A document from the CQ Researcher archives:
Post-Watergate Concern Over Privacy
New Awareness of Privacy Issue After Scandals
The right to privacy is an issue that has grown in the “post-Watergate” period. Fears of government and private data-gathering activities and official and unofficial snooping into the lives of private citizens have been heightened by the Watergate revelations in the last two years. While Watergate-related invasions of privacy—wiretapping and bugging of opponents, the use of government files to discredit “enemies,” misuse of intelligence agencies, and breaking and entering—have received most of the attention, other aspects of the problem are also being looked at more carefully today. Scores of books and articles on the subject are being published, private and official commissions are studying ways of protecting individual privacy and Congress is considering more than 140 bills relating to privacy in one way or another.
The issue of privacy has cut across political lines and ideologies. With a coalition of liberals and conservatives in and out of government leading the way, Congress is expected before adjournment this year to complete work on privacy legislation that for the first time would place controls on the federal government's collection and dissemination of personal information about individuals. This legislation has drawn such diverse backers as the Domestic Council Committee on the Right to Privacy, headed by President Ford; the American Civil Liberties Union (ACLU); the House Republican Research Committee and its Privacy Task Force chairman, Rep. Barry M. Goldwater Jr. (R Calif.); Rep. Edward I. Koch (D N.Y.); and Sens. Sam J. Ervin (D N.C.) and Charles H. Percy (R Ill.).
President Nixon, whose administration was accused of bringing about repeated invasions of privacy, took up the right-to-privacy theme before he left office. He spoke of the need for an assured right to individual privacy in his 1974 State of the Union message to Congress and again in a radio address to the nation on Feb. 23. At that time he established the Domestic Council Committee in the White House with Ford, then the Vice President, as its chairman. The new committee was directed to examine the collection and use of personal data and to recommend ways to “provide a personal shield for every American” to protect his or her privacy.
The committee recommended “policy initiatives” in 14 areas of government, business and education for better protection of individual privacy. After assuming the presidency on Aug. 9, Ford indicated that his interest in privacy would continue. In his first presidential address to Congress on Aug. 12, he said: “There will be no illegal tappings, eavesdroppings, buggings or break-ins in my administration. There will be hot pursuit of tough laws to prevent illegal invasions of privacy in both government and private activities.”
Control Legislation in Congress; Ford's Position
While there is general agreement that individuals have little or no control over the information that is collected about them, there are strong differences of opinion on the best way to check—in Senator Ervin's words—“the government's voracious appetite for personal information about each of us.” Ervin, along with Goldwater, Koch and others, is convinced that nothing less than the creation of a personal privacy board is needed to see that federal agencies follow strict procedures to guard individual rights. But federal agencies and the White House, while supporting the privacy concepts, oppose the creation of a watchdog panel. They also want to prevent federal employees and applicants from obtaining the results of their employment examinations and investigations.
President Ford set forth his views in a statement issued by the White House on Oct. 9. “I do not favor establishing a separate Commission or Board bureaucracy empowered to define privacy in its own terms and to second guess citizens and agencies,” he said. “I vastly prefer an approach that makes federal agencies fully and publicly accountable for legally mandated privacy protections….” The outcome of this question could determine whether Ford signs or vetoes a privacy bill. The right of privacy, he warned, “must be balanced against equally valid public interests in freedom of information, national defense, foreign policy, law enforcement, and in a high quality and trustworthy federal work force.”
While the methods of invading privacy have been given considerable attention, the definition of privacy is still hazy. And so is the very thin line between the needs of government and private agencies for information on an individual and the right of the individual to keep the information private. Psychological tests for job seekers and students, credit investigations, security checks, the use of mailing lists, and the search of personal luggage at airports are all activities that can be defended as desirable or necessary to the functioning of an advanced technological society. And yet they create what the House Republican Research Committee describes as a “chilling effect.” In a study issued Aug. 21, 1974, the committee said an individual “who fears that he will be monitored may, either consciously or subconsciously, fail to exercise his constitutionally guaranteed liberties.”
Criticism of Government Data-Collecting Methods
Watergate pointed up the danger of government invasions of privacy through widespread and sometimes illegal wiretapping and bugging, and the misuse of files from the Internal Revenue Service, Department of Justice, Federal Bureau of Investigation and other agencies against political foes. But more subtle, and perhaps more dangerous in the long run, are the traditional types of government data gathering. A four-year study completed in June 1974 by the Senate Judiciary Subcommittee on Constitutional Rights found 858 data banks with more than 1.2 billion records in 54 federal agencies. These data banks, the study noted, “are by no means all of the government files on individuals. Rather, they are the systems which the 54 agencies polled by the subcommittee were willing to admit they maintain.”
The study also found that at least 29 of the data banks were set up to collect derogatory information on individuals. Well over half of the 858 banks had no statutory authority for their existence. Individuals seldom knew that the agencies had information on them and, even if they did, rarely had access to their files. Nevertheless, it was “likely” that the information in these files would be “fairly readily” shared with other federal, state and local agencies, the study said, even in agencies such as the Internal Revenue Service and Selective Service that pledge confidentiality. Many states have data-gathering activities similar to and often connected with the federal government's.
Major controversies have arisen over several proposed extensions of existing federal data-gathering programs. One was a $100 million computer system called Fednet which was being developed by the General Services Administration to connect Department of Agriculture and Gsa computers. Critics expressed concern that the network would eventually expand to include virtually all government agencies. After an outcry by members of Congress and the Domestic Council Committee, the GSA agreed not to proceed with the system until guidelines were developed for the protection of privacy.
Another controversial project is the Fbi's National Crime Information Center. NCIC began operating in 1967 as a telecommunications network for the exchange of information on wanted persons and stolen property. Since then it has expanded enormously. The records of about 4.8 million persons are now stored in this communications network. According to an Abc-Tv documentary broadcast on April 4, “The Paper Prison: Your Government Records,” only about 500,000 of these 4.8 million records involved criminal arrests. More than 6,000 police agencies have instant access to the NCIC system.
The records are also “instantaneously accessible” to employers, courts and credit bureaus “at the push of a button on any of some 40,000 remote access terminals,” attorney J. Taylor DeWeese has written. “A ‘criminal’ record remains in the system forever—even if charges are dismissed, or the matter is referred to the juvenile courts, or the convicted offender is fully rehabilitated.” Efforts to prevent abuses of the system have led to proposals to limit dissemination of the records and to seal them after a specified time. The Court of Appeals for the District of Columbia ruled on April 23 that “the Fbi has the responsibility” to expunge a person's arrest record from its criminal files if the arrested person was exonerated or released without charges. Fbi Director Clarence M. Kelley said that beginning July 1, the Fbi would divulge an arrest record only for law-enforcement purposes if it was more than one-year old and if the disposition of the case was unknown.
One of the most bizarre cases of Fbi record-keeping involved a 15-year-old high school student in Newark, N.J. In early 1973, the youngster wrote a letter requesting information on the Socialist Labor Party for a paper she was preparing for a social studies course. She mistakenly addressed the letter to the Young Socialist Alliance. Postal authorities, monitoring the organization's mail for the Fbi, routinely noted her name and address. The information was then placed in Fbi files, and removed only when ordered by the U.S. District Court.
Widespread Snooping in Business and Education
A recent survey conducted by the Roper polling organization for the Aclu's Project on Privacy and Data Collection indicated that more Americans are concerned about private data collecting that touches them directly than they are about government files. This data collecting includes credit information; centralized medical, insurance and bank records; the treatment of employees and prospective employees by many business concerns; and the enormous record-keeping activities of schools. Nonetheless, the Domestic Council Committee has taken the position that its “initial privacy initiatives should focus on the federal government.” The committee said it “believes that federal example and experience in this complex field should precede federal directives to the non-federal governmental and private sectors.”
Some persons feel that non-government data-collecting agencies are already too large and potentially dangerous to wait that long. The House Republican Research Committee found that each year, 2,600 credit bureaus file reports on 100 million consumers. These reports contain factual information on where an individual's accounts are held and how quickly he pays his bills. A second type of credit report includes “subjective opinions on the individual's character, general reputation, personal characteristics and mode of living,” the committee said. “These [evaluations] are often obtained through interviews with neighbors, friends, ex-spouses and former employers or employees. An estimated 30 to 40 million such reports are produced annually.”
The Fair Credit Reporting Act of 1970 provided that consumers be given access to information in their files, except for medical data, and be allowed to correct inaccuracies. But it is difficult for them to find out if adverse records exist or where to track them down. One of the most controversial systems is the Medical Information Bureau, a highly automated data bank with records on more than 12 million Americans who have taken physical examinations for health insurance. Over 70 companies, representing 99 per cent of the insurance sold in this country, belong and have access to the service. In addition to medical information, the files contain records on sexual, financial and psychiatric problems, alcohol and drug addiction, and other personal information. Individuals who try to purchase insurance have no control over their records and most are unaware that the information is stored in the central bureau.
Many companies subject job applicants and employees to detailed questions about the most intimate aspects of their lives, even to polygraph (lie-detector) tests, surveillance of outside activities and eavesdropping on personal conversations. Businesses insist that these tests and activities help determine the applicants' suitability for work or the job holders' honesty. Employees complain that they are embarrassing and often demeaning invasions of privacy. But many workers are left with the choice of submitting to the company's programs or losing their jobs and having on their records a notation or suggestion that they have “something to hide.”
School records are also criticized in regard to privacy. Stanley J. Sallett, senior associate of the National Committee for Citizens in Education, told the Special Senate Subcommittee on Privacy and Information Systems on June 18, 1974, that “dossiers” were being kept on at least 45 million public school children. Twenty-four states have no laws protecting the privacy of academic, psychological or medical files on these youngsters and 11 states have no limitations on the dissemination of this information.
These school records often contain, besides “hard data” such as IQ scores, medical records and grades, files of “soft data” such as teachers' anecdotes, personality rating profiles, reports on interviews with parents, and “high security” psychological, disciplinary and delinquency reports, Diane Divoky wrote in Parade magazine on March 31, 1974. In addition, parents “probably can't see most of these records, or control what goes into them, much less challenge any untrue or embarrassing information they might contain. But a lot of other people—including school and health officials, potential employers, government officials and the police—“have carte blanche to these dossiers.”
Bills in Congress, State Action and Court Cases
Major data-protection bills in Congress are sponsored (1) by Ervin, chairman of the Senate Judiciary Subcommittee on Constitutional Rights, together with a companion bill in the House sponsored by Koch and Goldwater, and (2) by Rep. William S. Moorhead (D Pa.). Under the Ervin and Koch-Goldwater bills, an individual could not be forced to disclose any information not required by law, would be notified of the existence and use of any information about him and would have the right to inspect and challenge it. The Moorhead bill also would grant an individual access to his federal records, but compliance would depend on self-enforcement by governmental agencies and, if they failed, by the federal courts.
Most of the other bills are directed at single aspects of the privacy question: banning the use of Social Security numbers for unrelated purposes, prohibiting financial institutions from giving information about their customers to government agencies, modifying existing practices of criminal information systems, banning political surveillance by the Army and controlling illicit uses of wiretapping.
An executive order issued by President Ford on Aug. 20 specified that only he could direct—in writing—the disclosure of any tax returns to a member of the White House staff. This order upstaged Sen. Lowell P. Weicker Jr. (R Conn.) and Rep. Jerry Litton (D Mo.), co-sponsors of a bill to limit the disclosure of income tax returns for tax-enforcement purposes and thereby prevent White House access to them. However, The Washington Post reported Oct. 20 that Ford agreed to endorse a bill sponsored by Weicker and Litton to limit the availability of tax returns to the IRS, the Justice Department's tax division and, at his written request, the President. If passed and signed into law, the bill would replace the executive order.
States and municipalities are also moving to protect individual privacy. A few states, notably New Hampshire, Delaware, Oregon and New Mexico, have taken steps to safeguard the dissemination of and errors in school records. Massachusetts refused to hook into the FBI's National Crime Information Center or to supply criminal background data to other federal agencies. Instead, Gov. Francis W. Sargent created the Massachusetts Commission on Privacy and Personal Data in December 1973 to examine laws and regulations on privacy.
The courts have also taken action on numerous privacy cases in recent years. One of the most significant was a Supreme Court decision on June 19, 1972, rejecting the Nixon administration's claim to inherent power to wiretap domestic groups suspected of subversive activities, even if no court order for the wiretap had been issued. The high court held that while the Omnibus Crime Control and Safe Streets Act of 1968 stipulated that the government could wiretap for national security purposes without court authorization, this provision did not extend to domestic security cases.
An advisory committee to the secretary of Health, Education, and Welfare said the courts were not the best instrument for dealing with privacy questions, particularly those that arise from data-keeping operations. “Only when record-keeping systems can be shown to have caused actual injury, to have created problems with serious constitutional implications, or to be in conflict with clear statutory requirements, are courts likely to interfere with their operations. As a consequence, government data systems appear, under existing law, to be virtually immune to constraint through suits by individual data subjects; private-sector systems appear no less so.…The judicial process, in short, seems functionally ill-suited to initiating development of general common law rules relating to record-keeping practices.”
Threats to Privacy in Technological Age
Constitutional Provisions Pertaining to Privacy
The U.S. constitution makes no specific reference to a right to privacy. Nevertheless, a number of amendments to the Constitution, as embodied in the Bill of Rights, protect various aspects of individual privacy. The First Amendment stipulates that “Congress shall make no law…abridging the freedom of speech or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The basis on which most privacy suits are filed is the Fourth Amendment which provides that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Other protections are contained in the Fifth Amendment's guarantee against self-incrimination and the Ninth Amendment's provision that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Until the latter part of the 19th century, there was relatively little concern with the privacy issue. The courts had outlawed such invasions as religious-test oaths for public officials, compulsory testimony by defendants at criminal trials and government tampering with the mail. There had been a number of laws and regulations to assure the confidentiality of census data. But “three technological developments of the late 19th century altered the balance between personal expression and third-party surveillance that had prevailed since antiquity,” Alan F. Westin noted in Privacy and Freedom. These were the invention of (1) the telephone in the 1880s, (2) the microphone in the 1870s and the dictograph recorder in the 1890s, and (3) “instantaneous photography” in the 1880s and 1890s.
Concern over threats to privacy were being expressed about that time. In 1879, Judge Thomas M. Cooley wrote in A Treatise on the Law of Torts that: “The right to one's person may be said to be a right to complete immunity, to be let alone.” More consequential was an article on “The Right to Privacy” in Harvard Law Review of Dec. 15, 1890. The authors, future Supreme Court Justice Louis D. Brandeis and Professor Samuel D. Warren, said that the common law secured “to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments and emotions shall be communicated to others.” The right to privacy included the “principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer or the possessor of any other modern device for recording or reproducing sounds.”
The courts have had a mixed record in regard to privacy questions. The Supreme Court of Georgia became the first tribunal to recognize the right of privacy, in a 1905 case involving the unauthorized use of an individual's picture and false statements attributed to him in an Atlanta newspaper advertisement. Twenty-three years later, the U.S. Supreme Court ruled in Olmstead v. United States (1928) that wiretapping by federal officers—in this case of bootleggers—did not violate any constitutional guarantee. “There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.”
Justice Brandeis, in his much-quoted dissent in the Olmstead case, wrote that the “right to be let alone—the most comprehensive of rights, and the right most valued by civilized men” had been ignored by the majority. “As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wiretapping.” The Olmstead decision led to agitation for a statutory ban on wiretapping. Congress responded in 1934 by forbidding the interception and disclosure of private conversations in Section 605 of the Federal Communications Act of that year.
Section 605 holds, in part, that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted communication to any person.” Vance Packard wrote in The Naked Society (1964) that Section 605, “if read in its entirety, is an outright nationwide ban on all types of wiretapping. Law enforcement agencies, including the Justice Department, have chosen…by straining to give it a different, more permissive reading.” They have been able to interpret the words to mean that “a crime is not committed until there are both interception and divulgence. They insist that anyone is free to intercept as long as he doesn't divulge.”
Many legal scholars believe that the Supreme Court enunciated the constitutional doctrine of privacy for the first time in the case of Griswold v. Connecticut on June 7, 1965. The Court overturned the conviction of a medical officer of the Planned Parenthood League of Connecticut who had given contraceptive advice and prescribed contraceptive materials in violation of state law. The Court held the state law unconstitutional and in violation of the right of privacy of married couples.
Growing Infringement of Privacy in 20th Century
Four decades earlier, Justice Brandeis warned in his Olmstead dissent: “The progress of science…is not likely to stop with wiretapping.…Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.” Wiretaps—which were used as early as 1895 by the New York City police department—became more sophisticated and, despite legal restrictions on them, much more frequently installed. Likewise, the increasing use of bugs, personality tests, polygraphs, credit lists and other data-gathering activities posed a far greater threat to privacy by mid-century than in 1928.
Their use by the government was often justified on national or domestic security grounds. Thus, the Fbi cites a directive by President Roosevelt in 1939 giving the agency responsibility for investigating non-crime-related internal security problems. However, Frank J. Donner, director of the Aclu research project on political surveillance at Yale University Law School, finds that the directive “was intended not to open up a ‘broad new front’ of intelligence collection but rather to protect Americans from the ‘confusion and irresponsibility’ of World War I when the superpatriots had conducted their spy hunts. It was, in short, an effort to guard the nation against espionage and sabotage with a minimum sacrifice of civil liberties.”
As another pre-war precaution, President Roosevelt sent the Department of Justice a confidential memorandum on May 21, 1940, informing the agency that it was “at liberty to secure information by listening devices” on conversations “of persons suspected of subversive activities against the government.” Fdr stressed, however, that these wiretaps should be used sparingly. The fear of internal Communist subversion in the postwar period led to the expansion of surveillance.
The development of computer technology in the 1950s made possible invasions of privacy in both the public and private sectors more real and more to be feared. “Bureaucratic inefficiency was a partial guarantor of our privacy,” Ohio State Sen. Stanley J. Aronoff commented. “The computer has changed that.” By the 1950s, American society had already become a record-based social system, the National Academy of Sciences observed in 1972. Computerized systems “raised to a critical level many older, unresolved issues of civil liberties in record-keeping, such as the circulation of derogatory information lists in government and private industry and the use of records without the individual's knowledge or his right to examine their contents.”
While warning about possible threats from computerized data, the National Academy of Sciences' study nevertheless concluded: “Computer usage has not created the revolutionary new powers of data surveillance predicted by some commentators. Specifically, the great majority of organizations we studied are not, as a result of computerizing their records, collecting or exchanging more detailed personal information about individuals than they did in the pre-computer era.”
Benefits and Liabilities of Computer Technology
Despite these reassuring words, there is considerable public mistrust of the computer and the vast systems of data banks it has made possible. Data gathering is big business; over $20 billion a year is now spent on it, and the names of more than 150 million Americans are in computer data banks around the country. While few Americans would willingly forego the many personal benefits brought by computerization, there seems to be a growing fear that the information collected about them will someday be used to embarrass or harm them. Computerized health records can be invaluable in treating patients; their disclosure can also infringe on the private doctor-patient relationship. Similarly, the Fbi's National Crime Information Center can aid law enforcement officials in apprehending criminals and protecting innocent people or bring ruin upon those whose only offense was political dissent or a minor crime years ago.
In an address to the National Computer Conference in Chicago on May 9, 1974, Vice President Ford pointed out that it was not computer technology, per se, but the abuse of it that threatened individual privacy. “In dealing with troublesome privacy problems,” he said, “let us not scapegoat the computer itself as a Frankenstein's monster. But let us be aware of the implications posed to freedom and privacy emerging from the ways we use computers to collect and disseminate personal information.”
Few would disagree with Ford's statement just as few would disagree with the idea that privacy is a good thing. Nevertheless, privacy cannot be an absolute value in a technologically advanced society. Law Professor Arthur S. Miller argues, “Privacy should not be viewed in isolation from other preferences of people. When it conflicts with other values, chiefly economic well-being, then it likely will give way. If people have to make choices, probably most Americans would rather give up some or much privacy in order to gain what to them is the greater goal.…Privacy in my judgment tends to be a value of the middle or upper classes.
Increased Surveillance During Turbulent Sixties
Advances in computer technology and surveillance techniques became especially apparent in the 1960s. Violent civil upheavals during the decade led the government to collect thousands of dossiers on student radicals, new leftists and anti-war activists. In the mid-1960s, several disclosures of corporate surveillance came to light. Probably the most publicized was the admission before a Senate subcommittee in March 1966 by the president of General Motors, James M. Roche, that the company had hired private detectives to pry into the personal life of Ralph Nader, author of Unsafe at Any Speed (1965), a book highly critical of the auto industry. About the same time, it was revealed that a leading drug manufacturer, Smith Kline & French Laboratories, had used a New York detective agency to spy on the operations of a Connecticut drug wholesaler.
Government surveillance of supposed threats to “internal security” included Dr. Martin Luther King Jr. and brought a strong reaction from President Johnson. In his 1967 State of the Union message, Johnson urged the use of the “full reach of our constitutional powers to outlaw electronic bugging and snooping” and asked Congress to pass a Right to Privacy Act which would prohibit all wiretapping and electronic eavesdropping, except in national security cases—and then “only under the strictest safeguards.” Congress rejected this proposal in approving the Omnibus Crime Control and Safe Streets Act of 1968; the law authorized wiretapping and bugging in a wide variety of criminal investigations as long as each act of wiretapping or bugging was approved by a warrant issued by a judge for a 30-day period.
Department of Defense spying on private citizens was disclosed in an article in the January 1970 issue of The Washington Monthly by a former Army intelligence officer, Christopher H. Pyle. The spying, Pyle wrote, began in mid-1965 to provide “early warning of civil disorders which the Army might be called upon to quell.” It was expanded in the summer of 1967 to include “the political beliefs and actions of individuals and organizations active in the civil rights, white supremacy, black power and antiwar movements.”
By the time the Department of Defense issued a directive to end the civilian surveillance in March 1971, a number of newsmen, politicians and groups, including the American Civil Liberties Union, the John Birch Society, the Women's Strike for Peace and the National Association for the Advancement of Colored People, were being watched by Army investigators. Sens. Ervin and Gaylord A. Nelson (D Wis.) said that this military spying produced dossiers on more than 100,000 civilians and that these were stored in 350 data banks.
Far less extensive but equally embarrassing to the administration were 17 wiretaps placed on National Security Council employees and newsmen during 1969–71. The wiretaps were ordered by President Nixon on April 24, 1969, after sensitive Nsc information had been leaked to the press. Henry A. Kissinger, during his confirmation hearings as Secretary of State in September 1973, testified that as head of the National Security Council he had done nothing to initiate the taps but had only supplied to the Fbi the names of individuals who might have been involved in the leaks. After investigating the matter, the Senate Foreign Relations Committee cleared Dr. Kissinger, Aug. 6, 1974, of allegations that he had misled the committee on the wiretaps during his confirmation hearings, and the Secretary of State withdrew his threat to resign over the matter.
Suggested Safeguards to Protect Privacy
Ways of Protecting Privacy in Other Countries
Citizen concern about eavesdropping, bugging, other types of surveillance and varied data-gathering activities is worldwide. In countries without democratically elected governments, invasions of privacy are taken for granted. The constitution of the Soviet Union guarantees “privacy of communications” but Russians and foreign visitors assume that their phone conversations are monitored. And in countries faced with serious internal security problems like Israel, South Africa and South Vietnam, dossiers and various types of surveillance are maintained on large segments of the public.
Wiretapping and bugging scandals in Western Europe have encouraged several countries to take steps to regulate snooping. West Germany, whose constitution holds that the “privacy of posts and telecommunications shall be inviolable,” has strict laws against wiretapping and bugging but many observers believe that considerable illegal surveillance is conducted.
In Sweden, most public documents, including tax returns and health and welfare records, have been open to the public. As concern mounted about the accessibility of this private information, the Swedish parliament passed a law, effective July 1, 1974, requiring that all data systems be licensed by a Data Inspection Board. No license is issued “if there is reason to anticipate undue encroachment on the privacy of recorded persons.” In addition, the law gives persons the right to be informed how the information about them is used and the right to have erroneous data corrected. No records can be kept on a person's political or religious views.
Among the major European countries, Britain offers its citizens the least statutory protection against invasions of privacy. Until recently, there was relatively little public concern about possible infringements of privacy in Britain. A two-year study by a committee headed by Sir Kenneth Younger on threats to privacy in the public sector was released in 1972. The report concluded that while personal privacy was respected by custom and the common law, these traditional protections were inadequate to deal with the new technological intrusions.
Fears of Greater Intrusions in the Years Ahead
Many Americans seem convinced that George Orwell's scenario in his novel 1984 is already close to reality. In a statement to the Senate Government Operations Committee on June 18, 1974, Alan F. Westin imagined what could have happened if Watergate had occurred in 1980 or 1984. The White House, he said, “would have had video display terminals linked to a computer in Camp David that would have really held some ‘enemies files’—such as 500,000 political opponents to be systematically harried by federal discretionary authority; a possible-leakers file of several hundred members of the administration suspected of leaking news to the media in ways that conflicted with the administration's own news-leak policies; a ‘disloyalty file’ of 250,-000 persons whose radical activities make them suspect; and a special ‘press file’ of those reporters and commentators whose output was considered biased.”
The Hew Advisory Committee noted a “persistent” concern that the “Social Security number will be used to assemble dossiers on individuals from fragments of data in widely dispersed systems.…The increasing use of the Social Security number…to match records for statistical reporting and research purposes, deepens the anxieties of a public already suffused with concern about surveillance.”
Privacy Board Proposal; Constitutional Amendment
Despite the fears evoked by the idea of centralized government dossiers filled with personal information on all Americans, Arthur R. Miller argues that a national data bank might be preferable to the current situation—if proper precautions were taken. Numerous suggestions for the creation of some type of national privacy board have been made both in and out of Congress.
At a re-enactment of the First Continental Congress in Philadelphia, Pennsylvania, Gov. Milton Shapp proposed on Sept. 5, 1974, a constitutional amendment “to guarantee forever that the people have the right to personal privacy and freedom from undue government interference.” The Younger Committee in Britain rejected the creation of a general right to privacy because it considered such a broad guarantee unrealistic, unworkable and a possible impediment to the free flow of information. Stanley J. Aronoff believes that protection against unfair information practices should come from legislation and administrative regulation rather than an amendment.
The Hew Advisory Committee recommended that Congress establish, among other things, a code of fair information practices for all automated personal data systems. The committee also called for regulations or administrative guidelines regarding disclosure of information or expansion of the data systems. Such suggestions fall short of what some privacy advocates demand and lack the dramatic appeal of a general edict. Nevertheless, they could prove to be more practical than an all-embracing right to privacy. Protecting privacy by offering specific remedies for specific infringements might offer individuals much more protection against abuses of future technological developments in data gathering and surveillance.
Miller, Arthur R., The Assault on Privacy: Computers, Data Banks and Dossiers, The University of Michigan Press, 1971.
National Academy of Sciences, Databanks in a Free Society: Computers, Record-Keeping and Privacy, Quadrangle Books, 1972.
Packard, Vance, The Naked Society, David McKay, 1964.
Westin, Alan F., Privacy and Freedom, Atheneum, 1970.
Aronoff, Stanley J., “1984—Only 11 Years Away,” State Government, spring 1973.
Bender, Paul, “Privacies of Life,” Harper's, April 1974.
Cagle, Carrol W., “Eyes on the Spies,” Civil Liberties, May 1974.
DcWeese, J. Taylor, “Giving the Computer a Conscience,” Harper's, November 1973.
Donner, Frank J., “Hoover's Legacy,” The Nation. June 1, 1974.
Ervin, Sam J., “Invasion of Privacy—How Big a Threat,” U.S. News & World Report, March 6, 1972.
Frye, Gaillard, “Polygraphs and Privacy,” The Progressive, September 1974.
“Privacy in a Free Society,” Trial Magazine, July-August 1974.
Pyle, Christopher H., “CONUS Intelligence: The Army Watches Civilian Politics,” The Washington Monthly, January 1970.
Rieser, Leonard M., “The Role of Science in the Orwellian Decade,” Science, April 26, 1974.
Smith, Donald L., “Privacy: The Right That Failed,” Columbia Journalism Review, spring 1969.
Unesco Chronicle, July 1973.
Reports and Studies
American Civil Liberties Union, selected papers.
Domestic Council Committee on the Right to Privacy, selected papers.
Editorial Research Reports, “Census Taking,” 1970 Vol. I, pp. 205–218; “Eavesdropping Controls,” 1956 Vol. I, pp. 63–80; “Ethics in Government,” 1973 Vol. I, pp. 375–396; “Intelligence Community,” 1973 Vol. II, pp. 559–580; “Police Innovation,” 1974 Vol. I, pp. 285–301; “Protection of Privacy,” 1966 Vol. I, pp. 283–299; “Wiretapping in Law Enforcement,” 1961 Vol. II, pp. 817–834.
House Republican Research Committee, “Task Force on Privacy Report,” Aug. 21, 1974.
League of Women Voters, “The Right to Privacy,” 1972.
Report of the [HEW] Secretary's Advisory Committee on Automated Personal Data Systems, “Records, Computers and the Rights of Citizens,” July 1973.
Subcommittee on Constitutional Rights of the Senate Judiciary Committee, “Federal Data Banks and Constitutional Rights,” Vols. I, II, III, 1974.
In his classic study Privacy and Freedom (1970), Alan F. Westin grouped the infringements of privacy under three basic headings. “The first is physical surveillance, the observation through optical or acoustical devices of a person's location, acts, speech or private writing without his knowledge or against his will….”
“Second is psychological surveillance, the use of oral or written tests, devices or substances to extract from an individual information that he does not give willingly, or does not know that he is revealing.…Last is data surveillance, the collection, exchange and manipulation of documentary information…by data-processing machines.”
According to public-opinion polling conducted by Roper Reports, here is what proportion of Americans would not object to having the following data about them released:
| ||To govt. agency for filling sensitive job ||Private company ||Local police ||Credit card company|
|Employment records ||74% ||64% ||27% ||44%|
|Psychiatric history ||66 ||38 ||34 ||10|
|Health records ||64 ||50 ||25 ||13|
|Memberships, associations ||53 ||20 ||22 ||7|
|Traffic violations ||43 ||19 ||50 || 8|
|Tax returns ||39 ||13 ||15 ||10|
|Sexual history ||31 ||12 ||20 ||5|
| ource: The Privancy Report, April 1974|
Aldermann v. U.S. (March 1969). The Court ruled that the evidence from warrantless national security taps could not properly be used in court. This was a major element in the dismissal of government charges against Daniel Ellsberg for releasing the Pentagon Papers.
U.S. v. U.S. District Court, Eastern Michigan (June 1972). The Court rejected the government's claim that it had the constitutional authority to approve warrantless surveillance of suspected domestic subversives.
U.S. v. Giordano (May 1974). The Court held that the indictment of a Baltimore narcotics dealer was invalid because Attorney General John N. Mitchell had failed to personally approve or designate an Assistant Attorney General to approve the wiretap in accordance with the 1968 law.
(The Court declined Oct. 15, 1974, to review an appeals court ruling that foreign intelligence obtained through warrentless wiretaps was admissible in court if obtained in a “reasonable” way.)
In the celebrated invasion-of privacy suit against Life magazine, the Supreme Court in a 5–4 decision in 1967 overturned a $30,000 lower court judgment against Life. The case involved the magazine's review of the play The Desperate Hours in 1955. The play was based on a novel which closely paralleled a real incident in which Mr. and Mrs. James J. Hill and their children were held hostage by three convicts.
The Hills charged that the magazine, in showing photographs of actors in their home, had violated the family's privacy by giving the impression that the play represented an actual account of the incident. The Court ruled that the Hills could not collect damages for invasion of privacy for erroneous reporting unless there was proof that the errors were deliberately and recklessly published.
Document APA Citation — See Alternate Citation Style
Hamer, J. (1974). Rights to privacy. Editorial research reports 1974 (Vol. II). Washington, DC: CQ Press. Retrieved from http://library.cqpress.com/cqresearcher/cqresrre1974101800
Document ID: cqresrre1974101800
Document URL: http://library.cqpress.com/cqresearcher/cqresrre1974101800