks Corporations Are People, THE ATLANTIC (July 18, 2012, 3:11 PM), http://www.theatlantic.com/politics/archive/2012/07/the-supreme-court-still -thinks-corporations-are-people/259995 (noting the Court concluded in Citizens United th at “corporations are people—at least as far as the First Amendment is concerned”).

105. See KENS, supra note 104, at 124; see also Blair & Pollman, supra note 25. The discussion of rights in this Article focuses on the treatm ent of corpora­ tions under the Constitution, not the separate topic of the status of corpora­ tions as legal entities with the ability to do certain things such as hold proper­ ty, contract, sue and be sued, and the policy of limited liability. For a discussion of the distinction between corporate constitutional rights and the entity status or legal personality of corporations, see Pollman, supra note 77, at 1638-39.

106. See Fleck & Assocs. v. City of Phx., 471 F.3d 1100, 1105 (2006). Like­ wise, in considering whether corporations may claim the “personal privacy” exemption under FOIA, the Supreme Court similarly noted th at “[personal privacy] suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.” FCC v. AT&T, Inc., 131 S. Ct. 1177, 1183 (2011). Notably, that case did not call upon the Court “to pass on the scope of a corporation’s ‘privacy’ interests as a m atter of constitutional

52 MINNESOTA LAW REVIEW [99:27

in intimate human decisions or activities and we look at the corporation only as an artificial entity, not representing human interests, it would follow that the corporation is not an apt pri­ vacy right holder—corporations have no soul, they cannot en­ gage in sexual activity, etc. But this misses the mark. This formalistic reasoning is divorced from the reason corporations receive rights in the first instance. As Part II.A above has shown, corporations do not receive rights because the charac­ teristics of the entity so closely resemble a natural human so as to merit granting the right; rather corporations receive rights because, as forms of organizing human enterprise, they have natural persons involved in them, and sometimes it is neces­ sary to accord protection to the corporation to protect their in­ terests. 107

Perhaps the closest the Court has come to providing a cor­ porate rights test was in a footnote in First National Bank of Boston v. Bellotti, in which the Court stated that it examines whether a right is “purely personal” in determining whether it applies to corporations:

Certain “purely personal” guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the “historic function” of the particular guarantee has been limited to the protection of individuals. Whether or not a particular guarantee is “purely personal” or is unavailable to

or common law,” but it nonetheless reflects the potential for unmeasured rea­ soning based on the likeness between corporations and humans. Id. at 1179. Scholars have also suggested this line of thinking when discussing corporate rights. See, e.g., STEVENSON, supra note 12, at 51 (“Corporations—and other organizations—can make no direct claim to the benefits of those social and le­ gal rules, for their fictional ‘personalities’ do not partake of the characteristics wherein the rules find their basis.”); id. at 69 (“As a jurist with a sense of hu­ mor once put it, ‘[I]f you don’t have any privates, you’re not entitled to any pri­ vacy.’”).

107. The notion th a t the corporation holds a right to protect human inter­ ests has led some to term corporate rights as “derivative.” Meir Dan-Cohen has, for example, explained that a derivative right serves “to safeguard or en­ hance the enjoyment of certain rights by others.” Meir Dan-Cohen, Freedoms of Collective Speech: A Theory o f Protected Communications by Organizations, Communities, and the State, 79 CALIF. L. REV. 1229, 1246 (1991); see MEIR Dan-Cohen, Rights, Persons, and Organizations 58-60 (1986) (“A may have a right because of either of two reasons. A right may be recognized in A out of concern for A himself. In such a case, A has an original right. A right in A may also result from a concern not for him but for B. In this case, A will be said to have a derivative right.”)-, cf. HENRY N. BUTLER & LARRY E. RlBSTEIN, The Corporation and the Constitution 143 (1995) (“It follows, for exam­ ple, from the fact th at the corporation is a nexus of contracts rather than a creature of state law, th at personal rights in the Constitution should be ap­ plied to individuals connected with the firm rather than to the firm itself.”).

2014] CORPORATE RIGHT TO PRIVACY 53

corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision.108

The Court has not consistently used this approach or shown that it would be possible to do so in the context of corporations. First, the Court has not explained what it means by a “purely personal” right. Further, basing the determination of whether a right is “purely personal” on the “historic function” of the guar­ antee is problematic insofar as the Court has not consistently done this in the past, 109 and, in instances where the Court or individual justices have looked to history, widely varying his­ torical narratives have been given about the founders’ views of corporations and their rights. 110

Although the Court has failed to articulate one, a consistent framework for analyzing corporate claims to constitutional protections is possible. We can follow the underlying logic of the Court’s jurisprudence, set out above in II.A, and read the Bellotti footnote in a consistent light. The notion of a “purely personal” right can thus be understood as referring to whether a right can be held in association or derivatively. As the Court explained when it refused to extend a corporation the Fifth Amendment privilege against self- incrimination, that right inheres only in an individual in his or her individual capacity. 111 It is simply not the type of right that can be exercised in association with others or asserted derivatively. Another example of such a right would be the right to vote. It is only meant to inhere in an individual acting

108. 435 U.S. 765, 778 n.14 (1978) (citation omitted); see also Browning- Ferris Indus, of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 284 (1989) (O’Connor, J., concurring).

109. See, e.g., Mark Tushnet, Corporations and Free Speech, in THE PO LI­ TICS OF LAW 253, 256 (David Kairys ed., 1982) (arguing the Court did not look to the historic function of the Fourteenth Amendment when it “converted an amendment primarily designed to protect the rights of blacks into an amend­ ment whose major effect, for the next seventy years, was to protect the rights of corporations”).

110. E.g., Citizens United v. FEC, 130 S. Ct. 876, 906 (2010) (acknowledg­ ing th a t “[t]he Framers may not have anticipated modem business and media corporations”); cf. id. at 925-26 (Scalia, J., concurring) (arguing th at despite small numbers the corporation was “a familiar figure in [early] American eco­ nomic life,” and th at it is unclear th at corporations were “despised” and that the Framers would have excluded them from the First Amendment even if they were despised (internal quotation marks omitted)); id. at 948-50 (Ste­ vens, J., dissenting) (arguing th at the Framers “conceived of speech more n ar­ rowly than we now think of it,” and understood corporations as being subject to “comprehensiveD regulation] in the service of the public welfare”).

111. See supra text accompanying notes 86-89.

54 MINNESOTA LAW REVIEW [99:27

in his or her individual capacity and it cannot be asserted as a right by another. By contrast, corporate rights are, by their nature, derivative and instrumental. 112 Incorporation creates a separate legal identity. Rights do not originate in corporations qua corporations. They are accorded to corporations only when necessary to protect the rights of natural persons involved in the corporation, or on an instrumental basis to protect the rights of other persons affected as listeners or consumers. The Court has at times lost sight of this logic and its limits, but it is, at core, on this basis that a bank was treated as a “citizen” of a state for purposes of diversity jurisdiction, the corporate charter of a private college may be protected under the Contract Clause, and the NAACP has a claim to freedom of association. 113

Thus, this Article asserts that in determining whether to accord a right to a corporation, we must look to whether the purpose of the right is served by according it to the corporation in question—that is, whether it is necessary to protect natural persons—and if the right is of a type that inheres only in an individual in his or her individual capacity. 114 This requires analyzing the purpose of the right and the natural persons involved in the corporation. Furthermore, the derivative nature of rights for corporations requires paying attention to distinctions between different corporations because not all can be fairly regarded as representing any particular natural person or group of natural persons from whom rights can be derived. 115

III. A CORPORATE RIGHT TO PRIVACY? With the problem and methodology now framed, we turn to

whether corporations should have a constitutional right to pri­ vacy. This analysis begins by examining the purpose and na­ ture of the right to privacy, to the extent this can be gleaned

112. Blair & Pollman, supra note 25 (manuscript at 1). 113. See supra P art II.A for a discussion of these and other corporate rights

cases decided by the Supreme Court. 114. For a more detailed discussion of the merits of this approach, see

Pollman, supra note 77. See also Martin Petrin, Reconceptualizing the Theory o f the Firm.—From Nature to Function, 118 PENN ST. L. REV. 1 (2013). Nota­ bly, this approach addresses the preliminary inquiry for rights determina­ tions—whether corporations hold th at particular right at all; it does not an­ swer under what circumstances or level of scrutiny a countervailing interest might prevail.

115. Blair & Pollman, supra note 25 (manuscript at 1).

2014] CORPORATE R IG H T TO PRIVAC Y 55

from Suprem e Court jurisprudence and scholarly conceptions. The challenge, then, is to b etter u nderstand w hether the p u r­ pose (or purposes) of the right to privacy would be served by ac­ cording it to corporations and w hether privacy is a right th a t inheres only in an individual capacity.

A. T h e P u r p o s e a n d N a t u r e o f t h e R i g h t t o P r iv a c y

The notion of privacy has long factored into constitutional adjudication as a value protected by various provisions of the C onstitution,116 including, for example, the F ourth Amendment, which tu rn s on a reasonable expectation of privacy te st.117 But it was not until 1965 in Griswold v. Connecticut th a t the Su­ preme Court announced an independent constitutional right to privacy.118 The Court famously found the rig h t in the “zones of privacy” or “penum bras” of several guarantees in the Bill of Rights, “formed by em anations from those guarantees th a t help give them life and substance.”119 The Court specifically identi­ fied the First, Third, Fourth, Fifth, and N inth Amendments as guarantees th a t create zones of privacy.120

After Griswold, a trickle ra th e r th a n a to rren t of other Su­ preme Court privacy cases have followed. The relatively small num ber and uniqueness of these cases have made the area dif­ ficult to generalize. The Court itself has sorted the cases and th e in terests acknowledged th erein as forming two branches: decisional privacy and inform ational privacy.121

The decisional privacy cases, or w hat m ight be categorized as privacy cases concerning autonomy in decisions or actions, include the rig h t of persons to be free from government in tru ­ sions in areas of reproductive freedom, sexuality, and family re ­ lationships. This line of cases includes the widely known, lan d m ark decisions of Griswold (striking down a state law th a t prohibited use of contraceptives),122 Roe v. Wade (disallowing

1 1 6 . See, e.g., FREDERICK S . Lane, American PRIVACY: T H E 400-Y E A R H IS ­ TORY of Our Most Contested Right 1 5 3 - 5 5 (2 0 0 9 ).

117. Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503, 504 (2007).

118. 381 U.S. 479, 484-85 (1965). 119. Id. Justice Goldberg’s concurrence, joined by Chief Justice Warren and

Justice Brennan, advanced the Ninth Amendment as a source of authority for privacy rights, absent an express reference to privacy in other provisions. Id. a t 486-99 (Goldberg, J., concurring).

120. Id. at 484 (majority opinion). 121. Whalen v. Roe, 429 U.S. 589, 599-600 (1977). 122. Griswold, 381 U.S. 479.

56 MINNESOTA LAW REVIEW [99:27

many restrictions on abortion),123 and Lawrence v. Texas (inval­ idating a state law criminalizing certain sexual conduct by per­ sons of the same sex).124

On the whole, these cases have provided a rather murky view of the purpose of the right to privacy. It is unclear wheth­ er a proper understanding would draw the line narrowly around particular areas or activities, such as the right of priva­ cy in sexual relations, or more broadly to encompass a more in­ clusive, vague notion like personal or fundamental liberty.125 The latter view arguably finds support in the fact that since Griswold the Court has grounded privacy cases in the Equal Protection Clause and the right to liberty under the Due Pro­ cess Clause of the Fifth and Fourteenth Amendments.126

The other branch, a right to informational privacy or non­ disclosure of personal information, occupies a precarious posi­ tion as the Supreme Court has only assumed without deciding that the right exists, and a party has never prevailed on that claim in the Supreme Court.127 This line of cases started in 1977

123. Roe v. Wade, 410 U.S. 113 (1973). 124. Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hard­

wick, 478 U.S. 186 (1986)). For other cases protecting the right to make auton­ omous decisions, see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion) (abortion); Turner v. Safley, 482 U.S. 78 (1987) (marriage by prisoners); Carey v. Population Servs. In ti, 431 U.S. 678 (1977) (plurality opinion) (use of contraceptives by minors); Eisenstadt v. Baird, 405 U.S. 438 (1972) (use of contraceptives by single people); Stanley v. Georgia, 394 U.S. 557 (1969) (possession of pornography within one’s home); Loving v. Virginia, 388 U.S. 1 (1967) (interracial marriage). For cases discussing privacy th at predate the Court’s recognition of an independent privacy right, see Prince v. Massachusetts, 321 U.S. 158, 165-67 (1944) (acknowledging the “private realm of family life”); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (describing the forced sterilization of convicts as the dep­ rivation of a basic liberty); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) (dis­ cussing the freedom to decide how to educate one’s children); Meyer v. Ne­ braska, 262 U.S. 390 (1923) (protecting the freedom to educate one’s children in different languages).

125. Some scholars have questioned whether these cases are best under­ stood as presenting privacy harms in the first instance. See, e.g., Calo, supra note 26, at 1137.

126. See Lawrence, 539 U.S. at 564-76 (discussing privacy case law histo­ ry).

127. Lower courts have more significantly developed the jurisprudence on a right to nondisclosure of information. The majority of circuit courts have rec­ ognized th a t the Constitution does provide some protection against the disclo­ sure of private information. See Planned Parenthood of S. Ariz. v. Lawall, 307 F.3d 783, 789-90 (9th Cir. 2002); Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995); James v. City of Douglas, Ga., 941 F.2d 1539, 1543 (11th Cir. 1991) (per curiam); Daury v. Smith, 842 F.2d 9, 13 (1st Cir. 1988); Barry v. City of

2014] CORPORATE RIGHT TO PRIVACY 57

with Whalen v. Roe, marking the first time the Court suggested that a constitutional right to privacy includes a right to avoid disclosure of information. 128 In Whalen, patients claimed that a New York statute authorizing the state to collect the names and addresses of people prescribed dangerous drugs had violat­ ed their privacy. 129 The information collected was stored in a central computer file and only a small number of public health officials had access to the information. 130 In discussing the pri­ vacy claim, the Court observed that “[t]he cases sometimes characterized as protecting ‘privacy’” actually concerned “at least two different kinds of interests”: an interest in “making certain kinds of important decisions” without government in­ terference and an “interest in avoiding disclosure of personal matters. ” 131 The patients claimed that the state statute threat­ ened to impair both their interest in making health care deci­ sions and in nondisclosure of information. 132

While the Court recognized that a duty to avoid unwar­ ranted disclosures of data collected and used for public purpos­ es “arguably has its roots in the Constitution,” the Court con­ cluded that the statute in question did not violate “any right or liberty protected by the Fourteenth Amendment. ” 133 The Court relied on the statute being “manifestly the product of an orderly and rational legislative decision” regarding the state’s interest in controlling distribution of dangerous drugs and on the stat­ ute containing provisions for securely maintaining the infor­ mation and preventing its public disclosure. 134

After Whalen, the Court again referred to a right to non­ disclosure of information in Nixon v. Administrator of General Services. 135 There, the Court upheld the Presidential Recordings

New York, 712 F.2d 1554, 1559 (2d Cir. 1983); Denver Policemen’s Protective Ass’n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981); Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. Jan. 1981); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980). B u t see Am. Fed’n of Gov’t Emps., AFL-CIO v. Dep’t of Hous. & Urban Dev., 118 F.3d 786, 791 (D.C. Cir. 1997) (“The Supreme Court has addressed the issue in recurring dicta without, we believe, resolving it.”); J.P. v. DeSanti, 653 F.2d 1080, 1088-90 (6th Cir. 1981) (rejecting a constitutional right to nondisclosure of personal information).

128. 429 U.S. 589 (1977). 129. See id. at 591. 130. Id. at 593-95. 131. Id. at 598-600. 132. Id. at 600. 133. Id. at 605-06. 134. Id. at 597-605. 135. Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977).

58 M INNESOTA LAW REVIEW [99:27

and M aterials Preservation Act, under which President Nixon was forced to tu rn over his official records for archivists to screen them , retu rn in g to him m aterials th a t were “personal and private in n a tu re ” and determ ining term s and conditions for eventual public access to the other m aterials.136

Nixon had challenged the Act’s constitutionality based in p a rt on his rig h t to privacy in the m aterials under the First, Fourth, and Fifth A m endm ents.13' The Court acknowledged the privacy in terest in nondisclosure, citing Whalen,138 and Nixon’s “legitim ate expectation of privacy in his personal communica­ tions,”139 but concluded his privacy interests were outweighed in the circumstances by th e public’s in terest in the documents and by his statu s as a public figure.140 The Court also noted th a t his claim related “only to a very small fraction of the massive vol­ ume of official m aterials w ith which they [were] . . . commin­ gled”;141 th u s Nixon lacked an expectation of privacy in th e m a­ jority of th e m aterials. Also weighing against his claim was the fact th a t segregating the m aterials w ithout screening was a “v irtu al impossibility,” and the Act provided procedures to m in­ imize th e intrusion.142 Although th e Court did not find a m erito­ rious claim in Nixon’s case, the Court’s balancing approach gave credence to a privacy right in nondisclosure.

In 2011, in NASA v. Nelson,143 the Supreme Court recalled the Whalen and Nixon line of cases, but again held there was no violation of a constitutional rig h t to privacy in the case a t hand. C ontract employees a t NASA’s J e t Propulsion Laboratory claimed th a t two p arts of forms used for background checks vio­ lated th eir right to inform ational privacy—specifically, a sec­ tion of a form th a t asked employees about tre a tm e n t or coun­ seling for recent illegal drug use and certain open-ended questions on a form sent to th e employee’s references.144

136. Id. at 429-30. 137. Id. at 455. 138. Id. at 457 (“One element of privacy has been characterized as ‘the in­

dividual interest in avoiding disclosure of personal matters . . . (quoting Whalen, 429 U.S. at 599)).

139. Id. at 465. 140. Id. 141. Id. at 459. 142. Id. at 465 (noting the “unblemished record of the archivists for discre­

tion”). 143. NASAv. Nelson, 131 S. Ct. 746 (2011). 144. Id. at 752-53 (detailing one form that asked if the reference had “any

reason to question the employee’s honesty or trustworthiness,” and if the ref-

2014] CORPORATE RIGHT TO PRIVACY 59

In discussing the claimed privacy right, the Court acknowledged th a t “[i]n two cases decided more th a n 30 years ago, this Court referred broadly to a constitutional privacy ‘in ­ te rest in avoiding disclosure of personal m a tte rs’” and had since “said little else on the subject.”146 While many lower courts had addressed th e issue in the interim ,146 th e Court acknowledged th a t its own case law had been sparse: “[a] few opinions have mentioned the concept in passing and in other contexts, [b]ut no other decision has squarely addressed a constitutional right to inform ational privacy.”147 The Court th en assum ed w ithout deciding th a t “th e Constitution protects a privacy rig h t of the sort m entioned in Whalen and Nixon”—and held th a t “w hatev­ er the scope of this in terest,” the challenged portions of the government background check, subject to the Privacy Act’s safeguards against public disclosure and as p a rt of the govern­ m ent’s reasonable m anagem ent of its in tern al affairs as em­ ployer, did not violate th a t rig h t.148 Perhaps because the Court has “proceed [ed] w ith caution” where it has only “scarce and open-ended guideposts of substantive due process to show [it] th e way,”149 the Court has left open the broader issues concern­ ing inform ational privacy and its purpose. As Justice Scalia lam ented, by repeatedly assum ing the right w ithout deciding it, “the Court actually applies a constitutional inform ational pri­ vacy stan d ard w ithout giving a clue as to the rule of law it is applying.”160

Scholarly conceptions of privacy have added depth and con­ text th a t aid in understanding the values or purpose being served in the Court’s privacy jurisprudence. One m apping of

erence had “any adverse information concerning the employee’s violations of the law, financial integrity, abuse of alcohol and/or drugs, mental or emotional stability, general behavior, or conduct or other matters” (citations omitted) (in­ ternal quotation marks omitted)).

145. Id. at 751, 756 (quoting Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Nixon, 433 U.S. at 457)).

146. Id. at 756 n.9 (“Many courts hold that disclosure of at least some kinds of personal information should be subject to a test that balances the govern­ ment’s interests against the individual’s interest in avoiding disclosure. The Sixth Circuit has held that the right to informational privacy protects only in­ trusions upon interests that can be deemed fundamental or implicit in the concept of ordered liberty. The D.C. Circuit has expressed grave doubts about the existence of a constitutional right to informational privacy.” (citations omitted) (internal quotation marks omitted)); see also supra note 127.

147. Nelson, 131 S. Ct. at 756 (citations omitted). 148. Id. at 751, 756-57. 149. Id. at 757 n.10 (citations omitted) (internal quotation marks omitted). 150. Id. at 768 (Scalia, J., concurring).

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privacy literatu re, from Daniel Solove, identifies six general types or understandings of privacy, w ith some overlap: (1) a right to be let alone (Samuel W arren and Louis B randeis’s in­ fluential formulation); (2) lim ited access to self; (3) secrecy or concealment of certain m atters; (4) control over personal infor­ m ation or information about oneself; (5) personhood (protection of one’s personality, individuality, dignity); and (6) in tim acy.161 Another categorization, from Helen Nissenbaum , identifies two common approaches in the literature: privacy as a constraint on access and privacy as a form of control.162 One m ight u nder­ stand these approaches as corresponding to, or supporting, an in terest in the nondisclosure of information and an in te re st in decisional autonomy, which serve various values such as liber­ ty, selfhood, democracy, innovation, space for intim ate rela­ tions, and social welfare.103 The idea driving m any of these identified values is th a t privacy allows people to explore, inno­ vate, and m ake personal choices in a certain sphere to which they control access and w ithout fear th a t they m ight be viewed as unconventional or unpopular and face reprisals, ridicule, or denial of benefits.154

A few scholars have conceived of privacy in a way th a t ex­ plicitly includes groups or organizations, either envisioning group privacy as an analogue to individual privacy or an exten­ sion of it. Alan W estin’s definition notably included th e privacy

151. SOLOVE, supra note 13, at 13. Solove has argued th at these concep­ tions are each either too narrow or too broad because of their failure to include or exclude matters we typically view as private. Id. at 37. Solove has thus tried to shift focus away from the term “privacy and instead toward specific activities th a t pose privacy problems, taking a pluralistic approach rather than searching for a unified concept based on core characteristics. Id. at 39- 40.

152. Helen Nissenbaum, Privacy in Context: Technology, P olicy, and the Integrity of Social Life 69-70 (2010); see also Allen, supra note 13, at 34 (blending ideas of the access and control views); WESTIN, supra note 20, at 7 (illustrating the control view by defining privacy as “the claim of indi­ viduals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”); Ruth Gavison, Privacy and the Limits o f Law, 89 YALE L.J. 421, 423 (1980) (illus­ trating the access view by defining privacy as relating to “our concern over our accessibility to others”).

153. E.g., NISSENBAUM, supra note 152, at 74-75; SOLOVE, supra note 13, at 12, 78-80, 98.

154. NISSENBAUM, supra note 152, at 75, 77. Some scholars like Solove contend, however, th at as a descriptive matter, there is no unitary or over­ arching value th a t privacy law protects; rather, “[t]he value of privacy in a particular context depends upon the social importance of the activities it facili­ tates.” SOLOVE, supra note 13, at 10, 98.

2014] CORPORATE RIGHT TO PRIVACY 61

of “individuals, groups, or institutions. ” 155 He viewed privacy in terms of social limitation or control and argued that, like indi­ viduals, organizations have a parallel need to “decide when and to what extent their acts and decisions should be made pub­ lic. ” 156 Westin argued that organizational privacy is more than “the collective privacy rights of the members as individuals” and that it is required to enable groups to “play the role of in­ dependent and responsible agents . . . in democratic societies,” such as fulfilling needs for affiliation, group expression, opera­ tion of private enterprise, and criticism of government poli-

• 157cies. Edward Bloustein subsequently identified a need to devel­

op a theoretical framework of group privacy, which he referred to as the ‘“right to huddle. ” ’158 Bloustein’s seminal work, Indi­ vidual & Group Privacy, attempted to provide such a frame­ work by discussing the marital relationship, lawyer-client rela­ tionships, the physician-patient privilege, political and social organizations, business organizations, and governmental or­ ganizations. 159 According to Bloustein, group privacy is an ex­ tension of individual privacy—protecting individuals’ need to come together and act in concert to attain their objectives. 160 “‘Group privacy’ is an attribute of individuals in association

155. WESTIN, supra note 20, at 7. 156. Id. at 42. 157. Id. 158. BLOUSTEIN, supra note 12, at 123. Some sociologists have also defined

privacy to include groups. See AMITAI ETZIONI, The LIMITS OF PRIVACY 196 (1999) (privacy is “the realm in which an actor (either a person or a group, such as a couple) can legitimately act without disclosure and accountability to others”); SOLOVE, supra note 13, at 23; Arnold Simmel, Privacy Is Not an Iso­ lated Freedom, in NOMOS XIII: PRIVACY 71, 81 (J. Roland Pennock & John W. Chapman eds., 1971) (“We become what we are not only by establishing boundaries around ourselves but also by a periodic opening of these bounda­ ries to nourishment, to learning, and to intimacy. But the opening of a bound­ ary of the self may require a boundary farther out, a boundary around the group to which we are opening ourselves.”); Ernest van den Haag, On Privacy, in NOMOS XIII: PRIVACY, supra at 149.

159. BLOUSTEIN, supra note 12, at 123-86 (discussing the Fourth and Fifth Amendments, trade secret law, and statutory protections such as the trade secret exemption of FOIA, to identify the underlying principles th at corpora­ tions constitute a barrier to statism and must be able to maintain trade se­ crets to compete with each other, and that many statutes requiring disclosure invade group privacy in the interest of protecting the public).

160. Id. at 125. “The right to be let alone protects the integrity and the dig­ nity of the individual. The right to associate with others in confidence—the right of privacy in one’s associations—assures the success and integrity of the group purpose.” Id. at 181.

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with one another within a group, rather than an attribute of the group itself. ” 161

Neither Westin nor Bloustein specifically analyzed wheth­ er corporations could claim a right to privacy under the U.S. Constitution. But their work is foundational in describing group privacy and explaining that it serves multiple functions. It can serve to vindicate the privacy interests of individuals that exist without regard to their relationship to the organiza­ tion, or to vindicate privacy interests of individuals that relate to the existence of the organization. Presumably, a group right to privacy may also serve a mixture of these functions— protecting a religious organization, for example, might protect each member’s privacy in free exercise as well as protecting members’ privacy in pursuing this activity in collective form.

In sum, while the Supreme Court and the privacy litera­ ture have not coalesced around a singular definition of privacy or its purpose, the Court has identified two privacy interests— an interest in making certain decisions without government in­ terference and an interest in avoiding disclosure of personal in­ formation—and we can understand these as informed by the values that privacy scholars have identified and the notion that group privacy may protect privacy in one’s associations in an individual and collective sense.

B. S h o u l d t h e R i g h t t o P r iv a c y E x t e n d t o C o r p o r a t io n s ? The next analytical step is to examine whether it would

serve the purpose of the privacy right to provide it to corpora­ tions. To be consistent with the fundamental rationale for ex­ tending corporations rights, as discussed in Part II.A, this re­ quires an understanding of corporate dynamics and the participants involved in the corporation, rather than a reified concept or metaphor for the corporation. 162 This keeps the focus on carrying out the purpose of the right and granting a corpo­ rate right only when it would actually protect human inter-

, 163ests.

161. Id. at 124. 162. See supra P art II; see also Pollman, supra note 77. 163. F o r a discussion o f reificatio n v e rsu s decom posing th e firm in to v a r i­

ous p a rtic ip a n t groups, see WILLIAM A. KLEIN ET AL., BUSINESS ORGANIZATION AND FINANCE 117-18 (2010) (“[R]eification is a device for m a k in g som ething t h a t is in fac t complex seem sim ple, a n d t h a t can be d angerous. In rea lity , only in d iv id u als enjoy th e b en efits, or b e a r th e b u rd en s an d th e resp o n sib ilities, of actio n s affecting o th e r in d iv id u als.”).

2014] CORPORATE RIGHT TO PRIVACY 63

As soon as one opens the hood to look a t the corporation, one confronts the reality th a t corporations come in a variety of types, not necessarily resem bling each other. Coca-Cola, The New York Times, th e American Civil Liberties Union, a small fam ily-run company, a church, and a small charity group are all, or m ight be, corporations. Line draw ing between corpora­ tions is a challenge the Suprem e Court has often avoided or re ­ fused, such as in Citizens United v. FEC,1M but the significant variation in th e purpose and dynamics of corporations necessi­ ta te s more nuanced analysis because the purpose of a constitu­ tional right may not be served by according it to all corpora­ tions.

Given this significant variation between corporations and the need for an organizing schema, this section divides its analysis between (1) public corporations and (2) private and nonprofit corporations. This organization is not m eant to sug­ gest th a t any of these categories should be broadly accorded rights. R ather it reflects a rough, b u t potentially meaningful way of startin g th e analysis. It separates public corporations, which generally have a business purpose and thousands of peo­ ple involved in distinct roles, from nonprofit and private corpo­ rations, which may have more wide-ranging purposes, sizes, and roles. F u rth er, in this la tte r category of private and non­ profit corporations, the connection between the individuals and the corporation may be much closer th a n in the case of public corporations, th e dynamics may resemble an association, and th e purpose of the corporation m ay be more likely to implicate privacy values.160 Thus, each section below analyzes th e corpo­ ra te dynamics and participants involved in th e type of corpora­ tion—public, private or nonprofit—to determ ine w hether any

164. See Citizens United v. FEC, 130 S. Ct. 876 (2010) (ruling broadly as to all corporations).

165. Regarding the terminology of this categorization, all states recognize th at corporations may be for-profit or nonprofit. Anup Malani & Eric A. Pos­ ner, The Case for For-Profit Charities, 93 VA. L. REV. 2017, 2024 (2007). With­ in the for-profit category, corporations may be public or private. The line be­ tween these is generally understood as referring to whether the company is publicly reporting under federal securities regulations—not to whether, in a theoretical sense, the corporation has public or private dimensions. See, e.g., Securities Exchange Act of 1934 § 12(g), 15 U.S.C. § 781(g)(1) (2012) (defining when an issuer of securities must register such securities with the Securities and Exchange Commission); 17 C.F.R. § 240.12g-l (2014) (defining when an issuer of securities is exempt from the registration requirement of section 12(g)); KLEIN ET AL., supra note 163, a t 106 (referring to “‘public’ corpora­ tions—th at is, large firms with many shareholders and with active trading of shares”).

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people likely have a privacy interest at stake and whether the purpose of the privacy right would be served by derivatively ac­ cording it to the corporation.166

1. Public Corporations Public corporations have shareholders, directors and offic­

ers, as well as other stakeholders, such as employees and cus­ tomers. As explained below, there is little possibility of a cog­ nizable privacy interest at stake that would justify granting public corporations a constitutional right to privacy.

a. Shareholders The privacy interests of shareholders in public corporations

are not likely implicated by disclosures of corporate information or the decisions or activities the corporation engages in. The reasons for this are in the very nature of the relationship be­ tween shareholders, managers, and the public corporation.

Public corporations have large-scale, dispersed, passive in­ vestment.167 Corporate assets are held by the corporation, not the shareholders.168 Stock ownership provides limited rights. Shareholders have the right to the residual interest in the firm and they have certain voting rights—the right to elect the board of directors and to vote on a few fundamental issues, such as merger or dissolution.169 Although corporate scholars

166. Looking at the categories of participants involved in the corporation is a way to systematically analyze in a theoretical setting whether any people behind the corporation have privacy interests at stake. It is not meant to reify the categories themselves or suggest an exact equivalence between the corpo­ ration’s interests and the interests of each of its individual participants in all respects. Cf. DAN-COHEN, supra note 107, at 64 (“[T]he organization serves as a kind o f‘moral buffer’: harming the organization is not exhaustively reducible to the harming of particular individuals.”).

167. For a classic work documenting the shift by the early tw entieth centu­ ry of shareholders from owners to passive investors, see ADOLF A. BERLE, J r . & Gardiner C. Means, The Modern Corporation and P rivate Property 1-7 (1932).

168. Margaret M. Blair, Locking In Capital: What Corporate Law Achieved for Business Organizers in the Nineteenth Century, 51 UCLA L. REV. 387, 391 (2003). Economists and corporate law scholars have argued th at shareholders cannot meaningfully be conceived of as “owners” of the firm as they own stock, not the corporation itself. See Eugene F. Fama, Agency Problems and the The­ ory o f the Firm, 88 J. POL. ECON. 288, 288 (1980); Lynn A. Stout, Bad and Not- So-Bad Arguments for Shareholder Primacy, 75 S. CAL. L. REV. 1189, 1191 (2002).

169. Henry Hansmann, The Ow n ersh ip of E nterprise 11, 288-89 (1996) (stating that voting “is not to provide a means for conveying the pa­ trons’ preferences to the firm’s management, but rather to make it more diffi-

2014] CORPORATE RIGHT TO PRIVACY 65 have long debated the locus of power in a firm, as a practical matter it is uncontroversial that shareholders do not have ef­ fective control of the operations of the firm or authority to act on behalf of the corporation; management authority is statuto­ rily vested in the board. 170

In light of these basic premises, shareholders of public cor­ porations do not expect to be active participants in the busi­ ness. 171 In fact, shareholders are often too dispersed and nu­ merous to exercise even their limited voting rights in a meaningful way. 172 Further, public companies have liquid shares and shareholders may exit; share ownership may be short-term. 173 As such, public corporations cannot be identified with a single, lasting group of individual shareholders. Moreo­ ver, many shareholders are actually organizations— institutional investors such as banks, pension funds, mutual funds, etc. 174 Individual claimants whose money is invested are second-order investors and commonly have diversified portfoli­ os. 170 These individuals might not even disclose their names to the companies, whose registers would show the stock as held by the organization. 176

In this way, one would expect most shareholders to be un­ attached to the public corporation except as to an indirect and often diversified economic interest. One way of thinking about this might be through the lens of the “shareholder wealth max­ imization norm,” which maintains that the purpose of the firm is to maximize shareholder wealth and shareholders are gener­ ally assumed to have a homogenous economic interest in the firm. 177 Under this view, shareholders would only care about

cult for the firm to exploit those patrons as a class . . . . [t]o give the electorate some crude protection from gross opportunism on the part of those in power.”).

170. DEL. C o d e A n n . t it . 8 , § 141(a) (2014); see also KLEIN ET AL., supra n o t e 163, a t 110, 123.

171. Klein et al., supra note 163, at 106. 172. HANSMANN, supra note 169, at 11. 173. KLEIN ET AL., supra note 163, at 109 no. 6. 174. See, e.g., Edward B. Rock, The Logic and (Uncertain) Significance of

Institutional Shareholder Activism, 79 Ge o . L.J. 445, 447-51 (1991) (discuss­ ing the rise of institutional investors).

175. See Jill E. Fisch, Securities Intermediaries and the Separation of Own­ ership from Control, 33 SEATTLE U. L. REV. 877, 879-83 (2010) (“Most institu­ tional investors are highly diversified, enabling them to reduce or eliminate the effect of firm-specific risk on their overall returns.”).

176. See Marcel Kahan & Edward Rock, The Hanging Chads of Corporate Voting, 96 GEO. L.J. 1227, 1236-38 (2008).

177. HANSMANN, supra note 169, at 288 (“[I]n virtually all cases the group

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corporate disclosures that resulted in economic harm to the firm, and their concerns would be solely economic in nature. As the purpose of a constitutional privacy right is not to serve such an economic function, shareholders’ privacy interests would not be implicated in public corporations or by corporate actions.

And, even if one were to take a different view—that share­ holders do not have homogenous interests in the public corpo­ ration and its purpose is not shareholder wealth maximiza­ tion—the fact would still remain that corporate law does not treat shareholders as “owners” or “principals” with the ability to control corporate operations, 178 and shareholders have lim­ ited opportunities for participating in public corporations in a way that might implicate their privacy interests.

More specifically, as far as information flows, because shareholders are not active participants in the business, they typically do not provide or create information in their limited involvement that would implicate privacy interests. Sharehold­ ers may vote on particular matters and thus may transmit their decisions on those issues, but they are not of a personal or intimate nature. This would typically be as straightforward as a “yea” or “nay” vote on a fundamental corporate change, such as a merger or the election of the board of directors. Sharehold­ ers could also submit a proposal for a particular corporate ac­ tion to be voted on with the company’s proxy materials if the proposal meets certain requirements. 179 Common topics for shareholder proposals are changes to corporate governance, such as majority voting, or corporate social responsibility is­ sues, such as human rights. 180 Even if a shareholder bought stock to try to advance a social or political purpose, however, the shareholder would still typically be an organization such as PETA or an institutional investor and the goal would generally be to raise public awareness and thereby pressure corporate management, not to keep the proposal private. 181

of individuals to whom ownership is given is extremely homogenous in its in­ terests.”).

178. See Lynn A. Stout, New Thinking on “Shareholder Primacy” 11 (UCLA Sch. of Law, Law & Econ. Research Paper Series, Paper No. 11-04, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1763944.

179. 17 C.F.R. § 240.14a-8 (2014). 180. Lee Harris, The Politics o f Shareholder Voting, 86 N.Y.U. L. Rev.

1761, 1769-70 (2011). 181. Paul Rose, Common Agency and the Public Corporation, 63 VAND. L.

Rev. 1355,1368 (2010).

2014] CORPORATE RIGHT TO PRIVACY 67

The only situation of shareholder interaction that might implicate privacy interests would be “behind-the-scenes” shareholder activism. This scenario typically involves an insti­ tutional investor making a shareholder proposal and engaging in private negotiations with corporate management. 182 In a sense, the interaction resembles Bloustein’s description of group privacy as protecting a need to come together and act in concert to attain group objectives. 183 Yet, the shareholder in this instance is usually an institutional investor, 184 and one would be hard-pressed to locate a human involved with any aware­ ness of a privacy interest at stake. Further, it is common prac­ tice for corporations to consult the SEC concerning whether proposals may be excluded from the corporate proxy. Thus, while the shareholder might seek confidential negotiations to further group objectives, the shareholder would not reasonably expect privacy given that the corporation itself, as represented by directors or officers, might voluntarily disclose information concerning the interaction to the government. 185

Thus, in view of the very limited opportunities for partici­ pation and information exchange, it is highly unlikely that pub­ lic company shareholders would create or be privy to infor­ mation of a type that would implicate privacy protection.

b. Directors and Officers Directors and officers present a somewhat closer ques­

tion. 186 Both directors and executive officers make high-level de-

182. Id.; see also Willard T. Carleton et al., The Influence of Institutions on Corporate Governance Through Private Negotiations: Evidence from TIAA- CREF, 53 J. FIN. 1335, 1335 (1998) (reviewing private negotiations between TIAA-CREF and firms in its portfolio during the 1992-1996 period).

183. See BLOUSTEIN, supra note 12, at 140-46. 184. Shareholder Activism, ROCK CTR. FOR CORPORATE GOVERNANCE (Apr.

28, 2012), https://rockcenter.law.stanford.edu/videos/shareholder-activism (providing a detailed account of shareholder activism and the institutional in­ vestors who are involved).

185. Regarding information flow in the other direction, shareholders re­ ceive information that is widely disseminated in the public markets, and shareholders generally have the right under state corporation codes to investi­ gate the corporation’s records for a “proper purpose.” See, e.g., D EL. CODE ANN. tit. 8, § 220 (2014), http://delcode.delaware.gov/title8/c001/sc07/index.shtml. Proper purposes for investigation are limited to those related to the share­ holders’ interest in the firm. Id. Again, this is unlikely to implicate sharehold­ er privacy interests.

186. Many directors and officers are, of course, also shareholders; this analysis considers privacy interests rooted in their primary role as directors or officers.

68 MINNESOTA LAW REVIEW [99:27

cisions for the corporation and have information about th em ­ selves m ade public.1S' The public disclosure of director and ex­ ecutive nam es, ages, employment history, and in some instanc­ es compensation packages, is m andated by federal securities regulations.188 In addition to specific line-item disclosure re­ quirem ents, th e Securities Act of 1933 and the Securities Ex­ change Act of 1934 include “gap-filling” rules th a t require the disclosure of any fu rth er “m aterial” inform ation necessary to m ake the required statem en ts not m isleading.189 Underlying these disclosure obligations is a policy concern for protecting investors and promoting m arket integrity.190

While m ost of the inform ation disclosed about officers and directors is not of the type th a t would likely implicate a privacy right, one potential exception to this is th e disclosure of direc­ tor or officer health information. This example made media headlines in recent years w ith news of Steve Jobs’s health and questions about w hether Apple Inc. had to disclose otherwise private h ealth information regarding its board member and chief executive officer.192 Jobs was not the only example in this

187. For a discussion of the roles of directors and officers, see KLEIN ET AL., supra note 163, at 116, 135-37; Stephen M. Bainbridge, Why a Board? Group Decisionmaking in Corporate Governance, 55 VAND. L. Re v . 1, 5 (2002); Don­ ald C. Langevoort, The H um an Nature o f Corporate Boards: Law, Norms, and the Unintended Consequences o f Independence and Accountability, 89 GEO. L.J. 797, 801-04 (2001).

188. See Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 15 U.S.C. § 78n (2012) (requiring corporations to disclose additional in­ formation regarding executive compensation in their annual proxy statement); 17 C.F.R. §§ 229.401-404 (2013). Other information about executives that must be publicly disclosed includes involvements in bankruptcy proceedings and criminal convictions. See Joan MacLeod Heminway, Personal Facts About Executive Officers: A Proposal for Tailored Disclosures To Encourage Reasona­ ble Investor Behavior, 42 WAKE FOREST L. REV. 749, 755-59 (2007).

189. 17 C.F.R. §§ 230.408(a), 240.12b-20 (2013). 190. See, e.g., Geoffrey A. Manne, The Hydraulic Theory o f Disclosure Reg­

ulation and Other Costs o f Disclosure, 58 Ala. L. Rev. 473, 479-80, 480 n.25 (2007); Joel Seligman, The Historical Need for a Mandatory Corporate Disclo­ sure System , 9 J. CORP. L. 1, 9 (1983). For criticism of mandatory disclosure, see, for example, Frank H. Easterbrook & Daniel R. Fischel, Mandatory Dis­ closure and the Protection o f Investors, 70 Va. L. Rev. 669, 692-96 (1984).

191. See Victoria L. Schwartz, Disclosing Corporate Disclosure Policies, 40 FLA. St . U. L. r e v . 487, 496-97, 497 n.34 (noting the distinction between loss of privacy and infringem ent upon a rig h t to privacy).

192. For an argument th a t the SEC should impose a rule requiring disclo­ sure of medical information about a “luminary” th at is material to the corpora­ tion, see Allan Horwich, When the Corporate Lum inary Becomes Seriously III: When Is a Corporation Obligated To Disclose that Illness and Should the Secu-

2014] CORPORATE RIGHT TO PRIVACY 69

regard; other instances of a key executive falling ill have raised the same issue of whether it must be publicly disclosed. 193 Google co-founder Sergey Brin has even preemptively an­ nounced that he has a gene mutation that increases his likeli­ hood of contracting Parkinson’s disease. 194

To date, the SEC has not provided specific guidance about whether and when disclosures of executives’ personal health conditions are required, and commentators’ views on this topic have varied. 195 The key determination is whether the infor­ mation is “material”—that is, whether “there is a substantial likelihood that a reasonable investor would attach importance” to the information in making an investment decision.19b A court could find that personal information about an executive is ma­ terial, such as a serious illness that would affect their ability to do their job. 197 Scholars have also discussed the possibility that other personal information could be material due to its impact on an executive’s job performance or because it reflects an ex­ ecutive’s integrity and values such as “a possible criminal pros­ ecution, ” 198 “a messy divorce, extramarital affairs, legal difficul­ ties, addictions, and various problems with a child. ” 199 Further, where an executive is iconic or has a reputation especially tied to the corporate brand, personal facts about that executive are

rities and Exchange Commission Adopt a Rule Requiring Disclosure?, 5 N.Y.U. J.L. & BUS. 827 (2009).

193. See id. a t 829-30 (discussing instances involving the CEOs of Time W arner, Inc., McDonald’s Corp., K raft Foods, Inc., and Bear S team s & Co.).

194. Miguel Helft, Google Co-founder Has Genetic Code Linked to P arkin­ son’s, N.Y. TIMES (Sept. 19, 2008), http://www.nytimes.com/2008/09/19/ technology/19google.html.

195. For academic proposals on this topic, see Patricia Sanchez Abril & Ann M. Olazabal, The Celebrity CEO: Corporate Disclosure a t the Intersection o f Privacy and Securities Law, 46 HOUS. L. REV. 1545 (2010); Heminway, su­ pra note 188, a t 789-802; Horwich, supra note 192, a t 862-70; Tom C.W. Lin, Executive Trade Secrets, 87 NOTRE DAME L. REV. 911 (2012); Tom C.W. Lin, Undressing the CEO: Disclosing Private, Material Matters o f Public Company Executives, 11 U. PA. J. BUS. L. 383 (2009); Schwartz, supra note 191; Alexis Brown Stokes, A n Apple a Day Keeps Shareholder S u its at Bay: A n Exam ina­ tion o f a Corporate Officer’s Legal Duty to Disclose Health Problems to Share­ holders, 17 Tex. Wesleyan L. Rev. 303 (2011).

196. 17 C.F.R. §§ 230.405, 240.12b-2 (2013); Heminway, supra note 188, at 756-57.

197. See Jayne W. B arnard, Sovereign Prerogatives, 21 J. CORP. L. 307, 323-25 (1996) (discussing th e potential m ateriality of a CEO’s serious illness); Heminway, supra note 188, a t 757 (same).

198. Heminway, supra note 188, a t 759, 763. 199. Schwartz, supra note 191, a t 490.

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more likely to be material. 200 A few notable corporate luminar­ ies have identities that have been particularly intertwined with that of a public corporation, such as Bill Gates, Steve Jobs, Martha Stewart, and Google co-founders Larry Page and Ser­ gey Brin. Although the public corporation is composed of a complex set of relationships and individuals, corporations with luminaries like these are in the position of having individuals whose reputations are directly linked to the corporate image. 201

Thus, the executive health example shows that a corporate right to privacy could support cognizable human interests. That is, if the corporation can successfully claim a privacy right, its executives might be able to keep their health information pri­ vate from the public. Protecting an executive’s personal infor­ mation might help ensure that highly qualified individuals seek executive positions and that they can work effectively, without worries about compelled disclosure of personal infor­ mation. 202 Further, health information conceivably fits within various conceptions of privacy discussed above, such as the Su­ preme Court’s recognition of a privacy interest in the nondis­ closure of information. Indeed, the Supreme Court’s first case discussing the privacy interest in nondisclosure, Whalen, in­ volved personal health information. 203 In denying the claim there, the Court specifically relied on the fact that the statute

200. Heminway, supra note 188, at 763; cf. Schwartz, supra note 191, at 512-16 (providing examples of corporate disclosure and nondisclosure of exec­ utives’ personal information).

201. For instance, when M artha Stewart’s company went public, the pro­ spectus warned investors th at the corporation was ‘“highly dependent’” on one individual, Stewart, as ‘“the personification of our brands as well as our senior executive and primary creative force.’” The Cult o f Personality us. Needs of the Market; Martha Stewart, the Company, Is Poised To Go Public. But Is It a Good Thing?, N.Y. TIMES (Oct. 12, 1999), http://www.nytimes.com/1999/10/12/ business/cult-personality-vs-needs-market-martha-stewart-company-poised -go-public-but-it.html. Commentators noted the company was based entirely on Stewart and questioned whether the company would suffer severely if she were “hit by a bus—or by a scandal.” Id. Indeed, five years later when Stewart became embroiled in an insider trading investigation and served a ten-month sentence for making false statements and obstructing the investigation, the company suffered financially along with its founder’s personal legal woes. See United States v. Stewart, 433 F.3d 273, 273 (2d Cir. 2006); United States v. Stewart, 305 F. Supp. 2d 368, 368 (S.D.N.Y. 2004); Geraldine Szott Moohr, What the Martha Stewart Case Tells Us About White Collar Criminal Law, 43 HOUS. L. R e v . 591, 594-97 (2006) (discussing the repercussions to Stewart’s company from the investigation of her trade and subsequent conviction).

202. Heminway, supra note 188, at 774. 203. For a discussion of Whalen, see supra text accompanying notes 128-

2014] CORPORATE RIGHT TO PRIVACY 71

in question provided for securely m aintaining th e information, only providing it to a small num ber of public h ealth officials, and preventing its public disclosure. T h at would not be th e case in th e instance of executive h ealth inform ation because if the SEC were to require disclosure due to th e inform ation’s m ate­ riality to th e investing public it would by definition m ake the information public. Furtherm ore, the government in terest in such a disclosure would arguably be less th a n it was in Whalen w here the statu te concerned th e state ’s in terest in controlling the distribution of dangerous drugs.

The executive health example also shows why an individu­ al may not be able to fully vindicate h er privacy in terests in an individual capacity. Various laws protect some aspects of indi­ vidual privacy. For instance, the Americans w ith Disabilities Act of 1990 (ADA) may preclude some disclosures about h ealth ,204 FOIA contains a “personal privacy” exemption,205 and the Privacy Act bars disclosure of records held by government entities w ithout the prior w ritten consent of the individual to whom the record pertain s.200 But in circumstances where feder­ al securities laws require corporate disclosure and this patch- work of protections does not cover the information, the individ­ ual may not be able to keep the information to herself unless th e corporation can vindicate the right. T hat is, requiring af­ fected individuals to come forward in th e ir own nam es would underm ine the very in terest they would be trying to protect.

On the other hand, as it is th e inform ation of ju s t one iden­ tifiable person, it is not clear th a t the corporation itself would have to be accorded the rig h t so long as it could assert the right on behalf of th e affected individual.20' Moreover, the example also dem onstrates th a t directors and executive officers of public corporations are public figures, and competing in terests may exist am ongst participants in the corporation th a t could weigh against according the corporation a right. When people assume certain top-ranking positions w ithin a public corporation, they

204. See Horwich, supra note 192, at 832-33 (noting th at the contours of the conflict between the securities disclosure regime and the ADA are not well understood).

205. 5 U.S.C. § 552(b)(7)(C) (2012). Under the Court’s recent ruling, indi­ viduals but not corporations may claim the “personal privacy” exemption. FCC v. AT&T, Inc., 131 S. Ct. 1177, 1185 (2011).

206. Privacy Act of 1974, 5 U.S.C. § 552a (2012). The Privacy Act does not include the corporation in its definition of “individual.” Id. § 552a(a)(2).

207. For a discussion of third party standing and its limitations, see Gar­ rett, supra note 103.

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know that means certain information about themselves will be­ come public. Corporate icons like Steve Jobs are especially identifiable as public figures, and the very reason why they might have to disclose health information is because they are viewed as so integral to the corporation’s success that it would be considered material to a reasonable investor. 208 Although most directors and officers do not receive such a high level of public attention and may not be luminaries about whom such extensive information would be disclosed, their high-level posi­ tions in public corporations lessen their reasonable expecta­ tions of privacy in information relevant to their involvement in the corporation. 209 Further, the tension between privacy and disclosure arises in this instance from the competing interests of the corporate participants themselves—officers/directors and shareholders. Disclosure generally serves shareholder interests by promoting investor protection and market integrity. For the­ se reasons, officers and directors present a closer question, but would likely fail to demonstrate a cognizable constitutional pri­ vacy interest that would justify granting public corporations a right to privacy.

c. Employees and Other Stakeholders Employees in public corporations, apart from executive of­

ficers, are typically further from the core of the corporation’s decision making and any critical information that might impli­ cate privacy interests. Public corporations often employ thou­ sands of individuals and the employee ranks change frequently.

Furthermore, in many legal contexts, employee interests actually stand in conflict with those of the employing corpora­ tion. For instance, the privacy rights of the employee are often set against employers’ business justifications for monitoring

208. See Horwich, supra note 192, at 827-33. 209. See Lior Jacob Strahilevitz, Toward a Positive Theory o f Privacy Law,

126 Harv. L. Rev. 2010, 2014 (2013) (“[P]rivacy protections for people volun­ tarily in the public eye in the United States are basically negligible.” (citing Scott J. Shackelford, Fragile Merchandise: A Comparative Analysis of the Pri­ vacy Rights for Public Figures, 49 AM. BUS. L.J. 125, 147 (2012))); cf. Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 465 (1977) (“In sum, appellant has a legit­ imate expectation of privacy in his personal communications. But the constitu­ tionality of the Act must be viewed in the context of the limited intrusion of the screening process, of appellant’s status as a public figure . . . .”).

201 4] CORPORATE RIGHT TO PRIVACY 73

employees. 210 This creates some dissonance with the idea of de­ riving a privacy right for corporations from their employees.

Other stakeholders in the public corporation are also in a position too attenuated to support a derivative corporate priva­ cy right. A stakeholder, broadly speaking, is a party that can affect or be affected by the corporation’s actions. 211 As with em­ ployees, in many legal contexts the stakeholder’s interests ac­ tually stand in conflict with those of the shareholders or direc­ tors and officers. For instance, customers are often counted as stakeholders, and a whole area of the law deals with consumer privacy—laws and regulations that seek to protect consumers’ loss of privacy due to failures or limitations on corporate cus­ tomer privacy measures. 212 Consumer privacy laws recognize that corporations sometimes have an opposing interest in shar­ ing consumer data for commercial advantage. 213 Therefore, one

210. Corey A. Ciocchetti, Monitoring Employee E-Mail: Efficient Workplac­ es vs. Employee Privacy, 2001 DUKE L. & TECH. REV. 0026, i f 1-2 (listing ex­ amples of employer monitoring th at may include surveillance of employee tel­ ephone calls, the time each employee spends on bathroom breaks, and workplace e-mail), available at http://scholarship.law.duke.edu/cgi/viewcontent .cgi?article=1025&context=dltr; Alan P. Westin, Privacy in the Workplace: How Well Does American Law Reflect American Values?, 72 CH I.-K E N T L. Rev. 271, 271 (1996).

211. R. Edward F reeman, Strategic Management: A Stakeholder Ap ­ proach 53 (1984) (stating that a stakeholder is “any group or individual who can affect or is affected by the achievement of an organization’s purpose”). Some would define stakeholder more narrowly, such as someone having an asset at risk. See, e.g., Max B.E. Clarkson, A Stakeholder Framework for Ana­ lyzing and Evaluating Corporate Social Performance, 20 ACAD. Mgmt. Rev. 92, 105-07 (1995).

212. See, e.g., Stephen F. Ambrose, Jr. & Joseph W. Gelb, Consumer Priva­ cy Litigation and Enforcement Actions, 60 BUS. LAW. 723 (2005); J. Howard Beales, III & Timothy J. Muris, Choice or Consequences: Protecting Privacy in Commercial Information, 75 U . C H I. L . REV. 109 (2008). For a discussion of corporations’ use of consumer data, see SlMSON GARFINKEL, DATABASE N A ­ TION (2000); A. Michael Froomkin, The Death o f Privacy?, 52 STAN. L . REV. 1461 (2000).

213. As privacy scholar Neil Richards has explained: [C]ompanies big and small generate vast fortunes from the collection, use, and sale of personal data. . . . “[B]ehavioral advertising” is a multibillion-dollar business, and is the foundation on which the suc­ cesses of companies like Google and Facebook have been built. One recent study concludes th at this form of surveillance is so ingrained into the fabric of the Internet “th at a small number of companies have a window into most of our movements online.”

Neil M. Richards, The Dangers o f Surveillance, 126 HARV. L. Rev. 1934, 1938 (2013) (footnote omitted). Further, “[g]overnment and nongovernment surveil­ lance support each other in a complex manner th at is often impossible to dis­ entangle.” Id. at 1940.

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could not assume that a corporate right would protect consum­ ers’ interests or that a corporation would assert such a right in defense of its customers. 214

That being said, while employees’ and stakeholders’ inter­ ests often stand in conflict with those of other corporate partic­ ipants, their interests may sometimes align vis-a-vis the gov­ ernment, and the corporation may be better situated to vindicate those interests. For instance, when the government subpoenaed Google to produce a list of URLs available through its site and the text of users’ search queries, questions arose about the privacy of Google’s users. 215 The government had sought the information to test blocking and filtering software for minors. 215 Google objected on a variety of bases, including the potential for “loss of user trust” that would harm Google’s business goodwill.21' The federal district court separately raised, sua sponte, privacy concerns about Google’s users be­ cause identifiable information may be found in text strings, and because of the prevalence of internet searches for sexually ex­ plicit material. 218 Ultimately, the court determined it did not have to rule on the privacy issue in that case because it granted the government’s motion to compel only as to the sample URLs and not as to the search queries. 219

Similarly, in the recent case Amazon.com LLC v. Lay, Am­ azon disputed the North Carolina Department of Revenue’s demand for all in-state customer sale information as part of a tax investigation. 220 Among other claims, Amazon asserted that “the privacy and First Amendment rights of itself and of its

214. See Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561, 598, 600 (2009) (arguing that third-party business record holders can fight for their customers’ privacy rights, but acknowledging th a t “third parties in possession of business records may be willing to cooperate with the police” and th at “recent headlines about how telecommunications providers voluntarily assisted the NSA in collecting third-party records (quite possibly in violation of statutory privacy laws) reaffirm that sometimes third-party providers will cooperate eagerly with the government”).

215. Gonzales v. Google, Inc., 234 P.R.D. 674, 677, 687-88 (N.D. Cal. 2006). 216. Id. at 678. 217. Id. at 683-84. 218. Id. at 687. 219. Id. a t 687-88. For a discussion of applying the First Amendment in

the criminal procedure context, such as to subpoenas for book records or search query data th at implicate First Amendment activities, see Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. REV. 112, 166-76 (2007).

220. Amazon.com LLC v. Lay, 758 F. Supp. 2d 1154, 1154-55 (W.D. Wash. 2010 ) .

2014] CORPORATE RIGHT TO PRIVACY 75

customers” would be violated by forcing it to disclose personal identifiers. 221 Represented by the ACLU, Amazon customers in­ tervened anonymously in the suit, alleging their own First and Fourteenth Amendment claims. 222 The court held that the state’s request implicated the First Amendment rights of “Am­ azon’s customers and the Intervenors,” and the state was pro­ hibited from forcing Amazon to disclose the identities and spe­ cific purchase information of its residents. 223

These cases illustrate that corporations have an important role to play in safeguarding their customers’ privacy interests. Further, the importance of this role is growing at a rapid pace, with the increasing pervasiveness of corporations storing the personal data of customers and users. 224 But customers’ inter­ ests are generally too attenuated or divergent from a corpora­ tion’s to support a derivative privacy right for the corporation— customers are outside the corporation—and so the rationale for according the right to the corporation would have to be instru­ mental. 225 In that regard, a parallel might be drawn to the commercial speech doctrine. As discussed in Part II.A, the ra­ tionale for protecting commercial speech has not been to protect the speech right of the corporation as speaker or the natural

221. Id. at 1159, 1162; Complaint for Declaratory Relief Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 at 1, 3, Amazon.com LLC v. Lay, 758 F. Supp. 2d 1154 (W.D. Wash. 2010) (No. 2:10-cv-00664), available at http://www.acluofhorthcarolina.org/files/Amazon%20Complaint.pdf (“If Am­ azon is forced to comply with this demand, the disclosure will invade the pri­ vacy and violate the First Amendment rights of Amazon and its customers on a massive scale. . . . Amazon asserts the privacy and First Amendment rights of itself and of its customers so th at Amazon may sell—and customers may read, hear or view—a broad range of popular and unpopular expressive mate­ rials with the customers’ private content choices protected from unnecessary government scrutiny.”).

222. Order Granting Intervenors’ Motion To Intervene and Motion To File Complaint in Intervention Using Pseudonyms at 4, Amazon.com LLC v. Lay, 758 F. Supp. 2d 1154 (2010) (No. 2:10-CV-00664).

223. Amazon.com, 758 F. Supp. 2d at 1167-69. For a discussion of First Amendment “reader privacy” and the importance of “intellectual privacy,” see Neil M. Richards, The Perils of Social Reading, 101 GEO. L.J. 689 (2013).

224. See Richards, supra note 223, at 698-703; Christopher Slobogin, Gov­ ernment Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 320-21 (2008).

225. Thorny issues of standing could also arise. For a discussion of various standing doctrines, see Garrett, supra note 103; Glenn D. Magpantay, Associa- tional Rights and Standing: Does Citizens United Require Constitutional Symmetry Between the First Amendment and Article lilt, 15 N.Y.U. J. LEGIS. & PUB. POL’y 667 (2012); Tacy F. Flint, Comment, A New Brand of Represen­ tational Standing, 70 U. CHI. L. REV. 1037 (2003).

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persons behind the corporation, but rather to protect consum­ ers who have an interest in hearing the information. Similarly in the context of informational privacy, according protection to the corporation might serve to protect the customers who face collective action problems and who may not be willing to come forward or even know that their personal information is at risk of being disclosed. 226 Such a basis for according protection to corporations would be narrow, however, because it would only exist to serve such an instrumental purpose related to custom­ ers—not a derivative right generally accorded to public corpo­ rations. At best, this might be ground for a narrow doctrine or elaboration of the Whalen v. Roe line of cases to address these

227concerns. To sum up the analysis for public corporations, by looking

at the various participants involved—shareholders, directors and officers, employees and other stakeholders—and the dy­ namics within the corporation, we see that there is little possi­ bility of a cognizable privacy interest at stake that would justi­ fy granting public corporations a constitutional right to privacy. The role of shareholders in public corporations is economic in nature and shareholders have limited opportunities to partici­ pate and exchange information in a way that would implicate privacy interests. Directors and officers have information about themselves publicly disclosed, but it is only rarely of a type that might give rise to privacy concerns of a constitutional dimen­ sion and it is not clear that the corporation itself would need a right to privacy to vindicate the privacy right of the individual. Further, any privacy interests of public company directors and officers are diminished or constrained by their status as public figures and shareholders’ competing interests. Employees and other stakeholders are typically further from the core of the

226. An example of this dynamic might be the situation faced by the nearly 400,000 users of the company Lavabit’s encrypted e-mail service. The service came to national attention when the government tried to compel disclosure of its master encryption keys after it was revealed that Edward Snowden had a Lavabit account. See Jennifer Granick, Hands Off Encryption! Say New Amici Briefs in Lavabit Case, J U S T SECURITY (Oct. 26, 2013, 12:26 PM), http://justsecurity.org/2013/10/26/hands-encryption-amici-briefs-lavabit-case; Orin Kerr, Lavabit Challenges Contempt Order in the Fourth Circuit: An Analysis of Its Arguments, VOLOKH CONSPIRACY (Oct. 11, 2013, 1:29 AM), http://www.volokh.com/2013/10/ll/lavabit-challenges-contempt-order.

227. Existing doctrine might also constrain this possibility—most notably, the Fourth Amendment’s third party doctrine provides th at information loses protection when knowingly revealed to a third party. See, e.g., Kerr, supra note 214, at 563.

2014] CORPORATE RIGHT TO PRIVACY 77

corporation’s decision m aking and any critical inform ation th a t m ight implicate privacy interests. Their privacy in terests often stan d in conflict w ith the other corporate participants, and so would not support a derivative right for the corporation. Corpo­ rations may have an im portant role to play in protecting the privacy of outside stakeholders, such as customers, b u t such an analysis would be lim ited to a more narrow , in stru m en tal r a ­ tionale for protection in th a t limited circumstance. All in all, this analysis explains in a deeper way why it is unnecessary to accord a constitutional rig h t to privacy to public corporations: th ere is not a person involved who needs th e corporation itself to hold th a t rig h t in order to protect th e ir constitutional privacy interests.

2. Nonprofit and Private Corporations Turning now to other types of corporations besides the

large, publicly held business corporation, we see th a t th e ir p u r­ poses and dynamics vary widely. This section s ta rts w ith brief background about these other types of corporations and th en examines th e potential privacy implications in these kinds of corporations. This analysis keys up a fundam ental question about th e corporate form and privacy, explored in th e next sec­ tion.

Nonprofits are characterized by being subject to “the nondistribution constraint,” which prohibits a nonprofit from distributing a profit to individuals who exercise control over it—hence nonprofits do not have indicia of ownership or share­ holders.228 Participants include a board of directors, and poten­ tially also officers, employees, members, and donors.223 Nonprof­ it activities and size m ay vary widely. Nonprofits m ay serve the m utual benefit of th e ir members or patrons, like credit unions and social clubs, or they may serve th e public, like libraries, schools, and m useum s.230 Nonprofits range in size from organi-

228. Henry B. Hansmann, The Role of Nonprofit Enterprise, 89 YALE L.J. 835, 838, 844 (1980) (noting that the nondistribution constraint does not pro­ hibit the nonprofit from earning a profit or paying salaries and perquisites to employees, rather it prohibits distributing any profit to individuals who exer­ cise control over the nonprofit).

229. Nonprofits may have members who elect the board of directors, but this is not a requirement as they can have self-perpetuating boards. Id. at 841-42.

230. See id. at 840-42. Some nonprofits receive most of their income from donations, such as the Red Cross and Salvation Army, whereas others receive income by charging for their services, such as hospitals and the American Au-

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zations w ith billions of dollars in assets and thousands of em­ ployees, such as universities and foundations, to groups th a t have virtually no assets and ju s t a couple of people involved.231

Private corporations are by contrast for-profit and not sub­ ject to the non-distribution constraint. Private corporation stru ctu re is th u s like th a t of public corporations w ith regard to having a board of directors, officers, and shareholders, but in the sm all private corporation the shareholders are not typically a v ast group of dispersed investors and th ere may be significant overlap in the roles of shareholders, directors, and officers.232 Like nonprofits, private corporations vary widely w ith regard to the size of th e ir assets and the num ber of people involved. Some well-known examples of large private corporations are Cargill, Koch Industries, and M ars.233 One of th e largest, C ar­ gill, had over 140,000 employees and revenues over $130 billion in 2013.234 B ut most private corporations are dram atically sm aller th a n these large examples and th a n public corpora­ tions.23a Incorporation is relatively simple and inexpensive, so some very small businesses are formed as corporations despite otherwise resem bling a sole proprietorship or family busi­ ness.236

In m any instances nonprofit and private corporations may be like public corporations in th a t there is little possibility of a cognizable hum an privacy in terest a t stake th a t would be pro­ tected by granting the corporation a right to privacy. The role of shareholders in private corporations is economic and not likely

tomobile Association. Id. Depending on their purpose, nonprofits may receive substantial federal and state tax benefits. See, e.g., Malani & Posner, supra note 165, at 2026.

231. See Usha Rodrigues, Entity and Identity, 60 EMORY L.J. 1257, 1261, 1293-311 (2011).

232. See Harwell Wells, The Rise o f the Close Corporation and the Making of Corporation Law, 5 BERKELEY BUS. L.J. 263, 266 (2008).

233. See America’s Largest Private Companies, FORBES (Nov. 3, 2010), http://www.forbes.com/lists/2010/21/private-companies-10_rank.html.

234. CARGILL, http://www.cargill.com/company/glance/index.jsp (last v isit­ ed Oct. 15, 2014).

235. See, e.g., Wells, supra note 232, at 274. 236. One type of private corporation, the closely held corporation, is in fact

known by its characteristic small number of shareholders who are also often participants in the management, direction, and operations of the corporation, and by its lack of a ready market for the corporate stock. 18 C.J.S. Corpora­ tions § 9 (2007). Some closely held corporations are personal or family ven­ tures, with all of the stock held by a single family or group of friends and fami­ ly. See Frank H. Easterbrook & Daniel R. Fischel, Close Corporations and Agency Costs, 38 STAN. L. REV. 271, 273-74 (1986).

2014] CORPORATE RIGHT TO PRIVACY 79

to implicate decisional autonomy; in th eir role as investors they do not participate in the corporation in a way th a t generates personal information nor is there a requirem ent to publicly dis­ close th e ir information.

Indeed, private corporations are not required to publicly report under federal securities law, and therefore they are not subject to disclosure requirem ents about th e ir directors and of­ ficers.237 Thus, even when private corporations have individuals who are strongly associated w ith th e organization, such as M ark Zuckerberg, the famous CEO of the formerly private company Facebook, there is little likelihood of a privacy claim arising to protect th e ir interests.

Nonprofits are likewise not subject to public reporting u n ­ der federal securities law, and, as noted, by definition they do not have shareholders.238 C ertain nonprofits, as tax-exem pt or­ ganizations, m ust file an annual inform ation re tu rn w ith the In tern al Revenue Service.239 This annual retu rn , Form 990, is intended to help th e IRS detect tax abuse, and it requires a v a­ riety of information including a listing of officers, directors, trustees, key employees, and highest compensated employees, and reporting of certain compensation related to such per­ sons.240 In most instances any such information th a t is publicly disclosed is not of a type th a t would implicate a privacy in terest of constitutional dimension.241

A crucial distinction exists, however, between public corpo­ rations on the one hand and some nonprofits and private corpo­ rations on the other. The nexus between the individuals in ­ volved in a nonprofit or private corporation may be much closer th a n in the case of public corporations—the dynamic more as- sociational am ongst all of the participants—and th e purpose of th e nonprofit or private corporation may be in a realm more

237. See Securities Exchange Act of 1934 § 12(g), 15 U.S.C. § 781(g)(1)(B) (2012) ; 17 C.F.R. § 240.12g-l (2014).

238. See supra note 237. 239. Internal Revenue Serv., De p ’t of the Treasury, Instructions

for F orm 990 Return of Organization Exempt from Income Tax, 3 (2013) , available at http://www.irs.gov/pub/irs-pdi7i990.pdf,

240. Id. at 25; see also Lloyd Hitoshi Mayer, Nonprofits, Politics, and Pri­ vacy, 62 CASE W. Re s . L. r e v . 801, 809 (2012) (identifying Form 990 as a channel through which tax-exempt organizations provide information to the IRS).

241. See Mayer, supra note 240, at 809-11 (discussing the public disclosure of information provided by tax-exempt organizations to the IRS and exceptions to such disclosure, such as information that identifies an organization’s do­ nors).

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likely to implicate recognized privacy values—social, political, or religious. A public corporation typically has primarily a business purpose, with thousands of people involved in distinct roles and heterogeneous interests and motives apart from a general economic interest in the firm. 242 By contrast, a nonprofit corporation may have members associating together for a pur­ pose that has traditionally been viewed as part of the private realm of individuals and their personal lives. 243 A private corpo­ ration may have primarily a business purpose, but be entirely composed of shareholders, directors, and employees with family or marital ties. 244 The corporate documents may directly reflect the family’s collective finances and activities, including infor­ mation about the family members’ social associations, religious affiliation, and political allies.

Thus, as corporations are not monolithic organizations, one might imagine a spectrum—at one end there are corporations with characteristics that suggest individuals could be involved with privacy interests at stake that would be supported by a corporate right to privacy. The privacy interest could stem from the corporation being an organization that holds personal in­ formation or perhaps from the purpose or activities of the or­ ganization itself being related to a liberty or autonomy interest, such as a small religious or political group. Because of the wide-ranging variations in these sorts of organizations, and the indeterminacy of privacy, various factual scenarios could raise the potential for implicating privacy interests for the group. 245

The great bulk of these scenarios raise issues that could be presented as First or Fourth Amendment claims, and there is arguably no need to bring a right to privacy claim as such. For

242. See supra P art III.B.l. 243. See, e.g., Hansmann, supra note 228, at 837 (noting nonprofit institu­

tions such as social clubs and churches). 244. See Benjamin Means, Nonmarket Values in Family Businesses, 54

WM. & MARY L. rev. 1185, 1193-94 (2013) (arguing th at “family businesses are an extension of family relationships”).

245. For example, one scholar has argued th at libraries and bookstores might have used the right to informational privacy to challenge section 215 of the USA PATRIOT Act. Michael J. O’Donnell, Reading for Terrorism: Section 215 o f the USA PATRIOT Act and the Constitutional Right to Information Pri­ vacy, 31 J. LEGIS. 45, 48 (2004). The provision has stirred a great deal of con­ troversy as it allowed FBI officials to seek a court order compelling any “tangi­ ble item” relevant to counterintelligence or counterterrorism investigations, including book records, without notice to individuals whose records had been obtained. Id. at 45-47. The article did not examine whether status as a group or corporation would have affected the ability of libraries and bookstores to bring the right to privacy claim it suggested.

2014] CORPORATE R IG H T TO P RIVAC Y 81

example, th e ACLU recently claimed th a t th e government vio­ lated its F irst and F ourth Amendment rights by requiring Ver­ izon to tu rn over on a daily basis the m etad ata of all of its cus­ tom ers’ phone calls, including the m etad ata of all ACLU phone calls. 246 The ACLU deputy director stated th e governm ent’s ac­ tion “represents a gross infringem ent of the freedom of associa­ tion and the right to privacy, ” 247 but th e complaint itself framed the ACLU’s claims simply as F irst and F ourth Am endment vio­ lations w ithout a specific claim to an independent rig h t to pri-

248vacy. The concept of privacy is also bound up in th e constitution­

al “freedom to associate,” a rig h t th a t is understood to cover groups, including corporations. 249 This right has roots in the F irst Am endm ent’s freedom of speech and assembly, which pro­ tect group autonom y. 250 The key modern case recognizing the freedom to associate is NAACP v. Alabam a, in which the Su­ prem e Court held th a t state-compelled disclosure of th e group’s m embership list was invalid “as entailing the likelihood of a su b stan tial re stra in t upon th e exercise by petitioner’s members of th eir rig h t to freedom of association. ” 251 In so holding, the Court stated th a t members of the nonprofit corporation had a right to “pursue th e ir lawful private in terests privately and to associate freely w ith others in doing so,” and it recognized “the

246. Complaint at 2, ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013) (No. 13 Civ. 3994), available at https://www.aclu.org/files/assets/nsa_phone_ spying_complaint.pdf.

247. ACLU Files Lawsuit Challenging Constitutionality o f NS A Phone Spy­ ing Program, AM. CIVIL LIBERTIES UNION ( J u n e 11, 2013), h ttp s ://w w w .a c lu .o rg /n a tio n a l-s e c u rity /a c lu -file s -la w s u it-c h a lle n g in g -c o n s titu tio n a lity -n s a -p h o n e -sp y in g -p ro g ra m .

248. Complaint, supra note 246. The court held th at the ACLU had stand­ ing, but th at the NSA’s metadata collection did not violate the First or Fourth Amendment because of the third party doctrine, under which a person who conveys information to a third party forfeits his right to privacy in the infor­ mation. Clapper, 959 F. Supp. 2d at 738, 751.

249. For a discussion of the history and evolution of the related and some­ times overlapping rights of freedom of association, assembly, associational privacy, and expressive association, see Ashutosh Bhagwat, Associational Speech, 120 YALE L .J . 978, 982-1002 (2011). See also JOHN D. INAZU, LIBER­ TY’S Re f u g e : The F orgotten F reedom of Assembly 9-10 (2012) (discussing the link between privacy and association in the Court’s freedom of association jurisprudence).

250. See Bhagwat, supra note 249, at 984-94. 251. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).

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vital relationship between freedom to associate and privacy in one’s associations. ” 252

But while the concept of privacy is enmeshed in the free­ dom to associate and other rights, the right to privacy has evolved separately and it may not be entirely overlapping. 263 What if, for example, the government did not seek the NAACP membership list, but rather the donor list to the William J. Clinton Presidential Library Foundation? When Congress sought this information several years ago, nonprofits like the Heritage Foundation and the Southern Poverty Law Center protested that this was covered by the NAACP case. 254 Other commentators pointed out this was actually unclear because the NAACP case relied on the rationale that the members would face retaliation or physical danger if the list was dis­ closed—facts that were arguably absent for the library founda­ tion. 255 After Citizens United, the calls for public disclosure of information relating to politically active nonprofits and their donors have only increased. 266 Some commentators have dis­ cussed this issue in terms of privacy, rather than just First

252. Id. at 462, 466. 253. Scholars have argued for a more robust freedom of association or right

to assembly. For instance, John Inazu has expressed concern th at the Court’s modem association jurisprudence takes an overly narrow view of groups that qualify as “expressive” and does not offer rigorous protections. See INAZU, su­ pra note 249, at 3—4.

254. Evelyn Brody, Entrance, Voice, and Exit: The Constitutional Bounds of the Right o f Association, 35 U.C. DAVIS L. Rev. 821, 840-41 (2002).

255. Id. at 841; see also Dale E. Ho, NAACP v. Alabama and False Sym ­ metry in the Disclosure Debate, 15 N.Y.U. J. LEGIS. & PUB. POL’Y 405, 412 (2012) (arguing that, under one interpretation, the Court balanced the state’s interest in “monitoring corporate activity” against the harm disclosure would cause NAACP members).

256. See, e.g., Democracy is Strengthened by Casting Light on Spending in Elections Act (the DISCLOSE Act), H.R. 5175, 111th Cong. §§ 211, 301 (2010); S. 3295, 111th Cong. §§ 211, 301 (2010); Ellen P. Aprill, Regulating the Politi­ cal Speech o f Noncharitable Exempt Organizations After Citizens United, 10 ELECTION L.J. 363, 401-05 (2011); Donald B. Tobin, Campaign Disclosure and Tax-Exempt Entities: A Quick Repair to the Regulatory Plumbing, 10 ELEC­ TION L.J. 427, 439-47 (2011). In Citizens United v. FEC, the Court confirmed the constitutional validity of disclosure requirements with the exception of when a reasonable probability exists th at members or supporters of a group would be subject to harassment or reprisals if their identities were disclosed. 130 S. Ct. 876, 913-17 (2010); see also Richard Briffault, Two Challenges For Campaign Finance Disclosure After Citizens United and Doe v. Reed, 19 WM. & MARY B i l l RTS. J. 983, 999 (2011) (discussing the Court’s disclosure juris­ prudence and the possibility of changing the standards for an exemption).

2014] CORPORATE RIGHT TO PRIVACY 83

Amendment chilling effects or freedom of association.23' To be sure, competing interests could properly outweigh such a priva­ cy right, but the possibility exists that a privacy right would at least be implicated. 258

To raise another possibility, what if the government did not simply ask a nonprofit for its membership list, but instead infiltrated and spied on the group? The history of the FBI and other law enforcement engaging in this kind of surveillance is wide-ranging, from infiltration of political groups like the So­ cialist Worker Party to mosques and other religious organiza­ tions. 269 As with the ACLU v. Clapper case, scholarship and case law have primarily focused on whether the surveillance violates the First Amendment by chilling the exercise of free speech or religion. 260 But, what if the government also collected and disclosed personal information regarding the members without a legitimate law enforcement purpose? Depending on the facts at hand, the group would plausibly have a privacy claim.

257. See William McGeveran, Mrs. McIntyre’s Persona: Bringing Privacy Theory to Election Law, 19 WM. & MARY BILL RTS. J. 859, 861 (2011) (applying information privacy theory to election law); Daniel Winik, Note, Citizens In ­ formed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake o f Citizens United, 120 YALE L.J. 622, 661-66 (2010) (arguing th at denying corporations the right to anonymity in political speech is consti­ tutionally legitimate because “corporations lack the kind of dignitary interests th a t justify privacy for individuals”).

258. See Mayer, supra note 240, at 812 (discussing the Joint Committee on Taxation’s recognition th at “tax-exempt organizations have a right to privacy,” but noting th at the committee’s staff concluded th a t public interest generally outweighed this right); see also WESTIN, supra note 20, at 25 (“The functions of privacy in liberal systems do not require th at it be an absolute right. The exer­ cise of privacy creates dangers for a democracy th at may call for social and le­ gal responses. . . . Thus the constant search in democracies must be for the proper boundary line in each specific situation and for an over-all equilibrium th a t serves to strengthen democratic institutions and processes.”).

259. See Linda E. Fisher, Guilt By Expressive Association: Political Profil­ ing, Surveillance and the Privacy o f Groups, 46 ARIZ. L. Rev. 621, 643 (2004) (discussing religious and political surveillance); David A. Harris, Law En­ forcement and Intelligence Gathering in Muslim and Immigrant Communities After 9 111, 34 N.Y.U. Rev. L. & SOC. CHANGE 123, 132-41 (2010) (discussing the FBI’s use of informants in mosques and other religious institutions); Shirin Sinnar, Questioning Law Enforcement, 77 BROOK. L. REV. 41, 46-62 (2011) (describing FBI and Customs and Border Patrol interviews of U.S. Mus­ lims).

260. See, e.g., Williams v. Price, 25 F. Supp. 2d 623, 629-30 (W.D. Pa. 1998) (finding surveillance chilled the plaintiffs freedom to confer with his at­ torney); Sinnar, supra note 259, at 67-71.

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In sum, this examination suggests that, as with public cor­ porations, there is little possibility of a cognizable privacy in­ terest at stake that would justify granting nonprofit or private corporations a constitutional right to privacy. However, it is harder to rule out the possibility because some nonprofits and private corporations may be appropriately described as associa­ tions of people and their activity may be in a realm more likely to implicate recognized privacy values. To a great extent this analysis underscores that in most circumstances, most corpora­ tions should not be accorded a constitutional right to privacy— and it is a stretch to find scenarios that could not be more simp­ ly characterized as freedom of association, or First or Fourth Amendment claims, which may provide more clearly estab­ lished grounds. But the lines between these rights are not al­ ways well delineated, and the right to privacy may play an im­ portant role for some corporations in limited contexts. 261

C. I m p l ic a t i o n s f o r F u t u r e J u r i s p r u d e n c e

One of the key contributions of this Article is measured analysis explaining why most corporations in most circum­ stances should not have a claim to a constitutional right to pri­ vacy. The preceding section also raises the idea that there may be limited instances when some nonprofit and private corpora­ tions could have a stronger claim for constitutional privacy, and this puts into focus the remaining question to be explored here: is there something specific about the right of privacy or the

261. Little work to date has explored whether a coherent distinction can be drawn between allowing a group to claim the freedom to associate versus a right to privacy—this could be a fruitful area for exploration as they may be mutually supporting rights, and categorically denying all corporations a right to privacy could undermine associational rights. Inazu has suggested th at pri­ vacy in association cases protect the boundaries of group autonomy whereas the right to privacy represented by Griswold serves as a guarantor of individ­ ual autonomy. INAZU, supra note 249, at 10. But there is reason to question this distinction as the Court has often grounded the association cases in no­ tions of protecting members, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958), and at times the Court has focused its privacy cases on protecting a relation, see Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Further, a common view of the underlying motivation for group rights is sup­ port of individual autonomy, which suggests there is not always a bright line between supporting individual autonomy and supporting group autonomy. See Frederick Mark Gedicks, The Recurring Paradox of Groups in the Liberal State, 2010 UTAH L. REV. 47, 50-51 (2010). Linda Fisher has suggested that “[t]he overlapping constitutional right to informational privacy is . . . distin­ guishable [from the freedom of association] in th at it focuses on protecting personal information from unreasonable dissemination, rather than on avoid­ ing interference with expressive activities.” Fisher, supra note 259, at 643.

2014] CORPORATE RIGHT TO PRIVACY 85

corporate form that would foreclose all corporations from claim­ ing the right, even in the most compelling examples? This ques­ tion underlies how the Court should address cases that arise in this area, and more fundamentally, this question speaks to deeper issues that corporate rights raise.

As a purely predictive matter, a strong possibility exists that the Court would categorically deny all corporations the constitutional right to privacy. Several indicators point in this direction. First, the Supreme Court’s privacy jurisprudence is a limited patchwork of cases that do not clearly have binding ap­ plication outside the confines of the particulars in precedent cases. 262 That is to say, the right to privacy is a thin reed for a party to rely upon, arguably the recognition of a group right would represent an expansion of the doctrine, and jurists may be inclined to narrowly construe the right to avoid murky is­ sues of substantive due process. 263 The Court might prefer that groups seek legislative action to address changing privacy con­ cerns rather than accord corporations the imprimatur of priva­ cy as a constitutional right. 264 In addition, the Court has once referred to the right to privacy just before mentioning the “purely personal” framework, suggesting that it would put the right to privacy in the same conceptual category as the privi-

262. See supra Part III.A for a discussion of Supreme Court privacy juris­ prudence.

263. For criticism of the Supreme Court’s privacy decisions, see, for exam­ ple, Robert H. Bork, The Tempting of America 95-100, 110-26, 169-70 (1990); John Hart Ely, The Wages o f Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973); Richard A. Posner, The Uncertain Protection o f Priva­ cy by the Supreme Court, 1979 SUP. CT. Rev. 173 (1979).

264. See Michael W. McConnell, The Right To Die and the Jurisprudence of Tradition, 1997 UTAH L. Rev. 665, 670-72, 686 (supporting the traditionalist approach to adjudication of unenumerated rights and arguing th at “[a] juris­ prudence grounded in text and tradition is not hostile to social change, but it assigns the responsibility to determine the pace and direction of change to representative bodies”). Critics sometimes argue that unenumerated rights invite judges to substitute their own personal values for those of the Constitu­ tion. See, e.g., BORK, supra note 263, at 89. But see Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. CHI. L. REV. 381, 381, 390 (1992) (noting that the distinction between enumerated and unenumerated rights is “bogus” and “makes no sense, because it confuses reference with interpretation”); see also David Alan Slansky, Two More Ways Not To Think About Privacy and the Fourth Amendment, CHI. L. REV. (forth­ coming), available at http://papers.ssm.com/sol3/papers.cfm?abstract_id= 2474936 (challenging the idea in the Fourth Amendment context “th at any protections needed against government infringements of privacy in the Infor­ mation Age are best developed outside of the courts and outside of constitu­ tional law”).

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lege against self-incrimination—a rig h t th a t inheres only in a n a tu ra l person’s individual capacity.265

Thinking beyond predictions, however, such a categorical denial of th e right to corporations is not a foregone conclusion, nor should it be. As this Article’s analysis suggests, corpora­ tions seldom have a claim to a constitutional rig h t to privacy, and so corporations as a broad category should not be accorded a rig h t to privacy. A categorical denial, however, would fore­ close the possibility for organizations th a t support values pro­ tected by privacy to receive protection as new situations arise and as th e rig h t to privacy evolves.

As explained in P a rt I.A., Morton S alt, decided in 1950, predated th e C ourt’s m odern privacy jurisprudence and did not m ake a broad ruling on the issue. F u rth er, an aspect of the C ourt’s privacy jurisprudence is interpersonal, suggesting a foundation for recognizing a corporation as holding the rig h t to protect individuals involved. Specifically, in Griswold v. Con­ necticut, the Court fram ed th e issue of the validity of th e state law forbidding use of contraceptives as about the “in tim ate re ­ lation of husband and wife and th e ir physician’s role in one as­ pect of th a t relation.”266 The Court notably did not focus the p ri­ vacy protection on th e individual, but ra th e r on the “m arriage relationship.”267 The Griswold Court also referenced other areas supporting group autonomy such as NAACP v. Alabam a and the “freedom to associate and privacy in one’s associations.”268 And th e Court mentioned Sweezy v. New Hampshire, in which it stressed “th e freedom of th e entire university community” in reversing th e contem pt conviction of a professor who refused to respond to questions during an investigation into subversive activities.269 The Court included these examples to illu strate the existence of “penum bras” of th e guarantees in th e Bill of Rights

265. See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 778-79 n.14 (1978) (“Corporate identity has been determinative in several decisions deny­ ing corporations certain constitutional rights, such as the privilege against compulsory self-incrimination, [and] equality with individuals in the enjoy­ ment of a right to privacy . . . .” (citations omitted)); see also Hale v. Henkel, 201 U.S. 43, 74-75 (1906) (categorically denying corporations the Fifth Amendment privilege against self-incrimination).

266. 381 U.S. at 482. 267. Id. at 486. 268. Id. at 483 (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,

462 (1958)). 269. Id. at 482 (discussing Sweezy v. New Hampshire, 354 U.S. 234, 249-

50, 261-63 (1957)).

2014] CORPORATE RIGHT TO PRIVACY 87

that “help give them life and substance. ” 270 For our purposes, these examples suggest an understanding that protecting a group or association—or corporation—can support an individu­ al’s freedom and privacy in some limited instances. 271 It also raises the specter that while denying corporations the right to privacy would be the correct result in most circumstances, it could undercut the association jurisprudence.

Further, as problems of information privacy have become increasingly urgent, scholars are beginning to explore how pri­ vacy has a social impact and how individuals can no longer ef­ fectively manage their privacy at the individual level through notification and consent. 272 The argument for rethinking the third party doctrine and the relationship between consumers and corporations also underscores the idea raised above that corporations may serve as a useful check on the government. 273

As for the implications of the corporate form on the expec­ tation of privacy, the debate about whether the corporation is by nature public or private has raged for over a century and there is no sign of it being settled. 274 Corporations have both public and private dimensions. 275 Some theorists would draw

270. Id. at 484. 271. See Patterson, 357 U.S. at 459 (“The Association . . . is but the medium

through which its individual members seek to make more effective the expres­ sion of their own views.”); see also Hills, supra note 19, at 187-88 (discussing how organizations advance individual autonomy).

272. See Daniel J. Solove, Introduction: Privacy Self-Management and the Consent Dilemma, 126 HARV. L. REV. 1880, 1881—82 (2013) (noting privacy “fosters a certain kind of society, since people’s decisions about their own pri­ vacy affect society, not just themselves”); see also Julie E. Cohen, What Privacy Is For, 126 HARV. L. Rev. 1904, 1918-27 (2013) (arguing that innovation de­ pends upon privacy); Richards, supra note 213, at 1945-52 (arguing that pri­ vacy protects intellectual pursuits); Strahilevitz, supra note 209, at 2012-20 (2013) (arguing that privacy protection has distributive effects).

273. See supra notes 13-19 and accompanying text; see, e.g., United States v. Jones, 132 S. Ct. 945, 956-57 (2012) (Sotomayor, J., concurring) (question­ ing the premise “that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” because in modern times “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks”); see also Neil M. Richards & Jona­ than H. King, Big Data Ethics, 49 WAKE FOREST L. REV. 393, 413-19 (2014) (discussing how shared information can remain confidential).

274. See William T. Allen, Our Schizophrenic Conception o f the Business Corporation, 14 CARDOZO L. Rev. 261, 264-66 (1992); Alan Wolfe, The Modern Corporation: Private Agent or Public Actor?, 50 WASH. & LEE L. Rev. 1673, 1673 (1993).

275. Eric W. Orts, Business Persons: A Legal Theory of the Firm 131 (2013).

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the line between public and private much closer to one side or the other. And, as one commentator noted, “[t]he line is drawn differently in different times and different places. ” 2 , 6 What is important for the rights analysis at hand is the observation that the public/private distinction is not automatic. It varies by context and observer. This suggests that the public dimensions of the corporate form would not automatically foreclose a right to privacy, though it could lessen such an expectation and the separate legal identity of the corporation should not be forgot­ ten.

CONCLUSION The debate over the notoriously nebulous and controversial

constitutional right to privacy has left largely unexamined whether that right applies to one of the key actors in society— corporations. This Article takes up that question, first identify­ ing and critically examining the growing and discordant case law on the issue and then analyzing whether the purpose of the privacy right would be served by according corporations that right.

This analysis illuminates why most corporations should not have a constitutional right to privacy. Simply put, in most circumstances according the right would not serve its purpose because people are not involved in a way that warrants that protection. To grant corporations a right to privacy where no one’s constitutional privacy interests would be served by doing so would not only be misguided, it would further muddle and undercut the already confused area of corporate rights. This Article’s analysis also shows, however, that a categorical denial may also be unwise in our world of wide-ranging corporations, particularly given the evolving and indeterminate concept of privacy we have. Certain corporations reflect an associational dynamic, with tightly connected individuals pursuing activity, social, political, or religious in nature, that has long been val­ ued in fostering our societal goals of liberty and democracy.

276. Wolfe, supra note 274, at 1683.

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