Privacy rights -- and wrongs

The debate over privacy matters has gotten up close and very personal at the US Supreme Court level.

There seem now to be new standards of privacy: matters that are illegal, matters that are offensive, matters that are irresponsible and matters that are unethical.

Clearly, this is unsatisfactorily unclear.

The latest tempest involves Justice Scalia, and is summarized in the ABA Journal/blog, "Law News Now":

Last year, when law professor Joel Reidenberg wanted to show his Fordham University class how readily private information is available on the Internet, he assigned a group project. It was collecting personal information from the Web about himself.

This year, after U.S. Supreme Court Justice Antonin Scalia made public comments that seemingly may have questioned the need for more protection of private information, Reidenberg assigned the same project. Except this time Scalia was the subject... And, as Scalia himself made clear in a statement to Above the Law, he isn't happy about the invasion of his privacy.

There are a least two other sources or contributions to the story, and reading the comments to all the blogs adds flesh to the story, if you're hungry for it.

Above the Law's inquiry to Justice Scalia elicited this terse dissent:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

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. Prof. 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.

Above the Law also points us to another blog, Concurring Opinions, that has been covering the events. There, law professor Dan Solove, recalled

One of the issues discussed at the conference (informally rather than at the public portion of the event) were the ethics of compiling the dossier and whether to inform Justice Scalia about it. In our informal discussion of the issue during the conference, we had a lively debate with a variety of views.

Some thought that it was poetic justice for Scalia, taking him up on his challenge that he wouldn't be bothered by such information compiling. If he didn't see it as a privacy problem, then there was no harm in doing it.

Others thought it since they viewed it as a privacy violation, it shouldn't matter what Scalia thought about it -- it was creepy nonetheless.

Some thought that Reidenberg should inform Scalia about it; others thought that this might make Scalia uncomfortable.

In the end, no consensus was reached.

Privacy, the new Supreme Court's pornography: Can't define it but I know it when I see it.
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