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THE HISTORICAL CONTEXT 1
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 . . ., 1888 ed., p. 29. 4 4 Harv. L. Rev. 193 (1890).
At the end of the nineteenth century, government was apparently not yet perceived as sufficiently intrusive to arouse protest. Considering the government's relatively minimal ability to store, interrelate and disseminate what information it did collect, this lack of interest in governmental invasions of privacy is not surprising. Moreover, the existence of the frontier meant that individuals who wanted to get away from the government and its data collection, for whatever reason, could go West and leave the past behind.
It took the scientific and technological revolutions of this century, together with the trend toward centralizing more and more power in government, to bring the privacy issue to the fore. In other words, it was the greatly increased governmental capacity to create massive Federal data banks containing intimate details about the personal lives of individuals, which raised the issue of the impact of these data banks on constitutional rights as a major social and political concern.
The rapid development of information-gathering and communications technologies in the latter half of the nineteenth century set the stage for the privacy controversy which followed over a hundred years later. Photography processes and equipment became easier, less expensive and more mobile. Wiretaps were invented with the telegraph in the 1860's. Telephones and telephone-line taps followed, as well as microphones and various sound-recording devices. By the early 1900's, electronic surveillance was an established method of investigation on the part of both police and private detectives.
Early in this century, some Members of Congress and aggrieved parties in the courts protested against invasions of privacy; but the issue of surveillance-by camera, wiretap, sound-recording, etc.remained unresolved during the first half of the twentieth century. In congressional debate on these issues, the propriety of surveillance frequently became entangled with law enforcement and national security issues. Ambivalence marked the public's response, which was an odd combination of awe in the face of sophisticated technology, respect for police and security functions, fear of persecution of unpopular views and activities, and indifference.
Also in the early decades of the twentieth century, new technologies of recording and assessing individual personality became available. Polygraphs and personality tests began to be used to record and to measure the most intimate recesses of the human personality. Polygraphs (so-called "lie-detectors”) were developed as a police tool in the late 1920's. Personality tests, based on the then newly created sciences of psychology and psychoanalysis, gained respectability through their extensive use by the military during World Wars I and II. Such techniques did not arouse much public antagonism in these years of limited application.
At the same time, communications technologies-from the typewriter to new printing processes, to radio and swifter mail service based on faster means of transportation-brought more and more current information into the hands of more and more people. The technologies of information dissemination were themselves developing concurrently with the development of new methods of collecting information. The public response was generally enthusiastic.
By mid-century (1945–1965), the United States was characterized by even more rapid technological advances and increased reliance on "scientific" methods. Electronic surveillance devices became more powerful, more versatile, smaller and cheaper. Polygraphs became an increasingly popular personnel tool among both private and public employers. Personality tests were embraced by many groups and accepted as a routine procedure in schools, industry and government. Communications technologies developed apace. Most important, computers became an integral part of the nation's record-keeping activities.
At about the same time, there was a growing demand for both administrative personal data and statistical information about individuals. The social service responsibilities of the federal government greatly expanded during the “New Deal" era; and these new mandates stimulated the need for facts on which to base planning, programming and budgeting decisions. In the many cases where the allocation of federal grants was made to depend on the population characteristics of a given area, the collection of highly detailed information about such population groups by the federal and state governments 5 became essential. Added emphasis in the private sector on social and biomedical research began to involve the gathering of much personal data, sometimes shared with a financially supporting federal agency. In the private sector, business concerns began to collect detailed information about many aspects of their operations, particularly for tax and marketing purposes. During this period, too, a mobile population discovered the convenience of credit cards. The success of the credit reporting industry in marketing information about consumers has given rise to predictions of an efficient "cashless society," and also to apprehension about "financial privacy."
As Americans began to relinquish more and more personal information in response to numerous governmental and private sector requirements, fears of losing privacy and freedom began to be articulated. Labor, in particular, voiced its opposition to the use of lie detectors in business, and in the early 1960's both Congress and the executive branch began to investigate the use and propriety of polygraphs. Personality tests roused the ire of conservative groups alarmed at their potential for producing conformity among schoolchildren. As their use became pervasive, however, diverse groups began to object to these tests as being unreliable, unscientific, and an infringement of individual rights. In the mid-1960's several best sellers, including The Organization Man (1965), The Brain Watchers (1962), The Naked Society (1964), and The Privacy Invaders (1964), aroused public opinion by focusing on growing trends toward depersonalization and loss of individual privacy.
About this same time, computers began to produce noticeable effects on American society. Congressional hearings noted the growing use of automatic data processing by the federal government, and its impact on established patterns of data collection and interagency information sharing. Soon after the Internal Revenue Service adopted computer procedures in 1963, citizens became obliged to indicate their Social Security number on tax forms. By the mid-1960's, too, growing numbers of state and local law enforcement agencies began to automate 8 U.S. Department of Health, Education and Welfare. Secretary's Advisory Committee on Automated various aspects of their operations, such as fingerprint identification, analysis of crime characteristics, and retrieval of criminal histories. The computerization of consumer reports by the credit industry made "credit checks" on individuals feasible within seconds. The trend towards centralizing and manipulating information, especially personal information, in computerized data banks began to be viewed with apprehension by a growing number of both politicians and private citizens.
Personal Data Systems, op. cit., p. 91.
8 Ibid., p. 92.
The anxieties generated by these privacy concerns were galvanized in the mid-1960's by discussion in the Executive Branch of proposals for a computerized federal statistical center, a "National Data Center.” 7 This plan was labeled in the press, and before Congress, as a giant step towards centralization of power, de-personalization, and realization of the totalitarian society George Orwell portrayed in his novel, 1984. Proponents of the National Data Center" idea defended the concept at committee hearings during the 89th and 90th Congresses as a means to improve the efficiency of government functions and private research efforts. However, when Congress and the public expressed unqualified objection to this national data bank proposal, which would have had profound effects on personal privacy and individual freedom from government control, the proposal was abandoned.
The legislative response to privacy concerns during the period 1965 to 1972 is the subject of the next section. However, it is important to note here the broad scope of Congressional activity. Some of the subjects considered during this period include:
Creation of a National Data Center
Data banks currently maintained by Federal agencies
Commercial credit bureaus
. Privacy of federal employees It is important also to note that of the many legislative proposals pertaining to these privacy issues which were introduced in the 89th through 92nd Congresses, only two major public laws were enacted which directly address the problem: the "Omnibus Crime Control and Safe Streets Act of 1968" (P.L. 90–351) contains provisions that limit the legal use of wiretaps
to police-related activity under specified conditions; the "Fair Credit Reporting Act” (P.L. 91–508), approved three years later, in 1971, gives credit customers the right to receive notification of consumer agency reports that result in negative actions taken against them, to know the content of their files, and to challenge disputed data.
During the past decade, faced with public and Congressional outrage over invasions of privacy, several executive agencies have expressed concern over the effects of statistical and behavioral research on individual privacy. In 1966, the Bureau of the Budget issued the report of the “Task Force on the Storage of and Access to Government Statistics,” which briefly considered the questions regarding privacy and confidentiality raised by the National Data Center pro? The legislative history of this concept is traced in the section below.