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on S. 923, "a bill to protect the right of privacy by prohibiting wire interception and eavesdropping, and for other purposes. provisions of this bill broadly prohibited the manufacture, advertisement, distribution, and use of eavesdropping devices. An exception was made for Presidential prerogative to take any measure necessary (including wiretaps) to protect the national security; in this instance, however, information so obtained would not be admissible as evidence in judicial or administrative proceedings. Attorney General Ramsey Clark appeared before the committee in support of this measure. In hi; opinion:
"Public safety will not be found in wiretapping. Security is to be found in excellence in law enforcement, in courts and in corrections. That excellence has not been demonstrated to include wiretapping.
"Nothing so mocks privacy as the wiretap and electronic surveillance. They are incompatible with a free society and justified only when that society must protect itself from those
who seek to destroy it." 73 The Ninetieth Congress found broader necessity for the legal use of wiretaps than did Attorney General Clark. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (P.L. 90–351, 82 Stat. 197, 211, 18 U.S.C. $$ 2510 to 2520) represents an effort by Congress to safeguard, in statutory law, the privacy of innocent persons as well as the effectiveness of law enforcement activity against organized crime. This Act prohibits and provides legal penalties for all interception and disclosure of wire or oral communications,” unless such interception and disclosure is conducted: (1) by employees of a communications common carrier or the Federal Communications Commission in the normal performance of their duties; (2) by federal or state law enforcement officers acting under the authority of a court order; or (3) when one party to the conversation has given his consent and the purpose of the interception is legal and non-injurious. The act also prohibits the manufacture, distribution, possession, and advertising of wire or oral interception devices except in conjunction with these activities. The question of Presidential authority to wiretap in the interests of 'national security” was left unanswered by the Act.
In the Ninety-first Congress the House Subcommittee on Foreign Operations updated a review of "telephone monitoring" by Federal agencies, i.e., the practice of allowing a third party to listen in on conversations between Government employees and private citizens. This surveillance is generally accomplished by allowing stenographers to overhear telephone conversations or by means of electronic interception equipment, such as transmitter cutoff switches, induction attachments, and tape recorders. Results of the subcommittee's questionnaire survey, published as a committee print, revealed that 52 of the 60 Federal agencies polled in the Washington area permitted some degree of monitoring. 74 The House report is objective in nature, summarizing the type, number, and operating costs of monitoring devices employed by each agency. The subcommittee's introductory comments, however, include the important observation that:
72 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and Procedure. Right of Privacy Act of 1967. Hearings, 90th Congress, 1st session on S. 928. Part I. March 20, 1967. Washington, U.S. Govt. Print. Off., 1967. p. 1.
74 U.S. Congress. House. Committee on Government Operations. Foreign Operations and Government Information Subcommittee. Availability of Information From Federal Departments and Agencies: Telephone Monitoring—Third Review. (Committee Print) Washington, U.S. Govt. Print. Off., 1970. p. 3.
73 Ibid., p. 48.
"It remains a fact that until the practice of monitoring is abolished, a citizen will never be able to know for sure to what extent, or for what underlyingʻmotive, he is unwittingly
sharing his telephone calls with silent listeners.” 75 Special Privacy Committee Proposals
Although suggestions that a special legislative committee which could focus on privacy issues were not
new in the Ninety-first Congress, it is notable that in 1970 the House Committee on Science and Astronautics published as a Committee Print a paper by Rand scholar and computer expert Paul Armer, entitled "The Individual: His Privacy, Self-Image and Obsolescence.” Presented at the committee's eleventh meeting with the Panel on Science and Technology, which was concerned about the impact of rapid technological change on man and society, the paper focused on the privacy problem introduced by the growth of electronic data banks. Armer's paper concluded: "The only way we can go about defining a balance between the individual's right to privacy and the common good is through the political process.” 76 He specifically recommended the creation of a congression a committee dedicated to privacy concerns and the establishment of a Federal "privacy bureau” to register all data banks in the private and public sector, provide basic research, and propose legislation."
In the Ninety-second Congress, a similar concept was reflected in H.R. 164, which proposed the creation of a House Select Committee on Privacy, Human Values, and Democratic Institutions." This committee, composed of nine members appointed by the Speaker, would be charged with studying the impact of technological invention, especially computer technology, on the Nation's social norms and political system. H.R. 164, considered and amended by the Committee on Rules, was debated in the House on February 8, 1972. Opponents of the resolution, while endorsing the goals of the proposed committee, argued that the scope of its concern fell within the jurisdiction of the House Committee on the Judiciary and the newly created National Commission on Individual Rights. Other objections included cost and office-space factors.78 The measure was defeated that day by a rollcall vote (216–168). Conclusion
These diverse congressional interests in privacy issues over the past decade intensified in the present Ninety-third Congress. In 1973, the publication of the Department of Health, Education, and Welfare's report on “Records, Computers and the Rights of Citizens” signaled greater executive branch interest in legislation to protect individual
75 Ibid., vi.
70 U.S. Congress. House. Committee on Science and Astronautics. “The Individual: His Privacy, Self. Image and Obsolescence" by Paul Armer. (Committee print) Washington, U.S. Govt. Print. Off., 1970. p. 6.
77 Ibid. 78 Select Committee on Privacy, Human Values, and Democratic Institutions. Congressional Record, v 118, Feb. 8, 1972: 3190-3200.
privacy. In 1974, cooperation between the legislative and executive branches on privacy matters took the form of legislative proposals to control the use of criminal justice computers. Spurred by widespread concern about governmental infringement of individual privacy symbolized by the Watergate scandals, both houses of Congress have initiated numerous hearings and legislative proposals relating to criminal justice data banks, national security, wiretapping, as well as private and governmental data banks.
PRIVACY AND THE CONSTITUTIONAL RIGHTS
As a part of its concern with the guarantees of personal liberty found in the Bill of Rights, the Constitutional Rights Subcommittee has been interested in individual privacy since the subcommittee's inception almost twenty years ago. Freedom of speech and thought, due process, fourth amendment rights and other liberties guaranteed by the Constitution are all part of the subcommittee's interest in privacy.
Among the first activities of the Constitutional Rights Subcommittee after its creation at the beginning of the Eighty-fourth Congress, were extensive hearings on "Security and Constitutional Rights." These 1955 hearings which focused on government securityloyalty programs were followed in the Eighty-fifth Congress by subcommittee hearings on "Wiretapping, Eavesdropping and the Bill of Rights" and "Freedom of Information and Secrecy in Government." During the Eighty-sixth Congress the subcommittee renewed hearings on all three of these privacy-related subjects.
Soon after Senator Sam J. Ervin, Jr., became chairman in 1961, the Constitutional Rights Subcommittee began to concentrate on governmental infringements of individual privacy. The subcommittee's work on questions of employee procedural rights led directly to a consideration of the kinds of information that the Federal government as an employer finds pertinent in actions involving its employees. The subcommittee found ever-increasing demands by the Federal government to learn about its employees, applicants for Federal employment, and their families, activities and associations. The subcommittee soon discovered that these efforts were not limited to government employees. There was widespread use of psychological testing and instrusive questionnaires seeking to learn all about citizens who were not employees or prospective employees of government.
These investigations resulted in a series of bills and hearings in the mid-1960's. Chief among these were hearings on "Psychological Tests and Constitutional Rights” in 1965; “Privacy and the Rights of Federal Employees” in 1966; and “Privacy, the Census, and Federal Questionnaires” in 1969. These hearings served to increase general interest in privacy. The subcommittee's initial privacy proposal, the Government Employees Privacy bill, passed the Senate numerous times in the years since the 1966 hearings and met little Senate opposition. However, it died in the House each time. Other privacy bills did not advance as far.
As these privacy-related studies were conducted, it became evident that each was merely part of a more general problem of individual privacy versus government accumulation of data. It also became apparent with the debate on the proposed National Data Center that the advent of computers introduced a new and ultimately a very threatening element into the privacy problem. More and more citizens brought to the subcommittee's attention the fact that the programs intruding on privacy and other individual rights were utilizing computers to assist the government in its activities. Thousands of complaints about the use of computers in these programs urged further subcommittee investigation of the impact of computers on individual privacy.
The subcommittee by its chairman, Senator Ervin was particularly interested in this issue. In a speech before the American Management Association in March 1967, he pointed to the computer as a means of expanding government's ability to collect and use information, thus increasing the possibility of harm to individual rights.
The subcommittee's interest in individual rights, privacy and data banks has from the beginning resulted in a considerable amount of activity directed toward assisting individuals, changing administrative policies, and influencing the course of executive and legislative decision-making in these areas. The cancellation of the Department of Health, Education, and Welfare's scientific "blacklist”, and the Army surveillance computer programs are two more familiar examples of the fruits of the subcommittee's involvement. Others include the end of funding for the SACB and the elimination of certain intrusive and unnecessary questions from the government employee applicant's form.
The controversy over the National Data Center introduced Congress to the computer, but it was the increasing concern on the part of individual citizens that sparked the subcommittee's particular interest. From that point the subcommittee became more and more concerned not only about data collection in itself, but also about the consequences that would follow as the computer was employed to store and interrelate government data. This focus eventually resulted in the 1971 hearings on "Federal Data Banks, Computers and the Bill of Rights. These hearings explored for the first time the use of computers in data collection about citizens. Origin of the Survey
In early 1970, as preparation for hearings on "Federal Data Banks, Computers and the Bill of Rights" began, the subcommittee initiated the survey which is the subject of this report. On January 12, 1970 the first letter of inquiry went out to the Department of Health, Education, and Welfare. Eventually, the following 54 agencies were surveyed: