Monday, February 2, 2009

Justice Scalia on Privacy

Supreme Court Justince Antonin Scalia recently spoke on privacy rights in the digital age at conference in New York City hosted by the Institute of American and Talmudic Law. The Associated Press provided this write-up on Justice Scalia's remarks. During his speech Scalia is quoted as saying, "Every single datum about my life is private? That's silly." Further, Scalia said, "I don't find it a secret what I buy, unless it's shameful."

Justice Scalia seemed to endorse of view of privacy which focuses on the nature of information. In other words, what you buy at the grocery store shouldnt be protected but your perscription medications probably should be.

Daniel Solove takes issue with Scalia's comments and notes that privacy can be invaded even if the information disclosed is not considered to be shameful. Solove writes,
Privacy can be invaded even if the information disclosed isn't shameful. For example, one's Social Security Number isn't shameful, yet we protect it as private because it can affect our data security. In many cases, one's financial information isn't shameful, but many desire to protect it as private -- not to prevent embarrassment, but because they simply don't want others to know about their financial condition.
Discussion for Class:
  • Is it sensible to try to define privacy by focusing on the nature of information? If so, how do you avoid creating a long running and ever changing laundry list of what is private?
  • Is it problematic to try to define privacy by what is shameful and what is not? How widely would the definition of shameful vary?
  • Does Justice Scalia confuse secrecy with privacy?


Jason said...

Justice Antonin Scalia appears to assert that as long as one is not shameful of their information, then it should be considered a matter of public record. However, I do not believe that is the full nature of what Justice Scalia was saying as his comments appear to be more subtle than at first glance. I do not believe that Justice Scalia was attempting to define privacy by focusing on the nature of the information, but rather points out the fact that it is not realistic for every piece of personal information to be protected under the notion of privacy. I do disagree with Justice Scalia in that I think that the Constitution and the notion of privacy should be interpreted through the lens of changing times because technology is easing access to both shameful and benign information whether the distinction is appropriate or not.

I do not think it is sensible to try to define privacy by focusing on the nature of the information because it is problematic to define privacy by what is shameful and what is not. Information used in selective ways can often be used to shame someone no matter how benign the information is. However, I do agree with Justice Scalia when he says that it is unrealistic to make every bit of information private. Because of this it is important not to make an ever changing laundry list of what is private, but to differentiate sources of information that can be used practically (financial, identity data) against someone in a harmful fashion.

Sarah G said...

I feel similarly to Jason's comments above. I do not believe that privacy should be defined by the nature of the information because I feel that what is private is specific to the individual. Privacy should not be defined by someone else's standards of what is private, but one's own, as this is the nature of personal information. Therefore, what may appear common knowledge to one individual may feel more personal to another. This leads me to the conclusion that privacy is not necessarily the protection of specific information that can be identified on a checklist but rather a notion of security under which an individual can feel comfortable living their everyday life. (It is interesting to note that this general notion of a feeling of safety and security has been protected by human rights activists and the Universal Declaration of Human Rights.)

It is for this reason that I believe that it is extremely problematic to define privacy by what is shameful and what is not, because this discredits an individual's personal opinions, beliefs, and feelings about what is private in their own lives. The definition of shameful can vary greatly, and we cannot overlook the possibility of specific circumstances and complications in which what may appear a simple fact (such as what one has bought) can disturb an individual's life, relationships, etc in some unexpected way.

Therefore, Justice Scalia is forgetting an extremely important aspect of privacy - that it is personal and specific to each and every individual, and hence must be treated with greater care.