STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION

Mr. SPEISER. I am Lawrence Speiser, Director of the Washington Office of the American Civil Liberties Union, 1424 16th Street N.W., Washington, D.C.

The organization is a private, nonpartisan, nonprofit organization which devotes its entire resources to the protection of the Bill of Rights.

Even if we conceded the potential usefulness of a national data center, and we submit proponents of the proposal have not as yet made a very compelling case for this, we nevertheless feel grave concern about the potential threats to civil liberties and privacy inherent in the very concept.

The establishment of a Federal data center would create the machinery for the maintenance of personal dossiers on a great many Americans a concept odious to a free society. There is no dispute about this, even from the proponents of the data bank. They have insisted all along that in order for the statistical data stored in the data center to be of value, an ultimate key must be kept somewhere so that the human beings involved can be identified. They concede that it would be possible for all the information stored in the bank on a particular individual to be retrieved in a profile form.

It is not necessary to spell out to this committee the palpable dangers in the Government having a personal dossier on millions of its citizens. It should only be noted that not all the danger relates to abuse of a malicious nature by one seeking political power or other patently unworthy ends. The information stored in the bank may be a cause of harm even in high-principled hands. Unfortunately, the great bulk of information about an individual is not gathered as the result of inquires by skilled Government investigators. Rather, it is often acquired by Government employees of poor judgment, by private agencies, credit unions, insurance companies, and businesses. Government agencies often farm out investigative work to private firms, and there is a considerable interchanging of data among Government and private sources. Once an unreliable bit of information makes its way into a file, it forms an indelible mark on a person's record. The individual who is denied the chance for employment or some other opportunity on the basis of such information is given no chance to rebut or disprove it. Dossiers are compiled, the accuracy of which increasingly becomes more questionable. The computerization of such information in the data bank only compounds the basic abuse.

Proponents of the bank have to date stressed that the bank is limited to statistical data, not of the kind that would lend itself to the building of a dossier. We have great doubt that information contained in the files of some 20-odd Federal agencies that would be placed in the bank, even if it were called statistical, would not contain much that is indeed of a highly personal nature that could be harmful in the ways we are talking about.

In addition, we are concerned with the very foot-in-the-door problem. What assurance have we that once the bank is established there will not be an expansion based on the same compelling efficiency, to include nonstatistical kinds of information?

Improperly shared information, even on a scale far less than would amount to a dossier, has obvious implications for harm. When an individual provides information to a Federal agency or official, he is consenting only to giving this information for a particular known purpose, whether it be to permit him to obtain an FHA loan or to obtain veteran's benefits. He certainly has not consented to this information being made available to other agencies, either within or outside the Gov

ernment.

For example, if he gives a medical history to a Government doctor, that does not mean that he thereby agrees that such personal information should be made available to other Government employees having no real basis nor need to have access.

We are talking here about the increasingly recognized independent value of privacy, the right among other things not to have essentially personal information made known to others. The giver of information for a limited known purpose has the right to have his private life protected from the view of others.

Compounding the problem is the fact that the Government today is collecting a good deal of information it should not be collecting. We have long opposed inquiries by Government into areas where they have no legitimate business, such as the kinds of questions asked on personality tests and the questions about political and other organizational affiliations that are asked in connection with employment applications. If, in the first instance, such information were not gathered, there would be far less concern about a national data

center.

We have noted with interest the press release of February 27, 1967, by Congressman Cornelius E. Gallagher, Democrat, of New Jersey, concerning his meetings with Director of the Budget Charles Schultze on the proposal for a national data center. According to the release, Director Schultze has agreed that the proposal on the data bank submitted to the President will recommend that only summary tabulations for the great part unidentifiable with an individual be stored with the bank. That remains to be clarified. We urge this subcommittee to take up these changes. Their adoption would be greatly welcomed and would present us with an entirely different measure. In any event, we would welcome an evaluation of the proposal by a panel of constitutional lawyers, computer experts, representatives of Congress and others as mentioned in the press release. We hope it would include those who have been raising these issues of civil liberties and privacy.

Proponents of the center virtually, without execption, have agreed that it, indeed, contains inherent threats of the kind we have suggested. They have insisted their devotion to the values we are discussing are no less than any man's, and they have advocated that safeguards, technological, legal, administrative, be devised to cope with the dangers. Unfortunately no one to date has to our knowledge produced a model setting forth precisely the safeguards that would be effective.

I shall not take the time to specify the kinds of problems such safeguards must cope with. It will be sufficient to say that we are concerned with proper controls on what goes into the bank as well

as the obvious concern with improper retrieval and release. There is the danger that data gathered by the Government will find its way into the hands of private firms where it will be improperly used against an individual. Moreover, the reverse will also occur: thus, for example, a Government agency, itself unauthorized to administer a polygraph test to job applicants, will have available the results of such a test administered to the individual when he applied for employment with a private company. Prohibited results will be achieved in an indirect fashion. When any official determination is made on the basis of irrelevant information which that official has no right to consider, the end result is a deprivation of the individual's civil liberties.

Here is the crux of the matter. Unless and until a specific proposal is made which spells out what the national data center will collect, and hold, and what specific safeguards will be built in, it is our belief that Congress, representing the people, must insist that no affirmative action be taken toward this end.

Indeed, in view of the grave threats involved in the data bank proposal, it appears to us that perhaps a closer look should be taken at the glossed-over question of the very need for the bank. The proponents of the bank have the burden of demonstrating a social and economic value significant enough to have a major impact on the effectiveness and finances of the Government.

Assuming such a demonstration can be made, the proponents must demonstrate their data bank can be made secure with safeguards, in preserving the rights of privacy of those who are the ultimate subjects of the center.

Unless this is done, we will find that the barn door has been left wide open. It is always difficult to retrace governmental steps, particularly when large sums have been expended.

Parenthetically, I would like to point to the announcement which was made last month of the establishment of a national crime information center by the FBI. This was established without, as far as I know, congressional approval or congressional knowledge. What it collects, how the infromation is safeguarded, how it is distributed, what agencies can get information, whether it relies on investigative reports that are never tested and whether this information is freely available, it seems to me are matters that should be of concern to this subcommittee and of Congress.

But so far as I know, there has been no discussion of Congress looking into or asking for a report on this crime information center of the FBI.

However, the stake here is large; the right of a free people to remain free, unencumbered by the knowledge that for each individual, Big Brother has an electric file collecting every tidbit of information. There would be no escape. No mistakes would ever be undone. Skeletons in the closets would always be there, only they would be compactly and efficiently transformed into eternal electrical impulses on tape.

Efficiency is not the only hallmark of good government. There are other values in a society dedicated to the most comprehensive right of its citizens, "the right to be let alone."

Senator LONG. Thank you, Mr. Speiser.

Mr. Fensterwald?

Mr. FENSTERWALD. I do not have any questions.

Senator LONG. Mr. Kass?

Mr. KASS. I do not have any questions.

Senator LONG. Mr. Waters?

Mr. WATERS. We cannot let you go without at least one question, Mr. Speiser; in connection with the polygraphy machine, you indicated it was utilized on applicants for Government employment by private firms. How was that accomplished? You say an agency, itself unauthorized to administer a polygraph test to job applicants, will have available the results of such test administered to the individual.

Mr. SPEISER. Well, there are a number of private firms that do use polygraph tests as a qualification for employment with them. There have been a sufficient number so that there have been at least a half dozen states which have passed laws specifically prohibiting this kind of activity.

When individuals apply for government jobs, there is an investigation section of the Civil Service Commission which would have available to it the names of prior employment, and at the present time there is no limitation, for example, for those who apply for security— sensitive jobs as to how far back applicants must go in listing prior employment.

These investigators, not only of the Civil Service Commission which makes the initial investigation, but also investigators of security agencies, in which individuals are applying for security clearances, could and do go back to prior employers and presumably they can get access to lie detector tests, polygraph tests, which have been conducted on such applicants.

There is no law prohibiting

Mr. WATERS. Instead of presumably, do you know for a fact that this is done?

Mr. SPEISER. I do not know of any specific instances, but I am aware of the fact that Government investigators get a wide range of cooperation from private employers as to what information is made available to Government investigators either for security clearances or for government employment applicants.

Wr. WATERS. Thank you, Mr. Speiser.

Thank you, Mr. Chairman.

Senator LONG. Thank you, Mr. Speiser. We appreciate your being here and being of help to us.

Mr. SPEISER. Thank you.

Senator LONG. The committee tomorrow will hear witnesses on the Administrative Procedure Act (S. 518), and tomorrow we will meet in 3110, New Senate Office Building, at 10 a.m. Until that time, the committee will stand in recess.

(Whereupon, at 12:25 p.m., the committee recessed, to reconvene at 10 a.m., Thursday, March 16, 1967.)

APPENDIX

MEMORANDUM FOR THE RECORD

From: Benny L. Kass, Assistant Counsel.

Subject: Results of Subcommittee Questionnaire.

On August 11, 1966, Senator Edward V. Long, Chairman of the Senate Subcommittee on Administrative Practice and Procedure, sent a detailed questionnaire to all departments and agencies of the federal government to determine the amount, nature, and use of information which government agencies currently maintain on individuals. The Chairman's letter and questionnaire to the heads of the departments and agencies reads as follows:

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE,

August 11, 1966.

DEAR (TO ALL HEADS OF DEPARTMENTS AND AGENCIES): The Senate Subcom. mittee on Administrative Practice and Procedure is beginning an intensive study of the amount, nature and use of information which government agencies currently maintain on individuals. The Subcommittee is interested in determining the degree of privacy which is maintained on the information government gathers on our American citizens.

In order to properly understand this problem, it is important that a complete inventory be compiled on what information is available in our various departments and agencies. We are concerned with proposals which would maintain in a single repository the information which various government agencies now keep. It is our belief that no one-in or out of government-is aware of the extent of this information. Before consideration can be given to consolidate information, we must, in fact, know what type of information is being collected and stored. Accordingly, we have attempted to work out a very general questionnaire, designed to elicit from your agency the type of information which you currently keep on individuals. It is suggested that the cut off date for all records be January 1, 1900. It is requested that you simply follow the attached format and return the questionnaire not later than October 15, 1966. Please inform the Subcommittee which official in your agency will be responsible for compiling the information and preparing the answer. If you have any questions regarding this questionnaire, please contact Mr. Benny L. Kass, Assistant Counsel of the Subcommittee (telephone Code 180, Ext. 5617).

Sincerely,

EDWARD V. LONG, Chairman.

INSTRUCTIONS FOR SUBCOMMITTEE QUESTIONNAIRE

General.-This questionnaire is designed to obtain a systematic inventory of certain types of information currently maintained about identifiable individuals in the files of Federal agencies, together with related information on the source and legal status of the information with respect to confidentiality and compulsion in reporting. We are concerned only with those records in the physical possession of your agency. You need not answer for records which have been transferred over to the National Archives.

Please prepare a separate copy of this form for each bureau or comparable organization unit within your agency.

Use footnotes to explain any answers that do not fit into the categories outlined.

77-577-67- -10

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