Statement of Arthur R. Miller Bruce Bromley Professor of Law Harvard Law School On The Telephone Privacy Act of 1990. S. 2030 Before The: Technology and the Law Subcommittee Senate Committee on the Judiciary August 1, 1990 My name is Arthur R. Miller, and I am the Bruce Bromley Professor of Law at Harvard Law School. I am submitting this statement to the Senate Judiciary Committee's Subcommittee on Technology and the Law to be made a part of the record of the Subcommittee's June 7, 1990 hearing on a new telephone technology known as Caller Identification ("Caller ID"). I have been interested in privacy issues for over thirty years, and have appeared before Congress to testify on privacy-related issues and legislation on several occasions over the past twenty-three years. The numerous privacy-related positions I have held include: Chairman, Massachusetts Security and Privacy Council; Member, Special Committee on Automated Personnel Data Systems, Department of Health, Education and Welfare; Member, Special Decennial Census Review Committee, Department of Commerce; Commissioner, National Commission on New Technological Uses of Copyrighted Works; Member, Special Legislative Commission on Privacy (Commonwealth of Massachusetts); Chairman, Governor's Special Commission on Privacy and Personal Data (Commonwealth of Massachusetts); and Member, National Panel of the Project on Computer Data Banks, National Academy of Sciences. Additionally, I have authored numerous publications relating to privacy, including: The Assault on Privacy: Computers, Data Banks, and Dossiers, University of Michigan Press (1971); -2 Personal Privacy in the Computer Age: The Challenge of a New Technology in an Information-Oriented Society, Michigan Law Review (April, 1979); and The Privacy Revolution: A Report from the Barricades, Washburn Law Journal (Fall, 1979). Caller ID In modern society, information and surveillance technology are advancing so quickly that we must be ever mindful of the possible impact these technological developments have on an individual's right to privacy. In some contexts, there are multiple, conflicting claims of privacy, and to determine where the greater privacy interest lies, it is important to analyze the interests carefully and make an informed judgment, rather than simply seeking to protect the interests of the parties who are the most vocal in advocating their position. The advent of telecommunications technology such as Caller ID brings into conflict the privacy right of the telephone caller and the privacy right of the person being called. The telephone caller is concerned about disclosure of what he or she believes to be private information (his telephone number), while the person being called is concerned about an intrusion upon his or her right to be left alone. After evaluating and weighing these -3 concerns in the context of Caller ID, I believe that the right of the person being called must be afforded greater weight. numbers. Let me explain the reasons for this conclusion. The United States Supreme Court has ruled that telephone customers do not have a legitimate expectation of privacy with respect to their Additionally, I believe that the caller who does not want his or her number revealed is not asking for privacy, but rather anonymity at the very time he or she is seeking to intrude on the solitude of another. Society traditionally has rejected affording individuals that degree of anonymity. The right against disclosure of private information, which the telephone caller is concerned about, is preserved, most frequently, in statutory law. For instance, the Fair Credit Reporting Act and Bank Secrecy Act govern the revelation of personal financial information. Because credit agencies and banks are required to compile sensitive personal information on individuals, either for their own security or by government mandate, the information must be protected from unfettered public dissemination. The revolution in computer and telecommunications technology, particularly in the area of data processing, has spurred the need for protection against the disclosure of private information. -4 The need for this protection essentially, however, is stronger when an individual is coerced into revealing the information. Hence, in filing tax returns or responding to the census, for example, an individual has a reasonable expectation of privacy. The question that relates to Caller ID is this: what reasonable expectation of privacy does the telephone caller have? On balance, I believe the caller's claim is rather weak. First, the element of coercion in revealing information, evident in the tax return and census examples cited above, is not present in the telephone context. Persons not wishing to reveal personal information such as their own telephone numbers have the option of using an operator to place the call, or another private line, or a pay telephone, or not to make the call. In other words, unlike in the tax return or census questionnaire analogy, the telephone caller has the means available to accomplish the intended activity (calling another person) without revealing the telephone number. Caller ID may circumscribe, but it does not destroy, a caller's privacy. Because the right of privacy has developed in response to the increasing demands by government and other societal institutions on individuals to reveal personal information, it should not be expanded into providing protection for more consensual activities. |