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This report highlights three different business statutes that currently function in the business communications environment of the United States: the Electronic Communications Privacy Act, the Health Insurance Portability and Accountability Act (HIPPA), and the Freedom of Information Act. This report analyzes the impact of a recent interpretation of a provision of the Freedom of Information Act by the Securities and Exchange Commission that governs public disclosure.
The S.E.C. and the Freedom of Information Act
This report highlights three different business statutes that currently function in the business communications environment of the United States: the Electronic Communications Privacy Act, the Health Insurance Portability and Accountability Act (HIPPA), and the Freedom of Information Act.
A recent case concerning the application of the Freedom of Information Act and public disclosure in the activities of the Securities and Exchange Commission warrants closer analysis. This report will analyze the impact that the Freedom of Information Act has upon the financial regulator and what impact recently passed financial reform legislation will have on the public.
The Electronic Communications Privacy Act (ECPA) protects electronic communications in the business environment such as emails, text messages and wireless device transmissions, and ensures that these messages cannot be captured or screened without the express consent of the parties in question (Hunsinger 2010).
However, some caveats apply in the business context. If there exists a need to protect business property, or a “valid business purpose” necessitating the acquisition of employee emails, an employer may do so under this act with the permission of the employee in question (Hunsinger 2010).
Most companies achieve this end through via a blanket company policy which all employees sign (Hunsinger 2010). As a general rule, employees cannot expect the same “reasonable expectation of privacy” on a server owned by their employee as they can on the server that operates their personal email (Hunsinger 2010).
The Health Insurance Portability and Accountability Act (HIPAA) covers employee privacy in the realm of health information (Sullivan 2004). This act regulates, oversees and protects the security of electronic health data such as medical records and establishes national standards which employers abide by for employee health insurance plans (Sullivan 2004).
The act’s main purpose and challenge remains to balance the needs of employers to provide economically viable health insurance coverage for their employees against the needs of employees, namely, so that employee health information remains secure and cannot be used against them in a discriminatory manner (Sullivan 2004).
The Freedom of Information Act became law in 1966 and protects the right of the citizens of the United States to “request access to federal agency records or information” (Henry 2003). The act was meant to balance the needs of the government to maintain some level of secrecy and privacy in its information gathering and storage against the rights of the American public to request and receive accountability from its leaders.
Each agency of the United States government must comply with written disclosure requests except in cases where the information requested is protected by exemption or exclusion (Henry 2003). The Freedom of Information Act applies only to federal bodies; each state retains its own statute that manages public requests for state and local government information (Henry 2003).
The remainder of this report studies two newspaper articles that reported a new financial regulation provision that came into law in 2010. Under this law, according to Sorkin (2010), the federal financial regulatory body the Securities and Exchange Commission (SEC) gained an exemption from public disclosure of requests for information filed under the Freedom of Information Act (Sorkin 2010). The details of the exemptions include “surveillance, risk assessments, or other regulatory and oversight activities” (Sorkin 2010).
John Nester, a spokesperson for the SEC, explained that “the new provision applies to information obtained through examinations or derived from that information” (Prial 2010). Nester intimated that the SEC’s expansion of its existing modes of “surveillance and risk assessment efforts” have been undertaken to affect “more sophisticated and effective Wall Street oversight” (Prial 2010).
In order to achieve this, the SEC argues, it requires the “ability to obtain documents and other information from brokers, investment advisers and other registrants,” therefore this new provision gives the SEC more access during their examinations and ensures that brokers and financial investment advisers and other registrants can no longer refuse to comply with any SEC requests for documents under previous confidentiality expectations (Prial 2010).
The impact of this new provision, critics argue, will essentially result in a complete block to all transparency efforts on behalf of the American public in the already shadowy world of high finance (Prial 2010). Since the SEC is a regulatory body, the so-called “surveillance, risk assessments, or other regulatory and oversight activities” will render nearly every document by the SEC unobtainable (Sorkin 2010). Federal agencies and members of Congress may continue to request information from the SEC however the public has been officially shut out (Prial 2010).
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In the business context, this new provision has significant ramifications for transparency goals in the wake of the recession, not to mention the continued efforts of the media to maintain public accountability in the financial world. The recent Bernie Madoff Ponzi scheme provides the most salient example of how this provision may provide an obstacle for corporate governance and communication transparency objectives on behalf of both business and the public (Prial 2010).
News media outlets such as FOX Business Network regularly employ the Freedom of Information Act to affect oversight of the SEC itself on behalf of the American public and investors (Prial 2010). FOX Business Network took legal action against the SEC in the spring of 2009 on account of the federal body’s refusal to hand over documents pertaining to the failed SEC investigations into “alleged investment frauds being perpetrated by Madoff and R. Allen Stanford” (Prial 2010).
Upon the arrest of Madoff and Stanford, it came to light through documents acquired under the Freedom of Information Act, that the SEC had carried out “investigations into both men prior to their arrests but failed to uncover their alleged frauds” (Prial 2010). Similarly, the Freedom of Information Act was employed on behalf of the public following the AIG bailout in 2009 (Prial 2010).
With this new provision, critics argue that the SEC will not only wield carte blanche but their mistakes will escape notice, which may lead to more catastrophic frauds such as the Madoff scandal (Prial 2010). According to Prial (2010) should the interpretation of this new provision stand up in court, critics predict that “the next time there is a Bernie Madoff failure the American public will not be able to obtain the SEC documents that describe the failure” (Prial 2010).
Observers anticipate that members of the media and media networks will likely launch a legal challenge countering the SEC’s interpretation and demanding that the provision be rescinded in light of possible abuse by the SEC (Prial 2010). According to Prial (2010) “the backroom deal…was cut between Congress and the SEC to keep the SEC’s failures secret. The only losers here are the American public” (Prial 2010).
Henry, C.L. (2003). Freedom of information act. New York: Nova Publishers.
Hunsinger, J. et al. (2010) International handbook of internet research. New York: Springer Publishing.
Prial, D. (2010, July 28). SEC says new financial regulation law exempts it from public disclosure. FOX Business News. Retrieved from https://www.foxbusiness.com/
Sorkin, A.R. (2010, July 28). S.E.C. said to see new limits on its disclosures. The New York Times. Retrieved from https://www.nytimes.com/section/business/dealbook
Sullivan, J.M. (2004). HIPAA: a practical guide to the privacy and security of health data. Chicago: American Bar Association.