Privacy and Organizational Persons

By Eric W. Orts & Amy Sepinwall. Full text here.

This Article responds to an argument made recently by Elizabeth Pollman that corporations should not be deemed to have “constitutional privacy rights” in “most circumstances.” Setting forth an alternative conception of organizational rights and examining different meanings of “privacy,” the Article contends that courts should tread more carefully and that it may often be sensible and recommended to allow corporations and other organizations to assert some constitutional “rights of privacy.” More specifically, the Article suggests that organizations may enjoy “primary” rights, which reside with the organizations in the first instance, or “secondary” rights, which are asserted by an organization to protect the underlying individual rights of members or participants in the organization. Several different meanings of privacy are also differentiated, including rights of “decisional privacy,” “informational privacy,” and “local privacy.” Given different organizational contexts, and different meanings of privacy, the Article concludes that no presumptions against rights of privacy for organizations are warranted in advance, and that a better course would be to recommend a deliberative and iterative development of legal standards and principles in different cases and circumstances as they arise.