Privacy is certainly a hot-button issue now that smartphones, tablets and social networking sites have changed the way we do business.
Advocacy groups yell-loud and often-when online businesses shove their figurative noses where they haven't expressly been granted access. Legislators are pushing for comprehensive privacy legislation for consumers. Businesses are encouraged to establish use policies for the new technologies that draw clear lines between what is permissible and what is not, so there is no question of an employee's privacy being violated.
On the other hand, some say privacy is a thing of the past, a luxury we can't afford in this global, ultra-connected, always-on society. Especially for governments and businesses, they say transparency is the only way to go.
"Open government" initiatives have agencies at federal, state and local levels making almost everything available via the Web. Lawmakers tweet. Senior staffers maintain blogs. Emails or text messages sent and received by city council members are a matter of public record. Public companies are required to disclose more than ever about their risk management practices, the structure and responsibilities of their boards of directors, and how their executives and their employees are compensated.
And in Federal Communications Commission v. AT&T, the U.S. Supreme Court decided that, in certain instances, even information a corporation may have considered business-sensitive could be subject to disclosure under the Freedom of Information Act.
Here's the background: AT&T participates in a program through which it receives a government subsidy to provide high-speed Internet access and phone service to schools and libraries. When the company discovered it may have applied for too much subsidy, it reported the problem and gave the FCC the details from its internal investigation of the issue, some of which AT&T considered "business sensitive information." White and Case litigation partner Jaime Bianchi told me, "[AT&T] paid the fine ... and went on their merry way."
Shortly thereafter, a coalition of AT&T's competitors submitted a Freedom of Information Act request seeking some of the information from the internal report. AT&T objected, arguing that privacy provisions of FOIA protected the business-sensitive information. When the matter reached the court, Bianchi explained, "[t]he Supreme Court said personal privacy only applies to living, breathing human beings, and not to corporate entities."
The wider implications of the ruling are as yet unclear, but at a minimum, Bianchi said, FOIA privacy protections will probably no longer be enough to shield business-sensitive information from disclosure when the business has been the target of a government investigation.