Personal privacy ≠ corporate privacy

I didn’t intend for the first substantive post here to be devoted to shameless self-promotion, but it’s not every day that a Supreme Court justice gives you a shout-out during an oral argument.

I’m talking about the argument in FCC v. AT&T, a case in which I filed an amicus brief.  The issue is whether the privacy of corporations is protected by the Freedom of Information Act’s exemption for law-enforcement records whose disclosure would result in an “unwarranted invasion of personal privacy.” (The exemptions to FOIA define the categories of information that the government is entitled to hold back when responding  to a FOIA request.) Back in 2009, AT&T managed to convince one of the federal courts of appeals that the answer to that question is yes. You see, the statute defines the word “person” as including corporations as well as people., and according to the court, that meant that personal likewise includes corporate:

“[P]ersonal” is the adjectival form of “person,” and FOIA defines “person” to include a corporation….It would be very odd indeed for an adjectival form of a defined term not to refer back to that defined term. See Del. River Stevedores v. DiFidelto, 440 F.3d 615, 623 (3d Cir. 2006) (Fisher, J., concurring) (stating that it is a “grammatical imperative[]” that “a statute which defines a noun has thereby defined the adjectival form of that noun”).

This conclusion was contrary to how the government had always interpreted the exemption, and the government appealed to the Supreme Court. I filed an amicus brief on behalf of the Project On Government Oversight, the Brechner Center for Freedom of Information, and Tax Analysts.

The brief challenged the appeals court’s conclusion that the meaning of personal is controlled by the statutory definition of person:

To begin with, personal is not the “adjectival form” of person. The suggestion that an adjective can be a form of a noun makes little sense; presumably what AT&T means is that personal is derived from person. But that is wrong as a matter of etymology: personal entered the English language separately from the word person. Both were borrowed from French, where they had evolved from the Latin words personalis and persona, respec­tively. And al­though those Latin words had a com­mon origin, that fact does not provide any reliable clue as to what the English word personal means now.

Moreover—and more important—in the 700 years since the first attested use of personal in English, the word has evolved on a semantic trajectory of its own. It is therefore a mistake to treat the meaning of per­sonal as nothing more than the sum of the meanings of its parts: the noun person plus the suf­fix –al. It is clear from both from dictionary definitions and actual usage that there is more to the mean­ing of personal than sim­ply “of or pertaining to a particular person.” The word’s meaning—as revealed by the con­texts in which it is used—is such that it seems to be used exclusively with reference to human beings.

To show how personal is used in real life, the brief used corpus evidence:

[W]e will rely on evidence of the kind that lexicographers have increasingly come to rely on: the analysis of electronic text collections called “corpora” (the plural of “corpus”).  A corpus is like Lexis on steroids. It is a database of texts gathered from a variety of real-world sources (books, newspapers, magazines, transcripts of spoken language) that has been processed in ways that enable one to search for and analyze patterns in the language. So if one wants to find out, say, which nouns are most commonly modified by personal, it is possible to generate a list of those words, ranked by frequency. This provides powerful evidence of what the word can mean; as this Court has noted, “the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.”  Lexicographers follow much the same principle.

The brief relied on three corpora: the Corpus of Historical American English (COHA), the Corpus of Contemporary American English (COCA), and the TIME Magazine Corpus, all of which are the handiwork of Prof. Mark Davies at Brigham Young University. What we did was to search for the string personal [NOUN], in order to find out what words most frequently filled the NOUN slot.

The results, as we said in the brief, “decisively sup­port the conclusion that per­sonal has developed a spe­cialized meaning such that it is used with regard to human beings, not corp­orations.” For instance, here are the most frequent pairings in COHA for the 1970s (which was when the current version of the exemption was enacted):

personal life, personal income, personal prop­erty, personal interest, personal experience, per­sonal relationship, personal problem, per­sonal rea­son, personal injury, personal thing, personal ap­pearance, personal contact, personal matter, per­sonal friend, personal power, personal opinion, personal fortune, personal gain, per­sonal history, personal letter, personal use, per­sonal view, per­sonal question, personal tragedy, personal phy­sician

(Check out the brief if you’re curious about the rest of the results.)

And this brings us (finally!) to the shout-out I mentioned. During the argument by the lawyer for AT&T, Justice Ginsburg asked this question (or should I say, made this statement):

JUSTICE GINSBURG: Mr. Klineberg, you have read the brief of the Project on Government Oversight where they give dozens and dozens of examples to show that, overwhelmingly, “personal” is used to describe an individual, not an artificial being. And it is the overwhelming use of personal.

There was also this, from Chief Justice Roberts, which I’d like to think was at least partly inspired by my brief:

CHIEF JUSTICE ROBERTS: Counsel, your central argument is that because “person” is defined to include corporation, “personal” in the same statute must include corporate.

I tried to sit down and come up with other examples where the adjective was very different from the root noun. It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn’t have much to do with craft. Squirrel, squirrely. Right? I mean, pastor — you have a pastor and pastoral. Same root, totally different.

So I don’t understand — I don’t think there’s much to the argument that because “person” means one thing, “personal” has to be the same relation.

Further information about the argument is available at SCOTUSblog, as are links to all the briefs.

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