Free speech wins privacy tug of war; Law students school Scalia

Free speech wins privacy tug of war; Law students school Scalia

Summary: As a newspaper journalist, I took pride in my abilities to dig through public records, sniff around court documents, dissect police reports and, yeah, even tap a handful of unconventional sources for the really-hard-to-find details about someone - all under the protections of the U.S.

TOPICS: Browser, Legal, Security

As a newspaper journalist, I took pride in my abilities to dig through public records, sniff around court documents, dissect police reports and, yeah, even tap a handful of unconventional sources for the really-hard-to-find details about someone - all under the protections of the U.S. Constitution.

So, it comes as no surprise to me that a Supreme Court Justice - who created a stir when he said earlier this year that some proposed online privacy laws might be unconstitutional - ended up being the target of a law school class assignment to prove the professor's point, according to an entry on the Above the Law blog. The class was given the assignment of finding out as much information as possible about Justice Antonin Scalia on the Internet. What they came back with was 15 pages of information ranging from the Justice's home address and phone number, the types of movies he likes, his favorite foods and pictures of his grandchildren.

Ouch. Feeling a bit different about rights to privacy there, Justice Scalia? As it turns out, no. He hasn't changed his position.

When he spoke in January at the Institute of American and Talmudic Law's midwinter conference on privacy issues, he said that there are basically two types of personal data - confidential information such as medical records and information that may be personal in nature but also is public and accessible.

Technology, he said, may have made information easier to find but the idea that every fact about a person's private life be protected - as a matter of law, that is - is "extraordinary," he said. The Associated Press reported him as saying, at the time:

Every single datum about my life is private? That's silly.

He's right. It is silly.

I'm all for maintaining a certain amount of privacy for myself and my family. But I also recognize that there are certain details that are not private - no matter how flattering, embarassing or simply boring they might be. Birth records, property records, court records. Anyone can access them. There's no hiding them.

The other tidbits of information about us - what are kids look like and where they go to school, our favorite vacation spots, our employment status and even a favorite Starbucks drink - are largely available because we've put them out there. Facebook, Twitter, MySpace, Flickr, YouTube - it's all there because we put it there.

For example, If a stranger on the street came up to me and asked me how my trip to Vegas was last week, I'd be freaked out about how they knew that. And yet, I thought nothing of posting a few "Having fun in Vegas" Twitter tweets and Facebook status updates while I was there.

Again, I'm not anti-privacy - by no means. But I agree with Justice Scalia that an expectation for every detail of my life to be private, as a matter of law, is silly. His argument is that blanket privacy laws would interfere with the first amendment. He's right. Privacy can't be handled with catch-all laws. Medical records are, and should be, treated differently than, say, information about my property taxes.

Justice Scalia wasn't too happy about the Fordham professor's assignment but didn't change his position because of it. In a statement to the Above the Law blog, he said:

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.

Actually, on that front, the Justice got it wrong. It wasn't poor judgment; it was a good lesson - a reminder for the Justice and all of us, for that matter, that the information we put on the Internet is definitely accessible by anyone with an Internet connection.

(Image credit: Above the Law)

Topics: Browser, Legal, Security

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  • Poor judgement is .....

    posting pictures of your extramarital fling in the internet. Looking up or researching available information IS NOT poor judgement.
    Stealing private information not willingly given is not only poor judgment, but also a crime.
  • Scalia is still right

    The professor did this to "show him what it's
    like." That's as juvenile as the sort of crap
    one sees between immature teenagers like "yeah,
    well I hope you get raped because maybe that
    will change your opinion." It's nothing more
    than an emotional appeal, and the professor
    should have used it as an example to challenge
    the students to behave better than the lowest
    bar that the law sets for them.

    Cases like this are why everything has to be
    spelled out in the law today; few people seem
    to be able to control themselves without the
    law corralling them like cattle.
  • Poor judgment?

    This assignment may have been a bit incendiary given the professor's motivations, but I hardly see it as poor judgment.

    Justice Scalia is a public figure, so it's not unreasonable that people are researching or even digging through the personal details of his life. As far as I can tell, he suffered no ill effect from the class project, so he's no worse off than he was before they started. Now if the professor has incited his class to the point that one of the students sought to cause him harm, that would be poor judgment.

    As for Justice Scalia, he showed that he was willing to eat the same dog food as everybody else. He didn't change his position despite showing a bit of annoyance at the whole ordeal. And that's a fair reaction; most of us probably would have been annoyed in the same way.

    One of the biggest problems with our understanding of privacy is that we use the words "private" and "personal" interchangably when in fact they're very different things legally. My weight or age may not be something I wish to share, but they're hardly private as anyone could reasonably guess them with a simple glance. My bank account transactions are private however, and I expect my bank to protect that information accordingly.

    For the most part, I worry little about my personal information since I don't suspect that I'm interesting enough for anyone to research me. ;-)
    • Yes, Poor Judgement

      Because he encoouraged the students not do an exercise in research but to do something distastfull, underhanded or morally questionable to attemp a change in a person's ethical or legal decision. As an example: This is similar to neighbors getting together to make it uncomfortable for a Koren to live in a predominately black neighborhood or a muslim in a jewish neighborhood. It may be perfectly legal but morally it would be wrong. This teacher was teaching his students that they know best and if you don't believe it, we'll make you believe it.
      Col Mustard
  • Not Poor Judgement

    It is a good excersize to see how much data is available on all of us. I have to agree with Scalia about not being able to keep all personal information confidential. The only way to have personal privacy is to not use a credit card, use the internet, register to vote or drive and not own anything that requires a record of its transaction. This is really hard to do here in America, it is easier in some places.

    The real question is what is allowed with such personal data? Is is alright to investigate someone and stalk them? Is it acceptable to distribute someone's personal information for any reason? For the most part, people tend to be curious and gossipy, but do not intend real harm.
  • RE: Free speech wins privacy tug of war; Law students school Scalia

    Am I to assume that Prof Reidenberg is that rare creature, a politically neutral educator, and that his was a purely educatonal exercise to demonstrate how forlorn is Justice Scalia's or anyone else's wish for a modicum of privacy in the era of the internet?
    Or, was the assignment a leftwing attempt to smoke out Justice Scalia as some sort of facist rightwing hypocrite?
    If the latter (which I suspect it was) it failed completely and instead gave Scalia the opportunity to demonstrate the kind of man he actually is: Level headed and even handed. Hooray for the Justice, and boo to the professor, who is probably this moment standing in front of a mirror mumbling, "Koises, foiled again!"
    • Looking under the wrong rock

      I'm not well acquainted with the ins & outs of privacy law - but the real problem here isn't with Justice Scalia, or any of our courts. It isn't even with any short-coming with current law - its the expectation that this problem should be addressed by the courts.

      If our privacy laws haven't kept up with technology, its an issue the legislatures should address.
  • Amen!

    And at least he (Scalia) is consistent.
  • Not SSNs or other PII

    Access to public records is fine as long as they do not include personally identifiable information.
  • Aggregation and ease of access

    Looked at narrowly, Justice Scalia's comment that every small piece of data about his life should not individually be 100% private, can make sense. We must, however, look at the question in the broader sense, which is the sense of the real world in which we live. In the real world, technology has increased by orders of magnitude the possibility of access to personal data about each of us - the same birth, licensing, and real estate databases may now be accessed from across the world, instead of only by those with either the geographic proximity of the business expense justification to go to our local town hall. In the real world, technology also has increased by orders of magnitude the damage which may be caused by inappropriate access - it is now easy to automatically process a database, legitimately held or otherwise, to attack many people at once, where in the past the incremental cost of attacking each additional personal was too high to permit very large scale attacks.

    In this broader, real-world, demonstrated every day by the stories we read in the press, it is clear that enhanced privacy laws must be enacted: to control aggregation, to enforce strong access controls, and to grant statutory penalties enforceable by civil legal actions. This combination (which largely follows Fair Information Privacy Practices and the OECD guidelines of 1980) can restore some balance between what is now possible (legal aggregation and over-use, insufficient protection of ever more valuable databases), and what should actually happen with all that data to allow valid commercial use while protecting the rights of the people whose data is in those databases.
    We've been arguing over semantics. Let's move on to pose the answers for our and the next generations.
    Jay Libove, CISSP, CIPP
  • the question is not whether anything i say or do is private. it's that

    a company, economic entity, should not be allowed to profit from being an aggregator of my business dealings or anything else that is not "common knowledge".


  • Who will defend privacy rights?

    It is a <i>mistake</i> to expect that public figures such as politicians and judges, who live their entire lives in a proverbial fishbowl of public attention and accountability, will protect (let alone advance) the privacy rights of citizens and consumers.
  • Better yet, who will defend free speech rights

    with the democrat nazis eliminating freedom by freedom every day. These commies will stop at nothing. They have disregarded the constitution and the next steps aren't going to be pleasant.
  • RE: Free speech wins privacy tug of war; Law students school Scalia

    After reading the subject, then the article, I wiondered why it was even written in the first place. Must be a white space fikller. It looks like Justice Scalia was not "taken to school". I find the whole argument about a right to privacy a specious one. People have to make their own privacy by learning how to keep their mouths shut. Any legislation should be very specific about which information must be protected. Always remember that every piece of legislation in itself is a restriction of freedom, a means of controlling people, and there are always unintended consequences and undesirable impacts. If you're afraid that your medical records will be stolen, then don't go tio doctors. Don't go to school, don't apply for a job and go live in some uninhabited area and forget about even getting an SSAN. And don't forget to use a false name. And remember to leave a note for friends and family that you are going away and not to look for you. Wear a disguise at all times. Otherwise forget about it and accept the fact that someone can gain enough information about you to do as they wish if they are willing to go to enough effort. Next year is census time. You home address and other information will be in a big data base along with the GPS coordinates of your home. It should be "interesting" to see hbow the government intends to use the GPS data, but it is unlikely to be in a way to enhance your privacy or freedom.