Defining the balance of interests and determining the equities of the privacy against Government information requirements is clearly the proposition now facing the Congress. We, in the National Legislature, are often presented with two extremes. On one hand it is clear that "in our recordkeeping civilization, the man whose name is not inscribed on the tab of someone's manila folder simply does not exist." ." The quest for anonymity—the right to be left alone -is deeply imbedded in the fabric of our culture. It must receive every consideration by all public agencies. Yet no one can reasonably deny the legitimate need for certain data by the Government. This is one extreme, on the other is ingrained the truisms of Parkinson's laws. Prof. Edward Shils has described the factual hunger of all government bodies: "As the range of government activities widens, and as they reach more deeply into the structure of society, government departments gather more and more information about the persons whom they provide services or whom they seek to control." " Must ours be a "Naked Society" as author Vance Packard grimly depicts? Can we not strike some median according to prudent needs of Government. I suggest one measure against which Government requirements can be checked is to determine the information sought according to its validity as a "public matter."' This method of evaluation, it seems to me, is present in an important bill affecting indiscriminate requirements placed on Federal employees. PRIVACY AND THE RIGHTS OF FEDERAL EMPLOYEES Evidence gathered by the Senate Juidiciary Committee's Subcommittee on Constitutional Rights revealed that some Government employees and applicants for Government employment are required to disclose their race, religion, or national origin; report on their outside activities or undertakings unrelated to their work; submit to questioning about their religion, personal relationships, or sexual attitudes through interviews, psychological tests, or polygraphs; support political candidates or attend political meetings. Are these "public matters" about which Federal employees should be compelled to divulge information? These disclosures have resulted in passage by the Senate of S. 1035, a bill now pending before the House Committee on Post Office and Civil Service. If these requirements for disclosure by Federal employees are not public matters how can very similar questions posed by the Bureau of the Census to all Americans be legitimate requirements? Under present law failure to answer all questions on the decennial census of population and housing may result in 60 days in jail or a $100 fine, or both-title 13, United States Code, section 221. There are similar items on the long-form census questionnaire regarding employment, marital matters, income and earnings, and detailed information on a person's household. In its report on S. 1035, the Subcommittee on Constitutional Rights said such legislation was needed to "establish a statutory basis for the preservation of certain rights and liberties of those who work for the Government." The report endorses the views of former Civil Service Commission Chairman Robert Ramspeck, who stated: We (the Federal Government) need better people today, better qualified people, more dedicated people, in Federal service than we ever needed before. And we cannot get them if you are going to deal with them on the basis of suspicion, and delve into their private lives, because if there is anything the average American cherishes, it is his right of freedom of action, and his right to privacy." (Emphasis added.) It will be the height of irony if those who work for the Federal Government are given a statutory basis of privacy-and I support this legislation-and the plain old average citizen is denied similar protection. 3 William M. Beaney, "The Right to Privacy and American Law," Law & Contemporary Problems, Vol. 31, Spring, 1966, page 256. 4 Ibid., Kenneth L. Karst, "The Files"; Legal Controls Over the Accuracy and Accessibility of Stored Personal Data," p. 342. 5 See Griswold vs Connecticut, U.S. Supreme Court in this case defined a right of privacy as an independent constitutional doctrine and granted the people a right to be left alone. 6 Op. cit., Law & Contemporary Problems, Edward Shils, "Privacy: Its Constitutional and Vicissitudes," p. 298. 7 Ibid., Kenneth L. Karst, p. 349. 8 U.S. 90th Congress. Senate. Protecting Privacy and the Rights of Federal Employees. Report No. 534, 1967. 9 Ibid., p. 3. Mr. Speaker, I have introduced H.R. 10952, which would limit the mandatory questions to be included in the decennial census. Only the essential data would be allowed. All other extraneous inquiries, as deemed desirable by the Director of the Census, would be voluntary and presented on a separate plainly identified form. This is in keeping with the constitutional intent of the census as the official enumeration of population for the purpose of determining congressional districting. It would also serve to protect individual rights of privacy. THE 1970 CENSUS QUESTIONS Let me list some of the actual questions proposed for the 1970 decennial census of population and housing which will be asked 16 million or more American citizens. "(If a woman) How many babies has she ever had, not counting stillbirths? Have you been married more than once? Did your first marriage end because of death of wife or husband? Where did you live in April, 1962? What was your major activity in April, 1962? Place of birth of parents? What is the value of this (your) property? What is your rent? Last year, 1966, what did sales of crops, livestock and farm products amount to? Did you work at any time last week?" 10 In my judgment, all of these questions invade personal privacy and have no place on a mandatory, or even voluntary census form. On October 4, I presented my suggestions on where and how the proposed 1970 census questionnaire should be limited. That Statement can be found in the CONGRESSIONAL RECORD at pages H12943 to H12945. The following excerpt from that statement gives a comprehensive list of subjects I feel can be excluded: QUESTIONS TO OMIT "I would recommend the omission of questions which fall into the following categories: Information of principal use to local communities having little Federal relevance, subjects which are already contained on questionnaires used by other Federal agencies making the need to ask them on a decennial census minimal, questions simply nonessential to a decennial census, and types of information private market research firms should gather because it is primarily of business or commercial interest. A good hard look at each question will reveal that many, if not most, subjects which have been proposed for 1970 fit into these categories. When the long list of questions is separated into smaller units along the lines I have outlined, I believe their omission becomes clearly justified." Here are the four principal reasons for dropping a large number of questions together with the exact subjects I would omit: "First, questions essentially of local interest: Place of work, means of transportation to work, number of units at this address, sewage disposal, and source of water. "Second, questions for other Federal agencies to provide statistics: Selfemployment and income last year, farm income, other income, citizenship and year of immigration hours worked last week, hours worked last year, and last year in which worked. "Third, questions not significant to merit inclusion on a decennial census: State or country of birth, activity 5 years ago, number of children ever born, mother tongue, year moved to this house, place of residence 5 years ago, married more than once, and date of first marriage. "Fourth, questions of a commercial nature referred to private research organizations for collection of data: Heating equipment, telephone, tenure, vacancy status, months vacant, value, contract rent, trailer, bedrooms, automobile, air conditioning, television, radio, clothes dryer, washing machine, bathroom, dishwasher, and second home." The complete list of questions contains many more items that similarly could be omitted from at least the mandatory provisions of the census. 10 From Special Census of Metropolitan New Haven, a pretest for 1970 census, conducted April 5, 1967. THE COURTS AND PRIVACY Although the fourth amendment to the Constitution serves to protect the liberty and property of the individual from violation against probable cause, it falls short of protecting the people from the activities of the Census Bureau. In my view the fourth amendment should apply to all invasions on the part of the Government and its employees, of the sanctity of a man's home and the privacies of life. It is not breaking of his doors, and rummaging of his drawers, that constituted the essence of this offense; but it is the invasion of his indefensible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense." The decennial census in the minds of many citizens is an unreasonable search and seizure of information clearly without probable cause or justification as being a public matter." Mr. Justice Black in his dissenting opinion in the Griswold case interprets personal privacy in a broad, realistic framework: "Privacy is a broad, abstract and ambiguous concept which can easily be shrunk in meaning but which also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures." 18 Litigation will be forthcoming, no doubt, to further clarify the scope and application of matters of privacy for such definition is sorely needed. USE OF CENSUS DATA The foregoing discussion referred to but one phase of the issue of the census and personal privacy. Whether questions are public matters and should be included on census forms are solely related to the Government's input of personal data about our citizens. The compilation and utilization of these statistics is a second vital part of the privacy issue. This problem is explained well by my colleague from New Jersey, Congressman Cornelius Gallagher, a leading spokesman for protecting individual privacy. Congressman Gallagher's statement in opposition to a mid-decade census contained this observation: "When the private citizen is asked to respond to census questionnaires, he is guaranteed by title 13, section 9 of the United States Code that the information he furnishes to the Government will be examined only by 'sworn officers and employees' of the Census Bureau; that it will be used only for 'the statistical purposes for which it is supplied'; and that it will be compiled in such manner that the data supplied by him cannot be identified as such. The census form itself states that the report 'cannot be used for purposes of taxation, investigation, or regulation.' But it does not state what census data can be used for, and the question of what these data can be used for is becoming an increasingly serious one." 14 15 Concern over the use or potential use of census data has been the subject of hearings under the chairmanship of Congressman Gallagher and U.S. Senator Long of Missouri. Computer privacy, confidentiality and sharing of census information were carefully reviewed by members of these subcommittees. The magnitude of computer collection and processing of data and the growing threat to privacy are exceedingly well analyzed in a new book by Prof. Alan F. Westin, of Columbia University. This book, entitled "Privacy and Freedom," is worthy of personal attention by every member of Congress and their legislative staffs; Professor Westin writes: "The issue of privacy raised by computerization is whether the increased collection and processing of information for diverse public and private purposes, if not carefully controlled, could lead to a sweeping power of surveillance by government over individual lives and organizational activity. As we are forced more and more each day to leave documentary fingerprints and footprints behind us, and as these are increasingly put into storage systems capable of computer retrieval, government may acquire a power-through-data position that armies of government investigators could not create in the past eras." Let me make one point clear, I do not challenge the present statute requiring confidentiality of Census Bureau material. I praise the enviable record the 11 From address by U.S. Senator Sam J. Ervin, Jr., "Privacy and Employment," April 15, 1967, p. 3. 12 See U.S. v. Rickenbacker, C.A.N.Y. 1962. 309 F. 2nd 462, Cert. denied, 371 U.S. 962. 13 Op. cit., Senator Ervin, April 15, 1967, p. 5. 14 Congressional Record, August 10, 1967, pages H-10383-84. 15 Alan F. Westin, Privacy and Freedom, Atheneum, New York, 1967, p. 158. Bureau has had in its history of dealing with hundreds of millions of individual cases. In order that the present requirements for confidentiality may be fully recognized, I refer to title 13, United States Code, section 9(2) which forbids, under penalty of fine or imprisonment, any officer or employee of the Department of Commerce or the Bureau of the Census to: First. Use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied: Second. Make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or Third. Permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports. Census Bureau publications on their work scarcely refer to the principal purpose of collecting decennial population statistics. Any mention of counting the people to determine the number of U.S. Representatives for each State is buried with a hundred other uses for this information. I do not imply this is wrong, but pose this question. Are there limits to the uses of population and housing data collected under penalty of fine or imprisonment at taxpayers expense? To answer that question I refer to three types of Census Bureau uses for population and housing tabulations. First. This data is sold to Government agencies, private businesses, and anyone else who wishes to purchase it. In fiscal year 1967 the Census Bureau expected to sell $19,021 million in materials to Federal agencies and $4.995 million of such data to non-Federal or private organizations. This includes all types of statistical information on file, not just population and housing reports. These are strictly reimbursements for clerical and printing work. No charge is made to pro rate the cost of the original collection and tabulation of one data. Block-by-block information is available on population and housing characteristics. This constitutes a tremendous pool of market research data for business. Are citizens being exploited by commercial enterprises because such localized facts are released? If ZIP codes are required on 1970 forms will this lead to exploitation of people by mail-order firms or door-to-door salesmen who can pinpoint good market areas? Second. The national data bank, if created, would result in the consolidation of many statistical centers into one. Should population and housing facts submitted by every citizen be used as a basis for longer dossiers containing reports from the Internal Revenue Service, Federal housing loans, welfare programs, social security, and medicare reports, and personal information collected by other Federal agencies? Senator Edward Long noted in hearings earlier this year that The names of American citizens already appear 2.8 billion times in government files: Social Security, 1.5 billion; police records, 264.5 million; medical history, 342 million; psychiatry history, 279 million; court actions, 19 million; security reports, 17.6 million; and others, including personnel and employment questionnaires.16 According to Carl Kaysen, chairman of a task force in 1966 which recommended creation of a single statistical agency, information from 21 principal statistical gathering agencies, spending $122 million in fiscal year 1967, would be collected, stored, analyzed, tabulated, and published by such a center." What limits would such a data bank have and how would privacy be protected? Third. In addition to consolidation of data in a single statistical center, the interchange of facts about particular citizens among or between agencies must be prohibited. At the present time I understand some of the reports filed with the Internal Revenue Service are given to the Census Bureau but that no reciprocal arrangement is possible. Do the citizens have any right to limit the transfer and circulation of decennial census reports? Once the population characteristics have been tabulated, should this information be drawn upon by any other Federal statistical user? These are questions I am not aware have been raised about the many uses of census reports. To me they are relevant to personal privacy and should be answered through hearings by committees of the Congress. 16 New York Times, March 15, 1967, p. 48. 17 Report of the Task Force on the Storage of and Access to Government Statistics, Executive Office of the President, Bureau of the Budget, October, 1966, p. 3. CONGRESSIONAL ACTION IMPERATIVE A statutory basis is essential to insure that rights of personal privacy are guaranteed. There are three specific courses of legislative action the House and Senate must take, as I see it, to see that rights of privacy will be more than a hackneyed slogan only to be violated by an overcurious government. Except for the bill to protect rights of Federal employees from unwarranted disclosure, action appears distant for other such protective legislation. I see the following three courses of action as most important: 1. LIMIT MANDATORY CENSUS QUESTIONS The scope of mandatory census questions must be severely limited. This can be done by adopting my bill, H.R. 10952, or by the Congress establishing a clear and binding requirement on the Census Bureau as to subjects for compulsory questioning. A hearing is scheduled on the proposed 1970 census questions on October 18 before the Subcommittee on Census and Statistics, Committee on Post Office and Civil Service of the House. This may be a start in the direction of curing invasion of privacy through the census. 2. DATA BANK CONFIDENTIALITY The Gallagher and Long hearings on privacy and computer technology indicate a need for new protection against violation of confidentiality if a data bank is created. The Kaysen report contained this statement: At the present time different agencies view the problem of the right to privacy very differently. In some agencies the policy of protecting the privacy of the information reported by individuals and businesses is formally stated and protected by law; in such instances the enforcement of such policies has also been found to be very good. In other instances, formal policies regarding disclosure have not been set up, and in many of these cases the protection depends on the judgment of those who are in charge of the different programs involved. Understandably, the growing decentralization of statistical programs has thus led to considerable unevenness in the nature and enforcement of disclosure rules. It is quite possible that without some overall policy which can be responsibly supervised major violations of individual privacy may take place.18 The Joint Economic Committee in a report issued in August called attention to the privacy question, even though the committee recommended establishment of such a consolidated data facility." 19 These have been the major warnings against deferring action on a National Statistical Center until proper safeguards to protect personal privacy can be enacted by Congress. Plans are moving forward, however, to centralize Federal statistical information. I recently asked Dr. Raymond T. Bowman, Assistant Director for Statistical Standards, Bureau of the Budget, to tell me if studies are currently underway on this proposal, whether legislation is needed to formalize such a data center and when it might be sent to Congress. Dr. Bowman responded as follows: Hon. JACKSON E. BETTS, BUREAU OF THE BUDGET, Washington. D.C., October 3, 1967. DEAR MR. BETTS: Below I provide brief answers to the three questions which you raise in your letter of September 27. 1. Currently the Bureau of the Budget-with the participation of the statistical agencies-is attempting to formulate the details of purpose, content, organization and operations of a Federal Statistical Data Center. Particular attention is being given to finding ways to insure that such a Center would not pose threats to personal or business privacy. 2. The Bureau of the Budget has indicated to Committees of Congress that any proposal for a Statistical Data Center would be presented to the Congress for legislative authorization. There is, at this time, no target date for advancinga formal proposal. 18 Ibid., p. 7. 19 U.S. 90th Congress, Joint Committee Print, The Coordination and Integration of Government Statistical Programs, Joint Economic Committee, August 1967. |