Supreme Court Justice Scalia Given Lesson In Internet Privacy

from the not-an-issue? dept

Tue, May 5th 2009 3:44pm — Mike Masnick

BoingBoing points us to an interesting story involving Supreme Court Justice Antonin Scalia, who apparently gave a recent talk questioning the need to protect privacy online. That caught the attention of Joel Reidenberg, a law professor at Fordham, who teaches an Information Privacy Law class. As part of that class he includes an assignment for the class to try to dig up information on someone online, in order to prove how much information is out there. Last year, he chose himself. This year, given Scalia's comments, he had the class put together a dossier on Scalia, which was not released publicly, but did include a bunch of private info about Scalia that was dug up online. Apparently Scalia was not amused, saying:

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.

Now, to be fair, Scalia does have a point that not every single datum about anyone's life should be considered private. But it's equally silly to lash out and call the decision to give the assignment "abominably poor judgment." That seems like Scalia is suggesting security through obscurity is reasonable, and exposing why it's not is poor judgment. It's hard to see how that makes sense.

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Filed Under: antonin scalia, internet, privacy, supreme court

31 Comments

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some old guy, 5 May 2009 @ 4:02pm

Obscurity
"That seems like Scalia is suggesting security through obscurity is reasonable..."

It was reasonable, until we got search engines. That changed everything.
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Anonymous Coward, 5 May 2009 @ 4:38pm

the justice is not amused
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matt, 5 May 2009 @ 4:49pm

You missed the point
I think you missed the point - Scalia isn't making any comment about the nature of privacy on the internet, he's merely saying it's not the federal government's job to pass laws regarding it. This has nothing to do with the technology, just plain simple American law. Scalia has historically been for restraints on government power and a strict constitutionalist, and this is just another example.
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Anonymous Coward, 5 May 2009 @ 5:10pm

Typical Response
It's ok for everyone else to have their info out there ... but not mine !
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Anonymous Coward, 5 May 2009 @ 5:22pm

Re: You missed the point
Then there shouldn't be even a comment saying "bad judgement" coming from him. This isn't an issue of First Amendment and if he does not consider it serious enough to be defended, there should not be any issues with his private information being exposed. It's just plain, simple American use of freedom to act within laws ;)
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Tristin (profile), 5 May 2009 @ 5:29pm

Re: You missed the point
You have a good point, Matt. Justice Scalia does have a track record of minimal government power, which is usually a good thing. However, there are two things I seriously love and believe deserve government protection: free speech and privacy. The moment either of those becomes compromised, what I consider liberty becomes compromised as well. My personal issue with Scalia's statement is that he seems to believe nobility and honor are enough to protect our privacy from corporations and government. The Internet's short history has already proven such a concept to be laughable.
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Dan, 5 May 2009 @ 5:43pm

What would you expect? He is a technological neanderthal that lives in a cave sequestered from the rest of us peons. Welcome to the real world judge, how do you like it now? The funny part is that given the time and resources the report could have been a 400 page memoir with all the details.
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DJ, 5 May 2009 @ 5:52pm

Here's the thing
The fact that it's, often times, easy to find a person's personal information online DOES NOT mean that there should be legislation regulating the availability of said information.

THE RESPONSIBILITY FOR KEEPING YOUR PERSONAL INFORMATION SAFE LIES
100%
SOLELY
WITH........

YOU!!!!!!!!!!!!!!!!!!!!!!!!!!!
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Paul, 5 May 2009 @ 5:52pm

Prof Reidenberg was wrong
What he did was an absurd publicity stunt designed to embarrass someone whose opinion he did not agree with. He is an ass for doing it.

On the other hand, I would not want to make what he did illegal.

Which, basically, is Scallia's point.

Do we want to live in a society where everything that is wrong is illegal? Or actually worse, where everything legal is acceptable?
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Bill, 5 May 2009 @ 5:54pm

Re: You missed the point
I think you've missed the point: If he's gonna whine about the professors exercise in collecting private data about his judgeship, they he maybe he shouldn't be joining/writing activist opinions that undermine an individual's right to privacy. I believe he thinks the court (or at least him) should be immune from past decisions of the court but as one of the commenters on this flap said, "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."
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DJ, 5 May 2009 @ 5:56pm

Re: Here's the thing
PS i'm not implying that if something illegal is done with your info (ID theft, fraud, etc) is your fault; at that point the "thief" is to blame for his/her crime.

However, if someone finds out your information, and you simply don't want them to know.....
too fucking bad.
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Paul, 5 May 2009 @ 6:03pm

I'm confused
Are you posters suggesting invading Scalia's privacy is OK because he does not want a law against it? That's just twisted logic folks. Either invading privacy is OK or it is wrong. Doesn't matter if there is a law against it or not.

I am sorry if that is confusing to you, but it is perfectly rational to me.
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Alligator, 5 May 2009 @ 6:39pm

Re: Prof Reidenberg was wrong
This was not a publicity stunt. See Prof. Reidenberg's explanation of the exercise here. It seems like Justice Scalia either misunderstood the objective or was misinformed about it because he seems to miss the point. I agree that the exercise should not be illegal, i.e., the law should not protect privacy by punishing someone who assembles freely available information. But that's not the same thing as punishing corporations or government agencies that disclose private information.
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Anonymous Coward, 5 May 2009 @ 7:20pm

Re: Re: Here's the thing
DJ,

Do you have a SS#? Possibly a DL? Maybe even Health Ins ...
Certainly it would your own damn fault when (not if) this info is freely available on the tubes. We dont need no stinkin laws to go after the miscreants, it's your own damn fault if you let them get away with this.
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Anonymous Coward, 5 May 2009 @ 7:45pm

Re: I'm confused
Hehe, so what do you expect us to do? You yourself agree that it should be allowed and nothing should be done about it from a legal stand point. So stop whining.
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lordmorgul, 5 May 2009 @ 7:56pm

Re: Here's the thing
This is completely inaccurate (and quite frankly asinine to put into words), since you cannot possibly control all sources of personal information about yourself. Your bank, insurance companies, medical providers, neighbors (who have an impressive ability to gather and compile information about your habits), and many other sources of YOUR information are beyond your immediate and absolute control. Without privacy legislation protecting information about yourself these sources would be impossible to prevent from spreading that information at will.

Oh but you say 'you can just choose a different insurance company if you do not like their privacy policies'... yes, after the fact when you have already submitted private information to them and find that they decided to change their policies and release all your information. Without law on your side, there is nothing to prevent them from taking any self-serving action against your privacy.
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Anonymous Coward, 5 May 2009 @ 7:58pm

Re: I'm confused
His privacy was not invaded if publicly available information was compiled through legal means (by very definition of what is and is not private). This is precisely the POINT of the exercise.
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Gyffes, 5 May 2009 @ 8:06pm

Scalia is a hypocrite
That is well established. He rails -- as the rest of the Right does -- against "activist judges" and then proceeds to be just that.

First, this is not invasion of privacy: they used available tools to find information out in the wild. Unless they hacked a few systems, there was nothing either illegal nor morally reprehensible about the assignment. Anyone saying otherwise is pushing an agenda of their own.

Second, this is merely another example of Scalia being hoisted on his own petard. He claims to be a "strict constitutionalist" and yet conveniently ignored the "well-regulated militia" aspect of the 2nd amendment during the recent gun control deliberations.

I'd be more pleased with the professor's action if I felt Scalia'd actually learn from the experience but everything we've seen from the man, to date, indicates that's a vain hope.
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Anonymous Coward, 5 May 2009 @ 11:25pm

Re: I'm confused
Are you posters suggesting invading Scalia's privacy is OK because he does not want a law against it?

So who invaded his privacy?
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PT (profile), 6 May 2009 @ 1:37am

What institute again?
Hold on a sec - what's this "Institute of American and Talmudic Law conference"? What's a Supreme Court judge doing talking about laws that may affect me, at a religious conference? Is there anything in this country that isn't directly or indirectly related to Israel?
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Anonymous Coward, 6 May 2009 @ 4:22am

Re: Re: Here's the thing
I'm going to play the devil's advocate here and say that what he was talking about originally was internet privacy, not your nosy neighbors.

If you don't put a fence in around your property, don't go pissing and moaning about it when the Google car comes around, or the neighbors call the police because you were lounging in a bathrobe, reading a paper on the porch while their children play outside. (They would have to be really annoying neighbors..)
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Anonymous Coward, 6 May 2009 @ 5:21am

Institute of American and Talmudic Law
what the hell is this group . . . frankly it sounds scary
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Anonymous Coward, 6 May 2009 @ 7:13am

Re: What institute again?
::sigh:: Why is there anything wrong with talking about politics at a religious conference? A religious institution can talk about politics just like a tech conference can talk about politics. There's absolutely NOTHING wrong with that. If you think there is, you have an issue with logic. There's an acute difference between politics being discussed at a religious conference and religion being discussed at a political conference. You'd do well to learn the difference. Plus, your last question displays a certain level of ignorance and/or exaggeration that flies in the face of what is actually going on in the country.
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Anonymous Coward, 6 May 2009 @ 7:57am

From a previous Techdirt article

"Now, no matter what you think of illegal immigrants and how they should be dealt with, we should all be concerned when the government is stretching the intention of a law beyond its clearly stated purpose... and the Supreme Court seems to agree."

I think the judge's comments jive quite well with your thoughts on not stretching the intention of law.

The SCOTUS doesn't write the laws, just interprets them. While there are many things that are not against the law, they can still be distasteful to the vast majority of others and I think this exercise is one of them. Judges don't write the laws and really should not be stretching the current law to fit new circumstances or political wishes. Activist judges actually go against the constitution. If a political party wants a law, man up and work to pass the law, don't circumvent our constitution by going around the process to push your agenda.
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Anonymous Coward, 6 May 2009 @ 8:35am

Gyffes:

"That is well established. He rails -- as the rest of the Right does -- against "activist judges" and then proceeds to be just that."

Ummm, no, you are wrong. Did he order the professor to jail? Did he file a lawsuit? No, he didn't. So your statement is completely wrong. Maybe you should look at the facts instead of just spouting your agenda.
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Willton, 6 May 2009 @ 9:36am

Re:
Ummm, no, you are wrong. Did he order the professor to jail? Did he file a lawsuit? No, he didn't. So your statement is completely wrong. Maybe you should look at the facts instead of just spouting your agenda.

He's not talking about this case specifically; he's talking about Scalia's hypocrisy regarding "activist judges" in general. Have a read of Boyle v. United Technologies Corp, 487 U.S. 500 (1988) and see for yourself.
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Dave, 6 May 2009 @ 10:04am

Re: Prof Reidenberg was wrong
You nailed it Paul.

"Do we want to live in a society where everything that is wrong is illegal? Or actually worse, where everything legal is acceptable?"

Absolutely not. This kind of legislation would be particularly injurious to public exposure of governmental wrong doing. It would ultimately become illegal to blow the whistle.
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Anonymous Coward, 6 May 2009 @ 10:59am

Interesting case Boyle v. UTC. I had a friend who was on that helicopter. Some of his comrades (besides the pilot)also drowned.

It was a training exercise with the pilots trying to land the helicopter on a dark carrier at night. The pilots were using night vision goggles, which can really screw with your depth perception. The pilots thought they were landing on the carrier but instead ended up putting down in the ocean. Obviouisly the co pilot couldn't get out because his emergency exit door opened out (the cause of the lawsuit) The others were able to get out of the helicopter but drowned because they didn't get their packs off and they sank to the bottom of the ocean.

I wouldn't call this judgment to be the act of an "activist judge"
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PT (profile), 6 May 2009 @ 1:42pm

Re: Re: What institute again?
"your last question displays a certain level of ignorance and/or exaggeration that flies in the face of what is actually going on in the country."
Really? When half the House and Senate stand up to be recognized at the AIPAC conference? When the Vice-President gives a keynote speech? When half the members of the previous administration, and several members of this one, are dual citizens? When an elected representative is caught on tape offering to interfere with an espionage investigation in return for personal preferment, and not only gets away with it, but gets a standing fucking ovation from AIPAC? You've got to be blind not to know what's going on in the country, or a partisan AC to deny it. Scalia is of course at liberty to attend any kind of conference he wishes, but since he is a public official, and since what he says on the record is likely to be taken as nascent judicial policy, the context in which he chooses to speak is significant. I would have said much the same thing had he made his remarks at a 700 Club event, but that it was a Talmudic conference, taken with everything else, makes it just that much more egregious.
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A. L. Flanagan, 6 May 2009 @ 5:05pm

Hard to see how that makes sense.
Well, of course it doesn't. This is Scalia. Duh.
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Willton, 6 May 2009 @ 10:58pm

Re:
I wouldn't call this judgment to be the act of an "activist judge"

Are you kidding me? Scalia invented a standard of tort immunity for federal contractors where it never existed. In fact, the proposal for such immunity was before Congress for a long time, and they chose not to enact it. So, in spite of no statute authorizing immunity from state tort claims and a clear statement from Congress that it did not want to impose such immunity, Scalia decided to create such a standard anyways. As a result, Boyle's family is S.O.L. and the defective helicopter designer gets off scott-free. How is that not "activist?"
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