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FOIA For Firms?

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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:
    http://gizmodo.com/5991070/big-data-brokers-they-know-everything-about-you-and-sell-it-to-the-highest-bidder

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