The notion of online privacy may be nothing more than a “fallacy,” as one New York judge recently opined, but anyone concerned with both the free-flow of information and with being fair to the subjects of news coverage will confront this question: Do bloggers and journalists have a responsibility to protect the identities of the subjects? We know that sources enjoy all manner of ethical protection, but what of the people we write about, many of whom who are public figures only in the broadest definition of the term?
This issue hit home just last week when a Harvard law student became famous on the web. Or infamous, rather. After a conversation with a few friends last November about affirmative action, she raised the possibility that race may be a genetic determinant for intelligence. Unwisely, she made this suggestion via email.
When she had a falling out with one of those friends, that friend-turned-enemy disseminated her old email, including her name, campus group affiliations and the fact that she would be starting a federal clerkship in the fall. It quickly went viral, spreading through the Harvard Law community and among Black Law Student Associations at several top law schools, many of whose members sent it along to us at Above the Law. (Fuller back story on this here.)
If nothing else, it was certainly a lesson in being careful about what you say in emails.
What was of interest to us when we broke the story was the reaction on Harvard’s campus, the propriety of disseminating a private email, and the response from recipients of the email — some of whom suggested that her clerkship be taken from her. Engaged by those issues, we chose not to include the student’s name and instead called her by a pseudonym — “Crimson DNA.” Her identity did not seem integral to the story, and our policy, as we’ve stated before, is to maintain the anonymity of law students. We only name names if (a) the name is already mentioned in a public record (like a police report), OR (b) the name is already mentioned in a mainstream media outlet.
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On Above the Law, we’ve covered the Kagan nomination with our traditional high-low mix. The highbrow fare has included a personal essay by my colleague, Elie Mystal, on the experience of studying under Kagan at Harvard Law School; a thoughtful, historically informed analysis on the required credentials for nominees (fun fact: you don’t need a law degree); and an exegesis of a 1995 law review article Kagan wrote, in which she described Supreme Court confirmation hearings as a “vapid and hollow charade.”
