Fordham Law


Justice Scalia's Dossier: Interesting Issues about Privacy and Ethics

Joel Reidenberg in Concurring Opinions (blog), April 29, 2009

posted by Daniel J. Solove

Earlier this year, I blogged about Justice Scalia's remarks about privacy at the Institute of American and Talmudic Law. According to media accounts:

    "Every single datum about my life is private? That's silly," Scalia [said]. . . .

    Scalia said he was largely untroubled by such Internet tracking. "I don't find that particularly offensive," he said. "I don't find it a secret what I buy, unless it's shameful."

    He added there's some information that's private, "but it doesn't include what groceries I buy." . . . .

    Considering every fact about someone's life private is "extraordinary," he said, noting that data such as addresses have long been discernible, even if technology has made them easier to find.

At a recent conference at Fordham University sponsored in part by the Center on Law and Information Policy, Professor Joel Reidenberg discussed an assignment he gave to his class this past semester -- find any public information about Justice Scalia and compile it into a dossier. As Kashmir Hill reports at Above the Law:

    "Justice Scalia said he doesn't care what people find out about him on the Internet," said Reidenberg during his presentation on the transparency of personal information. "So I challenged my class to compile a dossier on him."

    Now four months later, at the end of the semester, the dossier (available online somewhere, but password protected) is 15 pages long. Among its contents are Nino's home address, his home phone number, the movies he likes, his food preferences, his wife's personal e-mail address, and "photos of his lovely grandchildren."

    "When the discrete bits of personal information were assembled at the end of the semester, the extent of the overall dossier and some of the particular items of readily available information on the web concerning his family and family life were astonishing to the class," Reidenberg wrote to us.

Before the news of the dossier was reported by Above the Law, Reidenberg had sent a letter informing Justice Scalia about the dossier and offering to allow him to see it if he desired. The dossier was not made public.

Justice Scalia recently responded to the Above the Law post about Joel Reidenberg's experiment:

    I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

    It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.

Scalia's characterization of his remarks above seems to be a bit of a retrenchment. If he was only saying that not every single piece of information about his life is private, then this is just too obvious to be worth saying. My interpretation of his remarks (caveat: I haven't been able to locate his entire speech) is that he believes that certain kinds of information are not private -- Internet tracking, most items of consumption (unless embarrassing), addresses, and so on. He partly seems to endorse the view that there's no privacy violation if there's "nothing to hide."

In my blog post, quoting from my book, Understanding Privacy (2008), I argued that the compilation of dossiers can rise to a privacy violation:

    [P]rivacy may be implicated if one combines a variety of relatively innocuous bits of information. Businesses and government often aggregate a wide array of information fragments, including pieces of information we would not view as private in isolation. Yet when combined, they paint a rather detailed portrait of our personalities and behavior, a problem I call "aggregation." (p. 70)

One of the issues discussed at the conference (informally rather than at the public portion of the event) were the ethics of compiling the dossier and whether to inform Justice Scalia about it. In our informal discussion of the issue during the conference, we had a lively debate with a variety of views. Some thought that it was poetic justice for Scalia, taking him up on his challenge that he wouldn't be bothered by such information compiling. If he didn't see it as a privacy problem, then there was no harm in doing it. Others thought it since they viewed it as a privacy violation, it shouldn't matter what Scalia thought about it -- it was creepy nonetheless. Some thought that Reidenberg should inform Scalia about it; others thought that this might make Scalia uncomfortable. In the end, no consensus was reached.

Some questions worth pondering:

1. Is Justice Scalia justified in his anger about the dossier? Or does this prove that his stated views on privacy do not match his actual attitudes?

2. Was compiling the dossier of publicly-available information unethical? If so, why?

3. Would it be unethical for Reidenberg to release the dossier to the public?

4. Do the ethics of the dossier experiment change if the subject of the dossier were someone who didn't share Scalia's views about privacy? Suppose it were made of somebody who was a staunch privacy advocate. Should the underlying beliefs of the subject of the dossier matter for assessing the ethics of the endeavor?

UPDATE: Here is Joel Reidenberg's response to Justice Scalia's reaction:

    I'm surprised by Justice Scalia's characterization of the project. The scope of protection for privacy in our society is at the forefront of the public policy debate. I assign this research project annually and last year used myself as itssubject. The exercise never fails to provide a keen demonstration for my students of the privacy issues associated with aggregating discrete bits of otherwise innocuous personal information.

    When there are so few privacy protections for secondary use of personal information, that information can be used in many troubling ways. A class assignment that illustrates this point is not one of them. Indeed, the very fact that Justice Scalia found it objectionable and felt compelled to comment underscores the value and legitimacy of the exercise.

UPDATE #2:: Joel Reidenberg has responded in more depth. I've posted his remarks here.