In Which I Defend Justice Scalia

Supreme Court Justice Antonin Scalia has found himself in an odd brouhaha about privacy on the Internet. This ABA Journal article sets out the basics.

During some public remarks, Scalia scoffed at the idea that anybody had any real privacy interest in the wealth of information floating around online:

'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.'

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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.

Following those comments, a law prof at Fordham gave his students an assignment he does every year - go out and collect as much personal information (legally) about a particular person using publicly available sources. Some years, the prof uses himself as a target. This year, he used Scalia. The result:

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.

The collection of data, which has not been made public, prompted a reaction from Scalia:

'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.

Some commentators have seen Scalia's response as hypocritical, as he expresses displeasure about the prof's data gathering class.

I have to admit, I don't see it. Scalia's initial remarks, to me, seem to express the truth of the matter that lots of "private" information is out there about most folks and the access to it means it simply is not private. Some of it has information that has always been "public," in the sense that it's freely available down in the courthouse records, but is just more accessible due to online compilation sources.

Scalia's reaction has nothing to do with the legality of the prof's project. It expresses displeasure, but due to the fact that the prof chose to have the data collected, not that he could. In other words, I don't see the hypocrisy. This isn't a situation where someone rails against "frivolous" lawsuits and then, when minorly injured, sues someone under shady circumstances. This is more like someone stating (correctly) that a law making it illegal to insult someone's mother would not pass First Amendment muster then being pissed that someone said something nasty about his mother. One doesn't necessarily have anything to do with the other.

That being said, I think the prof's project is a valuable one, because I don't think most people don't realize how much stuff is out there floating around about them. Any maybe Scalia didn't really realize that, either, and that's why he's honked off. Maybe that's true, but I'm willing to give him the benefit of the doubt. On this one, at least.