Justice Scalia’s Conception of Privacy
posted by Daniel Solove
Justice Scalia recently spoke about privacy at a conference hosted by the Institute of American and Talmudic Law. The event sounded quite interesting, and I wish I could have been there. An AP report provides a brief overview of Scalia’s views on privacy:
Scalia said he was largely untroubled by such Internet tracking. “I don’t find that particularly offensive,” he said. “I don’t find it a secret what I buy, unless it’s shameful.”
He added there’s some information that’s private, “but it doesn’t include what groceries I buy.”
Data such as drug prescriptions probably should be protected, he said, suggesting areas off-limits to data gatherers could simply be listed for legal purposes.
Scalia’s comments are indicative of an approach toward conceptualizing privacy that focuses on the nature of the information. I believe this approach is flawed. Privacy can be invaded even if the information disclosed isn’t shameful. For example, one’s Social Security Number isn’t shameful, yet we protect it as private because it can affect our data security. In many cases, one’s financial information isn’t shameful, but many desire to protect it as private — not to prevent embarrassment, but because they simply don’t want others to know about their financial condition.
Moreover, as I observed in my recent book, Understanding Privacy (Harvard, 2008):
[P]rivacy may be implicated if one combines a variety of relatively innocuous bits of information. Businesses and government often aggregate a wide array of information fragments, including pieces of information we would not view as private in isolation. Yet when combined, they paint a rather detailed portrait of our personalities and behavior, a problem I call “aggregation.” (p. 70)
In all fairness to Justice Scalia, this post is based on a news account of his speech, so there’s a possibility I’ve got his views wrong. But from what I read in the article, it appears he holds a rather common view of privacy that focuses on the nature of the information involved.
The AP report also suggests that Scalia views addresses as not constituting private information:
Considering every fact about someone’s life private is “extraordinary,” he said, noting that data such as addresses have long been discernible, even if technology has made them easier to find.
In many contexts, I believe that there is a privacy interest in addresses. And it’s not just me. The U.S. Supreme Court has recognized that there are substantial privacy interests in home addresses. In Department of Defense v. FLRA, 510 U.S. 487 (1994), the Court held that the Freedom of Information Act did not permit agencies to disclose their employees’ home addresses to collective bargaining representatives because the disclosure would constitute a “clearly unwarranted invasion” of privacy. Id. at 489. Moreover, the Court noted that “[a]n individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.” Id. at 500. In this case, Justice Scalia was in the majority, and he joined the Court’s opinion quoted above which Justice Thomas wrote.
If anyone has a transcript or video of Justice Scalia’s remarks, I’d be very interested in seeing it.