This is a kerfuffle really worth watching. At a conference recently, Justice Scalia made comments suggesting that he has limited passion for the notion of privacy protection in an Internet world.
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."
He added there's some information that's private, "but it doesn't include what groceries I buy." . . . .
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.
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.
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.
It's hard to imagine what could be unethical or even questionable about having students do what is essentially a Google search. Any person with an internet connection anywhere in the world could do the same thing. The problem isn't that they did it, it's that they could do it so easily.
There's a case in the Torts casebook I used with a successful cause of action against a detective agency for finding a woman's address and giving it to an old boy friend (the result as I recall was tragic). To show how times had changed regarding expectations of privacy I asked everyone to take a minute (they were all on-line)and find my last two addresses. They could all do it in less than a minute. And they found my brother too.
It made my point that there is very little, if any, personal privacy left just as I think Prof. Reidenberg's exercise made his.
Oh–and the James Spader character did exactly the same thing as the Justice Scalia exercise about two weeks ago on Boston Legal but in open court to a similarly skeptical judge and jury.
That was poor judgment–although of course he won.