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ways of implementing it. In requesting this the Bureau was concerned not only with the two basic recommendations of the Ruggles Committee indicated above but also with the use of statistical data for research, policy and decision making at all levels, both within and outside the government.
Mr. Dunn's report addresses itself to problems of use but primarily use in terms of the missions of the producing agencies in the Federal statistical system. With reference to his own orientation toward the problems posed by the Ruggles Report, he says:
"It is sometimes true that people who have concerned themselves with this problem are content with a superficial level of diagnosis and prescription. There is considerable attachment to the notion that most of our problems can be solved by computerizing all of the data we have in the back room. This may be characterized as the 'naive data bank' notion and its widespread acceptance is a source of some concern. I should emphasize here that this is not a characteristic of the Ruggles Committee report which was produced by knowledgable and sophisticated people. However, the tendency to see the solution to the problems in relatively cheap technical programs has led to some misinterpretation of the Ruggles Committee report on the part of both those looking for additional support for data bank schemes and those reacting to the naive data bank concept. These evaluations and solutions are not based upon an adequate understanding and appreciation of the realities of the production processes essential to data generation or the institutional forms appropriate to their purpose.
“The Ruggles Committee report gave us a healthy beginning toward an evaluation of this problem in realistic terms. However, this group did not have the time or staff resources to spell out the total problem set in a way that seems essential to support a more detailed consideraion of program options. There is also a tendency in this report to see the problem primarily in terms of the accessibility of existing records and the solution in terms of the extension of user services. There is much that is valid in this representation but it gives insufficient attention to the important fact that accessibility is bound up with all of the production procedures and is inseparable in a number of fundamental respects from the issues related to the quality and scope of the existing records. It seems useful, therefore, to attempt a more precise formulation of the problem set to the solution of which the data center concept is addressed."
The Dunn report then analyzes the systematic deficiencies of the Federal statistical effort. He says that the greatest deficiency "is its failure to provide access to data in a way which permits the association of the elements of data sets in order to identify the measure and interrelationship among interdependent activities.” Another "serious obstacle to the fullest utilization of information of the Federal statistical system and to the effective association of its records in use is the absence of any kind of clearly defined reference function.” Again, “another difficulty in associating records from different sources stems from the non-compatibility of classification of data by several collection agencies and information systems."
Mr. Dunn points to records which are missing in the Federal system. He says that these are “records that enable policy makers and planners to understand adequately how people, households, regions, activities, enterprises, and administrative units are functionally related and how they change over time." These “are the most relevant information resources for policy making and program evaluation in these areas.” He indicates that potentialities for system development which the Federal Government are being missed and that "it is particularly important, therefore, that improvements in the Federal program lay the groundwork that will permit effective integration of the Federal file with other sources as they emerge.”
The Dunn report therefore recommends that "the concept of a “National Data Center is an appropriate vehicle for program reform if the concept is broadened to emphasize the role of the servicing capability and if it can be given an important role in assisting the Bureau of the Budget to establish standards and monitor compliance. Accordingly the basic recommendation is for the establishment of a National Data Service Center." It would have the basic functions of
1. File storage and management of significant archival records.
2. A central referral and reference source for the users of Federal statistics.
3. Explicit facilitating services for the users of Federal data such as file rearrangement, tape translation, record matching, disclosure by-passing, and performance of standard statistical routines.
4. Development of computer hardware and software systems.
5. Provision of staff support to work in conjunction with the Bureau of the Budget to develop and establish standards essential to the system capability. The first three of these services it would be prepared to perform for both the archival records under its own control but also for the current and accumulated records of administrative and regulatory agencies. The report indicates that priority should be given to the establishment of standards, and to the accumulation of a 9,000 tape file record identified in the Mendelssohn report as a nucleus archive.
Mr. Dunn says further that “The kinds of services recommended cannot be subdivided without imposing upon a more limited function, serious functional handicaps, unnecesary expense and, possibly, seriously threatening its chances of success. I am concerned that in the end partial measures may do more harm than good ... and it seems inescapable that whatever initial action is taken, the end result will be a substantial reorganization of the Federal statistical system.”
The Dunn report entitled “Review of a Proposal for a National Data Center" was submited to the Bureau of the Budget on November 1, 1966 and disseminated by the Bureau in December, 1965. Since that time a Task Force has been appointed by the Director of the Bureau of the Budget to consider "measures which should be taken to improve the storage of and access to U.S. Government statistics.” The task force members are Carl Kaysen, Chairman, Harvard University ; Charles Holt, University of Wisconsin; Richard Holton, University of California, Berkeley ; George Kozmetsky, Teledyne Corporation, Los Angeles; Russell Morrison, Standard and Poors, New York; and Richard Ruggles, Yale University. As of September, 1966 the Task Force had not submitted a report but there were indications it would do so by the end of the month.
Since December, 1965 and the dissemination of the Dunn report, the proposal for a National Data Center has been the subject of a good deal of publicity, most of it adverse. In February, 1966 at a meeting of the American Orthopsychiatric Society in San Francisco, Orville Brim of the Russell Sage Foundation attacked the idea as setting up a kind of 1984 surveillance system which would compile “dossiers” on the whole population. Charles A. Reich of the Yale Law School and Alan Westin of the Columbia Law School attacked the idea as an invasion of constitutional rights. In August, Edward Shils of the University of Chicago attacked the proposal at a general meeting of the American Political Science Association in New York.
There have been unfriendly stories and an editorial in the New York Times and at least one unfriendly story in the Washington Post. But the greatest amount of adverse publicity and the most concentrated attack has come from the hearings held by the Special Subcommittee on Invasion of Privacy of the House Committee on Government Operations on July 26, 27 and 28, 1966 in Washington. This committee, headed by Cornelius E. Gallagher of New Jersey is generally known as “The Gallagher Committee.”
The adverse witnesses called by the Committee were Vance Packard, author of “The Naked Society”; Charles A. Reich of the Yale Law School; Paul Baran, computer expert with the Rand Corporation; and Burton E. Squires, Jr., visiting assistant professor of computer science at the University of Illinois. Raymond T. Bowman and Paul Kreuger represented the Budget Bureau and Richard Ruggles and Edgar Dunn appeared to defend their reports.
During the hearings, the proponents of a National Data Center were very much on the defensive. Both the Congressmen on the Committee and the adverse witnesses made a strong case for considering establishment of the Center as the inception of a "total information system" which though it might not be so intended could be utilized to compile "dossiers" on individuals.
In retrospect it does seem that the emphases in the Dunn report on a complete “system” for policy and decision making and on reorganization of the entire Federal statistical program were unfortunate. The questions posed by the committee members showed implicitly that their model for the proposed system was the “real time," large scale "information system” which has been the subject of so much comment in public media. Credit bureaus, airlines, banks, the F.B.I. and especially the Defense Department have made this kind of system well known. The proponents of the Data Center at the Committee hearings were never able to distinguish adequately between their proposed system and the implicit model.
Under these circumstances it would seem important that those who favor some kind of Federal Data Center either set to work to make plain the substantive and operational features which would distinguish between such a Center operation and a general information system or disassociate their support for a Center from the plans for a total reorganization of the Federal statistical system.
(Privacy and Behavioral Research, on file with the Committee.)
PRIVACY AND BEHAVIORAL RESEARCH †
Oscar M. Ruebhausen* and Orville G. Brim, Jr.** A successful society is marked by an ability to maintain a productive equilibrium between numerous competing forces. The goal of our own federal political system is to assure for the individual an ample range of freedom, and an ample opportunity for diversity. By tradition and conviction our form of democracy jealously seeks to protect the individual from accumulations of power. This protection finds its expression, for example, in the separation of powers in government, the divorce of church and state, the civilian control over the military, and in the working of both the labor and antitrust laws against the concentration of economic power.
The familiar and constructive tension which exists between science, with its need to be free and open, and society, with its need for restrictions on individual freedom, is thus only one of many examples of conflicting forces that must be held in balance to assure individual dignity, creativity and well-being in our society. This tension between society and science extends to all the disciplines in the social, physical and life sciences. It affects the practitioner as well as the research investigator.
Examples of this tension are many, and one of the most familiar is the conflict of secrecy for purposes of national security with the free dissemination of knowledge. This conflict is especially complex since dissemination of knowledge is essential to the very developments in science, in industry, and in government upon which the security of the nation ultimately rests. Additionally, there is the equally familiar conflict between proprietary interests and the disclosure of scientific knowledge. The private property interest at odds with disclosure may be personal or institutional, commercial or nonprofit, but the conflict is essentially the same. In each of these two illustrative areas of conflict, tension still exists, but accommodations, imperfect as they may be, have been worked out to balance the competing needs and to serve the public interest.
There is, however, another area of tension involving the freedom of science which is not nearly so well recognized. This is the conflict of science and scientific research with the right, not of private property, but of private personality. And it is to this particular conflict in values that this article is addressed.
I. THE MORAL CLAIM TO PRIVATE PERSONALITY Although scholars may trace its origins into antiquity, the recognition of a moral claim to private personality is relatively modern. For most of our recorded history, privacy was not physically possible in either the home, or the place of
† This article is based on a paper presented at the Rockefeller Institute Conference on Law and the Social Role of Science, April 8, 1965.
*Member of the New York Bar; Chairman, Special Committee on Science and Law of the Association of the Bar of the City of New York. With the support of the Carnegie Corporation of New York, the Special Committee is engaged in a study of the impact of modern science and technology upon privacy. This article is one product of that study.
**President of the Russell Sage Foundation.
1 See generally Shils, Social Inquiry and the Autonomy of the Individual in THE HUMAN MEANING OF THE SOCIAL SCIENCES 114 (Lerner ed. 1959).
work or of public accommodation. Furthermore, privacy of belief or opinion clearly was not respected until the last few centuries. The record of autocratic government, both temporal and spiritual, is long and disheartening. Robert Bolt, in his moving drama, A Man for All Seasons, had the doomed Sir Thomas More say to his inquisitors: "What you have hunted me for is not my actions, but the thoughts of my heart. It is a long road you have opened. For first men will disclaim their hearts and presently they will have no hearts. God help the people whose statesmen walk your road.” 2
Three of the great forces that have nourished the modern ciaim to privacy are science, the secularization of government, and political democracy. It was, for example, science that brought about the industrial revolution and made privacy physically possible. Consider, as a small sample, what steam heat and plumbing have done to the design of our homes and to the manner of our living in them. Further, the separation of church and state encouraged pluralism as well as diversity in religious belief. And it was political democracy that in the last analysis truly elevated the concept of the essential worth and dignity of the individual to the place it now holds in the western world.
It is therefore only in the last few centuries that the primacy of the individual has emerged, has been articulated by philosophers, reflected in political institutions, and implemented in law. Although the moral claim to a private personality has developed along with the claim to individual freedom and dignity, such development has proceeded at a slower rate, perhaps because the western preoccupation with private property as the tangible expression of the dignity of the individual has tended, for more than a century, to obscure the claim to private personality on which the claim to private property was based. Not only did the inteerst in private property obscure the human claim to privacy but, over the years, it tended to define the claim itself.
Thus, in the absence of trespass, bodily injury, theft, or tangible damage measurable in money, as in the case of defamation of reputation, our law has often failed to perceive injury to the private personality. This has led to such legal anomalies as now exist with electronic eavesdropping devices. Thus, if an eavesdroj device is placed next to a way by a po officer, or brought into one's room concealed on the person of an invitee, then, under present federal law, there has been no affront to an individual's constitutional rights. Yet, should the device be a spike microphone and penetrate an apartment wall by only a few inches, then a trespass has been committed and the fourth amendment violated.
Just fifty years ago Dean Roscoe Pound published a paper in the Harvard Law Review on “Interests of Personality.” . There he identified the claim to private personality as “the demand which the individual may make that his private personal affairs shall not be laid bare to the world.” 5 But though he thought the interest was clear, the law, he found, had been slow to recognize such an interest and raise it to the dignity of a legal right.
Even had society's developing awareness of the claim to privacy not been blunted by the then dominant commercial concern for tangible property as evidence of personal worth, the establishment of a right of private personality was destined to be slow. For this there are a number of reasons. The right of privacy is largely a subjective, incorporeal right, difficult to identify and incapable of measurement. Other more definable values-such as freedom of speech-loomed larger a century and less ago. Until recently, furthermore, science had not provided the devices which, circumventing the old concepts of property, make surveillance possible without an actual trespass. In addition, the modest range of governmental activities of a half century and more ago made the threat to the individual from government seem negligible. The formidable attributes of concentrated economic power were, also, only beginning to be appreciated. Indeed, the aggressive spirit of individual self reliance which prevailed in America would have made society's concern for the private personality seem incongruous.
2 BOLT, A MAN FOR ALL SEASONS, ACT II, at 157 (Random House 1962).
3 Lack of trespass was cited by the Supreme Court in refusing to invalidate the use of a detectaphone on the outer wall of a hotel room, Goldman v. United States, 316 U.S. 129 (1942); see Unite States v. Pardo-Bolland, 348 F.2d 316 (2d Cir. 1965), petition for cert. filed 34 U.S.L. WEEK 3081 (U.S. Sept. 2, 1965) (No. 521); in allowing the use of a concealed transmitter by a government undercover agent in a suspect's laundry. On Lee v. United States, 343 U.S. 747 (1952); and in upholding the use of a concealed recorder by a tax agent in a suspect's place of business, Lopez v. United States, 373 U.S. 427 (1963). In Silverman v. United States, 365 U.S. 505 (1961), the decision excluding evidence was based on the actual penetration of an apartment wall by a spike microphone which, by making contact with a heating conduit, enabled the police to overhear every word spoken within the house.
4 Pound, Interests of Personality, 28 HARV. L. Rev. 343 (1915). 81d. at 362.
6 To the extent that the claim to privacy has not yet been recognized or protected by law it cannot, at least in a technical legal sense, be called a "right."
It is reasonable, moreover, that the claim to privacy should evolve slowly, for privacy is in conflict with other valued social interests, such as informed and effective government, law enforcement, and free dissemination of the news. Whenever competing rights and values confront each other, it is always a slow and arduous process to evaluate the claim and counterclaim in real life situations. This process, however, is a classic function of the law. In time, there fore, the boundaries between the permissible and unreasonable interferences with privacy will be delineated just as hosts of similar conflicts have been resolved in the past.
Although the claim to private personality has yet to reach its destined stature in our law, it has become a moral imperative of our times. Reflecting the ethical values of our civilization, it flows, as do most of our values, from our concept of the essential dignity and worth of the individual. In discussing this concept in 1958, Pope Pius XII made the following perceptive observations:
There is a large portion of this inner world which the person discloses to a few confidential friends and shields against the intrusion of others. Certain [other] matters are kept secret at any price and in regard to anyone. Finally, there are other matters which the person is unable to consider.S Pope Pius then concluded :
And just as it is illicit to appropriate another's goods or to make an attempt on his bodily integrity, without his consent, so it is not permissible to enter into his inner domain against his will, whatever is the technique or method used.
While Pope Pius' ethics and logic seem persuasive, it is nonetheless a fact that the protections afforded private personality are not yet comparable to those granted private property.
The rules for the protection of private property-whether in ideas, creative works, goods or real estate have over many decades received extensive legislative and judicial attention. These rules are imbedded in the common law and they have often been elaborately developed, as in our systems of copyright and patent law. Moreover, the manner of the taking of private property for a paramount public purpose has been a matter of intense and continuing national concern. Early evidence of the reverence with which private property has been viewed is found in the constitutional provision against “unreasonable searches and seizures," against the quartering of soldiers “in any house without the consent of the Owner,” 11 against the deprivation of property without due process of law, and against the taking of "private property for public use, without just compensation." 12 These constituted protections have been judicially elaborated over decades of concentrated attention to the proper equilibrium between an identified public need and the claim to private property.
There has been no comparable abundance of legislative or judicial attention to the balance between the public need and the claim to private personality. The application of the first, fourth and fifth amendments of the federal constitution to the claim to private personality is in a very early stage of evolution.13 More than thirty states have now recognized some form of a common law right of
7 By contrast with American legal development, it has been said that “. the trend in the foreign legislation is towards an outspoken protection of the rights of personality. We find the expression of this common concern in the Civil Code of Liechtenstein (1926), in the Italian (1942) and Greek (1916) codes, in the reformed Japanese code (1948) and the recent Egyptian and Philippine codes, and in a project of law in the German Federal Republic.” Janssens, European Law Includes Rights of Personality, Va. L. Weekly, April 29, 1965, p. 1. See also Krause, The Right to Privacy in Germany—Pointers for American Legislation?, 1965 DUKE L.J. 481.
8 Address to the Congress of the International Association of Applied Psychology, April 10, 1958.
13 The law on this issue appears, however, to be in an active phase of transition. See, e.9., Judge Sobel's opinion in People v. Grossman, 45 Misc. 2d 557, 257 N.Y.S.2d 266 (1965) and Justice Brennan's dissent in Lopez v. United States, 373 U.S. 427, 446 (1963). See also the new constitutional right of privacy announced by Justice Douglas in Griswold
.. Connecticut, 381 U.S. 479 (1965), and Massiah v. United States, 377 U.S. 201 (1964) (sixth amendment held to have been violated when an eavesdropping device was used to elicit information from a defendant in the absence of counsel).