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

justice-scalia.jpgEarlier 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.

You may also like...

57 Responses

  1. Brad Patrick says:

    As to #4, does public figure doctrine get implicated in any of this explicitly, or is it merely assumed? I’m thinking also of the tort of false light and so forth in relation to #3.

  2. JP says:

    With respect to #1, why would Justice Scalia’s supposed anger prove anything about his stated views? There is a large range of actions I might take that might make another person angry, but that are nevertheless lawful (even if that other person is a Supreme Court Justice). Justice Scalia claims he was talking about privacy under the law (not social mores, or anything else), and I haven’t seen anyone dispute that.

  3. JP says:

    I also have a question about your aggregation argument. Is there any caselaw supporting it?

    I haven’t read your Understanding Privacy book (but it’s on my list!). I did use your Information Privacy Law textbook in a privacy course in law school, and I know we discussed aggregation in class. It is one of the few textbooks I still keep handy, so I took a very cursory look. I didn’t see any cases–only an excerpt of one of your law review articles.

  4. CG says:

    I, like JP, understood Scalia’s usage of “privacy” to coincide with ‘privacy under the law’ and not ‘normative views of what should and should not be private’. Therefore I don’t see any kind of discrepancy between Scalia’s statements.

    On the other hand, someone should ask Scalia what his normative views on such dossier compilation would be if the compilee was a government entity rather than a Fordham professor. If Scalia does not want to draw a normative distinction between the two, then someone should ask what, if anything, we should do to prevent the government from getting into the dossier compilation business.

  5. JP — In the book, I mention that the Supreme Court recognized aggregation as a privacy violation in United States Dep’t of Justice v. Reporters Committee, 489 U.S. 749 (1989). In this Freedom of Information Act (FOIA) case, the Supreme Court held that a rap sheet compiling publicly available information still fell under a privacy exemption to FOIA. The Court recognized that there is a “distinction, in terms of personal privacy, between scattered disclosure of the bits of information contained in a rap sheet and revelation of the rap sheet as a whole.” In the book, I go on to note that although the Court recognized a privacy problem with aggregation in the FOIA context, it (as well as other courts) have not done so in other contexts.

  6. CG — I don’t interpret Justice Scalia to only be stating views that “conicide with ‘privacy under the law.'” He appears to be talking about his personal views about what he believes to be private, which is why his comments use the first person.

  7. rip 'n run says:

    The “aggregation” argument reminds me of trade secret law, where a business that compiles publicly available information into a usable format can get trade secret protection for its final product under certain circumstances. Definitely an interesting argument in the privacy context.

  8. rip 'n run says:

    The “aggregation” argument reminds me of trade secret law, where a business that compiles publicly available information into a usable format can get trade secret protection for its final product under certain circumstances. Definitely an interesting argument in the privacy context.

  9. NOTE: Joel Reidenberg has written a response to Justice Scalia’s reaction, which I have posted as an update at the end of the post.

  10. Joe says:

    Very interesting. I agree that Scalia did not seem to be talking about the law alone, but a broad social understanding. This exercise of yours underlines that his use of either and both is open to much debate in various contexts.

    [He repeatedly cites what might be deemed alleged “conventional wisdom” in oral argument and court opinions, often quite open to debate, and suggests traditional social practice is important in determining the law in various contexts.]

    The “aggregation principle” has applications in many contexts, and in a fashion, this includes government arguments for secrecy (the current “secrecy doctrine” in the litigation context is a major issue in the news these days, for instance).

  11. I wonder says:

    I hope nobody from Fordham is applying for a Supreme Court clerkship.

  12. Justin says:

    For what it is worth, I think this argument is better viewed in the light of prospective policy changes as opposed to what is or is not legal as of today. For all intents and purpose what the Professor’s class compiled was absolutely legal and is done by companies, marketing firms, and political parties every day. I work in the Online Marketing space and you would be stunned by the depth and breadth of information that can be mined from user browsing history. Google the term “behavioral targeting” and you’ll see.

    The question is whether aggregation of this sort should stay legal and under what circumstances. If the exercise here did nothing more than give Justice Scalia pause when the first major online privacy case comes to the bench, it was well worth it.

    Finally, wrt #3 – it would absolutely not be ethical to publish the dossier publicly.

  13. Arturo says:

    Of course, Scalia’s reasoning makes perfect sense and rings true to our common sense and sense of decency and civilized behavior: Just because you can do something doesn’t mean you should.

    Mr.Reidenberg’s exercise is offensive, and his response to Scalia does not rescue it.

  14. Georg Felis says:

    Had Professor Reidenberg been intellectually honest, he would have assigned his class to find any public information about Justice Scalia AND Professor Reidenberg. Failing to hold himself to the same public scrutiny threshold he invites for Justice Scalia shows a remarkable lack of ethics. But then again, he is teaching future lawyers.

    • eric siegel says:

      He did precisely that, and said so in his response. He has been the subject of the exact same exercise in previous years.

  15. tim maguire says:

    data such as addresses have long been discernible, even if technology has made them easier to find.

    During my Fordham days (I didn’t take Joel’s class, but now I’m wishing I had), we looked at privacy issues and how they are affected by ease of availablility. When courts and legislatures were determining the boundries of privacy protection, the physical barriers to accessing information were much greater.

    Back then, you had to go to the courthouse basement and spend hours searching through old files. Today you can spend seconds at your computer googling.

    The removal of the “time and effort” barrier to data mining alters the need for legal protection in ways the law has not addressed.

  16. ruralcounsel says:

    I vehemently disagree with Arturo’s conclusion.

    People, particularly people of power and influence, should be held to the same standards of hypocrisy as the rest of us. If Justice Scalia wants to shill for less privacy protection of personal information, then he should suffer the same consequences as the rest of us when that occurs.

    It is inherently dishonest to try and discretize the issue by breaking every piece of available information down to the smallest bit and claiming some things are insignificant, vis a vis privacy. There is a synergy to information; that’s the whole point of the aggregation issue. If Scalia doesn’t understand or appreciate this, he shouldn’t be defensive when someone else shines a light on his ignorance.

    Justice Scalia surely understands the law of unintended consequences. There are no standards of public decency when entities collect information on individuals, be it for marketing or more nefarious reasons; there is only what is legal.

    This is no different than the New Hampshire residents who advocated taking Justice Souter’s property by eminent domain, after the Kelo decision. It’s a good thing when prominent public figures find themselves on the losing side, because of their own ill-considered decisions. Too many think they are immune to such results because of their status and power.

  17. Scott says:

    Silly idea: if I would produce and publish my own aggregate dossier, then do I own copyright? With all the rights, privileges, and punitive protection copyright law provides?

    At the going rate, I’ll take on any attempt at “fair use” abuse…

  18. Mark says:

    Reidenberg : Scalia :: Olbermann : Hannity. That is to say, it’s easy to claim that something is not a problem if you don’t think seriously about how you would feel if it happened to you, as in this situation and in Keith Olbermann’s response to Sean Hannity’s waterboarding offer. I think Prof. Reidenberg is correct to suggest that the difference between Justice Scalia’s original comments and his reaction to Prof. Reidenberg’s project raises the possibility that Justice Scalia had not really considered the issue seriously from a personal perspective. Indeed, it seems quite possible that if Prof. Reidenberg’s students gathered this information, others had done it previously, and the only difference is that Justice Scalia knows about this instance. And, for what it’s worth, Prof. Reidenberg had previously assigned his class to gather information about himself.

  19. C R Krieger says:

    I liked Georg Felis’ comment.

    Just because Justice Scalia said:  “Every single datum about my life is private?  That’s silly,” does not mean that the aggregation of all those data points is the right thing to do.  I remember when I fairly young, back in the 1950s, there was a news item on the radio about the fact that the Department of Defense classified its annual purchase and distribution of peanut butter so as to disguise troop movements.  That sounds silly, but with enough aggregation, the intelligence folks might actually know something.

    I am with the school that says Prof. Reidenberg should have included himself in the research effort.  A good project, gone wrong.  But, that happens.  For one seminar at National War College I made all my students members of a National Security Council Principles Committee and looked up likely names in some Government directory, to give it realism and said, figure out what your organization would wish to argue about this topic.  One of the students actually called up the person at OMB.  I cringed when I heard it, but it came out fine.  The person was happy to help.  But, sometimes these things can go wrong, even when you are trying to do good.

    Regards  —  Cliff

  20. Erik says:

    I was at the conference in January. I think what is missing is the context of the conversation. Justice Scalia said that the only “privacy” right granted by the US Constitution was limited to what was specifically enumerated in the Fourth Amendment, i.e. “persons, houses, papers, and effects.” He said it was not the place for judges to add to those rights, it is up to the legislature. He said this is the case even where the judge believes a legislative decision is stupid.

    Then, when responding to the notion that gossip is wrong under Jewish law, but accepted in America today, Justice Scalia said that when he was growing up, gossip was frowned upon in society, but that our First Amendment protections for speech and publishing that speech has prevented Congress or the Courts from preventing dissemination of that gossip. And he said, that a lot of the information people argue should be private, like groceries purchases, he personally did not care if others knew about.

    Then an audience member asked a specific question about whether Justice Scalia would personally believe that someone filing a prescription for an ED medication, would correctly believe that information was worthy of privacy protection, and Justice Scalia said that type of information may be worthy of privacy protection, but it was still a legislative decision.

  21. PJ says:

    I agree that this episode is reminiscent of the move to condemn Justice Souter’s home after Kelo: moderately amusing but embarrassingly juvenile. I am not filled with pride in my alma mater just now.

    Privacy is an area in which it is particularly true that there should be a healthy distance between the line that marks bad behavior and the one that marks illegality. If this exercise was aimed at shaming Scalia into eliminating that distance, then it is the exercise that was shameful.

  22. rrr says:

    I’m supposed to be suitably impressed that Reidenberg used himself as the target in previous semesters? No. I’ll be impressed when some stranger that Reidenberg does not know and has no control over collects his information and then lets Reidenberg and his colleuages know that it’s out there and Reidenburg is then forced to sweat out whether it will be released in a manner meant to do him damage. As an academic myself, I find this another abhorent example of an academic about as clueless concerning the real world as you can get. Scalia has no reason to trust Reidenberg just as Reidenburg has no reason to trust me should I pull this stunt on him. Actually, Reidenburg has more reason to trust me. I’ve not actually done something so astronomically arrogant and asinine to him. He has done so to Scalia and is proud of it, something that says more about him than it does Scalia.

  23. Not having read the Scalia dossier, it’s impossible for me to form an intelligent opinion about it’s contents, much less speculate about the ethics of assembling or possibly publishing such a work. Nothing I’ve read so far suggests that anything in the dossier is particularly shocking, or even all that interesting.

    “Should the underlying beliefs of the subject of the dossier matter for assessing the ethics of the endeavor?”

    No, I don’t think that merely having a difference of opinion on the subject of privacy protection changes the ethical considerations whatsoever.

  24. JM Hanes says:

    Justice Scalia’s response to aggregation as a classroom exercise is the silly part of this exchange! It would be an edifying assignment in almost any discipline, and one that even individuals would be well advised to undertake. It seems particularly bizarre to attack Prof. Redidenberg for “abominably poor judgment” and irresponsibility, when such aggregation is now the daily bread of commercial enterprise, almost across the board. The poor judgment here looks like Scalia’s to me.

    It certainly is silly to think that one can live an anonymous life, but the choice between protecting every bit of data and none is a false one. Establishing which is which becomes increasingly important as more records are digitized, and of particular concern when it is government is pushing that process, as in the case of healthcare records.

    It seems almost self-evident that such distinctions should be drawn law. While it is not difficult to define general categories of sensitive information, it is monumentally difficult to lay out the specifics of which kind of health related data, for example, should and/or can, in fact be protected. While clearly a proper and compelling subject for legislation, I’m not sure why the securities of the fourth amendment (not the first) would not also be implicated here. The question of “searching” seems at least ironically appropriate, doesn’t it?

    Aggregation is a separate issue, where privacy concerns would only be relevant in the absence of the protective legislation above. Requiring any entity which collects personal information to inform its “client” about how it intends to use such information seems no more problematic than requiring ingredient lists. It is legislating how any entity uses unprotected information which has first amendment implications favoring the collector.

    It must be at least 15 years ago that the head of Sun-Micro commented that you have no privacy, you just don’t realize it yet. I’ve long thought that we sorely need a constitutional amendment which explicitly addresses privacy. For starters, it would eliminate constitutionally problematic penumbras. That’s only the beginning, alas, as questions related to invasions of all sorts have only just begun to cross the legal radar. Consider, for example, the recent seizure of an entire computer facility, including servers owned by independent businesses upon reasonable suspicion of law breaking by only one party. Consider the invasion of your home computer, with or without your knowledge, as a software licensee, or your current vulnerability to the mere suspicions of copyright holding entities.

    Designing a privacy amendment might be a fruitful assignment for students of constitutional law. It is not easy to propose such a constitutional principle without straying into the deep pit of codification. We have no constitutional right to privacy, per se. As Sun-Micro suggests, we need such indisputable protections, we just don’t realize it yet.

  25. rrr says:

    As to your first paragraph, all well and fine, Mr. Hanes. I wonder how you’d feel if some stranger made public that they had all of YOUR information and you were uncertain of what they might do with it. If you don’t care, it’s because you’re not important enough to matter or you’re naive enough to trust someone who has a) sent a bunch to twenty-somethings digging through your personal life (surely all of them can be trusted!)and b)trumpets that fact to the world. I wouldn’t trust Reidenberg one lick. If you do care, what you wrote is nothing but verbiage because you respond one way when its someone else but quite another when it hits where you live.

    I am NOT suggesting there should be laws against this kind of thing. I am agreeing with Scalia that it was irresponsible, at best, of Reidenberg to do it.

  26. JM Hanes says:


    I have specifically suggested the need for sensitive information to be protected by law, notwithstanding the difficulty of devising such legislation.

    There are already plenty of “strangers” out there who have all your information, and are doing with it what they please — which includes selling it to others without your knowledge or consent. Perhaps you can point me to Justice Scalia’s scathing condemnation of the “abominably poor judgment” and ethical irresponsibility of the enterprises who do just that on a daily basis. He certainly doesn’t do so here. The man who thinks it’s “silly” to protect such data suddenly thinks it’s not so silly when the data being collected is his own. He saw no harm in it to those with nothing to hide; it’s Justice Scalia who is now responding when its his ox being gored.

    Prof. Reidenberg is teaching those who may one day protect you from such depredations. They can hardly do so, or perhaps even care to, if they don’t know just how much and what kind of information about you is out there. Do you? That’s something even Justice Scalia might not have known — till now. As you yourself note, public figures may well have the most to lose, and perhaps the most potential data at risk. Even without the juxtaposition of Scalia’s public stance on such issues, he is a logical choice for such an exercise.

  27. PG says:

    This reminds me of the conservatives who responded to Kelo by launching an effort to exercise eminent domain over Souter’s property in NH.

    Except decidedly less of a real problem for the justice under attack, as Reidenberg doesn’t seem to have collected anything that would be able to do Scalia any real harm even if it were released. Having strangers know the food you like isn’t a big deal — you reveal it to waiters and grocery store clerks all the time. Having strangers know the movies you like isn’t either — the folks at Netflix, Blockbuster, your local cinema already do.

  28. kirk white says:

    As someone who has worked a long time doing detailed lead generation research for corporate sales and marketing departments, I think many commenters objecting to the “stunt” pulled by this professor are incredibly naive concerning what information is regularly collected and disseminated for profit about individuals both obscure and prominent. This is an everyday business activity.

    In the last five years, the amount of personal information available on the internet has probably multiplied several dozen times. This issue is extremely relevant and will only become moreso. I commend Prof. Reidenberg for bringing this to the forefront. If individuals are so flabergasted that someone might perform the task that the students did, then they should be support protecting privacy not just for Scalia and his ilk, but also in the instances where the data compilers have no interest in making their aggregated results public (not for free, at least). If you want to stop people from having this aggregated data (lest they use it for banal or nefarious purposes), then you probably need to protect it from being stored on the granular level too.

  29. Sean Connolly says:

    The fifteen page dossier on Justice Scalia is likely trivial compared with the “aggregation” available (for a fee!) from Choicepoint or Acxiom. Why is the COMMERCIAL market for aggregators not a more lively subject of debate in these comments? Why is the availability of GPS (or other) location data for my cell phone not causing outrage in these comments? Why is the wiretapping of American citizens without a warrant mentioned above. The Judge Scalia dossier is just a toy….useful as a talking point….but missing the entire point about “privacy”.

  30. Sean Connolly says:

    I meant:

    “Why is the wiretapping of American citizens without a warrant NOT mentioned above.”

  31. For all the people who are outraged over the Scalia dossier parlor trick (“there oughta be a law!”), let’s change a couple of variables. Suppose that the dossier pertained not to one of the Supremes, but to a wanted fugitive convicted of the rape and murder of a small child. And what if he were not convicted, but had been indicted and a warrant had issued? Would it be ethical to broadcast the dossier on America’s Most Wanted?

  32. For those who question the ethics of the dossier experiment, would your views about the ethics change if Reidenberg’s view of privacy were that there is no privacy violation in the creation of such a dossier?

    If Reidenberg’s personal views don’t matter, then are all the entities that gather dossiers on people acting unethically?

  33. Brian says:

    From Above the Law:


    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.”


    Doesn’t that make Reidenberg some kind of morally repulsive freak? To brag, in a public meeting, that he managed to get pictures of Justice Scalia’s grandchildren?

  34. harlan says:

    “It is not a rare phenomenon that what is legal may also be quite irresponsible.” That is very ironic, and it is also how I would describe most of Scalia’s written opinions. What a joke, Scalia and Thomas too are just bad judges, and they need to get removed, or we need to enlarge the court to negate these two nitwits.

  35. Brian,

    No, it doesn’t. For all we know the photos might have been published on the net by Scalia himself.

    Without seeing the dossier itself, there is no way for us to properly judge it. Presumably it’s not a triple-merge credit report, or a ChoicePoint Discovery Plus report with Scalia’s DOB, DL, SSN, financial accounts, payment history, etc. It’s just stuff about Scalia floating around the net or in public record repositories that someone corralled into a single report.

  36. The Wise Bard says:

    Here is a comment I posted previously in response to a parallel discussion on an ABA site. I largely agree with Prof. Solove’s comments, and find his questions a useful stimulus to further thought.

    I do think the element of hypocrisy makes the lesson more effective, and more memorable. I would note that Professor Reidenberg earlier assigned a similar class exercise on himself–a point neither Scalia nor several of the commentators above seem to recognize. I think that a similar exercise on an unconsenting third party who favors more robust privacy protections (whether legislatively or by constitutional or statutory interpretation) would be pedagogically less apt and ethically more troubling. It is not unknown for Scalia to target litigants and attorneys who have invited, or brought, trouble on themselves through their own words or actions.

    My original comment follows:

    This is far from the first time that governmental leaders have shown how out of touch they are with the realities of everyday life.

    Prof. Reidenberg has effectively demonstrated, in a way that will be especially memorable for his class, the legal community reading this report, and, I hope, the broader public—not to speak of Justice Scalia and his judicial and legislative colleagues—just how easy it is to collect, and potentially to disseminate, such “private” information. While Prof. Reidenberg and his class showed appropriate restraint (to the best of our knowledge) on further use of the data they collected, there are many others capable of collecting such information for nefarious rather than instructive purposes.

    (BTW, I speak as a law professor who occasionally taught privacy law, and some of whose students provided me, as an end-of-term gift, with a review of material on me they collected on the web. Damn that speeding ticket 15 years ago—sure glad I paid it on time.)

    Personally, I think it is a significant public service to bring home to those insensitive to the need for improved protections of privacy and in a position to affect further developments of the law a more visceral sense of the nature of the intrusions (indeed, personal violations) now so easy to accomplish, and indeed, so common in our society. Justice Scalia has a fine sense of humor when the jokes are on others—apparently he has a harder time laughing at himself—and learning the appropriate lessons. Including that line about the corruptions of power…to which I might add, excessive insulation from the common travails of life.

    Bravo to Prof. Reidenberg.

  37. Mike says:

    If Scalia doesn’t have a problem with his data being able to be found (and no concern for the underlying privacy issues) then he should have no problem with it being made completely public. After all, it’s really just a matter of degree, right Mr Scalia?

  38. Allen K. says:

    Of course, Scalia’s reasoning makes perfect sense and rings true to our common sense and sense of decency and civilized behavior: Just because you can do something doesn’t mean you should.

    Why do we have laws against murder? Surely decent and civilized people, corporations, and government entities wouldn’t indulge in such scurrilous behavior, without needing it enshrined in the law.

  39. One of the important facets of law is that people agree to follow it. Two years ago, I wrote a blog about laws being entirely voluntary ( http://jayceland.com/blog/archive/2007/11/03/laws-are-entirely-voluntary/ ). The gist is that legislators can’t just arbitrarily create laws and expect them to be followed because they are laws; the laws must follow social convention for self-identified “law abiding citizens”.

    So the question is, “is this unethical enough to make a law?” I suspect that the trouble with it is, like Scalia’s reaction indicates, that if you take it apart and try to compare privacy, public data, and aggregation, there’s nothing for a law to hook into — nothing that can clearly be identified as the kernel of the illegal part.

    I think the deeper issue is that Americans (including me, so I’ll use “we”) live in a country that is both open-minded and puritanical. On the one hand, we can freely amass wealth, own guns, and publicly agree or disagree with our leaders. On the other hand, if it were publicly revealed that some teacher purchased bondage gear for their private (and, for the sake of argument, legal) sex life, they’d be ostracized and possibly fired.

    I favor expanding the open-minded world and don’t expend much effort keeping my 3-sigma behaviors private (that is, the things I do that are shared by a small percentage of the population). The cost today is that I’m prevented from holding public office or working for companies who meddle in the private lives of their employees. I’d rather see the tsk-tsk-er’s of that fictional teacher be told, “what does that have to do with their ability to teach?”

    Unfortunately, because this dichotomy exists, there’s a pervasive belief that those who demand privacy are doing something wrong. Until that kind of thinking congeals one way or another, there’s no way to even suggest a law about it that anyone would reasonably follow.

  40. The Raven says:

    The students didn’t even work very hard at their dossier compilation; a detective agency, even one that obeyed the letter of the law, could have done a much better job, much faster. If this is irresponsible, what does Ole Scaly, then, think of the businesses for whom such compilations are routine?

  41. MikeM1968 says:

    Why do normal people start talking like lawyers when talking about Law?

    The practical issue is that due to the availability of personal info on the net, shouldn’t we have some preemptive protections in place?

    As with anything, it’s a matter of money now and liability (money later). Anyone (read: businesses) requiring your personal info would need to spend more to keep it safeguarded and at the same time be MORE exposed to liability if their new-and-expensive data security measures failed.

    So Judge Scalia should have retired with the Bush administration if he had his words thrown back at him and made to look stupid. His irritation is hypocritical and embarrassing to this citizen whose nation has placed him in its highest court. Maybe Carrot Top should be on the bench, so we can have MORE embarrassing and not-funny comedy.

  42. Rocky Frisco says:

    Scalia’s response says more about him than it does about the subject discussed. He apparently doesn’t like to be outed as a fool, but that doesn’t keep him from acting like one. Some people are born psychopaths and some are created by giving them power over the lives of others.

  43. Dewi Morgan says:

    @Jason Olshefsky: I believe it’s illegal in most US states to stalk someone online. That is, there are specific anti-online-stalking laws. So I think saying “there’s nothing for a law to hook into” is not terribly accurate. I think it’d be a fairly easy thing to define in law. Something like: “Compiling information from multiple sources on a person without their consent, with the intent or effect of causing damage to that person” – I think the intent part would be required, otherwise all fans would be classed as stalkers.

    IANAL, so I daresay that definition’s holier than Jesus’ sandals, but if “online stalking” can be defined legally, then so can this.

  44. The Sailor says:

    ->”I am with the school that says Prof. Reidenberg should have included himself in the research effort.”

    Duh, he did. The people above who said he should do that obviously haven’t read the actual article and were probably just linking here thru some wrongwing website.

    My suggestion? Next time do your own homework.

    BTW, anytime you happen upon a website, whether intentional or not, they have your IP, your operating system, your screen dimensions, and your general location.

    With that and $25 I can probably get your credit report, address(es), license plate(s) and criminal history, (including cases not yet adjudicated).

    p.s. Prof. Reidenberg did do the responsible thing, he put the info behind a password protected firewall. Scalia and the people who are decrying the Prof’s ethics should also realize that the exercise was conducted responsibly.

    BTW, if 20 year olds can do this, imagine what a 14 year old can do.

  45. Josh Adams says:

    Yeah, the deal is absolutely that data mining has opened up an awful lot of otherwise-hidden-or-astronomically-expensive-to-compile data. There’s been a *many* orders-of-magnitude change in how easy it is to compile such data about people, and our laws need to reflect that this is the case.

    Right now they’re written as if data-mining doesn’t exist. And our supreme court justices aren’t aware of how prevalent this stuff is, on EVERY individual. Even if releasing this information was ‘in poor judgment,’ the point is that there are companies compiling this data for their own use, that won’t release it (and therefore, I assume, he would assume they suffered no lapse in judgment).

    It’s a big deal, and needs to be addressed.

  46. Justin says:

    It doesn’t seem like his position is contradictory. He doesn’t think it’s agianst the law for someone to do that type of factfinding about a person, just in bad taste.

  47. Chris Winter says:

    If Justice Scalia is saying that there’s no need to enact legal protections for such personal data, then his comments RE: Prof. Reidenberg’s class exercise are consistent with that.

    But that’s not what I read in the comments of his I saw. My take is that he had said he wasn’t concerned about having his personal data available on-line — until after the professor’s class looked it up (without revealing the actual data.) So, yes, I think Scalia’s reaction was hypocritical.

    But forget Antonin Scalia. Let’s consider how his wife feels about having her private e-mail address potentially subject to torrents of spam. I don’t think it’s a stretch to guess she was not pleased.