Mail privacy is governed by Postal Service regulations.

To open first-class mail, which includes most personal and business correspondence, a court order is required. But third-class and fourth-class matter may be opened without a warrant to see if postage requirements are being met.

Moreover, investigators for federal agencies may operate a "mail cover" if they can get permission from the chief postal inspector.

A mail cover involves the recording of any data on the outside of an envelope or package and an inspection of any mail other than first-class matter. It is supposed to be necessary for protecting the national security, locating a fugitive or obtaining evidence of a crime or attempted crime.

Other kinds of physical surveillance which don't actually trespass on an individual's home or office-such as cameras, or sensitive long-distance microphones-are legal whether conducted by government or private parties.

The effectiveness of the court-ordered variety of electronic surveillance has been questioned, most notably by Herman Schwartz, a law professor at the State University of New York at Buffalo.

The annual statistical reports show that about 2,700 installations have been authorized since 1968, with an unknown number of devices per installation, and that about 120,000 persons have been overheard in about 1.35 million conversations.

The reports also show that almost all the federal use of warranted tapping and bugging, and about half of the state use, is for gambling investigations.

That has occurred “despite the original claims that it was necessary primarily for serious crimes such as homicide, kidnapping and espionage," Schwartz said in a report for the American Civil Liberties Union.

On the other hand, Sen. John L. McClellan, D-Ark., chief sponsor of the 1968 act, has said the reports prove that wiretapping "is playing a key role in the war against crime."

The percentage of phone calls subject to court-ordered surveillance is "less than .0000039 percent," he told the Senate earlier this year. "The privacy of the average citizen, in short, is not threatened . . ."

(Most of the state wiretapping has occurred in New York and New Jersey. Minnesota officials have reported six installations since 1970.

(Last year Minnesota reported two phone taps, one for prostitution in Ramsey County and the other for narcotics in Hennepin County.

(One 1972 federal wiretap was reported in Minnesota, for a gambling and conspiracy investigation.)

The extent and effectiveness of national security surveillance, for which warrants aren't required, is unclear. The Nixon administration has put the figure at about 100 wiretaps annually. Schwartz estimates that these taps record large numbers of persons and conversations, because they are usually maintained for several months and frequently are on the phones of organizations, not individuals. Even less is known about the use of wired informers, under the consent provision of the 1968 act. "All we know is that it is enormously used" and is probably the most common method of eavesdropping, Schwartz said in a telephone interview.

The use of consensual informers without a court warrant has caused at least one federal judge to voice alarm. Judge Gerhard A. Gesell of the District of Columbia declared in July, "Whatever incidental good flows from this invasion of privacy is submerged by the growing appearances of police surveillance so typical of totalitarian states."

Newly installed Attorney Gen. Elliot Richardson last month publicly specified in an unprecedented action, the criteria he will use in determining whether national security necessitates tapping and bugging. He pledged that he would balance the right to privacy with the needs of national security.

But that is a difficult balancing act, as Assistant Attorney Gen. William Ruckelshaus, who was acting FBI director, explained in a New York Times interview.

"Well, everybody agrees we shouldn't be conducting surveillance on a reasonable person. We shouldn't be using . . . surveillance on the political parties or on those extreme parties who are not violent but are just recommending a point of view...

"How you avoid getting into those other areas in the process of protecting against clearly illegitimate activities . . . is a very difficult problem and one that the society ought to spend a lot of time thinking about. The FBI ought to spend a lot of time thinking about it."

TAX RETURNS AND BANK RECORDS AREN'T ABSOLUTELY CONFIDENTIAL

WASHINGTON, D.C.-Early one morning last January a freshman Democratic congressman from Missouri Jerry Litton, sat in his office scanning the generally dull but occasionally revealing pages of the Federal Register, which publishes official government notices.

What Litton-a Chillicothe, Mo., cattle farmer-saw caused him to react as instinctively as if some witless bureaucrat had gone on record in favor of hoofand-mouth disease.

Executive Order No. 11697, signed by President Nixon on Jan. 17 and published with accompanying Treasury Department regulations, authorized the Department of Agriculture to inspect farmers' tax returns "as may be needed for statistical purposes."

As Litton suspected, it was the first time the tax returns of an entire class of citizens had been opened up for any purpose, statistical or otherwise. “By noon he was raising hell and calling for hearings," an aide recalls.

Other congressmen began to raise hell, too, at what they considered an unwarranted and uncontrolled invasion of the privacy of confidential records.

Their eruption caused the issuance of a modified order, which is still in effect. But it wasn't changed enough to mollify the critics. Subcommittees of both the House Agriculture and Government Operations Committees have held hearings to determine what led to the order. They have determined that:

The order was, indeed, unprecedented, and involved the tax returns of about 3 million farm operators.

Despite its scope and uniqueness, the order was considered "not newsworthy" enough for a press release or other public announcement, an Agriculture official testified.

The original request from the Agriculture Department for access to the records was made three years earlier. Officials said they needed the information to prepare valid statistical samples for their crop and livestock reporting service and could obtain the information in no other manner.

Although Agriculture officials said they would use discretion and tight security in looking at the returns, the regulations isued by the Treasury were far from restrictive.

The broad language of the order and regulations was deliberate. "The original order was prepared by the Department of the Treasury in language designed to serve as a prototype for future tax-return orders," Assistant Attorney Gen. Robert G. Dixon Jr. stated. Donald C. Alexander, Internal Revenue Service (IRS) commissioner, testified that if the order was a prototype, it would pave the way for mass inspections of tax returns by other departments of the federal government.

The hearings never determined exactly who decided to issue the controversial order, though Litton and others suspect some White House officials.

The Agriculture Department, under fire, hasn't yet used the access power, it is understood. Meanwhile, Litton and some 100 other congressmen have introduced legislation which would drastically restrict access to tax returns.

The case illustrates a fact of life: Tax returns-and other sensitive information such as bank and military records-aren't so confidential as many citizens might wish.

Alexander has suggested a reexamination of the laws governing disclosures of tax returns. For reasons which go back to the Civil War period, when tax information was published in newspapers, current law states that tax returns are public records, unless otherwise limited.

Access to the data, the IRS chief noted, is given to Treasury tax officials, to congressional committees, to states for tax purposes, to federal agencies "needing tax information for the accomplishment of their missions, and to federal agencies needing certain statistical information."

The information also may be furnished to taxpayers themselves, to their successors, executors of estates, legal partners and, in the case of corporate returns, stockholders owning at least 1 percent of the stock of a corporation. An American Civil Liberties Union (ACLU) survey of executive orders granting congressional committees and federal agencies access to tax returns shows that at least several dozen have been issued in the last 20 years.

The orders must state a purpose, such as an investigation. For example, the House Internal Security Committee, formerly the House Commitee on Un-American Activities, has been granted access during the 93rd Congress to "any income, estate or gift tax return for the years 1964 to 1974, inclusive" pursuant to any authorized investigation.

The semiannual IRS report on inspections of tax returns indicates that some 20,000 returns were looked at by other federal agencies in the first half of 1973. More than half of those were seen by the Justice Department.

Allegations that audits of tax returns were used by the Nixon administration to punish its political enemies are being investigated by a congressional joint committee.

Congress also is taking a new look at the confidentiality of bank records, particularly the power of law-enforcement agencies to look at microfilm records of checking-account transactions without obtaining a subpoena or notifying the account holder.

Legislation has been introduced in both houses to amend the 1970 Bank Secrecy Act, which was designed to curb illegal use of secret foreign bank accounts and to make it harder to commit white-collar crimes such as tax evasion. At Senate hearings last year Treasury and Justice Department officials vigorously opposed any additional restrictions on access to bank records by investigative and law enforcement agencies.

They admitted that banks don't always require an agent to show a subpoena or any other official permission to gain access to records, and that account holders frequently don't know that their transactions have come under scrutiny. Eugene T. Rossides, assistant Treasury secretary, said it would be "cumbersome" to obtain a subpoena in many cases, because agents rarely show a probable cause for inspection.

In any event, he said, there is no privacy issue at all involved in inspecting bank records. A Justice Department official contended that the account holder has no proprietary interest in his records and no protection under the Fourth Amendment against illegal searches and seizures. Rossides said he "did not see that there have been examples of abuse" in the surveillance of bank records. At the same 1972 hearing, however, newspaper columnist Jack Anderson and an ACLU spokesman submitted examples which, they said, showed that the records of persons who had committed no crime but had espoused unpopular causes had been searched by the FBI without any subpoena. The examples included actress Jane Fonda, black activist Floyd McKissick and the Unitarian-Universalist Association, a religious body.

"Those who take comfort and say, 'Yes, Jane Fonda and Floyd McKissick have to be investigated,' may find themselves being investigated," warned Anderson. "George McGovern might win, and maybe he would put Ramsey Clark in as head of the FBI, and instead of investigating Jane Fonda they will start investigating John Wayne."

The reporting provisions of the Bank Secrecy Act and the regulations issued to implement the law were challenged in a court suit by Fortney H. (Pete) Stark, a California banker.

A federal district court held some of the provisions unconstitutional, and the case is on appeal before the Supreme Court. Stark, meanwhile, has been elected to Congress and is a major House sponsor of the restrictive legislation, which also is supported by banking organizations.

The confidentiality of other types of highly personal data held by the government ranges from tight to loose. Census data is tightly secured, generally available only in the form of aggregate statistics. Individuals may obtain census information which they submitted, but only by going through a clearance process. Social Security information, which can be useful in pinpointing the whereabouts of most wage earners, is regarded as confidential. With few exceptions, it isn't available to law-enforcement officials, private detectives, bill collectors or persons searching for errant spouses.

Military personnel records are much more widely available. They are open to the Civil Service Commission if the individual applies for federal employment. They are also available under Justice Department directives to enable the conduct of business of the Defense Department; other federal, state and local agencies including all levels of the legislative and judicial branches; “and in such other instances where release is clearly required by the national interest."

COMPUTERS AND PRIVACY

WASHINGTON, D.C.-About two years from now, if all goes according to schedule, the city of Wichita Falls, Texas, (pop. 116,000) will have a fully operational, computerized municipal data and management system.

It will contain up-to-date, easily retrievable information on "any kind of business a citizen does with the city," said Jerry Dunn, assistant city manager.

Police records, health records, data on the ownership and value of land parcels, and utility accounts will make up most of the information base.

The Wichita Falls system is one of several in a pioneering federal research effort to enable cities to speed up the flow of the thousands of pieces of data that travel within government, make the data timely and accurate, and provide it quickly to help make decisions or solve problems.

Such mundane chores as the filling of street potholes may be accomplished quicker and at less cost, developers of the system believe.

But comprehensive data systems also raise questions about the protection of confidential information, and how it might be misused.

"There has been a lot of misunderstanding, particularly at the federal level, and some innuendo that we're building a Big Brother system," Dunn said. "That couldn't be farther from the truth. What we're trying to do is just improve municipal government," he said.

Wichita Falls has come to grips with the privacy issue at least in part, because it had to under terms of the federal program.

A city ordinance, passed about 18 months ago, was believed to be the first in the country to regulate the dissemination of confidential or sensitive data that will be stored in the system.

The ordinance created a Data Access Advisory Board and a data registrar to oversee daily operations.

Charlotte, N.C., also is establishing a comprehensive data system with privacy safeguards under the guidance of the federal Urban Information Systems InterAgency Committee (USAC).

Both cities are getting federal money to help set up the demonstration systems. Three other cities-Dayton, Ohio; Long Beach, Calif.; and Reading, Pa.—are creating specialized systems in the areas of public finance, public safety and physical-economic development.

A sixth city, St. Paul, was chosen to develop a human-resources information system, but the project foundered and was ended last year.

Robert A. Knisely, USAC chairman, freely concedes that computerized data systems have "the potential for some horrendous privacy problems" but he is also a pragmatist.

"There's no profit in saying that computers can be stopped," he said in an interview. "So it's up to people of good will to see that they do only what they're intended to do."

The current climate of heightened awareness and concern over the privacyinvading capabilities of computerized data banks dates back at least to 1965 and a proposal for the establishment of a National Data Bank.

The proposal to coordinate the preservation and use of socio-economic data aroused strong opposition in the press and among lawmakers. Both houses of Congress held hearings, and the idea eventually was smothered in a blanket of protest.

The realization that the computer would make it much easier to record, store, retrieve information—and, perhaps, integrate it into comprehensive personal dossiers-stimulated newspaper and magazine articles. Books, such as "Privacy and Freedom," by Alan F. Westin, and "Assault on Privacy," by Arthur R. Miller, sounded the alarm.

The articles and books reported various plans for sophisticated data banks of the kind which raised Big Brother worries.

In the fall of 1973, however, there are no such data banks in operation, according to a number of privacy experts interviewed by the Minneapolis Tribune. Westin, a Columbia University professor, put it this way:

"In the sense that you're talking about a whole level of a government having merged its files into one common data base, there's no such omnibus data bank anywhere in American government today."

However, he added, there are some in which a few files are merged and there will be more, particularly at the state level where there is pressure to economize on the use of costly computers.

The concerns of the late 1960s led to some extensive studies in the early 1970s. The Senate Constitutional Rights Subcommittee, chaired by Sen. Sam Ervin. D-N.C., is completing a four-year survey to determine the extent and nature of personal data collected and stored by federal agencies.

The survey has grown to include 54 departments, offices and agencies which have about 750 personal data files of various sizes and contents.

Ervin noted recently that the Office of Emergency Preparedness (OEP) reported the existence of a file on 5,000 individuals but said it had no access to the contents and didn't know what information was contained. The OEP said it maintained the file for the White House, whose personnel operations specialists had exclusive access.

The Canadian Departments of Justice and Communications issued a report earlier this year based on a study which "revealed a network of information paths linking the bureaucratic structures, both public and private.

"In brief, more personal information is being collected than most Canadians probably suspect, and is made available to a larger number of users than is probably supposed. There is no evidence that either of these trends will decline," said the report, "Privacy and Computers."

"Databanks in a Free Society," a report compiled by Westin and Michael A. Baker for the National Academy of Sciences, studied the use of computerized record-keeping by 55 commercial, government and non-profit organizations in 1970 and 1971.

The study was undertaken to determine whether the growing use of computerized records was injuring civil-liberties interests as many experts, including Westin, had predicted.

Westin and Baker reported finding no abuses of the kind that had been widely feared. If anything, they said, computerized records were more objective, less sensitive and more secure than manual records.

They were surprised by their findings, they said, stressing that their observations were based on what they had seen and not on what might occur in the future.

In August a citizens advisory committee to the Department of Health, Education and Welfare (HEW) completed on extensive study and issued a report, "Records, Computers and the Rights of Citizens."

Finding that, "under current law, a person's privacy is poorly protected against arbitrary or abusive record-keeping practices," the committee recommended enactment of a federal "Code of Fair Information Practices" and other safeguards against inaccurate records and improper dissemination.

The committee was opposed "at this time" to the growing use of the Social Security number as a universal personal identifier.

It also concluded that the possibility of assembling information from various data banks into one comprehensive dossier on anyone is currently remote because of technical reasons. "Nonetheless," it added, "public concern. . . is wellfounded."

A special subcommittee of the Minnesota Senate has announced it will hold hearings soon on privacy and computers. Legislation to control the collection, storge, dissemination and use of personal data by state agencies passed the Minnesota House in the last session but was stalled in the Senate. It is being readied for reintroduction at the next session.

Among experts in the field, there is general agreement that computerized records can be protected from intrusion better than manual files, although enough time, brains and money can crack the security of any computer system. Robert P. Henderson, a vice-president of Honeywell Inc., who has spoken widely on security and privacy, has warned that "the staff of a data processing department is still the weakest link in a security chain, for it is the staff that has the technical ability and the best opportunity to tamper with the system or secure sensitive information."

On the other hand, David B. H. Martin, an HEW official who served as executive director of the advisory committee privacy study, pointed out in an interview two inherent safeguards against excessive abuses in computerized record-keeping. One, he said, is the demonstrated incompetence of large bureaucracies to carry out anything complicated, such as the compilation of Big Brother-type dossiers.

The other, he said, is the ability of small groups of individual citizens to foul up a computer system through the legendary tactics of folding, spindling and mutilating.

CONFRONTATION IN MASSACHUSETTS

BOSTON, MASS.-"Today the citizens of Massachusetts won a major battle with the federal government," Gov. Francis W. Sargent announced Sept. 25. "I say major for there is no greater issue today than the right of the individual to be protected from all unwarranted invasion of his private affairs.