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may be easily stored and accessed.

Records of our reading and

viewing histories are now maintained by libraries, and cable television and video companies. The computer makes possible the instant assembly of this information.

The ACLU is concerned about the danger posed by the aggregation of separately compiled lists to create profiles on individuals. As Arthur Miller, author of Assault on Privacy, testified in 1971:

Whenever an American travels on a commercial airline,
reserves a room at one of the national hotel chains, rents a
car, he [or she] is likely to leave distinctive electronic
tracks in the memory of a computer that can tell a great
deal about his [or her] activities, movements, habits and
associations. Unfortunately, few people seem to appreciate
the fact that modern technology is capable of monitoring,
centralizing, and evaluating these electronic entries, no
matter how numerous they may be, making credible the fear
that many Americans have of a womb-to-tomb dossier on each
of us. (Federal Data Banks, Computers and the Bill of
Rights, Hearings Before the Subcommittee on Constitutional
Rights, Committee on the Judiciary, 2/23/71, p. 9)

That same year, Alan Westin, in his book Data Banks in a Free Society, argued: "We have seen that most large-scale record systems in this country are not yet operating with rules about privacy, confidentiality, and due process that reflect the updated constitutional ideals and new social values that have been developing over the past decade."

(p. 398). The Supreme

Court, echoing these concerns in Whalen v. Roe, 429 U.S. 589

(1977), recognized:

the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files....The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty

to avoid unwarranted disclosures. [We] recognize that in some instances that duty arguably has its roots in the Constitution.

The Supreme Court, however, has been reluctant to expand the scope of the Fourth Amendment to hold that the Constitutional right to be secure in one's paper's and effects should extend to personal information held by others. U.S. v. Miller, 425 U.S. 435 (1976). Fortunately, Congress has responded to this pressing need, acting quickly when First and Fourth Amendment rights have intersected to establish assertible privacy interests: in the press offices and files of newspapers (Privacy Protection Act of 1980, 42 U.S.C. 2000 (a)(a)); in individual's cable viewing records (Cable Communications Policy Act, P.L. 98-549); and in electronic communications (Electronic Communications Privacy Act of 1984, 18 U.S.C. 2510). The Video and Library Privacy Protection Acts of 1988 are the most recent Congressional efforts to address the heart of an important First Amendment/privacy issue. If passed, the legislation will protect our freedom to think and inquire by creating a substantive zone of privacy around library and video records.

FEDERAL INFORMATION PRIVACY LEGISLATION

The protection of video and library records is consistent with the past 18 years of progress in the area of federal information privacy legislation.

In 1970, Congress passed the Fair Credit Reporting Act (15 U.S.C. § 1681) prohibiting credit and investigation reporting

agencies that collect, store and sell information on consumers' credit worthiness from disclosing records to anyone other than authorized customers. The Act requires the agencies to make their records available to the record subject and provides procedures for correcting inaccurate information. The legislation created a legal framework in which the reporting companies could operate and was passed in response to the public's growing awareness and concern about personal information maintained by credit reporting bureaus.

Four years later, the Family Educational Rights and Privacy Act (20 U.S.C. § 1232(g)) was enacted, limiting disclosure of educational records to third parties. The law requires schools and colleges to grant students access to their records and mandates a challenge and correct procedure.

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That same year, Congress passed landmark federal privacy legislation the Privacy Act of 1974 (5 U.S.C. § 552a)-- to control the collection, storage, use. and dissemination of personal information maintained in federal agency record systems. The passage of the Act came on the heels of the Watergate scandal, which revealed to the public the extent of the government's surreptitious information gathering and use. The founding principles of the Act are derived from the recommended federal Code of Fair Information Practices developed by the Department of Health, Education and Welfare and published in Records, Computers and Rights of Citizens (1973). The major principles of the Code are: the government shall not maintain

secret records; individuals must know what files are maintained on them and how they are used; individuals must be able to correct and update their files; and most importantly, information obtained for one purpose may not be used for a different purpose without the individual's consent. This last principle became the driving force behind the Privacy Act of 1974 and the legislation that followed.

The Privacy Act mandated the creation of the Privacy Protection Study Commission to make a "study of the data banks, automatic data processing programs, and information systems of governmental, regional and private organizations, in order to determine the standards and procedures in force for the protection of personal information." Based on its findings, the Commission was to recommend additional legislation necessary to protect individuals' personal privacy interests.

The

In its 1977 report, Personal Privacy in an Information Society, the Commission concluded that an effective national information policy must embody three major principles: minimize intrusiveness, maximize fairness and create legitimate, enforceable expectations of confidentiality. (pp. 13-21). report outlined the need to protect a wide variety of records, including insurance, financial, telephone, employment, education, taxpayer and medical records. As a general rule, the Commission recommended, organizations that maintain a confidential record must be placed under a legal duty not to disclose the record without the consent of the individual, except in certain limited

circumstances, such as pursuant to a search warrant or subpoena. Even in such instances, the individual must have the right to challenge the court order before disclosure of the record. (pp. 362-63).

The Right to Financial Privacy Act of 1978 (12 U.S.C. 3401), a Congressional response to U.S. v. Miller and a direct outgrowth of the Privacy Commission's report, created an assertible privacy interest in personal financial records. The Act provides individuals with the right to a notice and challenge procedure with which investigative agencies must comply before records may be disclosed.

Congress passed the Privacy Protection Act of 1980 (42 U.S.C. 2000(a)(a)) to prohibit the government from searching press offices if no one in the office is suspected of committing a crime.

In 1982, Congress passed the Debt Collection Act (P.L. 97365) requiring federal agencies to provide individuals with due process protections before an individual's federal debt information may be referred to a private credit bureau.

The Cable Communications Policy Act (P.L. 98-549), enacted in 1984, prohibits a cable service from disclosing information about a subscriber's cable viewing habits without the individual's consent. The Act requires the service to inform the subscriber of the nature and use of information collected, and

disclosures that may be made. The cable service must also provide subscribers access to information maintained on them.

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