Justice Scalia’s Dossier: Joel Reidenberg Responds

Daniel Solove
Founder of TeachPrivacy

Justice Antonin Scalia

Professor Joel Reidenberg has asked me to post the following response to the story regarding his Justice Scalia dossier class assignment:

There seems to be significant misinformation circulating in the blogosphere relating to the nature of my class exercise, its instructional use, and how the exercise became public.

The exercise was part of my Information Privacy Law class this semester. The course, in exploring the origins and scope of privacy law, examined the ways technology can both invade and protect personal information and examined how the law related to those technologies. We used a traditional case book, Solove & Schwartz, and I supplemented the book with two concurrent exercises that are treated as course materials: 1) each week the students posted links on the course discussion board to news stories related to privacy issues so that we could discuss them in class and make connections to the casebook reading assignments; and, 2) throughout the semester, the students posted on a class discussion board links to information found on the web related to the class research exercise.

The research exercise is designed for class discussion to illustrate law and policy issues associated with readily available information, contextual use, social norms and the scope of legal protection. The exercise seeks to provide a first-hand experience for discussions of the boundary between public and private information, the loss of practical obscurity and the capacity of law to respond to these issues. For the exercise last year, I framed the research as a challenge to the class to find a specific piece of esoteric information about me. The class was surprised at how much information could be found readily. This year, I planned for the course to focus more attention on the blurring of public and private information and decided to frame the research exercise as a challenge to find information about a public figure. Very early in the semester, a news report about Justice Scalia’s speech was posted on the class discussion board as one of the weekly news items. He was reported to have made the comment that treating much of the information on the web as private was “silly.”

As our class session began to discuss the article and the transparency of personal information on the web, Justice Scalia became the logical public figure for the exercise researching publicly available personal information. Over the course of the semester, students posted links to web pages containing information about Justice Scalia, which in turn led to information about his family. To enhance a summation class discussion on the issues of aggregation and secondary use, the loss of anonymity, and legal responses, I had one of the students compile the information in an organized dossier format. The class was pretty shocked by the results. This was one of the teachable points.

Our class dossier has remained a course document- we have not published it and have not disclosed the personal information found on the web.

Last week, however, I referenced the exercise during Fordham’s privacy conference when I gave a presentation on “The Transparency of Personal Information and the Rule of Law.” Here’s the abstract of my talk:

This presentation will explore the erosion of the boundary between public and private information on the Internet. The thesis is that the transparency of personal information available online erodes the rule of law in two ways. First, the transparency of personal information that is created by private sector activities enables government to collect and use personal information purchased from the private sector in ways that side step political and legal checks and balances. Second, technical self-help in the development of network infrastructure that seeks to assure complete anonymity online may used by individuals and groups to evade legal responsibility and the rule of law. The presentation will conclude with a discussion of governance implications and norms.

In illustrating the point that there is an over-transparency of personal information, I described the class exercise from last year and this year, the type of information the class found and the students’ astonishment at the results. I did not not release any of Justice Scalia’s personal information.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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