1972] First Amendment: The Computer Age 19 So far the survey results show a very wide-ranging use of such technology to process and store the information and to exchange it with other federal agencies, with state and local governments and, sometimes, with private agencies. Most of this is done in connection with administration of Government's service programs. However, a number of these data banks and information programs may partake of the nature of largescale blacklists. This is so because they may encompass masses of irrelevant, outdated or even incorrect investigative information based on personalities, behavior and beliefs. Unwisely applied or loosely supervised, they can operate to deprive a person of some basic right. 18 For instance, a Federal Communications Commission response' shows that the FCC uses computers to aid it in keeping track of political broadcast time, in monitoring and assigning spectrums, and in helping it make prompt checks on people who apply for licenses. The Commission reported that it also maintains a Check List, which now has about 10,900 names. This Check List, in the form of a computer print-out, is circulated to the various Bureaus within the Commission. It contains the names and addresses of organizations and individuals whose qualifications are believed to require close examination in the event they apply for a license. A name may be put on the list by Commission personnel for a variety of reasons, such as a refusal to pay an outstanding forfeiture, unlicensed operation, license Froehlke, 1971 Hearings, at 379; noting the Commission's finding that the "absence of accurate information, both before and during disorder, has created special control problems for police," and the recommendation that "Federal-State planning should ensure that Federal troops are prepared to provide aid to cities. . . ." The Department also cited a report filed by Cyrus Vance following the Detroit 1967 disturbances. 1971 Hearings, at 378. For law enforcement reliance on the Kerner Commission and similar commissions, see e.g., testimony of Richard Velde for the Law Enforcement Assistance Administration. 1971, Hearings at 608: Several States are also developing with LEAA funds information systems related For reliance on Warren Commission finding of information gaps, see response to Subcommittee questionnaries by the Secret Service, Nov. 21, 1969, reprinted at 115 CONG. REC. 39,114 (1969), and by the State Department Jan. 4 and Mar. 10, 1970; both responses in Subcommittee file. 18. Response to questionnaire, in Subcommittee files, Mar. 25, 1971. 20 20 Columbia Human Rights Law Review [Vol. 4 suspension, the issuance of a bad check to the Commission or stopping payment on a fee check after failing a Commission examination. In addition, this list incorporates the names and addresses of individuals and organizations appearing in several lists prepared by the Department of Justice, other Government agencies, and Congressional committees. For example, the list contains information from the "FBI Withhold List," which contains the names of individuals or organizations which are allegedly subversive, and from the Department of Justice's "Organized Crime and Racketeering List," which contains the names of individuals who are or have been subjects of investigation in connection with activities identified with organized crime. Also included in the list are names obtained from other Government sources, such as the Internal Revenue Service, the Central Intelligence Agency, and the House Committee on Internal Security. According to the Commission, the use of the data arose in 1964 because during the course of Senate Hearings chaired by Senator McClellan, it was discovered that a reputed racketeering boss in New Orleans, Louisiana, held a Commission license. In order that such licensing not take place in the future, the Commission established liaison with the responsible divisions within the Department of Justice to be kept current on persons who might have such affiliations. The Civil Service Commission maintains a "security file" in electrically powered rotary cabinets containing 2,120,000 index cards.19 According to the Commission, these bear lead information relating to possible questions of suitability involving loyalty and subversive activity. The lead information contained in these files has been developed from published hearings of Congressional committees, State legislative committees, public investigative bodies, reports of investigation, publications of subversive organizations, and various other newspapers and periodicals. This file is not new, but has been growing since World War II. The Commission chairman reported: Investigative and intelligence officials of the various depart- 19. Id. Aug. 18, 1970. 1972] First Amendment: The Computer Age 16 21 In another "security investigations index" the Commission maintains 10,250,000 index cards filed alphabetically covering personnel investigations made by the Civil Service Commission and other agencies since 1939. Records in this index relate to incumbents of Federal positions, former employees, and applicants on whom investigations were made or are in process of being made. Then, the Commission keeps an "investigative file" of approximately 625,000 file folders containing reports of investigation on cases investigated by the Commission. In addition, about 2,100,000 earlier investigative files are maintained at the Washington National Records Center in security storage. These are kept to avoid duplication of investigations or for updating previous investigations. The Housing and Urban Development Department is considering automation of a departmental system which would integrate records now included in FHA's Sponsor Identification File, Department of Justice's Organized Crime and Rackets File, and HUD's Adverse Information File.20 A data bank consisting of approximately 325,000 3x5 index cards has been prepared covering any individual or firm which was the subject of, or mentioned prominently in, any investigations dating from 1954 to the present. This includes all FBI investigations of housing matters as well. In the area of law enforcement, the Bureau of Customs has installed a central automated data processing intelligence network which is a comprehensive data bank of suspect information available on a 24-hour-a-day basis to Customs terminals throughout the coun try. 21 According to the Secretary of the Treasury: These records include current information from our in- There is the "Lookout File" of the Passport Office and the Bureau of Security and Consular Affairs.22 This computerized file illustrates the "good neighbor" policy agencies observe by exchanging information in order to keep individuals under surveillance for intelligence and law enforcement purposes. Maintained apart from the 20. Id. June 22, 1970. 21. Id. May 28, 1970. 22. Id. Jan. 4, 1970. 22 Columbia Human Rights Law Review [Vol. 4 twenty million other passport files, its basic purpose is to assist in screening passport applicants to make certain they are citizens of the United States and that they are eligible to receive passports. Requests for entry into this system are received from component agencies of the Department, from other government agencies, or in the limited category of child custody, from an interested parent or guardian. The Department assured the Subcommittee that data recorded in this "Lookout File" is not disseminated. Rather, it serves as a "flag" which, if a "hit" or suspect is recorded, is furnished to the original source of the lookout and consists of the name of the individual and the fact that he has applied for a passport. The individual is not told that he is in the file until the information is used adversely against him. Then, according to the report, "he is fully informed and given an opportunity to explain or rebut the information on which the adverse action is based." Among some of the reasons listed for people being in the Lookout File are the following: If the individual's actions do not reflect to the credit of If he is wanted by a law enforcement agency in connection If a court order restricting travel is outstanding or the in- If he is a known or suspected Communist or subversive; The Defense Industrial Security Clearance Office is preparing to computerize its card files on over one and a half million private citizens who are employees of businesses doing classified contract work for the Federal Government.23 The Federal Deposit Insurance Corporation maintains information on people now associated with banks insured by the FDIC or who have been associated with such banks in the past.24 It keeps a file on the names of individuals gained from newspapers and other public sources if they are characterized as having an unsatisfactory relationship with any insured bank or any closed insured bank. This also includes information supplied to the Corporation by other inves 23. Id. Aug. 1970. See also 1971 Hearings,at 375, Froehlke testimony on this and other Defense Department records systems. 24. Response to questionnaire, Feb. 22, 1972. See also 12 U.S.C. § 1811 et seq. (1964), Amendments to Federal Deposit Insurance Act, requiring bank recording and reporting to Internal Revenue Service transanctions, S. REP. 91-1139 and H.R. REP. 91-975. 1972] First Amendment: The Computer Age 23 tigative or regulatory agencies on persons connected with an insured bank. The Army maintains the U.S. Army Investigative Records Repository (USAIRR) which contains about 7,000,000 files relating principally to security and criminal investigations of former and present members of the Army, civilian employees and employees of private contractors doing business with the Army. The other services maintain similar investigative files.2 25 There is a Defense Central Index of Investigation operated by the Army for the entire Defense Department. The Index is designed to locate any security or criminal investigative file for any Defense agency and will be computerized shortly. It contains identifying data such as name, date of birth and social security number on people who have ever been the subject of investigations.2 There are all the data banks and computers in the Department of Justice27 for intelligence, for civil disturbance prevention; for "bad checks passers;" for organized crime surveillance; and for federal-state law enforcement cooperation through the computerized National Crime Information Center. On the basis of our investigation of complaints reviewed by Congress, 28 I am convinced that people throughout the country are more fearful than ever before about those applications of computer technology and scientific information processing which may adversely affect their constitutional rights. Furthermore, my study of the Constitution convinces me that their fears are well founded. First, they are concerned that through a computer error they may be denied basic fairness and due process of law with respect to benefits and privileges for which they have applied. Secondly, they are concerned about illegal access and violation of confidentiality of personal information which is obtained about them by government or industry. 25. See note 23 supra. 26. Response to Subcommittee questionnaire, Aug. 1970. Also described in Froehlke testimony, note 23, supra and in Army Undersecretary Beal letter of Mar. 20, 1970, reprinted in 1971 Hearings, Part II at 1051, and at 116 CONG. REC. 26327-51 (1970). 27. For descriptions and citations to supporting statutes and regulations, see response to Subcommittee questionnaires, 1971 Hearings, Part II at 1312-68. See also discussion in testimony of Justice Department officials. Id. Part I at 597, 849. 28. For descriptions and summaries of some of these complaints and concerns, Remarks of Senator Ervin, 116 CONG. REC. 30,797, 41,751, 43,944 and 117 CONG. REC. S. 985 (daily ed. Feb. 8, 1971). In particular, note opening statements by Subcommittee Chairman each day of 1971 Hearings outlining issues of concern for the day. Of interest here is a Dec., 1971 report, A National Survey of the Public's Attitudes Toward Computers, sponsored by the American Federation of Information Processing Societies and TIME MAGAZINE noting that: |