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Justice Scalia’s Dossier: Joel Reidenberg Responds

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42 Responses

  1. Joe says:

    I think with more and more people putting their information on the web, our concept of privacy is about to drastically change.

  2. Bruce Boyden says:

    I think Joe may be right; but the transition period, when some people are operating under expectations that others are not following, will be difficult.

  3. Orin Kerr says:

    Joel/Dan,

    Thanks for posting this. I have two follow up questions, to the extent you can say more.

    First, why did Justice Scalia become the “logical” public figure for this? I would think that Supreme Court Justices are so much under the microscope (with their public reporting of income and extensive trail at confirmation hearings) that they would make very atypical case studies.

    Second, why did you notify Justice Scalia of the report and ask if he wanted to see a copy?

  4. Unlike you-all, IANAL, but I can answer Orin Kerr’s questions — unless they’re all rhetorical, because they seem pretty logical to me.

    1. Why Scalia? He’s:

    a. a public figure, so you have some legal leeway before it’s Creepy Stalker Behavior

    b. with very VERY good security

    c. who thinks worrying about this kind of thing is “silly”

    2. Why tell him? because

    a. it’s the moral thing to do, dude.

    b. otherwise the Secret Service (see 1b) would be right to consider them Persons of Interest.

  5. Elijah says:

    Why tell him? Because the assignment constitutes an engagement with his belief that concerns over privacy are “silly.” One possible intuition could be that, like many people, Scalia is privileged enough to arrive at certain beliefs primarily because he is insulated from certain experiences. It is possible, though unlikely, that experiencing something may make the belief less abstract and more salient.

  6. Anon says:

    Doctor Science:

    “otherwise the Secret Service (see 1b) would be right to consider them Persons of Interest.”

    The justices aren’t protected by the Secret Service. They have the Supreme Court police.

  7. Orin Kerr says:

    Doctor Science,

    I don’t follow. No one is going to be threatened in the sense of feeling like they will be physically attacked from a bunch of law students googling around for class. And why is it the moral thing to do?

    Elijah,

    If that’s the reason, then I would submit it’s pretty disturbing. If I understand you, the idea — stripped of the academic word choice and brought down to earth a bit — is that it’s okay to harm people who don’t see the world the way you do if you think being harmed will teach them a lesson. I would hope that this is not what Joel and his class was trying to do.

  8. Dumb (Rising 2L) Law Student says:

    Mr. Kerr,

    I’m not too experienced in the law but could the choice of Scalia be:

    1. Provocative considering his comments and therefore enhance the publicity for the report. After all, aren’t you legal academics paid & evaluated by how many people read your work?

    2. Since he is already a public figure, there is likely not a invasion of privacy claim or something? Aren’t there limits, depending on the state, for how much information one can publish on the lives of non-public figures? I seem remember crossing several cases while doing research on a related topic.

  9. JP says:

    Orin asks: Second, why did you notify Justice Scalia of the report and ask if he wanted to see a copy?

    Here’s my guess:

    “I might write to Scalia to tell him what we’ve done and see what he thinks,” Reidenberg said, laughing.

    “We’ll probably write about this on Above The Law,” we replied. Reidenberg stopped laughing.”

    http://abovethelaw.com/2009/04/fordham_law_compiling_a_dossie.php

  10. The justices aren’t protected by the Secret Service. They have the Supreme Court police

    Thank you, I stand corrected.

    I don’t follow. No one is going to be threatened in the sense of feeling like they will be physically attacked from a bunch of law students googling around for class.

    Our reactions are interestingly different here, I suspect because I am female.

    Because I am female, I have to be continually wary of the possibility of stalking, harrassment, and threats online, and that they might spill over into airspace. Because I am female, I cannot move around in airspace without having to take precautions to ensure my physical safety, precautions which you (as a presumed young male) can readily ignore. Because I am female, when I was young and single I had to be wary of being “too nice” to strange men, lest they take my niceness as an invitation to follow or harrass me. I’ve received obscene phone calls, I’ve been followed by strangers, there’ve been places I couldn’t walk without men yelling what they probably thought of as “come-ons” but which were in fact threats of rape. And this has been in a very hum-drum life with no history of assault or direct trauma — this is just what it’s like to be a woman and live to as an adult for a couple decades.

    So from my experience as a woman, if I learned that someone I didn’t know had collected such a dossier about me, I would assume that it was to stalk me. Indeed, I would consider compiling such a dossier to be implied stalking — it’s not over the line *per se*, but it’s the necessary preliminary. It speaks of obsession, and obsession is dangerous — especially when you don’t have SCOTUS-level professional security.

    This is one reason Scalia was a good “target” for this particular exercise, as I said: because he has pro security, the danger should one of those innocent, googling law students become obsessed with him is reduced. But if the exercise had involved, say, a 20-year-old woman, or one of the students’ ex-boyfriends, I think you can see that Joel would be in deep, deep trouble.

    [I didn't put in links because I don't know what it takes to send a comment into the bit bucket around here.]

  11. TJ says:

    Orin, I don’t think this is a case that “it’s okay to harm people who don’t see the world the way you do if you think being harmed will teach them a lesson”; rather, it is a case of “it is OK to do something to a person who is saying that the particular conduct is not harmful,” to see if they maintain that opinion after having experienced it.

  12. 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?

  13. 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?

    Yes, because someone who believed that would be more likely to be sloppy, and to let the dossier go from “creation” to “spread all over the world”.

  14. I don’t think this is a case that “it’s okay to harm people who don’t see the world the way you do if you think being harmed will teach them a lesson”; rather, it is a case of “it is OK to do something to a person who is saying that the particular conduct is not harmful,” to see if they maintain that opinion after having experienced it.

    But Scalia might think it is harmful in a non-legal sense.

  15. I don’t think this is a case that “it’s okay to harm people who don’t see the world the way you do if you think being harmed will teach them a lesson”; rather, it is a case of “it is OK to do something to a person who is saying that the particular conduct is not harmful,” to see if they maintain that opinion after having experienced it.

    But Scalia might think it is harmful in a non-legal sense.

  16. TJ says:

    Here is the original quote:

    “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.”

    Now, you could imply the word “legally” in front of each of those phrases. Scalia might find it silly if the details of his life were legally private, find it legally inoffensive, and not find it a legal secret what he buys. But that is a pretty strained interpretation of what he is saying (assuming that the account is faithful to his original speech). It seems quite clear that he was saying that he finds collecting data about his life to be largely non-problematic as a moral matter, unless he was doing shameful things. It shows the success of the experiment that Scalia has quickly backpedaled and now apparently finds dossier compilation highly troubling as a moral matter.

  17. Elijah says:

    Wow, Orin, what a strange reading.

    1. Justice Scalia quite clearly believes that privacy concerns are “silly.” In other words, he believed that such information gathering poses no harm to him.

    2. As is indicated in the story, the professor did not release the dossier. Your breathless statement about “harming” him is a little hysterical. What the professor succeeded in doing, however, is showing that either Scalia is a hypocrite or that he was so insulated from everyday realities that he has no clue what he is talking about.

  18. Impeach Jay Bybee says:

    Whatever. You caught Scalia in a personal hypocrisy. Kudos.

  19. Dr. Dredd says:

    Why did Reidenberg choose Scalia? Because Scalia practically challenged someone to do it when he gave his remarks at the conference.

  20. Rob Lewis says:

    Scalia should be thankful that he learned a hard lesson from persons with no malintent.

    Like many C-level executives, legislators and persons in justice or law enforcement, their naive understanding of the lack of protection of citizen’s private data enables risk and abuse of such data by those that do mean harm.

  21. FreeDem says:

    What is missing here is a discussion about what should be private and what should not.

    Those creepy stalker bits are much more about the intents of the stalker than the data. If the stalker looks up a woman’s number in the phone book and finds her address as well it is not the phone book but what he does with the information that is at issue.

    An insurance company, or bank can be just as much a creepy stalker using public information to benefit themselves to your detriment, and should be treated similarly for doing so. Again in that case it is the behavior and not the information.

    On the other hand Passwords, pin numbers, etc. and Scalia’s sexual kinks and bedroom behavior, and psychiatrists reports, were presumably neither found or discussed, though such information is routinely found and abused by Government and powerful Corporations against people who are not powerful.

    Other derived information that showed that, say, Scalia received bribe money to throw a case (assuming such existed) would also be protected by privacy concerns when it should not be, and if the students had discovered such evidence, the calls for privacy would be a lot louder.

    There needs to be a discussion and clear lines. And then the private should be private for everyone, but the transparent should be also open and transparent and available to anyone.

  22. Norm Silber says:

    Joel effectively illustrates implications of privatizing privacy protection underestimated by judges who don’t fully appreciate the Internet. This is a remarkable accomplishment since many of us have been trying to cut through complacency about this subject for years. I’m struck, reading comments on this link, by how ready we are to turn the teacher into the story: “why did Joel choose Scalia?” “did Reidenberg think hard enough about the security issues attached?” “was this an ethical failure on his part?”. This is a distraction from the core “teachable moment”: teachable for Scalia about privacy, and teachable about Scalia for the public.

  23. Orin Kerr says:

    Orin, I don’t think this is a case that “it’s okay to harm people who don’t see the world the way you do if you think being harmed will teach them a lesson”; rather, it is a case of “it is OK to do something to a person who is saying that the particular conduct is not harmful,” to see if they maintain that opinion after having experienced it.

    Um, yes, but the point is that you think *it is actually a harm*, right? That is, you think the conduct is harmful; you think Scalia disagrees; so you think you can show Scalia that he is wrong by doing this to him and having him feel harmed so as to prove to him that you are right. That is, the purpose is to induce some sort of reaction in Scalia — the goal is to have Scalia feel anxiety or fear.I guess I find that a rather disturbing position.

    The broader concern I have is tha to some people, Antonin Scalia is seen not as a human being but as some sort of symbol of ignorance and evil. He is “one of them,” someone who doesn’t understand and doesn’t deserve to be treated with dignity and respect. As a result, the normal rules of civiliity do not apply – see, e.g., Scalia’s trip to NYU, where he was asked in a public forum about whether he commits sodomy with his wife.

  24. Anonymouse says:

    The broader concern I have is tha to some people, Antonin Scalia is seen not as a human being but as some sort of symbol of ignorance and evil. He is “one of them,” someone who doesn’t understand and doesn’t deserve to be treated with dignity and respect. As a result, the normal rules of civiliity do not apply – see, e.g., Scalia’s trip to NYU, where he was asked in a public forum about whether he commits sodomy with his wife.

    You seem to be assuming that we all share your rules of civility. I don’t. I think the exercise that Reidenberg did would be appropriate for any influential public figure who stated that privacy is “silly” — whether Scalia or someone else; whether they be liberal or conservative.

    P.S. I don’t view Scalia as ignorant or evil.

  25. Orin Kerr says:

    Anonymouse,

    I am not assuming that everyone shares my sense of civility; obviously that is not true. My point is just that this is in fact rather uncivil. As long as we are in agreement about that, I think we have reached consensus on the key point.

    I might also add that Justice Scalia did not actually say that privacy is “silly.” On the other hand, accurately describing someone’s position is part of being civil towards them, and as you say, the interest in being civil is not universally shared here.

  26. FreeDem:

    Those creepy stalker bits are much more about the intents of the stalker than the data.

    And yet women who post pictures of themselves along with identifying info online will be told that they “are asking for it” or at least “you should have known that would happen” — so at least for women, there’s a presumption that we are “attractive nuisances”.

    If the stalker looks up a woman’s number in the phone book and finds her address as well it is not the phone book but what he does with the information that is at issue.

    Possibly you are not aware that single women cannot expect to use their names in the phone book. Open one up and see how many people have no first name, only an initial. Most of those people are women.

    When you think about privacy online, remember this: for every expectation of privacy you have, a prudent woman must expect less. For every effort you feel you have to make to protect your privacy and yourself, a woman must make extra. Setting the public standard to what is comfortable for you automatically excludes or endangers women — just as the public standard of the telephone book erases our first names.

  27. Anonymous says:

    Orin’s comment: “That is, you think the conduct is harmful; you think Scalia disagrees; so you think you can show Scalia that he is wrong by doing this to him and having him feel harmed so as to prove to him that you are right” completely misses the point of what Reidenberg did. He was not trying to prove any point to Scalia. He was showing his class how easy it was to assemble information. There is nothing “uncivil” about that. If Reidenberg wanted to embarrass Scalia, he would have released the document. I don’t think referencing the class assignment at an academic conference constitutes attempting to make Scalia “feel harmed.”

  28. TJ says:

    Orin, I guess the moral arguments can run both ways. I take your point to some extent. For example, it wouldn’t be OK to torture someone who insists that torture doesn’t cause pain and suffering, just to teach them a lesson.

    At the same time, in less extreme circumstances, the fact that Scalia says he is not bothered counts for a lot. Someone who boasts that he is not bothered by insults, and who imposes that value judgment on everyone else by mandating they listen to insults, does invite other people to test the boast. And if the boaster quickly backs down with few lasting consequences (the dossier has not been circulated), we call that a lesson well learned.

  29. wesmorgan1 says:

    I think that the biggest lesson may be that, as we suggest that this piece of data or that piece of data is unworthy of significant protection, we create an environment in which the aggregation of that data presents a far more complete picture than we envisioned.

    This is of particular import when we consider the varying degrees to which government agencies share such data. Each individual collection/use might be worthwhile, but the aggregation and sharing of data creates a violation of privacy. Does my local law enforcement need to know my international telephone calls? Most of us would say, “not without a warrant,” but the proposed sharing of NSA intercept data with the FBI and state-level agencies presents that very picture. Oh, let’s just tie your international calling records to your financial transactions (remember, any transaction larger than $2000 is reported to the Feds automatically, and thence to the state-level agencies if sharing is in effect)–are we having fun yet?

  30. Jimbo2K7 says:

    Orin,

    I think the most significant harm is in discovering that a Supreme Court Justice has such a poor grasp of the issues surrounding these privacy issues, and is inclined to casually dismiss these issues as ‘silly’.

    I am a bit concerned about your own failure to grasp the value of this exercise. The selection of Scalia was an understandable choice, based upon his own remarks, not a malicious choice intended to ‘teach him a lesson’. The manner in which it was handled, with the dossier kept confidential, yet with full disclosure to the subject, seems reasonable and ethical.

  31. Nate Oman says:

    I think that Dan raises an important question that no body has dealt with. If Reidenberg regards the creation of such dossiers as harmful or immoral, then I think that there is something unethiccal for him to use the compilation of such a dossier as a pedagogical tool. Of course, he may not hold the view that creating such a dossier is a harm, or he may believe that there is no harm or immorality if the dossier is not published. Of course, I suspect that this is not the case, as I am assuming that he both finds the creation of such dossiers troubling and would regard it as troubling in non-publication situations, such as when it is used internally by some government or corporate entity in a troubling way. The question that I would have is whether or not his pedagogical use of the dossier is the sort of use that he finds troubling. (Assuming that he does not find the creation of the dossier itself troubling.) I do think that there is a real potential for unethical behavior here, depending on one’s underlying sense of the merits of creating such dossiers.

    Frankly, I share Oren’s intuition that there is a kind of unseemly playing of gotcha here, albeit of the low-level classroom variety. I also suspect that reactions would be different if the dossier was compiled on a liberal justice. Of course, the last is a counter-factual that can’t be demonstrated.

  32. Paul Davis says:

    @Nate Oman: i don’t think its “playing gotcha”. That would have involved compiling the dossier, making it public and then turning to Scalia and saying “So what do you think about this now?”. Instead, there was a demonstration to students of just how much information can be gathered about a public figure (and likely many non-public figures). The fact that Scalia was the figure chosen reflects the nature of the class; I would like to imagine that if the exercise had been conducted in a different context that led to, say, Michael Bloomberg or Ashton Kutcher to be the target, then Reidenberg would have notified them too.

    Assuming that Reidenberg does find the compilation troubling, its still pretty hard to see how one could effectively convey the nature of those concerns without having students actually go through this process, and as he has noted, in previous years, he used himself as the target. He makes it sound as if the result of the exercise was quite striking for the students, which would suggest that it might be hard to find alternate ways of tackling these questions that would adequately convey what is already possible.

  33. Steve says:

    In its own way, this reminds me of 1984 when Gary Hart challenged reporters to follow him re: rumors of marital infidelity, because they’d find nothing interesting.

    Of course, they did.

    What Reidenberg did was engage his class in a little bit of investigative journalism, and bravo to him. (Tell me you can’t see this story on “60 Minutes,” or “20/20.”) Justice Scalia seemed to indicate that this debate over privacy issues was nothing more than a tempest in a teapot, hence the initial “silly” comment. His subsequent comment that the exercise was “an example of perfectly legal, abominably poor judgment” is akin to saying, “I don’t like what you did, but I can’t stop you.”

    The problem, as many above have indicated, is that there are a number of ways for any number of people to find out things about us online. What Reidenberg’s class accomplished was to take a theoretical hypothesis, driven by a comment by a public figure, and prove the statement correct. In doing so, the class members proved, beyond a reasonable doubt(!), that information of all kinds exists out there about each of us. How we choose to allow it to be used, and who would abuse its use, are questions that must be resolved.

  34. Mr_B says:

    This is fascinating stuff. I don’t think most people realize just how much personal information they willingly transmit over the Internet about themselves and their friends and family, and once it’s out there it’s always going to be out there. Most people have some sort of social networking profile–think of all the personal information you put up on such a profile. Your tastes in entertainment, personal beliefs about religion, politics and sex that you probably would not willingly discuss in polite company, even things as simple as the names of your pets. Professor Reidenberg’s class project brilliantly shows how all the disparate information publically available about any one person can be assembled together to create a profile that spares few intimate details. In a digital world where nothing is kept secret, privacy becomes a relic of the past.

  35. Mike Stark says:

    It is fascinating how quickly a story about privacy (d)evolved into a story about morality.

    But let’s not lose the big picture: in the end, what harm was done? Scalia’s ego was bruised because he had been demonstrated, again, to be a buffoonish hypocrite out of touch with real word concerns.

    These students aggregated information that is already available. The didn’t pick through his trash (though Scalia thinks that’s fine as well), peek through his window shades using high power binoculars (something else Scalia is fine with) or put a tail on his car…

    And in the end, aside from announcing the categorical results of the project, they didn’t release anything sensitive (other than the fact that all of this information is publicly accessible on the internet).

    To me, the project was not uncivil at all.

    Going further: one of the foundational tenets of “the rule of law” is that every one of us is subject to the same regime. At the same time, there are very few in a position to say what the law is. As far as I’m concerned, that does matter. If you make the laws (or determine their boundaries), you are much less in a position to complain when your handiwork turns out to be something of a train-wreck. Especially when you’ve praised the train-wreck when it applied to your “lessers”.

  36. Freedem says:

    Doctor Science @26 As I stated above It is a problem of Stalking not a problem of privacy. An answer of Buyer Beware, Jogger Beware, employee beware, or even citizen beware is a society with the wheels about to come off. In other times and cultures it would be the Stalker (or any criminal) who would have to beware, and it would not take an Orwellian State to do it

    A muddied state of affairs where even a woman in the military where it should be as controlled as it gets, is unprotected and the rapist (and worse) is protected, her privacy is destroyed, and his is protected even from criminal prosecution is a lot more problematic than what information is on the Internet.

    Like I said above, a single set of rules is what is needed, and perhaps the lines would not end up where those going in thought. But the system that sets the rules willy-nilly based on the power of the person discussed is bad in every case.

  37. Kurt Milne says:

    If compiling info readily accessible on the internet constitutes harm – then we need laws to protect people from that harm. I think that is the point of the class exercise.

  38. Pat Cahalan says:

    @ TJ

    > For example, it wouldn’t be OK to torture someone who
    > insists that torture doesn’t cause pain and suffering,
    > just to teach them a lesson.

    I’m not entirely sure that I agree with this. First, it’s sort of a bad example, since the degree of harm in a torture scenario is not anywhere near on the same scale as, say, disclosing that you collected a dossier on someone (or even, for that matter, disclosing the contents of the dossier). Second, just like in science, in public policy decisions extraordinary claims should require extraordinary evidence.

    When it comes to two normal citizens (Joe and Bill) arguing about whether or not torture causes pain and suffering, of course it would be bankrupt for one of those citizens to try and torture the other to prove a point. Neither citizen has the authoritative power to make the decision for the country anyway, so they’re having a theory-based discussion.

    However, if someone *is* in the position to implement a policy (Larry), the case is not quite that clear. They are empowered (to some extent) to make decisions for the aggregate citizenry. If a public policy decision is based upon such a contentious position, and the authority figure is espousing a view that a significant proportion of the citizenry finds to be lacking in credibility, I think that insisting that this authority figure “put his money where his mouth is” is not an altogether unreasonable stance.

    Joe can be pro-torture, and Bill can be anti-torture, and neither of them has the right to torture the other to make a point. Larry, on the other hand, represents *both* Joe and Bill, and has ethical obligations to them both. Decisions that Larry makes have repercussions on both Joe and Bill; one of the drawbacks of democracy is that the populace bears the responsibility for the actions of their leaders (or at least from an ethical standpoint they ought to behave that way). If Larry says, “Torture doesn’t cause pain, ergo we can torture people” and he is in the position to enable torture, I think Bill is well within his rights to demand that Larry undergo some of the treatments proposed by Larry to test Larry’s decision making process (particularly as Larry is clearly an idiot in this case, torture clearly causes pain). Larry is making an extraordinary claim, he should be willing to back it up with extraordinary evidence.

    Or, of course, Larry can have an opinion like an ordinary citizen, but remove himself from any decision-making process that might involve that particular opinion. If he abdicates his authority (thus removing any burden on Bill to bear the transitive responsibility for the decision), he can have whatever opinion he likes. I would highly question the fitness to be involved in government of anyone who did this, particularly in high office.

  39. Mr. Earl says:

    Several commenters are plainly misunderstanding or misrepresenting Scalia’s “silly” comment. He did not say privacy concerns are silly. He was specifically criticizing as “silly” the idea that certain otherwise public information–such as what groceries he buys, which would be apparent to anyone standing in line behind him at the grocery store–is somehow private.

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