FOIA For Firms?

Lay people do not always appreciate the state action doctrine. We lawyers are quick to point out that the Bill of Rights, at least, is not there to limit the conduct of private parties. This feels like gospel. Marsh v. Alabama has little by way of progeny, whereas United States v. Miller has proven rather feracious. Even those who are generally sympathetic to the claim that “code is law” tend to balk at Lawrence Lessig’s corollary that we subject the activities of Internet companies to First Amendment scrutiny.

It may not feel right applying public constraints to private entities, but the reverse is not true: we are plenty comfortable bringing market forces to bear on perceived government shortcomings. Outsourcing government functions to for-profit organizations—privatization—is commonplace. Many efforts to reform government search for analogs for profit and seek to foster forms of competition to increase efficiency.

Will this dynamic continue?  A new bill in California would permit consumers to file a request to see what data the entity holds about them, expanding on an existing law that requires companies to name the entities with whom they share personal data.  Commentators have drawn links between the new proposal and European law, but what I find interesting is the similarity to the Freedom of Information Act (FOIA)—the law that keeps citizens apprised of government activities of concern to them. Today consumers see at most what companies reveal in their privacy policies.  Imagine if, consistent with trade secrets and personal privacy, consumers had a right to make specific requests of corporations, which they had to answer in a timely manner or get sued.

Or take another example: human subject research. Say what you will about Institutional Review Boards, they usually mean business. An academic researcher who would conduct experiments involving people—often in order to help those people, and at least to helps others and further collective knowledge—has to comply with the robust principles of the Belmont Report. Whereas a company interested in treating its consumers like guinea pigs for the express purpose of benefiting itself at their expense (say, by figuring out exactly how long ads before movies can be, or charging more for the same product), faces at most a set of watered down fair information practice principles.  (April 23, 2013 update: I just came across a similar point on page 148 of Evgeny Morozov’s To Save Everything, Click Here.)

Now obviously there are reasons why we do not permit consumers to FOIA companies and why companies can do market research without IRB approval. Just as there are reasons not to apply the First Amendment to Facebook despite its digital ubiquity and “tight leash.”  The government is different in that it works for “the People” and has a monopoly on coercion. But it strikes me as interesting that our reflexive intuition—or at least mine—is that public institutions can benefit from the forces and techniques that constrain private ones, but not the other away around.

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5 Responses

  1. Olivier Sylvain says:

    Nice point, Ryan. To me, the California Bill evokes more than the transparency norm for which FOIA is associated or the paternalism of IRB review, but also a kind of individualized due process interest.

    The strong version of your argument – for a symmetry between our treatment of market and public (?) forces – is worth pursuing. While I’m no expert, the symmetry would have to acknowledge, at a minimum, the framing of the Bill of Rights (against government power) and the 1819 Dartmouth case (validating the public/private distinction). My unstudied intuition is that the alternative approach is not as historically entrenched as the view in Marsh v Alabama. I’m not saying these (or other authorities) make the argument impossible. (After all, see SEC filings requirements and environmental impact statements.) But the entrenched nature of of the prevailing ‘market forces’ approach raises challenges for those of us who’d like to see some symmetry.

  2. Ryan Calo says:

    Thanks, Olivier. This is very interesting and helpful. I don’t mean by my post to suggest that we should bring “public forces” to bear on companies the way that we bring market forces to bear on governments. Only that, in theory, we could. I suppose I’m making to two points: (1) there exist public forces short of the constitutional restraints many reflexively reject, and (2) it is interesting that our intuitions, at least, are asymmetrical here. (Although not entirely, as your counterexamples suggest.)

  3. Frank says:

    We’ve known for a decade (dating back to Hoofnagle’s Big Brother’s Little Helpers article) that these data brokers are happy to be deputized by government. Citron and my article on fusion centers also shows how blurry the divide is between “public” and “private” dossiers on individuals. If they’re going to be routinely commandeered by government, or eagerly seek the government’s business, they’d better take on some of the same responsibilities agencies have.

  4. Ryan Calo says:

    I’m sorry I never responded here, Frank. Thanks for your comment. I certainly agree that such interactions blur the distinction between the government and the state for the reasons you and Danielle explore.

  5. Frank says:

    No problem, Ryan. I’m glad you posted on it. Past CA legislation has helped spark some great legal research on the data broking topic: