Fasten your seat belts, folks, we’re about to take a bumpy ride down the Internet privacy highway. I hope you went to the bathroom first.
In a speech to a Talmudic law institute last January, Supreme Court Justice Antonin Scalia declared it “silly” that all pieces of information about a person—like their home address—be considered private. In the battle between free speech and privacy, Scalia says, free speech wins. Which sounds great, as long as you don’t think about it very deeply.
(Though, as the SCOTUSblog points out, Scalia isn’t such a fan of free speech when it comes to using naughty words on TV.)
Fordham law professor Joel Reidenberg decided to take Scalia’s remarks and turn them into a homework assignment. Using information available on the public Web, Reidenberg asked his students to compile a dossier on Scalia and his family. They dug up 15 pages worth of addresses, food preferences, photos, etc., and sent it to Scalia for his reaction.
Apparently it’s no longer quite so silly to Scalia. Though he still stands by his original comments, he’s clearly peeved somebody would dare collect his own not-so-private information.
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.
Hey, if anyone’s an expert on poor judgment, it’s Big Tony. But blaming Reidenberg is what’s silly. At least the prof declined to publish the dossier. If a bunch of Fordham law students could find it, you bet some dedicated anti-Scalia bloggers could easily do better—and with no qualms about releasing it to the public at large.
Second, I know I’m generalizing here, but being from an older generation, Scalia probably doesn’t use the Internet as much as many of us do, which means he probably has fewer digital breadcrumbs to follow. So what’s bad for Scalia is no doubt worse for most of us.
I’m also assuming that dossier was accurate and not mixed up with information about some other North Jersey guy named Tony Scalia (and man, what a piece of work that guy is). But for most of us with normal-sounding names, identity confusion—and identity abuse—make the data collection problem much thornier.
Reidenberg was trying to make a larger point about ” the erosion of the boundary between public and private information on the Internet.” By amalgamating “single datums” from multiple sources, companies or government agencies can create surprisingly complete dossiers about you and your habits—just like the one his students created about Scalia.
When there are so few privacy protections for secondary use of personal information, that information can be used in many troubling ways. A class assignment that illustrates this point is not one of them. Indeed, the very fact that Justice Scalia found it objectionable and felt compelled to comment underscores the value and legitimacy of the exercise.
Why would anyone need a complete dossier about you? Meet the new fast-growth industry of the 21st century: data mining.
Data mining is not about what you’ve done; it’s about predicting what you might do. This can be annoying but innocuous, or it can be much more serious. Let’s take three hypotheticals.
- 1. We see by looking at your data stream you’ve been Googling for cheap gas stations and surfing car comparison sites. You look like an excellent candidate for a new fuel-efficient vehicle. We’ll sell your name to your local Honda or Toyota dealership, so one of their overcaffeinated salesmen can give you a call.
- 2. We noticed you’ve been pricing moving firms and looking at real estate online in the city that houses your employer’s No. 1 competitor. So we sold that information to your boss. Oh, by the way, you’re fired.
- 3. We noticed you visit forums for owners of old VW buses, have a fondness for Middle Eastern cuisine, and purchased a lot of fertilizer lately. You might be an old hippie living on a farm, or you could be planning to blow up a building; we’ve alerted the authorities so that they can bring you in for questioning, just to be safe.
You might appreciate that call in example No. 1, or you might not. You definitely won’t appreciate what happens in examples No. 2 and No. 3. But you won’t know about any of it until it happens because this data is all out there for the taking. And if some other goombah’s data gets mixed up with yours—well, there’s an Oliver Stone movie just waiting to happen. Or maybe just a remake of ” Brazil.”
It’s an all-you-can-eat buffet for data miners. And—yes—a lot of that data is out there because we’re all Chatty Cathys on social networks, tweeting our every passing thought and activity. That’s not likely to stop any time soon.
MediaPost’s Wendy Davis notes that with privacy legislation on Congress’s agenda, Scalia’s opinions may soon be put to the test:
Scalia’s thoughts on the matter are significant because he might end up ruling on the legality of any new online privacy laws. Rep. Rick Boucher (D-Va.) recently said he intends to draft privacy legislation this year. Additionally, Federal Trade Commission chair Jon Leibowitz said this week that Web companies are facing their last chance to prove they can protect people’s privacy.
Wouldn’t it be better if you could decide what information people could cull about you or how that information can be used? Shouldn’t you be the one who gets to decide what’s “silly”?
OK, not a very funny post. I know. Lighten it up by posting your favorite jokes below or e-mailing them to me: firstname.lastname@example.org. But please, try to keep them clean. Justice Scalia might be reading.