Corporate Secrecy and a Due Process Right to Access

Americans are in a crisis of information access. While government and corporations are producing more data than ever before, we have shockingly little access to it, leading to serious, if not fatal, injuries. In 1964 Charles Reich wrote The New Property, a seminal article that led to the expansion of due process rights in the United States that may offer a solution to this problem. Reich argued that the United States’ government and commercial sectors had amassed incredible power, creating a societal imbalance that could be rectified if citizens were granted some form of “new property”.Such circumstances—where corporate and government overlap has gravely diminished individuals’ rights to data—are eerily reminiscent of a half century ago, when Reich and his contemporaries were concerned with growing corporate and governmental powers. Today the power imbalance is largely due to government privatizing essential government functions and sweeping up unfathomably granular data behind company walls. Corporations and government have employed a variety of new legal tools to expand secrecy, including broader claims of trade secrecy, First Amendment defenses to disclosure requirements, and ballooning the Freedom of Information Act’s Exemptions that could be ameliorated with a new due process right.This Article outlines why and how courts should expand on Reich’s groundbreaking idea by recognizing a similar due process right of access to government records. First, this Article examines the circumstances that led to The New Property and the expansion of due process rights in the 1960s. It then turns to today’s landscape and shows how a similar imbalanced informational environment exists. It follows by asserting that the Supreme Court should expand due process and create a right to records. It concludes by detailing three specific areas in which recognizing this right would ensure a healthy democracy.