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JAMES O. EASTLAND, Mississippi, Chairman JOHN L. MCCLELLAN, Arkansas

ROMAN L. HRUSKA, Nebraska SAM J. ERVIN, JR., North Carolina

HIRAM L. FONG, Hawaii PHILIP A. HART, Michigan

HUGH SCOTT, Pennsylvania EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina BIRCH BAYH, Indiana

MARLOW W. COOK, Kentucky QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIAS, JR., Maryland ROBERT C. BYRD, West Virginia

EDWARD J. GURNEY, Florida JOHN V. TUNNEY, California

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

SAM J. ERVIN, JR., North Carolina, Chairman JOHN L. MCCLELLAN, Arkansas

EDWARD J. GURNEY, Florida EDWARD M. KENNEDY, Massachusetts ROMAN L. HRUSKA, Nebraska BIRCH BAYH, Indiana

HIRAM L. FONG, Hawaii ROBERT C. BYRD, West Virginia

STROM THURMOND, South Carolina JOHN V. TUNNEY, California

LAWRENCE M. BASKIR, Chief Counsel and Staff Director

DOROTHY J. GLANCY, Counsel
GEORGE DOWNS, Sr., Chief Printing Clerk

(II)

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PREFACE

"Federal Data Banks and Constitutional Rights” represents the culmination of years of study and intensive investigation by the Constitutional Rights Subcommittee. This survey and analysis of the data systems containing personal information about individuals maintained by agencies of the Federal Government grew out of the increasing public and Congressional concerns about government invasions of privacy that came into focus in the mid-1960's. The knowledge that the Federal Government was rapidly taking advantage of new and startling developments in data processing and telecommunications heightened fears that the privacy and individual liberties of American citizens would be soon overwhelmed by the government's voracious appetite for personal information about each of us.

A government called upon to manage an increasingly complex modern society and to satisfy ever-widening demands of the people for services has come to require more and more information, as well as more and more effective means to handle it. Only in the last few years has it become widely recognized that the new information technology gives government great opportunities to do ill, as well as good. The Founding Fathers knew well that with power comes the ability to do harm. The fundamentals of our constitutional system require us always to ensure that governmental power is sufficiently constrained by law so that as much as is humanly possible the power of government is used for good alone, and that our nation continues to have a government subject to the people, and not the reverse. We have slowly come to the realization that this is true no less for information practices as it is for other of Government's activities.

The subcommittee's early investigations of government data banks and individual rights disclosed not only a disturbing absence of laws to control the new information capabilities of government, but an equally disturbing absence of knowledge of what data banks the government had, what they contained, and what they were used for. As the subcommittee prepared for its 1971 hearings on "Federal Data Banks, Computers and the Bill of Rights,” it began to discover, often by the merest chance and good fortune, all manner of peculiar data banks. A Secret Service memorandum asking, among other things, for information on persons who make anti-government remarks or embarrassing statements about government officials was sent to the subcommittee in an unmarked envelope. A Department of Health, Education, and Welfare blacklist on scientists and advisors was disclosed by the scientific community which became concerned about the unexplained failure of prominent persons to be appointed to advisory boards for which they were eminently qualified. A magazine article revealed the Army computer system of political surveillance.

These accidental discoveries of worrisome data banks persuaded me that a comprehensive survey of government data banks was a necessary precondition to any legislative activity to protect privacy. Accordingly, in 1970 I directed the staff to commence a government-wide survey in preparation for the 1971 hearings. The task proved far more extensive and difficult than I had expected.

Although the survey was just getting underway at the time of the hearings in the spring of 1971, some tentative conclusions were already apparent. As I stated then:

The replies we are receiving are astounding, not only for the information they are disclosing, but for the attitudes displayed toward the right of Congress and the American people to know what Government is doing.

In some cases, the departments were willing to tell the subcommittee what they were doing, but classified it so no one else could know. In one case, they were willing to tell all, but classified the legal authority on which they relied for their information power.

Some reports are evasive and misleading. Some agencies are high-minded and take the attitude that the information belongs to them and that the last person who should see it is the individual whom it is about.

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The subcommittee has discovered numerous instances of agencies starting out with a worthy purpose but going so far beyond what was needed in the way of information that the individual's privacy and right to due process of law are

threatened by the very existence of files. Now that the survey has been completed, these preliminary observations have been substantiated. The most significant finding is that there are immense numbers of government data banks, littered with diverse information on just about every citizen in the country. The 54 agencies surveyed were willing to report 858 of them, containing more than 1-billion records on individuals.

Finding out about these systems has been a difficult, time-consuming, and frustrating experience. The inherent aversion of the Executive Branch to informing Congress and the people about what they are doing is not restricted to matters of high-policy, national security, or foreign policy. An attitude approaching disdain infects even requests for basic non-sensitive data such as this survey sought. The subcommittee met evasion, delay, inadequate and cavalier responses, and all too often a laziness born of a resentment that anyone should be inquiring about their activities. Some agencies displayed their arrogance by not replying at all. With others, extracting information was like pulling teeth. These remarks should not detract from our appreciation for the fine cooperation the subcommittee received from a great many agencies.

The most basic lesson the subcommittee's survey teaches is the absolute necessity of replacing this voluntary survey approach with a statutory requirement that all federal data banks be fully and accurately reported to the Congress and the American people. This study of Federal Data Banks and Constitutional Rights also demonstrates the need for requiring:

• explicit statutory authority for the creation of each data bank,

as well as prior examination and legislative approval of all decisions to computerize files:

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