a reported wiretap incident that took place at FCC headquarters in February 1970. Agency officials admitted monitoring the telephone of an employee suspected of leaking Commission agenda items; and they acknowledged the questionable legality of their action. Chairman Harley O. Staggers was emphatic in his conviction that the incident was unlawful. In closing the hearings, he reprimanded the Commission's representatives and pointed out that "a person does not sacrifice his right to privacy and his constitutional privileges by virtue of becoming a Government employee." 50

The Freedom of Information Act

The Eighty-ninth Congress enacted important legislation which significantly affects individual privacy when it passed the Freedom of Information Act, Public Law 89-487, in an effort to open up government to public scrutiny. Designed to ensure the public's "right to know," the Freedom of Information Act requires that all Government papers, opinions, records, policy statements and manuals be made available to any citizen, upon request, with the exception of nine specific categories of information. These exemptions expressly include "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.' Despite this provision, some consequences of the Freedom of Information Act, such as the release of mailing lists by Federal agencies, have had controversial implications on individual privacy.

9951

In the Ninetieth Congress, during the summer of 1968, one year after the Freedom of Information Act became legally effective, the House Subcommittee on Postal Operations explored certain privacy issues related to the Act. Timothy J. May, General Counsel of the Post Office Department, appeared before the committee to explain how the Act, in many instances, made mandatory the release of names and addresses to solicitors for commercial purposes. Interest in this problem led to the introduction, during the Ninety-first Congress of twenty-one House bills designed to protect the individual from unsolicited mail.

The Ninety-second Congress considered a number of legislative proposals, such as H.R. 8903, which would amend the Freedom of Information Act to prohibit Federal agencies from distributing lists of names and addresses of individuals—either employees or those having business with the agency for commercial or illegal purpose.52 In connection with hearings on these proposals, the House Foreign Operations and Government Information Subcommittee conducted a survey of Federal agencies which revealed that the Freedom of Information Act was frequently cited as the authority for both releasing and withholding mailing lists from the public.58 Representative Frank Horton, who introduced H.R. 8903, recommended his bill as a means "to clarify this situation by setting out a reasonable governmentwide policy, which protects individual privacy at the

50 U.S. Congress. House. Committee on Interstate and Foreign Commerce. Special Subcommittee on Investigations. FCC Monitoring of Employees' Telephones. Hearings, 92d Congress, 2d session. March 28 and May 16, 1972. Washington, U.S. Govt. Print. Off., 1972. p. 81.

51 Public Law 487, 89th Cong.

52 U.S. Congress. House. Committee on Government Operations. Foreign Operations and Government Information Subcommittee. Sale or Distribution of Mailing Lists by Federal Agencies. Hearings, 92d Congress, 2d session on H.R. 8903 and Related Bills. June 13 and 15, 1972. Washington U.S. Govt. Print. Off., 1972. p. 2.

63 Ibid., p. 61

35-024-74- 4

1154

same time it adequately safeguards the public's right to know.' Testimony in support of the proposal came from private citizens, legislators, and some Federal agencies, such as the Federal Aviation Administration. Other executive branch spokesmen, from the Veterans' Administration and the Department of Defense, described the measure as unnecessary in light of existing regulations. The House took no further action on H.R. 8903.

Federal Data Banks Legislation

Other legislative amendments to the Freedom of Information Act more directly relating to Federal data banks were examined by the House Foreign Operations and Government Information Subcommittee in open hearings. Among these amendments were H.R. 9527, H.R. 15613 and related bills which required that "individual citizens be apprised of certain records which are maintained by Federal agencies." These proposals generally required that Government agencies maintaining indexed records on an individual, which contain information about him from sources other than himself, shall:

(1) Notify the subject that such records exist;

(2) Refrain from disclosing the record, except when the subject expressly consents, or when required by law;

(3) Keep an accurate record of all persons who inspect these files and the purpose of such inspections;

(4) Allow the individual access to his record;

(5) Permit the individual to make copies of this record at his expense, add any information he deems pertinent, or remove erroneous information.56

These bills further provided for the creation of a "Federal Privacy Board" to administer the provisions of the legislation.57

Representative Edward Koch, who introduced H.R. 15613, described his bill as a "draft" and welcomed comments upon it.58 Spokesmen from several Government agencies, including the Civil Service Commission, the Justice Department, the Department of Defense, and the Veterans' Administration, testified that enactment. of these proposals would place undue costs and administrative burdens on their operations.59 This objection was supported by Dr. Allan Westin, who suggested that the legislative purpose of these bills would be better served by providing for the compilation of a "citizen's guide" to Government files to be published annually and widely disseminated.60 Westin also recommended: special notification of individuals when records are kept which threaten their due-process rights, e.g., names placed in "derogatory files"; an experiment with open recordkeeping of previously confidential files; and periodic information-inventory statements from Federal Agencies.61 H.R. 9527 and H.R. 15613 did not move out of committee during the Ninety-second Congress. Nor did a similar bill, S. 975 which Senator Birch Bayh introduced in the Senate.

54 Ibid.

55 U.S. Congress. House. Committee on Government Operations. Foreign Operations and Government Information Subcommittee. Records Maintained by Government Agencies. Hearings, 92d Congress, 2d session on H.R. 9527 and Related Bills. June 22 and 27, 1972. Washington, U.S. Govt. Print. Off., 1972. p. 2.

56 Ibid., p. 40.

57 Ibid., p. 41.

58 Ibid., p. 67.

59 Ibid., p. 89.

60 Ibid., p. 134.

61 Ibid., p. 135-138.

The Fair Credit Reporting Act

These latter Federal data bank proposals were based on the general procedural model of the Fair Credit Reporting Act enacted by the Ninety-first Congress to curb abuses of reports on the credit-worthiness of individuals. During the Ninetieth Congress, both the Special Subcommittee on Invasion of Privacy of the House Committee on Government Operations and the Senate Judiciary Subcommittee on Administrative Practice and Procedure held hearings to ascertain how credit bureaus operate, the number and extent of their files, and the possibility of unauthorized access to personal information. During the Ninety-first Congress, the Subcommittee on Consumer Affairs of the House Committee on Banking and Currency held hearings on H.R. 16340, a bill "to enable consumers to protect themselves against arbitrary, erroneous, and malicious credit information." Congressional awareness of certain abusive practices in the burgeoning credit industry led to the final passage of the Fair Credit Reporting Act (P.L. 91-508). This legislation defines and provides penalties for illegal use of private files, requires that persons be notified of negative actions they may suffer bcause of information obtained from credit reporting agencies, and gives individuals the right to know "the nature and substance" of their files. In the event of dispute, the agency must reinvestigate any disputed fact and either delete it, if it cannot be verified; or make note of the consumer's disagreement in any subsequent report.

Criminal Justice Information Systems

As congressional interest in privacy grew more intense, data banks containing criminal justice information, such as arrest records, were perceived as particularly dangerous to individual privacy and civil liberties. During the 92nd Congress, as part of a general review of data banks and individual privacy, the Constitutional Rights Subcommittee explored the plans of the Law Enforcement Assistance Administration and the Federal Bureau of Investigation for computerized criminal justice records.62

Also, during the Ninety-second Congress the House Committee on the District of Columbia considered abuses of criminal arrest records in connection with hearings on the privacy of police personnel fes. There was no final action on the arrest records proposals, although the committee issued a favorable report to accompany H.R. 11773, a bill designed to protect Metropolitan police officers from harassment by excluding personal data, such as home address and telephone number, from records which are open to public inspection. This latter measure received final congressional approval on October 25, 1972, and became Public Law 92-543.

In 1972 a subcommittee of the House Judiciary Committee held hearings on H.R. 13315, a bill "to provide for the dissemination and use of criminal arrest records in a manner that insures their security and privacy." 63 H. R. 13315 included such provisions as:

62 The subcommittee has continued to investigate developing plans for computerization. Late in 1973 legislative drafting began both in the Constitutional Rights Subcommittee and in the Justice Department under then-Attorney General Elliot Richardson. Two proposals were introduced in February 1974: S. 2963, by Senator Ervin, and S. 2964, by Senator Hruska, on behalf of the Justice Department. Both bills had numerous bipartisan cosponsors. Later, in March 1974, the Constitutional Rights Subcommittee held hearings on the two proposals, with all Senators expressing a desire for legislative action before the end of the ninety-third Congress.

63 U.S. Congress. House. Committee on the Judiciary. Subcommittee No. 4. Security and Privacy of Criminal Arrest Records. Hearings, 92d Congress, 2d session, on H. R. 13315. Washington, U.S. Govt. Print. Off., 1972. p. iv. (Hearings held Mar. 16, 22, 23 and Apr. 13, 26 1972.)

• Limitation of criminal arrest records to use by and among law enforcement agencies;

• Prohibition of release of such records after a period of two years (with certain exceptions), or if prosecution is not warranted, or if it has been ordered expunged by State law;

Right of the record subject to access, and petition against, information contained in his file.64

Spokesmen for national, state, and local law enforcement agencies, the International Business Machines Corporation, the American Civil Liberties Union, and the Georgetown University Law Center appeared before a subcommittee of the House Judiciary Committee to comment on this measure. Beyond these hearings, no further action was taken on H.R. 13315 during the Ninety-second Congress.

Financial Privacy

The issue of privacy versus law enforcement was also taken up during the Ninety-second Congress by the Senate Subcommittee on Financial Institutions. In the summer of 1972, this subcommittee met to examine the implications of two bills (S. 3814 and S. 3828) that would effectively amend the recently enacted "Bank Secrecy Act" (Public Law 91-508). The Act authorized the Secretary of the Treasury to require financial institutions to keep records which would help the Government to prosecute white-collar crimes, such as tax evasion and securities manipulation. The regulations, as they developed, oblige banks to keep photostatic copies of personal checks and other records which are to be available for inspection by law enforcement agencies without necessarily requiring a subpoena or confidentiality guarantees. Senator John Tunney, sponsor of S. 3814, felt that the Treasury Department had defied the legislative intent of the Bank Secrecy Act. He warned: "What, in essence has been done, is to give a Federal agency the opportunity to obtain a complete profile on the habits, and the actions, of every citizen in this country.' ,, 65 In rebuttal Treasury officials pointed out that they were following the "letter of the law," as defined by the Ninety-first Congress, and that they had independently exempted several classes of checks, as well as domestic items received by a bank for collection, from the records. requirement. They argued, as did a spokesman from the Department of Justice, that the provisions of S. 3814 and S. 3828 limiting law enforcement access to financial records would shield criminal activity. These two proposals were not reported out of committee during the legislative term.

66

Electronic Data Collection

In the late 1960's, Congress also became increasingly critical of methods used by Federal agencies to gather data, particularly law enforcement information. During the Eight-ninth Congress, the Senate Judiciary Subcommittee on Administrative Practice and Procedure launched a series of hearings to explore alleged "invasions of privacy" by the Government. The surveillance activities of the Post Office Department, the Food and Drug Administration, and the

64 Ibid.

65 U.S. Congress. Senate. Committee on Banking, Housing and Urban Affairs. Subcommittee on Financial Institutions. Amend the Bank Secrecy Act. Hearings, 92d Congress, 2d session on S. 3814 and S. 3828 Aug. 11 and 14, 1972. Washington, U.S. Govt. Print. Off., 1972. p. 25.

Ibid., p. 41-42.

Internal Revenue Service were among those examined by the subcommittee. As a direct result of these hearings, the Post Office closed up "observation galleries" installed in employees' restrooms; and the Postmaster General issued more rigid regulations regarding "mail covers," i.e. the recording of information-address, return address, postmark-on envelopes mailed to citizens under surveillance.67 The Administrative Practice and Procedure Subcommittee also examined the Internal Revenue Service practice of seizing all classes of mail (including first class) sent to delinquent taxpayers. Shortly thereafter, Congress passed legislation forbidding the continuation of such "mail levies." 68

Much of the Administrative Practice and Procedure Subcommittees' attention focused on the type of electronic devices available for surveillance and their actual use by Federal agents. Testimony established that a wide range of monitoring tools, including wiretaps, "bugs," microphones, two-way mirrors, tape recorders, and countless other devices, have been employed by investigators from a broad spectrum of Federal agencies from the Food and Drug Administration to the Internal Revenue Service. Internal Revenue Čommissioner Sheldon S. Cohen decried the illegal, unauthorized use of wiretaps by IRS employees; he did not disavow, however, use of all electronic equipment by inspectors:

66* * * we must weigh the desirability of restraint against our duty of administering and enforcing the revenue laws so that all taxpayers pay their allotted share of the tax burden. Therefore, we cannot categorically shirk from using certain legal investigative equipment and techniques, even though this might in some cases subject us to criticism." 69

Subcommittee Chairman Edward V. Long, on the other hand, found the trend towards data collection by means of electronic monitoring devices very worrisome:

"It is obvious that this blossoming of snooping gear is increasingly placing the constitutional right of privacy of the individual citizen in peril. Surveillance is becoming harder and harder to detect. Modern Americans are increasingly exposed, peered at, inquired about, and spied upon. They are fast becoming members of a naked society, denizens of a goldfish bowl." 70

It was Senator Long's view, shared by several of his colleagues, that Congress ought to pass legislation restricting the use of privacyinvading equipment and techniques in both the private and public sectors. In the Eighty-ninth Congress, Senators and Congressmen introduced at least six bills pertaining to the control of electronic surveillance.

During the Ninetieth Congress, wiretapping was again the focus of several legislative proposals. In the spring of 1967, the Senate Judiciary Subcommittee on Administrative Practice and Procedure held hearings

67 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and Procedure. Invasions of Privacy. (Government Agencies) Hearings, 89th Congress, pursuant to S. Res. 39, S. Res. 190. Part 4. Washington, U.S. Govt. Print. Off., 1966. p. 1652. (Hearings held Oct. 18-20, 1965. Feb. 2-4, 1966.)

68 Ibid.

69 Ibid. Part 3. Washington, U.S. Govt. Print. Off., 1965, p. 1123. Hearings held July 13-Aug. 9, 1965 70 Ibid., Part 4, op. cit., p. 1644.

71 Ibid., p. 1652.