Law Students Teach Scalia about Privacy and the Web

Joel Reidenberg in New York Times, May 17, 2009

Media Source

By NOAM COHEN

TEACHING moment. A nice, hopeful phrase describing lessons learned from real life that help illuminate an academic subject the opposite of book learning.

This spring, the students of an elective course on Internet privacy at Fordham Law School experienced a number of fascinating teaching moments during an assignment meant to demonstrate how much personal information is floating around online.

The assignment from the class's professor, Joel R. Reidenberg, was, admittedly, a bit provocative: create a dossier about Supreme Court Justice Antonin Scalia from what can be found on the Internet.

Why Justice Scalia? Well, the class had been discussing his recent dismissive comments about Internet privacy concerns at a conference. His summation, as reported by The Associated Press: "Every single datum about my life is private? That's silly."

A gauntlet of sorts had been thrown down though Professor Reidenberg said in an interview that he would disagree with that interpretation. The assignment, he said, was not about embarrassing anyone, not about targeting Scalia in the sense of choosing him because of anything about his work on the court. (He was also quick to point out that the year before, the assignment focused on himself.)

Justice Scalia was a natural choice a highly public figure with good reason to guard his privacy. Good luck, for example, finding a direct phone number for his chambers.

Yet the class managed to create a dossier of 15 pages, Professor Reidenberg reported to a conference on privacy at Fordham, that included the justice's home address and home phone number, his wife's personal e-mail address and the TV shows and food he prefers.

How could there not be an aspect of poetic justice in creating the dossier: Still think the issue is silly, your honor? Teaching moments, after all, are not only for students.

The dossier was never intended to be made public (though, the professor points out, since the law protects only material collected to assess a job applicant, it could have been) and Justice Scalia was never supposed to know about the assignment, much the way many of us are blithely unaware about what can be discovered about ourselves online.

Professor Reidenberg's comments at the conference were picked up by a Web site, Above the Law, and the genie was out of the bottle, speeded on its way with the headline "What Fordham Knows About Justice Scalia."

Another teaching moment. Mr. Reidenberg was speaking about the loss of â€Å“practical obscurity, that is, the idea that certain personal information may always have been publicly available down at the courthouse, say but in reality was very hard to discover and disseminate.

"I was giving an academic paper in an academic conference, speaking about the loss of practical obscurity, and the example I use is plucked out of context and becomes a national story," he said.

When word leaked about the dossier, Mr. Reidenberg offered to show Justice Scalia what the class had collected, but he did not respond.

 

Privacy, and its breach, have been issues for millennia Justice Scalia made his remarks about Internet privacy at a conference organized by the Institute of American and Talmudic Law titled "The Right to Privacy and Individual Liberties From Ancient Times to the Cyberspace Age." But technology is placing new stress on our laws, and the solutions are not always easy ones.

It is valuable, for example, to be able to learn who has recently been arrested for drunken driving, but today we live in a world where you can quickly get directions to and a picture of the home of every sex offender, or drunken driver, in a three-mile radius.

It is not only that personal information whisks around the globe, landing before anyone with an Internet connection, but also that there is so much of it.

"In the individual case, it might be innocuous, say the fact that I like Coke and not Pepsi," said Daniel J. Solove, a law professor at George Washington University, whose blog, Concurring Opinions, has been alive with debate about the Fordham research project. When you put together pieces of information, it becomes different. When you have a record of everything you ever bought over the years, you can make inferences about your health, financial situation and interests.

Chris Reid, a third-year law student at Fordham who took Mr. Reidenberg's class last year, said that while his peers had a more relaxed view of privacy on the Internet, our generation needs to be reminded.

People are willing to give up a lot of privacy for a small benefit. They don't know the full cost.

 

Justice Scalia declined an interview request through a spokeswoman but he did give a response about the episode to Above the Law.

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.

A teaching moment, but not necessarily a learned one.


Contact: Joel Reidenberg
Email: jreidenberg@law.fordham.edu