April 30, 2009

"Prof. [Joel] 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."

Justice Scalia vs. the privacy lawprof.

48 comments:

Peter V. Bella said...

WHat did this exercise in stupidity and juvnenile behavior prove?

Is their a class called Con-Law Pranks?

TosaGuy said...

How much tuition are these students paying in order to take part in this google exercise?

hdhouse said...

Isn't the real issue the expectation that some aspects of your private life would be treated the same "online" as it is in a social setting?

We gather information about people socially over time and in bits and pieces with the controls easily set in place by what a person wants to disclose. Some people know more than others but on whole it is an individual basis only unless of course you are a gossip and share.

The online world, particularly when a group decides to aggregate content (information) doesn't behave in a social manner and perhaps that is what Mr. Scalia found disarming. Does he, though, think that this is the only time and only case of this happening to him? I can assure you that it isn't and it is done by major data mining companies all the time.

Was Reidenberg's purpose to teach by example - both his students and Mr. Scalia?

John Althouse Cohen said...

Scalia's statement doesn't clarify exactly what he objects to. Does he think this was an offensive invasion of his privacy, but not quite bad enough to be illegal? Or does he simply think it was a waste of time to make a class go through a pointless exercise?

AllenS said...

Here's a hint, John:

"It is not a rare phenomenon that what is legal may also be quite irresponsible."

Henry said...

I hope any of the students with integrity had an optional assignment.

John Althouse Cohen said...

Actually, that doesn't answer my question. He might think it was "irresponsible" to waste the class's time, or he might think it was "irresponsible" to invade his privacy.

Bob Sacamano said...

JAC: Yes

EnigmatiCore said...

Does it have to be an either/or here, John?

I think it is almost breathtakingly clear that the answer is 'both'.

John Althouse Cohen said...
This comment has been removed by the author.
John Althouse Cohen said...

No, it doesn't have to be either/or. But his statement doesn't clarify whether he means one, or the other, or both. You can call it "breathtakingly clear," but I'm not seeing it.

AllenS said...

Here's a hint, John:

"It is not a rare phenomenon that what is legal may also be quite irresponsible."

David said...

John Althouse Cohen said...
"Scalia's statement doesn't clarify exactly what he objects to."

Why should he? He's not engaging the professor in a debate. Most people can easily determine what is objectionable in the exercise without it being pointed out by Scalia.

John Althouse Cohen said...

"Most people can easily determine what is objectionable in the exercise without it being pointed out by Scalia."Ah, but the question is what Scalia's opinion is, not "most people"'s. Also, I don't think it's so clear that "most people" would find it offensive for a professor to have his class research publicly available information about someone and compile it in one place.

John Althouse Cohen said...

Sorry for the lack of line breaks -- Blogger is still messing them up.

Palladian said...

"Also, I don't think it's so clear that "most people" would find it offensive for a professor to have his class research publicly available information about someone and compile it in one place."

So how do you feel about Maxine Weiss compiling a dossier about you and your brother?

Hoosier Daddy said...

You can call it "breathtakingly clear," but I'm not seeing it.
.
/

Maybe a plain reading of the words? Look at the previous sentence. 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./

Its pretty obvious he is drawing a parallel to free speech vs yelling fire in a crowded theater. His analogy is obvious that disclosing his personal information may be legal but irresponsible.

Sometimes a cigar is just a cigar JAC.

hdhouse said...

Just a couple questions then:

1. Don't you think that this assignment is actually a good exercise for persons entering the profession? It happens all the time. The online research methods are far cheaper than discovery or a PI. There is actually very little limit as to what can be found out online...so since it is so pervasive, it should be learned for the tool that it is...right?

2. Is the objection that it is a SC justice who is the object of the dossier? Don't you object when it happens to you? What right does Scalia have to object in any event? On what grounds other than he just doesn't like it?

Sofa King said...

What right does Scalia have to object in any event? On what grounds other than he just doesn't like it?

Well, isn't that enough? I mean, I don't like it when someone is rude to me. Do I have to find a violation of the Constitution before I can object to their jackassery?

PatHMV said...

hdhouse, he didn't object based on any other grounds than that he just doesn't like it. Do you not understand the very simple point he was making, that just because something is bad or obnoxious or rude does NOT mean that it is illegal? He did not say that the professor and his class had no right to do what they did, just that doing so displayed poor judgment.

Hoosier Daddy said...

Do you not understand the very simple point he was making, that just because something is bad or obnoxious or rude does NOT mean that it is illegal? .

I think some folks are too busy looking for nuance when the obvious is right in front of them.

Nasty, Brutish & Short said...

I thought it rather striking that the dossier compiled on Scalia included things like photos of his grandchildren and Mrs. Scalia's private email account.

So it would seem to be more than just invasion of the Justice's privacy, but also the privacy of a few other people.

Like shouting "fire!" in an not-very-crowded theater, it may be perfectly legal, but it's poor judgment.

David said...

John Cohen:

No, the issue really is not what Scalia thinks the elements of "bad judgment" are. He has no obligation to detail his objections, nor would it be particularly useful to do so. We can all draw our own conclusions.

I would submit that it's bad judgment to compile and publish such information on any person, especially one who is controversial. Suppose one does the same for the head of the NAACP? Planned Parenthood? Your local federal district judge (a few of which have been murdered recently.)? The head of the local school board? Ann Althouse?

It's an incendiary act in each of these cases, as in the case of Scalia. If they can separate out the satisfaction that many will feel that Scalia is the object here, I still think most people will find this less than responsible conduct.

Perhaps Scalia's mistake was in responding at all to the blog inquiry. But surely he does not have to take on all of his detractors in detail that would satisfy JAC. The man would never sleep.

mcg said...

It is not a rare phenomenon that what is legal may also be quite irresponsible.

How incredibly old-fashioned. And correct. Honestly though I'm not sure our friends on the left agree with this.

Oh, they might agree with it in principle but not be inclined to enforce that belief in any way, thus rendering their belief impotent. For them, either something must be "wrong" enough to demand a law protecting people from it, or it's not "wrong" enough to pass any judgement about it whatsoever. No shame, no ostracism, those are stone age concepts.

rhhardin said...

I'd guess the feeling was that privacy is important and Scalia ought to pass a law against violating it, and this will prove it to him.

Hoosier Daddy said...

Honestly though I'm not sure our friends on the left agree with this. .

Well it depends on the issue at hand. Take the Mohammed cartoons for instance. Rather than stand up and defend free speech and press, the cartoonists were criticized for being culturally insensitive. Same goes for Theo van Gogh or Hrsi Ali.

former law student said...

I think the point was that Justice Scalia might have thought differently about privacy on the web had he known just how much information was out there, about him in particular.

There is a tension between privacy rights and other well-intentioned policies, such as who funds political campaigns.

For example, I can use Google as an online address book: anyone who has donated to political campaigns since 2004 or so has his home address, profession, and employer listed for all to see.

John Althouse Cohen said...

"So how do you feel about Maxine Weiss compiling a dossier about you and your brother?"


"She" compiles information that's publicly available online, which is fine. "She" also distorts things and adds "her" own characterizations, but I'm confident that most people are smart enough not to believe whatever they read online. "She" can do whatever "she" wants, as far as I'm concerned. It eludes me why anyone would even be interested in reading that stuff -- am I really such a fascinating person? I hope so, but I'm afraid most people would actually find all the details of my life pretty boring. It's sort of flattering, in a way, to have works of fiction posted online that are based on me, but I don't stay up to date on "her" oeuvre.

John Althouse Cohen said...

David: see my answer to Palladian. I don't need to do a thought-experiment, since people have actually done this with me and my family. If someone wants to find a photo of me from Flickr and juxtapose it with something I've written on some other website or something, they can go right ahead. I have a problem with the fact that people write false or misleading information about me and my family, but that's pretty low on my list of things to worry about. I generally have confidence in humanity to sift through the jumble of data to figure out what's true and what's not.

Cedarford said...

I sympathize with Scalia, but also recognize that as technology advances, we are also sacrificing areas of privacy we once had. Yes the Fordham teacher had abysmal judgment - but Scalia is old school and is not as wary as he should be of degree technology can be arrayed against the citizen by government and corporatist interests.

We are losing the privacy we once had in postal mail communications.

Our e-filed tax returns and much of our shopping preferences are stored on servers. And accessible to all the people you have to authorize - in order to use the Internet services..

What used to take private detectives with binoculars and cameras and "tailing people" now can be done with data mining.

Certain towns have already said they will "monitor" for people who have wasteful heat loss from homes using IR scanners. Which can also detect "unauthorized" wood burning. Their trash will be monitored for proper recycling. "Smart metering" will soon enable authorities to sort out "suspicious" patterns of water and electricity use. Is this house growing things inside? Illegal things? Is this house being used as an unlicensed catering, wash&fold laundry establishment??

Hidden cameras can better watch citizens. Not just for criminality and "the safety of the Children! The Children!" - but for minor municipal ordinance violations to facilitate more revenue generation from more "transgressions" that normally would have been missed.

RFID tagging has become big. Along with GPS, it allows employers to monitor drivers in corporate fleet vehicles for "route deviations", excessive rest stops, etc. Many environmentalists want cars tagged so "miles driven" can be monitored and carbon-taxed, and insurance companies have been the big lobbyists for adding more to the "onboard computer storage of critical parameters to see what the policy holder can be dinged for in any accident. Many gun control advocates want guns RFID'd so "authorities can be warned of unauthorized guns in "gun-free" zones...

It would do Scalia and other old non-tech savvy lawyers in high places good if they could set aside a few days of their 130-160days "off" each year to just sit down and get a tutorial on how new technology may impinge worker, resident, citizen privacy, other rights.

mcg said...

I think the point was that Justice Scalia might have thought differently about privacy on the web had he known just how much information was out there, about him in particular.

But Prof. Reidenberg should know Scalia better than that. It doesn't matter how Scalia, or anyone else for that matter, feels about it. The question is whether it is illegal under current law), and whether it should be. GIven his position it's reasonable for Scalia to defer on the latter piece; he made his position on the former quite clear.

Now maybe enough of us feel it's wrong to convince our legislators to do something about it, but it sure as heck isn't Scalia's job.

mariner said...

JAC:
"Also, I don't think it's so clear that "most people" would find it offensive for a professor to have his class research publicly available information about someone and compile it in one place."

Let's put it a little differently:

Would it be offensive for a pro-life professor to have his class research publicly available information about an abortion provider (including his wife's personal email address and pictures of his lovely grandchildren) and compile it in one place?

David said...

JAC

"I have a problem with the fact that people write false or misleading information about me and my family, but that's pretty low on my list of things to worry about. I generally have confidence in humanity to sift through the jumble of data to figure out what's true and what's not."

Well, so do I, if they have the information.

I don't think that Scalia is any more "worried" about this than you are, but all the examples you put forward are bad judgment or worse. Would it be bad judgment for one of the commenters who can't stand your mom to publish information leading to her doorstep or the doorstep of those she loves? Sure it is. It's part of life though and I doubt that any legislation is going to stop this kind of thing.

John Althouse Cohen said...

mariner: Yes.

I agree that what the prof did sounds like an invasion of Scalia's privacy (in addition to being a waste of the students' time).

The prof actually made an interesting point about Scalia's views, but the lengths to which he went to make this point crossed the line.

I was just pointing out that Scalia seemed to be studiously vague about what he objects to. And Scalia's views matter more than yours or mine, since he stands to rule on a whole bunch of privacy-related issues that affect 300 million people.

Scalia is pretty well-attuned to the details of how language works. By making an impassioned but vague statement, he makes a display of being in touch with the realities of privacy in the modern world, while at the same time retaining plausible deniability to take whatever position he wants on privacy issues in the future. (I'm assuming his entire statement was quoted at the linked post -- maybe I'm wrong.)

Also, I think we all understand that just because something's "inappropriate" or "offensive" or "creepy" doesn't automatically mean it's "illegal." But the two aren't completely unrelated, either.

John Althouse Cohen said...

" Would it be bad judgment for one of the commenters who can't stand your mom to publish information leading to her doorstep or the doorstep of those she loves? Sure it is. "


Yeah, I agree. And again, I never said the prof behaved appropriately. He crossed the line. I don't think anyone in this comments section is really disagreeing about this. I just meant to point out the maneuvering in Scalia's response.

Dust Bunny Queen said...

I have a problem with the fact that people write false or misleading information about me and my family, but that's pretty low on my list of things to worry about. I generally have confidence in humanity to sift through the jumble of data to figure out what's true and what's not.My my, aren't we the naive one today.

traditionalguy said...

My thought was that Scalia holds a high profile position in the midst a war between many cruel litigants. Thats OK...he has to take the heat in his kitchen. BUT, the Sicilian rules of engagement forbid going after the wife and the grandchildren. Do you remember in Henry V the scene after Agincourt victory was finished when the losing French Knights then went after the young boys keeping the Luggage and killed them. Violating rules of engagement about non-combatants will cause a degree of anger you really don't want to have to face. Hence Scalia's "poor judgement" comment.

Hoosier Daddy said...

I was just pointing out that Scalia seemed to be studiously vague about what he objects to..

JAC honestly, what is so vague about this?

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..

I am at a loss how that can be interpreted to mean as you said previously He might think it was "irresponsible" to waste the class's time.

John Althouse Cohen said...

Hoosier Daddy: That doesn't really contradict what I said.

former law student said...

It doesn't matter how Scalia, or anyone else for that matter, feels about it. The question is whether it is illegal under current law), and whether it should be.

But the legal question is not at issue here, unless you think Justice Scalia rules based on his feelings. Scalia's feelings about privacy prompted the Fordham prof's assignment:

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."

mcg said...

I'm aware of that, but what Prof. Reidenberg did went well beyond the specific case that Scalia cited as "not particularly offensive". In that quote Scalia was specifically talking about the tracking of internet purchases.

MadisonMan said...

DBQ, I don't think it's naive at all. It's maintaining a viewpoint that humans are decent.

I think it was an interesting exercise on the Professor's part -- but I doubt his students learned very much. Although someone of professorial age may be surprised what one can find on-line, I rather doubt his more internet-savvy students are. So the question is: What was he trying to teach them?

Bart DePalma said...

I am going to miss Scalia after he decides to retire (hopefully long after Hope and Change is only a bad memory). Scalia may be the only justice whose dissents were made into a book because of their wonderfully acerbic wit.

Nino may be the H.L. Mencken of the Supreme Court.

tim maguire said...

People here seem to be assuming that this assignemnt was created as an "I told you so!" to Justice Scalia. Prof. Reidenberg has been giving out this assignment for years. In fact, last year's target was Prof. Reidenberg himself.

The point of the assignment, and it is a perfectly legitimate one, is to show students whose education includes legal theory, just how much can be gleaned about a person's private life from data mining.

Cedarford is exactly right when he points out that our notions of the privacy of personal information were formed at a time when gathering information was difficult and that difficulty was itself considered a level of protection.

You wanted to know about someone's house, martial status, etc.? You had to go to the courthouse, usually some dusty corner of the basement, and spend hours flipping through old files. Now you spend seconds at your computer.

Modern data mining was never imagined when the principles discussed here were created.

hdhouse said...

MadisonMan said...
.."but I doubt his students learned very much.... What was he trying to teach them?"

Perhaps they learned how practical it is to be proficient searching out public but personal information on the Internet...certainly with all the bruhaha they have learned that you can do a great deal to produce a boiling sea with not a great deal of effort.

Frankly, I'm still trying to see the "abominably poor judgment" here. Someone explain it with phrases other than "plain as day".

Dust Bunny Queen said...

DBQ, I don't think it's naive at all. It's maintaining a viewpoint that humans are decent.
.
I also think that most people are basicallydecent. The naive part is imagining that people will be able to sift through the lies and crap to find the truth. Most won't even try, many don't have the intellectual tools and others just prefer to believe the worst.

I think it was an interesting exercise on the Professor's part -- but I doubt his students learned very much. Although someone of professorial age may be surprised what one can find on-line, I rather doubt his more internet-savvy students are. So the question is: What was he trying to teach them?

To be very very careful in what information you put out about yourself as it doesn't just disappear? Privacy is an illusion?

With the internet, privacy has become less private. I too, like Scalia really don't care one way or the other if people/companies keep track of my purchases...Safeway does it. Amazon.com does it.

However, I would be a bit uncomfortable if I were being virtually stalked through the net or on paper by an entire classroom full of students (most of whom don't have the sense that God gave a cat). Also that the stalking didn't stop just with Scalia but also included his wife and other family members.

Illegal? Probably not.

Iapetus said...

Here is the description Reidenberg offers for his law course:

"This course will explore the domestic and international development of data privacy law. The course will focus on issues of privacy, security and the emerging regulations that establish fair information practices for the Internet and global electronic commerce. Particular attention will be given to technologies that can invade as well as protect personal information and the relationship between those technologies and data protection law."

Reidenberg was quoted as saying that Scalia did not care what people found out about him on the Internet. Reidenberg, however, was mistaken. Scalia was subsequently quoted as saying something quite different, that "not every datum about my life deserves PRIVACY PROTECTION IN LAW." [caps added]

So, was the true purpose of Reidenberg's class assignment to compile an electronic dossier on Scalia intended just to embarrass the Justice or was it within the bounds of this course description? And if the former, did the exercise step over the line and in effect constitute a "hate crime" against a Justice who is widely considered to be a philosophical and judicial conservative?

I cannot read the professor's mind. Can any of you?

hdhouse said...

Iapetus...on this blog there are some minds not worth reading.