THE LEGISLATIVE CONTEXT (1965-72)16

The rapid social, political and technological developments, described in the previous section, led the Congress to become increasingly concerned about the Federal Government's growing and apparently unrestrained "information power." Reacting to widespread public anxiety about government recordkeeping, the Congress began to inquire into the information policies and practices of the Federal Government which was fast becoming a comprehensive repository of vast amounts of personal data about individual citizens. During the past decade the Congress has repeatedly asked such questions as:

What personal information should be collected by the Federal
Government?

. What means should be used to obtain it?

Who should have access to it?

To what extent and under what conditions should information gathered for one purpose be made available for another?

. What rights do citizens have with respect to these data banks? This study of Federal Data Banks and Constitutional Rights is a part of an expanding legislative inquiry into governmental infringement of individual privacy. The general legislative background of various aspects of the privacy issue, which were considered by the past four Congresses (meeting between 1965 and 1972), is particularly important to an understanding of this study." The development of the Constitutional Rights Subcommittee's interest in privacy is the subject of the next section, "Privacy and the Constitutional Rights Subcommittee." The National Data Center Proposal

The current legislative controversy over the impact of Federal data banks on individual privacy began in the mid-1960's when, as mentioned in the preceding section, a national data bank called the "National Data Center" was proposed to collect and centralize planning and research data on the population.

In the years following the second World War the federal government markedly increased in size and added many new dimensions

16 This section is based on a report prepared by Eileen M. Bartscher, Science Policy Research Division, Congressional Research Service, the Library of Congress. 17 Legislative Proposals Related to Privacy (1965-72):

Source: U.S. Library of Congress. Digest of Public General Bills and Resolutions. Washington, 1965-72.

to its activities. As the planning, programming, and budgeting functions of federal agencies became more complex, the use of and demand for statistical data in machine-readable form also grew. By the late 1950's, the supply of such statistical information could not equal the demand from academic and private research groups as well as from government agencies. In 1959 the American Economic Association recommended that the Social Science Research Council explore the problem of developing and preserving important bodies of "microdata" information about individual Americans. One year later the Council created a Committee on the Preservation and Use of Economic Data, chaired by Richard Ruggles.

After four years of study, the committee submitted a report to the Social Science Research Council, which subsequently, referred it for review to the Bureau of the Budget. The "Ruggles Report," as it came to be known, included the following recommendations:

First, . . . that the Bureau of the Budget, in view of its responsibility for the Federal statistical program, immediately take steps to establish a Federal Data Center. Second, that the Office of Statistical Standards of the Bureau of the Budget place increased emphasis on the systematic preservation in usable form of important data prepared by those agencies engaging in statistical programs.

Third, . . . that at an early date the Social Science Research Council convene representatives from research institutions and universities in order to develop an organization which can provide a clearinghouse and coordination of rerequests for data made by individual scholars from Federal agencies.18

Shortly after receiving this report, the Bureau of the Budget hired Edgar S. Dunn of Resources for the Future, Inc., to evaluate the above recommendations and to study ways of implementing them. The Dunn critique, submitted in December 1965, strongly supported the proposal for a National Data Center. It cited numerous deficiencies in the present Federal statistical system and discussed the functions and technical requirements of the proposed center.

As the recommendations of these two reports became more widely known, Congress responded with sharp concern over the implications for privacy and other civil liberties inherent in the process of centralizing data on individuals. On June 14, 1966 Dr. Dunn appeared before the Senate Subcommittee on Administrative Practice and Procedure, to answer questions about the contents of what subcommittee chairman, Senator Edward V. Long termed a "single machine age information reservoir." 19 Dr. Dunn stressed the fact that only traditional records containing non-sensitive information would be stored in the proposed center. He argued that the issue of individual privacy in such a system was basically specious and that the public good would be greatly served by the centralized collection of relevant data for planning, administration, and program evaluation.

18 U.S. Congress. House. Committee on Government Operations. Special Subcommittee on Invasion of Privacy. The Computer and Invasion of Privacy. Hearings, 89th Congress, 2d session. July 26-28, 1966. Washington, U.S. Govt. Print. Off., 1966. Appendix 1, p. 195.

19 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and Procedure. Invasions of Privacy. Hearings, 89th Congress, 2d session. Part 5. Washington, U.S. Govt. Print. Off., 1967. p. 2388. (Hearings held Mar. 23-30; June 7-16, 1966.)

This reassurance did not allay congressional skepticism and concern. One month later the Special Subcommittee on Invasion of Privacy of the House Committee on Government Operations held hearings to consider the impact of computerized information systems on the individual. The special subcommittee described its objectives:

"What we are looking for is a sense of balance. We do not want to deprive ourselves of the rewards of science; we simply want to make sure that human dignity and civil liberties remain intact. We would like to know just what information would be stored in a National Data Center; who would have access to it; who would control the computers; and, most importantly, how confidentiality and individual privacy would be protected. Thought should be given to these questions now, before we awaken some morning in the future and find that the dossier bank is an established fact and that liberty as we know it vanished overnight." 20 Richard Ruggles and Edgar Dunn testified before this special subcommittee, along with other representatives from the academic and legal communities and government agencies. Much of the discussion focused on the problem of safeguarding information in data banks. Expert testimony summarized the state of computer technology and speculated on future trends.

In light of this congressional reaction, the Bureau of the Budget commissioned another study to further explore "measures which should be taken to improve the storage of and access to U.S. Government statistics." 21 The Task Force on the Storage of and Access to Government Statistics, directed by Dr. Carl Kaysen, issued its report in October 1966. This paper reiterated the conclusions of the Ruggles and Dunn reports, with more consideration given to the organization and functioning of a National Data Center. In an annex entitled "The Right to Privacy, Confidentiality, and the National Data Center," the Committee recommended that Congress set standards of disclosure and that the responsibility for enforcement be given to a "Director of the Federal Statistical System."

Dr. Kaysen was among witnesses called before the Senate Subcommittee on Administrative Practice and Procedure which, in March 1967, launched a series of hearings on "computer privacy." Again, as proponents and critics of the National Data Center argued their points of view, the subcommittee attempted "to draw a balance between individual privacy and computerized efficiency." 22

In the midst of this public debate, in August 1967, the Joint Economic Committee issued a report which concluded that current statistical information did not meet the needs of the nation. The report recommended that immediate steps be taken towards integrating government statistical programs and advocated the establishment of a "national statistical servicing center." 23

20 U.S. Congress. House. Committee on Government Operations. Special Subcommittee on Invasion of Privacy, op. cit., p. 3.

21 U.S. Bureau of the Budget. Report of the Task Force on the Storage of and Access to Government Statistics. Washington, 1966. p. 1.

22 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and Procedure. Computer Privacy. Hearings, 90th Congress, 1st session. March 14 and 15, 1967. Washington, U.S. Govt. Print. Off., 1967. p. 2.

23 U.S. Congress. Joint Economic Committee. Subcommittee on Economic Statistics. The Coordination and Integration of Government Statistical Programs; Report. Washington, U.S. Govt. Print. Off., 1967 (90th Congress, 1st session. Joint Committee Print) p. 9.

This report did not, however, offset doubts that lingered in Congress after the thorough investigations of the House and Senate subcommittees. In 1968, a report by the House Committee on Government Operations entitled "Privacy and the National Data Bank Concept" summed up congressional response to the proposal. The committee concluded, on the basis of the testimony before it, that the National Data Center concept posed serious problems regarding the collection, use, and security of personal information. The committee strongly advised against establishing such a National Data Center until the technical feasibility of protecting automated files could be fully explored and privacy guaranteed. In a series of recommendations to the Bureau of the Budget, the committee proposed that future plans include an independent supervisory commission, to regulate the extent and operations of a National Data Center, and procedures by which the standing committees of Congress could access the data bank.24 The National Data Center concept has not been revived as a realistic legislative proposal in succeeding Congresses.

Government Dossiers and Data Banks

In 1966, as debate over the proposed National Data Center gathered momentum, the Senate Judiciary Subcommittee on Administrative Practice and Procedure initiated a survey of "Government Dossiers" to determine "the amount, nature, and use of information which Government agencies currently maintain on individuals." 25 Analysis of the completed questionnaires (published one year later as a committee print) revealed that in the mid-1960's, Federal files contained more than three billion records on individual citizens.26 Nearly onehalf of these records were then retrievable by computer; they reportedly included over 27.2 billion names, 2.3 billion present and past addresses, 264.5 million criminal histories, 279.6 million mental health records, 916.4 million profiles on alcoholism and drug addiction, and over 1.2 billion financial records.27 This study concluded that the majority of Government forms require some irrelevant information from individuals and that, in many instances, confidentiality provisions are non-existent or not meaningful.28

Five years later, early in the Ninety-second Congress, the Senate Subcommittee on Constitutional Rights held hearings to conduct a broad review of the implications for civil liberties posed by the unfettered expansion and automation of Government files. In an introductory statement, delivered on the first of eleven days of hearings on "Federal Data Banks, Computers and the Bill of Rights," Chairman Sam J. Ervin, Jr., discussed the mixed blessings of computer technology. Despite the great benefits derived from information science, in terms of efficiency, he observed that "the increased use of government and private computer-based systems is making it vastly more economical to acquire and store information about people for

24 U.S. Congress. House. Committee on Government Operations. Privacy and the National Data Bank Concept; Report. Washington, U.S. Govt. Print. Off., 1968. (90th Congress, 2d session. House. Report no: 1842) p. 8. 25 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and Procedure. Government Dossier. (Committee print) Washington, U.S. Govt. Print. Off., 1967. p. 7. 26 Ibid., p. 9.

27 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Rights. Federal Data Banks, Computers, and the Bill of Rights. Hearings, 92d Congress, 1st session. Part I. Washington, U.S. Govt. Print. Off., 1971. p. 574. Hearings held Feb. 23-Mar. 17 1971.

28 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and Procedure. Government Dossier, 1967. p. 8.

reasons which should give us serious pause.' "29 Senator Ervin expressed confidence, however, that the Congress would be capable of "harnessing" computer technology to assure that it is used to benefit, rather than threaten, the public interest.

The first issue explored by the subcommittee in the 1971 hearings was the reported use of military computer systems to store personal dossiers on civilians involved in lawful political activity. The testimony of several former Army intelligence agents supported the validity of this charge. They detailed the scope of the Army's domestic intelligence operations, which had gradually extended to virtually all groups and individuals engaged in any form of political protest.30 Assistant Secretary of Defense Robert Froehlke maintained that this activity was initiated in the late 1960's in response to the threats to domestic tranquility posed by racial tensions and violent anti-war sentiment. In retrospect, he admitted that these "crisis-oriented decisions" were "inappropriate"; 31 and he reported the adoption of new regulations by the Army and the Department of Defense to limit such activity in the future.32 At the hearings Professor Arthur R. Miller expressed the concern of many civil libertarians:

"It is not essential that dossiers, files, surveillance, actually are used to repress people. If these activities give the appearance of repression, that in and of itself has a chilling effect on the precious rights guaranteed to us by the Constitution. . . 1984 is a state of mind." 33

Included in the roster of witnesses called before the subcommittee were several high-ranking civil servants. Elliot Richardson, Secretary of Health, Education, and Welfare, described the general nature, extent and purpose of automated information systems under his jurisdiction. He discussed procedures in effect at the Department of Health, Education, and Welfare to ensure the privacy of personal information and expressed confidence that the computer could function as "a giant combination safe." 34 Department of Transportation Secretary John Volpe explained the history and benefit of the automated "National Driver Register," which helps to identify "problem" drivers making unlawful applications for drivers licenses. Assistant Attorney General William Rehnquist discussed the legal basis for the Department of Justice's data collecting activities. He and other Justice. Department officials described the current state of computerized criminal information systems and strongly defended the necessity for their use by law enforcement officials.

This study of "Federal Data Banks and Constitutional Rights" represents the third segment of this Constitutional Rights Subcommittee inquiry into the impact of Federal data banks on individual privacy. As discussed below in greater detail, this study is the culmination of over four years of effort to find out the nature and scope of the data banks maintained by federal agencies.

29 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Rights. Federal Data Banks, Computers and the Bill of Rights. Hearings, 92d Congress, 1st session. Part I. Washington, U.S. Govt. Print. Off., 1971. p. 3. Hearings held Feb. 23-25; Mar. 2-17, 1971.

30 Ibid., p. 184.

31 Ibid., p. 431.

32 Ibid., p. 392-398.

33 Ibid., p. 10-11.

34 Ibid., p. 785.