I See England, I See France, I See Nino's Underpants

Joel Reidenberg in The Faulty Lounge, April 29, 2009

Media Source

Posted by Dan Filler at 12:35 PM in Privacy

This is a kerfuffle really worth watching.  At a conference recently, Justice Scalia made comments suggesting that he has limited passion for the notion of privacy protection in an Internet world.

"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.

In response, Fordham Professor Joel Reidenberg asked students in his privacy course to compile a complete dossier on Scalia based on information readily available on the Web.  Students compiled a 15 page packet - which Reidenberg generously keeps behind a password.  The dossier apparently includes Scalia's home address and phone number, his wife's email address, his food and movie preferences, and pictures of the grandkids.   When word of this homework assignment leaked via Above the Law, Scalia struck back - again, via ATL:

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.

Professor Reidenberg responded at Co-op:

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.

I'm not at all convinced that this was an illegitimate classroom project.  Professor Reidenberg's students learned a lot about privacy protection and maybe Justice Scalia learned a bit about how the power of technology really might have serious implications for individual privacy and freedom. 

Or maybe he just thinks the liberals are out to get him again.  He may be right, of course - but everyone has enemies.  And when it comes to privacy intrusion,  the power of data aggregation is quite agnostic.