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At the end of the nineteenth century, government was apparently not yet perceived as sufficiently intrusive to arouse protest. Considering the government's relatively minimal ability to store, interrelate and disseminate what information it did collect, this lack of interest in governmental invasions of privacy is not surprising. Moreover, the existence of the frontier meant that individuals who wanted to get away from the government and its data collection, for whatever reason,
go West and leave the past behind. It took the scientific and technological revolutions of this century, together with the trend toward centralizing more and more power in government, to bring the privacy issue to the fore. In other words, it was the greatly increased governmental capacity to create massive Federal data banks containing intimate details about the personal lives of individuals, which raised the issue of the impact of these data banks on constitutional rights as a major social and political concern.
The rapid development of information-gathering and communications technologies in the latter half of the nineteenth century set the stage for the privacy controversy which followed over a hundred years later. Photography processes and equipment became easier, less expensive and more mobile. Wiretaps were invented with the telegraph in the 1860's. Telephones and telephone-line taps followed, as well as microphones and various sound-recording devices. By the early 1900's, electronic surveillance was an established method of investigation on the part of both police and private detectives.
Early in this century, some Members of Congress and aggrieved parties in the courts protested against invasions of privacy; but the issue of surveillance-by camera, wiretap, sound-recording, etc.remained unresolved during the first half of the twentieth century. In congressional debate on these issues, the propriety of surveillance frequently became entangled with law enforcement and national security issues. Ambivalence marked the public's response, which was an odd combination of awe in the face of sophisticated technology, respect for police and security functions, fear of persecution of unpopular views and activities, and indifference.
Also in the early decades of the twentieth century, new technologies of recording and assessing individual personality became available. Polygraphs and personality tests began to be used to record and to measure the most intimate recesses of the human personality. Polygraphs (so-called “lie-detectors”) were developed as a police tool in the late 1920's. Personality tests, based on the then newly created sciences of psychology and psychoanalysis, gained respectability through their extensive use by the military during World Wars I and II. Such techniques did not arouse much public antagonism in these years of limited application.
At the same time, communications technologies—from the typewriter to new printing processes, to radio and swifter mail service based on faster means of transportation-brought more and more current information into the hands of more and more people. The technologies of information dissemination were themselves developing concurrently with the development of new methods of collecting information. The public response was generally enthusiastic.
By mid-century (1945–1965), the United States was characterized by even more rapid technological advances and increased reliance on
"scientific" methods. Electronic surveillance devices became more powerful, more versatile, smaller and cheaper. Polygraphs became an increasingly popular personnel tool among both private and public employers. Personality tests were embraced by many groups and accepted as a routine procedure in schools, industry and government. Communications technologies developed apace. Most important, computers became an integral part of the nation's record-keeping activities.
At about the same time, there was a growing demand for both administrative personal data and statistical information about individuals. The social service responsibilities of the federal government greatly expanded during the "New Deal” era; and these new mandates stimulated the need for facts on which to base planning, programming and budgeting decisions. In the many cases where the allocation of federal grants was made to depend on the population characteristics of a given area, the collection of highly detailed information about such population groups by the federal and state governments 5 became essential. Added emphasis in the private sector on social and biomedical research began to involve the gathering of much personal data, sometimes shared with a financially supporting federal agency. In the private sector, business concerns began to collect detailed information about many aspects of their operations, particularly for tax and marketing purposes. During this period, too, a mobile population discovered the convenience of credit cards. The success of the credit reporting industry in marketing information about consumers has given rise to predictions of an efficient "cashless society," and also to apprehension about "financial privacy.'
As Americans began to relinquish more and more personal information in response to numerous governmental and private sector requirements, fears of losing privacy and freedom began to be articulated. Labor, in particular, voiced its opposition to the use of lie detectors in business, and in the early 1960's both Congress and the executive branch began to investigate the use and propriety of polygraphs. Personality tests roused the ire of conservative groups alarmed at their potential for producing conformity among schoolchildren. As their use became pervasive, however, diverse groups began to object to these tests as being unreliable, unscientific, and an infringement of individual rights. In the mid-1960's several best sellers, including The Organization Man (1965), The Brain Watchers (1962), The Naked Society (1964), and The Privacy Invaders (1964), aroused public opinion by focusing on growing trends toward depersonalization and loss of iżdividual privacy.
About this same time, computers began to produce noticeable effects on American society. Congressional hearings noted the growing use of automatic data processing by the federal government, and its impact on established patterns of data collection and interagency information sharing. Soon after the Internal Revenue Service adopted computer procedures in 1963, citizens became obliged to indicate their Social Security number on tax forms. By the mid-1960's, too, growing numbers of state and local law enforcement agencies began to automate 5 U.S. Department of Health, Education and Welfare. Secretary's Advisory Committee on Automated I bid., p. 92.
Personal Data Systems, op. cit., p. 91.
various aspects of their operations, such as fingerprint identification, analysis of crime characteristics, and retrieval of criminal histories. The computerization of consumer reports by the credit industry made "credit checks" on individuals feasible within seconds. The trend towards centralizing and manipulating information, especially personal information, in computerized data banks began to be viewed with apprehension by a growing number of both politicians and private citizens.
The anxieties generated by these privacy concerns were galvanized in the mid-1960's by discussion in the Executive Branch of proposals for a computerized federal statistical center, a "National Data Center.” 7 This plan was labeled in the press, and before Congress, as a giant step towards centralization of power, de-personalization, and realization of the totalitarian society George Orwell portrayed in his novel, 1984. Proponents of the “National Data Center” idea defended the concept at committee hearings during the 89th and 90th Congresses as a means to improve the efficiency of government functions and private research efforts. However, when Congress and the public expressed unqualified objection to this national data bank proposal, which would have had profound effects on personal privacy and individual freedom from government control, the proposal was abandoned.
The legislative response to privacy concerns during the period 1965 to 1972 is the subject of the next section. However, it is important to note here the broad scope of Congressional activity. Some of the subjects considered during this period include:
• Creation of a National Data Center
Data banks currently maintained by Federal agencies
Privacy of federal employees It is important also to note that of the many legislative proposals pertaining to these privacy issues which were introduced in the 89th through 92nd Congresses, only two major public laws were enacted which directly address the problem: the "Omnibus Crime Control and Safe Streets Act of 1968" (P.L. 90–351) contains provisions that limit the legal use of wiretaps to police-related activity under specified conditions; the "Fair Credit Reporting Act” (P.L. 91-508), approved three years later, in 1971, gives credit customers the right to receive notification of consumer agency reports that result in negative actions taken against them, to know the content of their files, and to challenge disputed data.
During the past decade, faced with public and Congressional outrage over invasions of privacy, several executive agencies have expressed concern over the effects of statistical and behavioral research on individual privacy. In 1966, the Bureau of the Budget issued the report of the "Task Force on the Storage of and Access to Government Statistics," which briefly considered the questions regarding privacy and confidentiality raised by the National Data Center pro7 The legislative history of this concept is traced in the section below.
posal. The task force recommended that Congress define statutory standards governing the disclosure of personal information collected by the government, and that these standards be enforced by the Director of the Federal Statistical System. One year later, the Office of Science and Technology issued a paper on “Privacy and Behavioral Research” that discussed the ethical responsibilities of social scientists engaged in studies of human behavior, especially research sponsored by the federal government. In 1971, an evaluation of federal statistical systems was published by a special presidential commission as a twovolume report on Federal Statistics containing several chapters on privacy considerations. The commission recommended that public confidence in federal data gathering be increased by strengthening legal safeguards and by establishing an independent advisory board to handle public grievances.
In July 1973 an advisory committee appointed by the Secretary of Health, Éducation and Welfare issued a report on Records, Computers, and the Rights of Citizens. This HEW advisory committee exainined the potential privacy hazards of computer-based record-keeping and the trend towards using the Social Security number as an all-purpose identifier. The HEW advisory committee concluded that excessive use of the Social Security number should be curtailed, in part to allay public fears of governmental intrusion and surveillance. The HEW advisory committee also recommended that citizens be informed as to the nature of information concerning them in government files, and be given meaningful rights to access, control, and correct such data.10
Thorosponso of America's private sector to privacy issues from 1965 to 1972 has included:
• Law review and journal articles discussing the impact of in
formation technology on civil liberties. (The law schools of Columbia University and Duke University have devoted entire
issues of their respective periodicals to privacy considerations.)" . Newspaper and magazine articles focusing on "the assault on
Computer industry speeches, publications and the like reflecting an awareness of the privacy problem with an added emphasis
on the development of physical security measures. 13 • Studies by private research organizations of privacy-related
issues. (In 1967, for example, the Rand Corporation published the first of a two-part annotated bibliography on privacy and computers, as well as a paper by Paul Armer entitled “Social Implications of the Computer Utility.” The Stanford Research
Institute published in 1973 a study of Computer Abuse.) : U.S. Bureau of the Budget. Task Force on the Storage of and Access to Government Statistics, Report. Washington, 1966. Annex. U.S. President's Commission on Federal Statistics. Federal Statistics; Report. Vol. I. Washington,
10 U.S. Department of Health, Education, and Welfare. Secretary's Advisory Committee on Automated Personal Data Systems, op. cit., xix-xxxv.
11 Columbia Human Rights Law Review, vol. 4, Winter, 1972; Privacy. Law and Contemporary Problems (Duke University School of Law] Vol. 31, Spring, 1966.
12 The following three articles illustrate some popular literature on the privacy issue in recent years. (A) A Government Watch on 200 Million Americans? U.S. News and World Report, May 16, 1966: 56-59. (B) Packard, Vance. Don't Tell It to the Computer. New York Times Magazine, Jan. 8, 1967: 4. (C) The Invasion of Privacy. Saturday Review, Apr. 17, 1971: 18. 13 To cite the International Business Machines Corporation as an example, see: (A) Watson, Thomas J. Technology and Privacy; Address before the Commonwealth Club of California. San Francisco, Calif. Apr. 5, 1968. (B) Privacy: A Special Report. Think (The IMB Corp.) v. 35, May-June 1969: 12-32. (C) The Considerations of Physical Security in a Computer Environment. IBM. 1972, 37 p.
1971. p. 3.
This period was also marked by the appearance of many books, sensational and scholarly, on the subject of privacy rights in a technological age. The earlier books tend to catalog and comment upon the many current privacy-invading devices and techniques. Among these texts, a comprehensive treatment is provided by Alan Westin's Privacy and Freedom (1967) and by Arthur Miller's The Assault on Privacy (1971).
Beginning in 1970, concern turned to the impact of computer technology on society. This trend reflects the growing national focus on proper control of an immensely powerful tool for the manipulation of information lest it erode our freedoms. For example, Malcolm Warner and Michael Stone, British authors of The Data Bank Society: Organizations, Computers, and Social Freedom (1970), have called for reevaluation of goals, new restrictions on the collection and exchange of information, and improved security measures. In their opinion, the controlled use of computer technology will expand personal freedom rather than restrict it.14
In 1972 the National Academy of Sciences published Databanks in a Free Society, an important empirical study which summarizes the results of a three-year project challenging some widely held assumptions about the effects of computerization on large scale personal information systems. Based partly on fifty-five detailed on-site visits, the authors, Ålan Westin and Michael Baker, assessed the impact of automatic data processing on the practices and policies of many organizations. Their analysis featured these two conclusions:
(1) The new capacity of the computer to store, consolidate, and share confidential information has not led, inevitably, to greater collection and manipulation of such data.
(2) In computerizing files on individuals, organizations have generally adhered to their traditional administrative policies regarding the collection and sharing of data. The most sensitive
personal information is still maintained in manual files.15 The report recognizes, however, that computers have brought about a dramatic and increasing expansion of information networks with attendant impact on individual privacy. Proper legal restraints on data-sharing have become imperative. Other policy suggestions include publication of "A Citizen's Guide to Files," new limits on the collection of personal information, development of effective technological safeguards, limits on the use of the Social Security number, and the establishment of "information-trust agencies” to hold particularly sensitive bodies of personal data.
In light of this general historical background, the next section will focus more specifically on the legislative response to these privacy
14 Warner, Malcolm, and Michael Stone. The Data Bank Society: Organizations, Computers and Social Freedom. London, George Allen & Unwin Ltd., 1970. p. 224.
15 Westin, Alan F., and Michael A. Baker. Databanks in a Free Society: Computers, Record-Keeping, and Privacy. New York, Quadrangle Books, 1972. p. 341-342.