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privacy safeguards built into the increasingly computerized government files as they are developed, rather than merely attempting to supplement existing systems with privacy

protections; • notification of subjects that personal information about them

is stored in a Federal data bank and provision of realistic opportunities for individual subjects to review and correct their

own records; • constraints on interagency exchange of personal data about

individuals and the creation of interagency data bank coop

eratives; • the implementation of strict security precautions to protect the

data banks and the information they contain from unauthorized

or illegal access; • continued legislative control over the purposes, contents and

uses of government data systems. This study of "Federal Data Banks and Constitutional Rights" is intended as an aid to the Congress in evaluating a number of pending legislative proposals designed to meet these needs.

In the pages that follow, the results of the survey are discussed in more detail. The survey as a whole is intended to be used as a working document for Congress, the Executive and the public. By including a minimum of commentary in favor of reprinting pertinent parts of the agencies' own responses, the survey allows the systems and their users to speak for themselves. To my mind what they have to say is profoundly disturbing.

Hopefully the survey will provide a spur to more intensive public investigation and increased self-correction and improvement by the agencies themselves and the executive branch as a whole. This study is also intended to serve as a necessary foundation for legislative work before this Congress and in the future.

Many people have worked on this project, and they deserve the thanks of the subcommittee for what must have often seemed a thankless task. The survey was conceived and prepared by Marcia MacNaughton, a long-time and invaluable professional staff member. She was aided by Judith Futch, subcommittee counsel. The study was continued and completed by Dorothy Glancy, staff counsel, to whom fell the task of analyzing and collating the many responses into a coherent whole. Many research assistants and legal interns contributed to the survey. Among them were Charles E. Bohlen, Herbert S. Kerr, Jonathan Lowe, James L. Stuart, as well as Cecilia Benton, Debbie Coleman and Betsy Cohen. The work of typing the survey materials and questionnaires was shared by all the subcommittee's secretarial staff; but an unusual burden fell on Lydia Grieg, Chief Clerk, and Sylvia Muszalski. The long manuscript was prepared for printing by George Downs, Sr., who was assisted by Corabel Price and Frank Eichhof, all from the Government Printing Office. The work of the survey was done under the general direction and supervision of Lawrence M. Baskir, Chief Counsel and Staff Director. The subcommittee owes each of these a debt of gratitude for their work on this important study.

SAM J. ERVIN, Jr., Chairman, Constitutional Rights Subcommittee.

THE HISTORICAL CONTEXT 1

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This study of the impact of Federal data banks on Constitutional Rights is essentially a study of privacy and how it has been eroded by governmental collection and dissemination of information about people. In the context of this study, privacy refers to the capacity of the individual to determine what information about that individual will be collected and disseminated to others. Privacy also involves a subjective sense of self-determination and control over personal information. It is bound up with fundamental concepts of individualism and pluralism which are basic to our society and institutions.

It is important to note at the outset of this study of Federal Data Banks and Constitutional Rights that the word "privacy” nowhere appears in the Constitution. Nor does any discussion of a right to privacy appear in any of the documents left by the framers of the Constitution and the Bill of Rights. Privacy is, rather, one of those rights reserved to the people, which are implicit in the entire scheme of constitutional government limited to the exercise of only those powers expressly conferred upon it by the people through the Constitution.

Subsequent amendments to the Constitution buttressed what Justice Brandeis described as the right of the individual to be "let alone" 2 by expressly prohibiting certain kinds of particularly feared governmental interferences with individual privacy. The first amendment shields individual freedom of expression, religion, and association from an officious government. The third, fourth, and fifth amendments forbid unwarranted governmental intrusion into the private persons, homes and possessions of individual citizens. The ninth amendment expressly reserves to "the People” rights, such as privacy, not enumerated in the Constitution. The fourteenth amendment's guarantee that citizens cannot be deprived of life, liberty or property without due process of law, provides an additional bulwark against governmental interference with individual privacy.

As a legal concept, an independent right of privacy was first prominently discussed by the renowned Judge Cooley in his Treatise on the Law of Torts, originally published in 1879. In discoursing on "The Right of Privacy,” Judge Cooley asserted that “The right to one's person may be said to be a right to complete immuntiy: to be let alone." 3 Then, in 1890, Samuel D. Warren and Louis D. Brandeis published an article, “The Right to Privacy,” that was to become a classic—and generated an interest that has burgeoned ever since. The authors were inspired by personal outrage over frequent abuses by a then novel breed of snooper--the photographer, professional and amateur.“ Warren and Brandeis were concerned about non-governmental invasions of privacy and the right of an aggrieved individual to sue for damages another person who invaded his privacy.

1 This historical introduction is based on a report prepared by Eileen M. Bartscher of the Science Policy Research Division, Congressional Research Service, Library of Congress. 2 Olmstead v. United States, 277 U.S. 438, 478 (1927) dissenting opinion. 3 Thomas M. Cooley, A Treatise on the Law of Torts . 4 4 Harv. L. Rev. 193 (1890).

(1) 34-53474

1888 ed., p. 29.

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