Lawfare via FOIA

A court case is in progress about whether ‘freedom of information’ applies to private businesses as well as to governments. Joshua Trevino describes FCC v. AT&T: what’s at stake.

By way of background, the case stems from a 2004 incident in which AT&T discovered it was overcharging the federal government on work related to E-Rate. The company voluntarily reported itself to the FCC, which then opened an investigation.

That means the FCC went after a lot of internal business documentation. Once the FCC had this information, some of AT&T’s competitors went after it using the FOIA.

Therein lay the cause of the trouble. Once this information was in the FCC’s hands, a trade association called CompTel — comprised of AT&T’s competitors — filed a FOIA request for all the hitherto-proprietary AT&T info in the FCC’s possession. This abuse of the intent of FOIA, which was meant to promote open government rather than corporate intelligence gathering, was — to the surprise of many observers — validated by the FCC in late 2008, when it ruled that corporations are not protected by FOIA’s privacy exemptions. Just over one year later, the Third Circuit Court of Appeals overruled the FCC (PDF) in a defense of FOIA’s plain intent.

This is very similar to the wikileaks extortion about releasing internal bank documents, except wikileaks makes no pretense about legality in that effort. The basic idea is to make business espionage a public effort as a means to denigrate, impugn, or destroy a hated ideological enemy or business competitor.

Just how far it will go is a question. If the current trend keeps up, it may be that anyone can be allowed to obtain your banking records, other personal finance records, correspondence, and so forth and make them public record. That seems odd in contrast to the identity theft panic virus.

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