No. 2] GOVERNMENT INVESTIGATIONS 151 The second opinion which I think is very illuminating on this subject is the case of NAACP v. Alabama.10 There the question was presented whether Alabama, consistent with the due process clause of the fourteenth amendment, could compel the petitioners to reveal to the state's attorney general the names and addresses of all of its Alabama members and "agents" without regard to their positions or functions in the Association. Justice Harlan wrote the unanimous opinion of the Court, holding that Alabama was precluded by the due process clause of the fourteenth amendment, which, of course, made the first amendment applicable to the states, from requiring this information. He said, and I commend this to the Department of Justice: "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."41 The Justice noted that inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. The Court held that the immunity from state scrutiny of membership lists which the Association claimed was so related to the right of the members to pursue their lawful private interest and to associate freely with others in so doing as to come within the protection of the fourteenth amendment. It held that Alabama had failed to make a showing of overriding valid interest in possession of such information and that judgment of the Alabama court punishing the respondent for contempt of court was invalid under the Constitution.42 It is a natural extension of these decisions to say that, for example, the federal government can't go out and observe people exercising their first amendment rights and then take steps which have the effect of stifling their willingness to continue in the exercise of their first amendment rights. What inquiries and investigations Congress and the states may not undertake under the Constitution, certainly the executive branch has no inherent power to undertake. There is another opinion which I think sums up the constitutional law in this field very well. This is the dissenting opinion of Justice Harlan, joined by Justices Frankfurter, Clark, and Whittaker, in the case of Shelton v. Tucker. 13 It is in harmony with the Rumely and NAACP cases, although it differs on conclusions of fact. In the Shelton case, the State of Arkansas required every teacher, as a condition of employment or continued employment, to answer a questionnaire requiring among 40. 357 U.S. 449, 78 S. Ct. 1163 (1958). 152 LAW FORUM [Vol. 1971 other things the name of every organization to which they had belonged or contributed during the preceding five years. The Supreme Court held that the statute interfered with associational privacy and went beyond legitimate inquiry for determining fitness. Justice Harlan in his dissent said in summarizing the law concerning rights under the first amendment, as made applicable to the states by the fourteenth amendment: Where official action is claimed to invade these rights, the controlling inquiry is whether such action is justifiable on the basis of a superior governmental interest to which such individual rights must yield. When the action complained of pertains to the realm of investigation, our inquiry has a double aspect; first, whether the investigation relates to a legitimate governmental purpose; second, whether, judged in the light of that purpose, the questioned action has subtantial relevance thereto.44 Judged by the test stated by Justice Harlan, it is clear to me that the Army's investigations of civilians had no substantial relevance to the duty of the military to know about roads, bridges, and major facilities, and to maintain men and equipment in readiness to assist in quelling rebellions and violence in those rare instances when local authorities could not maintain order. The test of Justice Harlan could be applied to any government program for investigation, surveillance, and dossier-building on private citizens. Such practices should be tested by Congress and the legislatures not only for their relevance to a governmental purpose but for which agency of government should be assigned the investigative functions. During 1967 and 1968, violent mobs burned and pillaged in some of our cities in numbers which disabled local officers to maintain order or enforce laws, and President Johnson dispatched the armed forces to those cities to suppress this domestic violence. He acted within the limits of his constitutional and statutory authority in so doing, but he and other civilian officials did not stop with using the armed forces to suppress violence. They assigned the Army the task of collecting information which would enable the President to predict when and where civilians might engage in domestic violence. It was certainly not the duty of the Army to engage in investigation of civilians for law enforcement purposes. It was engaged in programs which, if authorized at all, were more suitable for the Department of Justice and local law enforcement agencies. However I do not believe it has yet been demonstrated that this type of investigation and survelliance is necessary for any governmental purpose. The fourth major disagreement I have with the Department of 44. Id. at 497-98, 81 S. Ct. at 257. No. 2] GOVERNMENT INVESTIGATIONS 153 Justice and the Department of Defense is closely related to the third. This is over the issue whether or not their surveillance activities have a "chilling" effect on first amendment freedoms. Administration officials say there is no such effect. Of course, this is the most self-serving viewpoint possible for any official who wants to have unlimited power to gather information on people in order to do his job. How do you prove that people have been intimidated? You cannot, until it is too late. How do you know when a society has lost the life-giving sources of new ideas, of legitimate criticism, of intellectual and philosophical richness? The answer is that you cannot know until it is almost too late to recapture these qualities. The Justice Department says it requires "sanctions" before it can find a constitutional rights violation in the collection of intelligence information. There are two answers to this "sanction" argument. First, files such as the Army had and shared may well be checked for employment, security clearances, or other purposes, and decisions made or impressions gained which the individual never knows about. Secondly, as frequently happens with the federal bureaucracy, the Department ignores the vagaries of the human spirit. It forgets the psychological sanction which may be imposed or threatened by the very knowledge of such executive branch excursions into constitutionally protected areas. The first amendment is not so much for the brave. It is also for the weak of heart or those who are placed in such economically vulnerable positions that they cannot afford to risk the sanctions which may accompany legitimate criticism of government or unpopular opinions. Congress has a great deal of evidence of such psychological pressures and subtle sanctions. Many people have written about their own reactions to the Army and other investigative programs. For instance, I received such a letter from an author who wrote the President about the Kent State matter. In reply he received some mimeographed pages defining Administration policies in Southeast Asia. He writes that he started to respond critically to this material but stopped because he could not be sure that he would not be put on a blacklist which could be used against him in the future. This letter and many others like it provide the best answer I can give to the executive branch. They illustrate the one prophecy which I feel qualified to make today because it is based on centuries of historical fact. That is, a quiet America will not be a free America. Rather, it will be a spiritually lifeless America. For that reason I believe that this claim of an inherent executive branch power of investigation and surveillance on the basis of people's beliefs and attitudes may be more of a threat to our internal security than any enemies beyond our borders. 37-383 - 74 pt. 29 [EXCERPTS FROM THE UNIVERSITY OF ILLINOIS LAW FORUM, VOL. 1971, No. 2] Copyright 1972 by the Board of Trustees of the University of Illinois THE DOSSIER SOCIETY† Arthur R. Miller* IN RECENT YEARS there has been a growing public awareness of the effects certain data-gathering activities and applications of information technology may have on individual and commercial privacy. At times the debate has been conducted in emotional terms. For example, many people, myself included I must confess, have voiced the fear that the computer, with its insatiable appetite for information, its image of infallibility, and its inability to forget anything that has been put into it, may become the heart of a surveillance system that will turn society into a transparent world in which our home, our finances, and our associations are bared to the most casual observer.1 A brief recital of some of the blessings and blasphemies of the new technology makes the computer-privacy dilemma abundantly clear. In various medical centers, doctors are using computers to monitor physiological changes in the bodies of heart patients in the hope of isolating those alterations in body chemistry that precede a heart attack. The quest, of course, is to provide an "early warning system" so that treatment is not delayed until the actual heart attack has rendered the patient moribund for all practical purposes. Other plans include providing everyone with a number at birth to identify them for tax, banking, education, social security, and draft purposes. This would be done in conjunction with the computerization of a wide range of records. The goal is to eliminate much of the existing multiplicity in record-keeping, and at the same time expedite the business of society. Long range goals include developing a checkless, cashless economy, improving the informational bases available for rational planning, providing better services to people, and promoting the equitable allocation of society's resources. We may even see the day when if a person falls ill while away from home, a local doctor can use this identification number to retrieve the patient's medical history and drug reactions from a central data bank. †These remarks were originally delivered as a lecture in the Privacy and the Law series at the University of Illinois College of Law, March 25, 1971. *Professor of Law, University of Michigan. A.B. 1955, University of Rochester; LL.B., 1958, Harvard University. The author has more fully explored the subject matter of his address in A. MILLER, THE ASSAULT ON PRIVACY: COMPUTERS, DATA BANKS, AND DOSSIERS (1971), and Miller, Personal Privacy in the Computer Age: The Challenge of a New Technology in an Information-Oriented Society, 67 MICH. L. Rev. 1089 (1969). 1. Miller, The National Data Center and Personal Privacy, THE ATLANTIC, Nov. 1967, at 53-57. No. 2] THE DOSSIER SOCIETY 155 On the opposite side of the ledger, the same electronic sensors that can warn us of an impending heart attack might be used to locate us, track our movements, and measure our emotions and thoughts. Experiments already are underway in the field of telemetering and significant breakthroughs are on the horizon. Similarly, the identification number given us at birth might become a leash around our necks and make us the object of constant monitoring, making credible the fear of the much fabled womb-to-tomb dossier. Finally, the administrative conveniences provided by the high degree of information centralization made possible through the widescale use of computers gives those who control the recordation and preservation of personal data a degree of power over us that is unprecedented and subject to abuse.2 Close scrutiny and evaluation of the implications of data technology and information systems on individual privacy are especially appropriate at this time because of the clarion in all quarters for the establishment of governmental and private data centers. For example, the United States Office of Education is supporting a migrant worker children data bank, the Department of Housing and Urban Development is sponsoring computerized municipal information systems and building files on housing loan applicants (with particular attention given to those who are ineligible), and President Nixon's welfare reform proposal (the Family Assistance and Manpower Training Acts) will give the Department of Health, Education and Welfare authority to exchange individualized data with state welfare agencies and lead to the establishment of a national job applicant data bank. In other areas, we are seeing the emergence of criminal intelligence data centers, such as the Federal Bureau of Investigation's National Crime Information Center (NCIC), and computer based credit rating services. As we look to the future, there is no doubt that the hypnotic attraction of digital recordkeeping will continue to envelope our universities, corporations, hospitals, and banks. Indeed, I believe that Americans today are scrutinized, watched, counted, recorded, and questioned by more governmental agencies, social scientists, and law enforcement officials than at any other time in our history. Whether he knows it or not, each time a citizen files a tax return, applies for life insurance or a credit card, seeks government benefits, or interviews for a job, a dossier is opened under his name and his informational profile is sketched. It has now reached the point at which whenever we travel on a commercial airline, reserve a room at one of the national hotel chains, or rent a car we are likely to leave distinctive electronic tracks in the memory of a computer-tracks that can tell a great deal about our activities, habits, and associations when collated and analyzed. Few people seem to appreciate the fact that 2. Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S. Ct. 1116, 1121 (1965). |