Justice Scalia’s Conception of Privacy

justice-scalia.jpgJustice Scalia recently spoke about privacy at a conference hosted by the Institute of American and Talmudic Law. The event sounded quite interesting, and I wish I could have been there. An AP report provides a brief overview of Scalia’s views on privacy:

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.”

Data such as drug prescriptions probably should be protected, he said, suggesting areas off-limits to data gatherers could simply be listed for legal purposes.

Scalia’s comments are indicative of an approach toward conceptualizing privacy that focuses on the nature of the information. I believe this approach is flawed. Privacy can be invaded even if the information disclosed isn’t shameful. For example, one’s Social Security Number isn’t shameful, yet we protect it as private because it can affect our data security. In many cases, one’s financial information isn’t shameful, but many desire to protect it as private — not to prevent embarrassment, but because they simply don’t want others to know about their financial condition.

Moreover, as I observed in my recent book, Understanding Privacy (Harvard, 2008):

[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)

In all fairness to Justice Scalia, this post is based on a news account of his speech, so there’s a possibility I’ve got his views wrong. But from what I read in the article, it appears he holds a rather common view of privacy that focuses on the nature of the information involved.

The AP report also suggests that Scalia views addresses as not constituting private information:

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 many contexts, I believe that there is a privacy interest in addresses. And it’s not just me. The U.S. Supreme Court has recognized that there are substantial privacy interests in home addresses. In Department of Defense v. FLRA, 510 U.S. 487 (1994), the Court held that the Freedom of Information Act did not permit agencies to disclose their employees’ home addresses to collective bargaining representatives because the disclosure would constitute a “clearly unwarranted invasion” of privacy. Id. at 489. Moreover, the Court noted that “[a]n individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.” Id. at 500. In this case, Justice Scalia was in the majority, and he joined the Court’s opinion quoted above which Justice Thomas wrote.

If anyone has a transcript or video of Justice Scalia’s remarks, I’d be very interested in seeing it.

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11 Responses

  1. Orin Kerr says:

    Dan,

    It sounds to me like Justice Scalia and you are talking about two different issues: You are asking if there is any privacy interest at all in particular information, and Justice Scalia is considering which types of privacy violations he finds particularly troublesome and which ones he finds less troublesome. That’s my sense, at least.

  2. I agree with Mr. Kerr.

    I am much more concerned with government-mandated privacy violations – such as my name and address available for all to see just because I give a few bucks to a candidate or a cause. Remembering how a fair amount of Law Professors (and you can guess which side of the political spectrum they fall) reacted to the AALS convention in San Diego after a certain donation came to light…Can we all agree that we can go a long way toward protecting privacy by simply not mandating so many disclosures?

  3. Andrew says:

    Prof Kerr,

    Scalia does appear to say that he does not find it what he buys, at least, to be a secret at all. But I think that’s why Prof. Solove is asking for a transcript or video of the speech, to get a better idea of the context.

    Now, if anyone has a transcript or video of Justice Scalia buying groceries…

  4. Woodrow H. says:

    Dan,

    Excellent point regarding one’s address as private. Additionally, Congress seems to think one’s home address is entitled to privacy protection (in some instances) as well, by enacting the Driver’s Privacy Protection Act. (http://www4.law.cornell.edu/uscode/18/2721.html)

  5. Michael P. says:

    Here is another report of Scalia’s talk. I checked out the website of the IATL (FYI- a Chabad-Lubavitch organization that brings in big name speakers) and they sell audio/video of past speakers for a not so small fee.

  6. Peter Winn says:

    As to Dan’s point about addresses being sensitive, the Privacy Act explicitly prohibits federal agencies from renting or selling an individual’s name and address. 5 U.S.C. 552a(n).

  7. Juanita Harris says:

    Like Justice Scalia, I don’t give a hoot who knows what groceries I buy, but like him I know that giving out my address to the whole world is something different, e.g. organizations placing lists of addresses of people who contributed money against that organization’s cause, as was recently done regarding Prop. 8. What does Dan think of that, by the way?

  8. Sherri says:

    ” Peter Winn – February 2, 2009 at 8:08 pm As to Dan’s point about addresses being sensitive, the Privacy Act explicitly prohibits federal agencies from renting or selling an individual’s name and address. 5 U.S.C. 552a(n).”

    The someone needs to tell the quasi-government organization known as the post office to get out of the business of selling addresses to companies.

  9. Michael says:

    Scalia is great at saying and writing clever sounding things with logic full of holes. If you look at the root of his writings (especially his dissents) you find someone unbelieveably politically and ideologically driven and perhaps the least fit to serve on an US Supreme Court as you will ever find.