May 26, 2009

Having last week advised publishers how to run a newspaper, it is only justice I, today, turn to teaching Antonin Scalia about law. Equally incompetent I may be in both fields but standing I do not lack. Online newspapers wantonly invade my privacy. Noam Cohen reports Justice Scalia has been known to utter "dismissive comments about Internet privacy" (*). Since I claim some expertise in privacy, I write in legitimate defense.

Let me first confess a deep respect for Justice Scalia's judicial approach. If Wikipedia has not misinformed me (1), Antonin Scalia is a champion of democracy, who believes the power to make new laws should be restricted to the legislative branch of government.

While this philosophy inevitably leads a judge to be rather conservative, it flows from the highest conception of the law. Unless unconstitutional in the first place, what the US Congress wrote should stand uncorrected. A rat is a rat and, if meant to be a cat, must wait for its maker to make amendments, an evolutionary process the people can speed up at will by electing better spellers.

From a practical point of view, judicial restraint is not without its limits. Sadly, it presupposes we live in a democracy while we are daily reminded the US is but a pronaocracy. Leaving aside the respective merits of gun rights and credit card regulation, their being joined in law as Carl Hulse reports from the Senate (**) is proof enough of a government of the people by the lobbyists.

If the law is enacted as is, Justice Scalia may call this chimera a chimera but will continue to defer to its very words, leaving to his former clerk, Lawrence Lessig, the task to reform the electoral system. Yet the path from pronaocracy to tyranny is surprisingly short. I can only hope Antonin Scalia will not find himself one day forced to follow the fate of one also known for his mordant wit and his abiding respect of the laws, Socrates.

Giving authority to the original meaning of words cannot of course be the last word in law. For meaning falls under the recursive curse of recurring to other words. No doubt dictionaries provide some help and, aware history alters the meaning of words, Justice Scalia is right in perusing dictionaries contemporaneous to the words concerned. But no judge can totally escape from the responsibility of taking the law into his or her own hands.

The most glaring example can be found in the Fourteenth Amendment to the US Constitution, which guarantees "the equal protection of the laws" to "any person within [a State] jurisdiction". What legislator, whether today or in the XIXth century, has ever dared to explicitly define what is "a person"? And yet questions of identity and privacy cannot be satisfactorily resolved without it.

It is not always efficient to tackle the most difficult tasks first. My intent today is to focus on less controversial aspects of privacy, for example on Professor Joel Reidenberg's assignment of "creat[ing] a dossier about Supreme Court Justice Antonin Scalia from what can be found on the Internet." For the target, it was "an example of perfectly legal, abominably poor judgment".

With all due respect, I beg to disagree. Prof. Joel Reidenberg has shown impeccable judgment in highlighting Justice Scalia's blindness on eprivacy but may have engaged in illegal behavior. Isn't there such a thing as harassment? Certainly if Antonin Scalia found himself followed wherever he went by an intimidating photographer, he would call the police, wouldn't he? Why would the electronic equivalent be any less threatening? If not, would David Johnston waste words on the loss of a hard drive containing "personal information about [...] Al Gore's three daughters" (***)?

Justice Scalia confuses eprivacy with secrecy. "It is silly to think that every single datum about my life is private", he declares. Indeed but at issue is whether the collection of "every single datum about [one's] life" by personal profile aggregators is legal. Harassment is created by the accumulation of events which, taken in isolation, would be dismissed either as "silly" or in "abominably poor judgment", but legal by all reasonable observers.

Eprivacy is also a matter of trust. When I deposit money in a bank, the banker takes possession, not ownership. Recent developments notwithstanding, were he to fly to Las Vegas and wager my funds at the roulette, my banker would break his fiduciary duties and several statutes to boot. Yet conversion of my property across state boundaries is done routinely by all the companies I deal with today.

Take Mr or Mrs Scalia's purchases at the local grocery store. They must most likely show a store card to the cashier. Per force the cashier learns whether the Scalias buy carrots or potato chips and for how much. Should it follow that, having possession of all such transactions over ten years, the store owner may sell the list to the Scalias' health insurance plan? Far fetched? Read Charles Duhigg on how today credit card companies get to spot credit risks from card holders' detailed purchases (****).

At bottom eprivacy is all about money. For merchants and data aggregators alike, the deal cannot be sweeter. For one Bob Dole who extracted fair value from his implied infirmity (2), they reap all the benefits while leaving the consumers with all the risks generated by such personal data troves. If, per the rumor reported by John F. Burns (*****), the Daily Telegraph paid $140,000 for the British MP's expense reports, what profits lay in wait for clever hackers!

Justice Scalia may resort to the usual blandishments. We, consumers, approve of sharing our confidential data when we deal with a merchant and are protected by its so called privacy policy. He should know better. Coercion is not reserved to violent crime syndicates. Its polite white collar form is to bundle any kind of authorization to share my data with the delivery of some goods or service. Thieves present "your money or your life" as a bargain. Good at turning data into money, Google simply asks "your profile or your search". Doing the same is a goal of many another company.

Harassment, conversion, coercion, those are terms which Justice Scalia will readily find in a dictionary predating Internet. When the time came to decide whether some peer to peer networks had engaged in abetting property theft, the US Supreme Court could not quote a special statute barring music downloads. Yet Justice Scalia did not dissent as the Court ruled unanimously against Grokster (3).

Perhaps Justice Scalia will find refuge in the US Constitution and argue that there at least is no mention of eprivacy. The Fourth Amendment may speak about people's "papers" and the Fifth Amendment about "private property". But as the XVIIIth was drawing to a close, nobody could possibly have meant papers included digital records and private property, personal profiles.

But how does one define "paper"? One can enumerate examples and, then as now, agree to include parchments and papyri. Or one can say a paper is any physical medium on which information has been recorded. In 1791, the Magna Carta would have been deemed by most to be a valuable paper on sheepskin as well as on velum or on tree bark for that matter. With respect to property, the latter approach would be the only one possible. Beyond the infinite class of earthly instances, there lies the common concept of what is meant. Private property is what is mine to trade.

There is no doubt eprivacy is covered under this definition of private property. It may lack in originality but makes it up in universality. What counts is precisely that the writers of the Bill of Rights and the majority of their fellow gentlemen had heard of, and even read Plato's works.

Can Justice Scalia get the idea?

Philippe Coueignoux

• (*) ............... Law Student Teach Scalia About Privacy and the Web, by Noam Cohen (New York Times) - May 18, 2009
• (**) ............. Advocates of Gun Rigths, Now a Majority in Congress, Near a Victory, by Carl Hulse (New York Times) - May 20, 2009
• (***) ........... Investigation Into Huge Loss of Computerized Clinton Data, by David Johnston (New York Times) - May 20, 2009
• (****) ......... What Does Your Credit Card Company Know About You?, by Charles Duhigg (New York Times Magazine) - May 17, 2009
• (*****) ....... In Britain, Scandal Flows From Modest Request, by John F. Burns (New York Times) - May 20, 2009
• (1) see Antonin Scalia in the Wikipedia.
• (2) see Bob Dole in the Wikipedia.
• (3) see Metro-Goldwyn-Mayer Inc. et al., v. Grokster, Ltd., et al. for more details