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May 1, 2009
Googling Justice Scalia
Last year, when law professor Joel Reidenberg wanted to show his Fordham University class how readily private information is available on the Internet, he assigned a group project. It was collecting personal information from the Web about himself.
This year, after U.S. Supreme Court Justice Antonin Scalia made public comments that seemingly may have questioned the need for more protection of private information, Reidenberg assigned the same project. Except this time Scalia was the subject, the prof explains to the ABA Journal in a telephone interview.
His class turned in a 15-page dossier that included not only Scalia's home address, home phone number and home value, but his food and movie preferences, his wife's personal e-mail address and photos of his grandchildren, reports Above the Law.
And, as Scalia himself made clear in a statement to Above the Law, he isn't happy about the invasion of his privacy:
"Professor 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," the justice says, among other comments.
Somehow, I don't think "poor judgment" is going to be much of a defense against those with agendas more malicious than Professor Reidenberg.
Posted on May 1, 2009 at 12:52 PM
• 54 Comments
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Perhaps, if Justice Scalia had himself not exercised poor judgement in his words, this wouldn't be the result.
Justice Scalia's remarks about not needing to protect information were the equivalent of painting a target on his chest and screaming "Hit me with your best shot!"
He has no right to complain that his invitation was accepted.
It seems abundantly clear that Scalia does not understand the need for more privacy, not less. But since he seems to think nobody deserves privacy, then he has nothing to complain about.
I find myself siding with Scalia on this one. There are plenty of unpleasant things people can do to you--it doesn't mean they should automatically be illegal. I presume the author picked the juiciest bits for the article, and they all seem fairly innocuous to me. More importantly, they are all easy enough to obtain without the internet.
Scalia's sort of a patron saint of poor judgement, so he probably meant that as praise. It just comes off sounding like damnation to us, because of the nonverbal cues that are missed in print media.
Um, in what way is that a 'hack'? My first impression was that they did some kind of google whack to return humorous but incorrect search results related to Scalia. Then I thought maybe they used a hack to get information about Scalia. I don't see how finding out Bruce's favorite quid recipe (assuming I could) via a search would be a 'hack'.
A shorter, more truthful Scalia: Privacy for me, none for thee.
So what's Scalia's own excuse?
I wonder whether it would be useful to extend the same project systematically to the other Supreme Court justices, to other members of the Federal Judiciary, to all members of Congress, and to senior (confirmation-hearing-grade, say) members of the Administration.
The advantage would be to prep the ground for a real political fight over new privacy laws, regulations, and court decisions, by sowing a little useful anxiety in places where it might do some good.
Scalia's position is simple: He would like his own privacy, but that doesn't mean it would be illegal for me to invade it. I don't want all of my friends to call me names, but it wouldn't be illegal if they did. Should every undesirable action be outlawed?
I think it's a little more than that. I think his point is more about control over usage of information.
I should not be forced to hide facts about myself in order to prevent someone from using it inappropriately.
I should not be forced to opt out of things. I should be forced to opt in. No company should have the right to sell information or blind e-mail/mail/call. I should not have to worry about the communication channel being compromised.
It's that simple.
Reidenberg's project exemplified how we have become a protective and paranoid society instead of one that shares information willingly becuase we are dictating who it is going to instead of being dictated to.
Name calling isn't illegal, unless of course, you call someone a name that is slanderous, or you use the name in a way that could be considered harassment.
The actual hairsplitting that converts name-calling into slander or harassment is the sort of clarification that is needed for privacy laws (and I am certainly not qualified to split those hairs).
One could make the argument that if the information is readily available on the Internet (or other public venue), that it is no longer private (if it ever was), but is really public.
I think the point here is that privacy laws should establish consequences for those that would take private information and make it public.
It would be difficult for privacy laws to prevent use of information that is already public, even though one would like that information to be private.
Kind of goes to the whole putting-the-genie-back-in-the-bottle discussion.
Fair point, but if you told all your friends that you were violently opposed to making name-calling illegal, wouldn't you be a hypocrite if you complained when some of them called you names?
I've always wondered how Mr Scalia could be such a despicable person. This statement of his is proof positive that he is a sociopath; he doesn't care a iota for other people's welfare, but he is outraged when someone gives him the slightest amount of his own medicine.
Communists never attack ideas - they never win with that trick.
They always attack individuals, with pen first, with a gang second and and then on the head with the hammer!
"Communists never attack ideas"
Are you calling Scalia a communist? Uh, do you see the irony in your comment?
The zeroth principle of law: Turnabout is fair play.
Maybe for the full effect Scalia could put on a white powdered wig, puff out his chest and wag his finger when he says "How dare you use common sense! I disapprove of such poor judgment."
With his tactics Reidenburg has demonstrated how controls must be adapted or become irrelevant. Scalia can't hold back time.
Does it make sense to say that prosecutors are hindered by privacy?
> but if you told all your friends that you were
> violently opposed to making name-calling illegal,
> wouldn't you be a hypocrite if you complained
> when some of them called you names?
What is hypocritical about that? You should be able to expect decent behavior from people around you without threatening them with legal action.
It all boils down to this: people in power don't want you to know anything about them (unless they tell it to you), and people in power think they should know everything about you (whether you tell it or not). They believe that is what keeps them in power and you out.
> I should not be forced to opt out of things. I
> should be forced to opt in. No company should
> have the right to sell information or blind
> e-mail/mail/call. I should not have to worry
> about the communication channel being
> It's that simple.
Then elect politicians, who will introduce and adopt appropriate legislation.
It's that simple.
It would seem to be a bit hypocritical to complain about attacking people instead of ideas in a post where you're calling people who don't agree with Scalia's privacy views "communists".
In any case, I think you're missing the point. It's not about attacking Scalia, it's about providing him, and people who support his views on privacy, with a counter-argument by example. Scalia was (rightly) upset that his privacy was invaded, yet does not believe in legal protection for that privacy. Scalia, like most people who hold that view, feel "protected" because nobody is trying to invade their privacy. So they feel free to say that the law shouldn't protect your privacy, you should have nothing to hide and all that, secure in the knowledge that nobody is going to be invading THEIR privacy anyways.
The thing is, almost everyone values their privacy, some people just believe that there is nothing wrong with taking the position that privacy doesn't need legal protection simply because they personally don't feel the need for such protection. It's the logic behind Joe Smith arguing for warrantless wiretaps. It's not that Joe is OK with being wiretapped, it's that Joe knows that the warrantless wiretaps are most likely being applied to Abu Aziz, the recent immigrant from the Middle East...Joe is probably safe no matter what the law says.
If I was Scalia, or anyone who supports his views on privacy, I'd say the lesson here should be that privacy protection protects everyone...and a lack of it hurts everyone.
The basic premise is simple: an action is legal unless a law exists that states otherwise.
Thus, the sharing of private information will continue, despite the annoyance of those who feel their privacy is being violated, until that data sharing is illegal due to vigorously enforced laws.
Or put another way: my greed dicates that your annoyance is irrelevant.
At best, Scalia appears as overly naive.
Scalia is being hypocritical. Even with all that, he has round-the-clock security protecting him, which very few people in the US can afford.
Wow, Scalia got his self owned. I'd love to see the papers the students turned in for this.
Give Justice Scalia credit, he didn't turn around and try to say that what Professor Reidenberg did was illegal!
But yeah, if he thinks finger-wagging will fend off real hackers -- OR their patrons in foreign governments and criminal groups -- then he's an idiot.
If Antonin had any brains he would have thought about the Streisand effect and ignored this issue.
He has essentially challenged everyone on the net to discover what the Fordham students discovered, and we know that some people will rise to the challenge. The Fordham dossier is secret, what the 4chan people discover will not be.
The meme of 2009 has not yet been defined, it might end up being the discovery and wide dissemination of little known information about supreme court justices. Carlo Graziani's comment is one of the first steps in this direction.
There's a vacancy on the Supreme Court opening up. Let's start a movement to get Professor Reidenberg nomiated ;-)
It's called "reaping what you sow," your honor.
Whatever, Scalia just exposes himself as computer illiterate, he can maybe check his email.
Phase the old wave out!
Perhaps Scalia can be educated.
After all he did come down on the side of owners of private property on the New London thing 4 years back.
Justice Scalia seems to expect automatic respect for his privacy, but has contempt for the privacy of others.
Arrogance + ignorance = a well deserved humbling.
Is it just me who gets the following error when trying to read this post in Firefox 3.0.10? (And some other posts too, lately.)
"Content Encoding Error
The page you are trying to view cannot be shown because it uses an invalid or unsupported form of compression."
Re: "Nice hack" --maybe the reference is not to the method but to the individual...
my first laugh of the day.
people, even really smart people, don't realize the extent of information available online, all the ways it gets there, and all the ways it moves around. this is definitely an example of our gov not keeping up with our tech.
Is this, perhaps, a bunch of people feeling maliciously gleeful that someone who they don't agree with on a variety of unrelated subjects not germane to the current topic got publicly embarrassed by a professor who, really, when you think about it, didn't exercise that great of judgment?
Aren't most of you the exact same people that, if they started passing privacy laws to restrict information, will be screaming that its preventing disclosure of what should be public information, or that "hey this is the internet, it'll get out anyway?"
I guess I find just about all of the "discussion" here kind of intellectually suspect.
I think most of the people here are fine with reasonable use of privacy laws. Scalia just deserves his comeuppance in this case.
Most of these comments sadden me. They demonstrate that none of us can really separate our politics from any sort of rational discussion (yes, not me either). Little detail is given about the nature of Justice Scalia's comments but given the detail that is, is seems it could probably have been made by Justice Ginzberg. How many of the above folks (even Bruce) would have had the same response had the name Scalia been replaced by Ginzberg? Would the good Law prof have even done the project in that case? Were Scalia's comments as described here all that silly - do we really need more "laws" to govern every nook and cranny of our lives? But the commenters didn't care about the logical merits of the alleged statement, most were governed by their views on the one who made them (or on what they've been told their views should be).
Is shadowfirebird really saying that criticism for something one believes should be legal is hypocritical? And WilliamB's tautological second paragraph seems completely unconnected to the premise that follows it. I honestly can't tell what some of these comments are driving at.
Why was what Prof. Reidenberg did "poor judgment"? He didn't release the dossier to the public, and he tested out the assignment on himself first. "Poor judgment" would be getting the students to collect the information, then directing them to do something malicious with it (like hacking Scalia's email, a la the Palin email hack), or releasing all the info to the public in an easily digested format. I think the professor showed admirable restraint.
"Then elect politicians, who will introduce and adopt appropriate legislation ...It's that simple."
Oh if it where that simple...
You will know you are on the road to real democracy (not monkey in a suit represtational...) when the last box on your ballot paper says,
"None of the Above"
And it realy means something...
In that to be elected each and every candidate mut get more that 50% of all votes cast.
If none make it past that marker then none of them get the job, all deposits are forfit. After six months mandatory cooling off after any and all disputes are settled then the process can start again.
Contary to what politicians say and try to make you belive, the sky will not fall in, the world will not end, XXX will not erupt out of the soil and enslave you (unless it's a major corperate ;)
It is time we looked to replace our outdated, ineffective and corupt political system with something new. Hopefully we can prove Winston Churchill wrong...
@John: "do we really need more 'laws' to govern every nook and cranny of our lives?"
I have heard versions of this message many, many times. I greatly prize individual liberty, and believe that government power should be applied to the lives of citizens with the greatest restraint.
But often, people who wail about the interference of government in "our lives" are reacting to regulations that apply to large corporations.
Corporations are not citizens! This is an important distinction. Corporate liberty is important too, but it makes no sense to me to conflate it with individual liberty.
We live in an age of awesome corporate power. Many corporations greatly outstrip most of the UN's member states in their resources and influence. The asymmetry of power between corporations and citizens is extreme.
A question more relevant to the topic would be, "do we really need more 'laws' to limit the intrusion of corporate power into every nook and cranny of our lives?"
"Corporations are not Citizens"
They are since the SCOTUS decided that a law-clerk's addendum to a case from the mid 19th century was "Settled law". That this has brought us "Veggie Libel" laws etc. is, methinks, precisely the effect desired by those in the boardrooms of America.
And thus unlikely to change.
It seems to me that citizens may benefit from making two things illegal:
1. A government must not use these same means to pry into the affairs of a citizen,
2. No law should ever be written that would prevent a citizen from protecting his privacy.
Unless I miss my guess, these are both covered in the U.S. Bill of Rights. But, somehow, they are not always interpreted in favor of the citizen.
And, since corporations are citizens, rather than government, the laws limiting power of government don't apply to them.
right to privacy is understood and accepted, but not explicitly stated in the bill of rights. there is now, of course, a substantial body of law to support the right.
i can't remember the exact logic path from the BOR to the initial "right to be left alone", but it's interesting reading.
I have perhaps an overly simplistic view that "my personal details" are just that, they belong to me are personal to me and should be treated with the level of respect I belive they and other items of my property should be and not diseminated to the four corners of the earth by others against my wishes for either "pleasure or profit". (And the same with my thoughts and other IntProp as well).
With regards Mr Scalia perhaps it is best that he and others of his ilk remember Lincoln's opening sentance of his address on a cold November day in 1863 in a Pennsylvanian cemetary ,
"Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal."
That is Mr Scalia is no more or less a mortal man made of the comman clay as are those around him. And further that nature its self reserves no rights, privalages or status for him over and above those it reserves for others.
And likewise it is for the rest of us to remember and take to heart Lincoln's closing sentance,
"It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."
And therfore it is beholdent on us to remind the likes of Mr Scalia that the tenure on their lofty positions as "U.S. Supreme Court Justices" and the like is only held by the grace of the people, for the people, and that the fall from such a state of grace is both long and hard. And if some are to be belived is worse than eternal damnation...
Further it may be considered by some a quaint nievity on my part that I think that perhaps Professor Reidenberg and his students rather than showing what Mr Scalia claimed is,
"abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any,"
Did the opposit.
Unlike Antonin Scalia I feel that the Prof and his students showed both good judgment and further showed responsability and discretion compared to that which they might eaisly have displayed for either "pleasure or profit".
Mr Scalia rather than publicaly "wagging his finger" like a "nodding dog" in the back window of a car, should reflect on what they have shown him, thank them and use it as an oportunity to move forward and remove what he can from public view and take steps to prevent further disclosure by those around him. And in turn ensure the same privalages for others as is their natural right.
If a person where to stand in Mr Scalia's court and admonish him in a similar fashion as he chose to bestow on the Prof, he would no doubt be banging on his gavel and demanding that the offending person "be dragged from the court for contempt".
Saddly the fact that Mr Scalia by his very action has effectivly brought the Supreme Court into disrepute appears to have gone unnoticed by him.
Worse unlike us "lesser mortals" he does not have a clause in his contract of employment requiring that he leave his job soonest and without recourse for dispalying such contemptable behaviour in a public .
I recall a classroom exercise where we were doing this sort of research on Bill Waterson, the reclusive Calvin and Hobbes cartoonist. I figured calling up his sister and asking about him was probably beyond the scope of my assignment.
Typical conservative response to a white hat demonstration.
On Mr Scalia, Clive Robinson chimes in with...
"oportunity to move forward and remove what he can from public view and take steps to prevent further disclosure by those around him. And in turn ensure the same privalages for others as is their natural right."
It is not uncommon these days for many to be under the mistaken idea that the US Supreme Court is supposed to make laws. I assure you that this is not the case, even though it is happening around the country (normally, this activity would be considered unlawful, but who is going to judge the US Supreme Court? Certainly not the cowards in congress). The US Supreme Court's primary function is to ensure that the cases brought before them to not unfairly treat the parties involved by ensuring there are no conflicts with the US Constitution.
Also, it would be inappropriate for a sitting justice to try to influence changes in the law, such as "taking steps to" change anything. Supporting an issue would reveal a predisposed position on the subject and if a case came before the court, he would have to recuse himself from it to avoid ethical questions. Remember how Sen. Chris Dodd was so fearful that nominee Roberts had "core beliefs"?
On privacy, there are the 4th and 5th Amendments to the US Constitution that exclude government officials from unduly invading your home, vehicle and place of work. But there is no such "natural right" to prevent non-government entities from finding out information about anyone. If there were, the paparazzi and TMZ would be out of business.
This is why I don't use my real name on the internet and I don't tell RL people who I am on the internet; not even to take credit for good works. You might say I'm a wee bit Paranoid.
@MikeA: The court case you mention (Santa Clara County v. Southern Pacific Railroad), did not establish that corporations are citizens. If they were citizens then they could vote. Rather, it affirmed an already long-existing notion that corporations are persons in the eyes of the law. This is important, because otherwise corporations could not sue or be sued in court. If the MegaXYZCorp damages you, you would like to be able to sue it, would you not?
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