Unfounded Allayances for a Misarchitected Law

Huge pile of building rubbleMisarchitected.
(Photo: EEJ)

Over at Technology & Marketing Law Blog, Eric Goldman has written that the just-enacted California Reader Privacy Act may impose a new burden on individual bloggers who are on the receiving end of subpoenas. Paul Alan Levy, a lawyer with Public Citizen, a leading public-interest law firm, doesn’t agree. Levy says that the phrase “commercial entity” in the bill could not be construed to cover individuals because, individuals can’t be “entities.”

In this post, I’m going to take issue with what Levy says, and I’m going to offer some things to bolster Goldman’s critique.

Let me note at the outset that Levy is a heavy-hitting litigator who fights the good fight. He’s on the right side of battle after battle, doing pro bono impact litigation that makes our world a better place. So, I’m certainly not at odds with Levy in the greater scheme of things. But I do think that Goldman points out a serious flaw in California’s new privacy law, one that is bad for bloggers, and one that’s worth dwelling on for a bit.

Also, I’m a California litigator. I’ve spent a lot of time puzzling over California statutes. I’ve come to believe that California statutory law needs some watchdogging. So I offer my comments in that vein.

Here’s Levy’s argument that the statute won’t apply to individual bloggers:

… Professor Goldman ignores the limiting impact of the word “entity.” An individual is not an entity; rather, an entity is defined by Black’s Law Dictionary as an organization whose identity is separate from its members.

First, while a dictionary can be helpful resource for readers stumbling across unfamiliar legal words, it is not, at least in my view, a particularly persuasive foundation for interpreting a statute. Regardless, however, I don’t think the definition that Levy cites excludes natural persons. If you look at the whole definition, it clearly says that an entity can have a separate legal existence from its members, but the definition doesn’t say that a natural person can’t be an entity.

At any rate, dictionary definitions are really beside the point. The fact is, there’s a plentitude of legal precedents considering “entity” to embrace an individual person. For instance, many statutory schemes explicitly define “entity” to embrace an individuals. One prominent example is the U.S. Bankruptcy Code. See, 11 U.S.C. § 101(14).

Moreover, courts have plainly used the word “entity” to refer to an individual person. In discussing what the word “individual” meant, for instance, New York’s high court held, “An individual is one entity, one distinct being, a single one, and when spoken of the human kind means one man or one woman.” People v. Doty, 35 Sickels 225, 1880 WL 12385 (N.Y. 1880).

In defining “sole proprietorship,” a D.C. court used the word “entity,” saying, “A sole proprietorship is an entity that is so identified with its owner that the business either must undergo a fundamental change or cease to exist upon the owner’s death or retirement.” Hunter Innovations Co. v. Travelers Indem. Co. of Connecticut, 605 F. Supp. 2d 170, 173 (D.D.C. 2009).

Levy makes other arguments, however:

The statute itself confirms this construction, in that it limits any disclosure (voluntary or compelled) to a “government entity,” but limits compelled disclosure to “any person, private entity, or government entity.”

This is a helpful argument, one which I find somewhat persuasive. But it’s not the end of the matter. The fact is, “person” under the law frequently includes such entities as corporations. Often – I would even say most of the time – when the law means an individual human being, and not things such as corporations, the law uses the term “natural person.” In fact, a neighboring section of the California Civil Code, Section 1798.3, says that “‘individual’ means a natural person” and “‘person’ means any natural person, corporation,partnership, limited liability company, firm, or association.” If “person” includes “corporation,” that arguably makes the term “private entity” redundant of “person,” except that ”person” might embrace a public corporation (i.e., a corporation with publicly traded shares), whereas, perhaps, “private entity” would not.

All of this going around in circles, of course, just illustrates that this statute is poorly drafted. It’s another home run by the folks in the California Legislature. I wish someone would come up with a ballot initiative to force the California Legislature to employ a huge army of well-paid staff to draft and analyze legislative language. It would be worth every penny. The alternative is half-baked text or the made-to-order work product of lobbyists. (Although, with the ACLU, EFF, and (ahem) Google lobbying for this, you’d think made-to-order language would have been pretty good.)

Okay, let’s go on to Levy’s next argument:

A similar understanding that an individual is not an entity is shown by the fact that “government entity” is defined to include any “state or local agency” or “any individual acting or purporting to act for or on behalf of a state or local agency.” If “government entity” included individuals, this last clause would not be needed[.]

Hmmm. I get exactly the opposite out of that. By including individuals within the term “government entity,” the legislature, it seems to me, shows that it understands individual persons to qualify as a kind of entity.

Levy’s bottom line:

So the individual blogger is plainly off the hook as a “commercial entity.” A corporation that blogs, yes. A partnership blogs, yes. But not an individual.

I very much disagree with the phrase “plainly off the hook.” I’d go with “arguably.” Levy makes a fine argument. But, in my mind, that’s all it is: an argument. Take it from me – a member of the California bar who has spent approximately eleventeen bazillion billable hours researching and briefing issues of California statutory interpretation: This is not an easily-disposed-of issue.

But while we are on the subject of phraseology, I note that Goldman’s word for describing the new statute is “misarchitected” – a word which, technically speaking, doesn’t seem to exist. That’s not a knock on Goldman. To the contrary, as I’ve pointed out before, I think it’s part of the job of a law professor to use big words and to even make up new words. Every once in a while, I slip a big, nonexistent word by law-review editors. And count me on board with this one. I’m already thinking about how I can stick misarchitected into one of my working manuscripts.

In the meantime, when it comes to the Reader Privacy Act, I simply do not find Levy’s allayances persuasive. Thus, I must offer the California Legislature my regretulations on a job not-super-well-done.

Later this week, I’ll explain my biggest problem with the Reader Privacy Act.

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