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These are actions which for any one individual or for entire groups may lead to a loss of the ability to exercise that "pursuit of happiness" which the Declaration of Independence declares is one of the unalienable rights of man.

These are actions which, by producing erroneous reports, may limit or deny a person's economic prospects and thereby impair that liberty which under the 5th and 14th amendments government may not impair without due process of law.

Arrest Records

This possibility is illustrated by a letter29 I received from a man who describes the effect on his life of an incident which occurred when he was fifteen years of age. In connection with a locker theft, he was taken to the police station, finger-printed, questioned, and then he left, cleared of charges. He was not involved in any incident subsequently except a few minor traffic violations. He served 11 years in the armed services and held the highest security clearances. After gaining employment with a city government, he discovered that the youthful incident was, 15 years later, part of an FBI file and distributed to employers on request. He was asked to explain the incident for personnel records and to state why he withheld the information. Although he was unaware of the record, he believes the failure to list the incident was a factor in not gaining employment in several instances, and he was told he would have to institute court action to have the record expunged.

The problem he and millions of others face with respect to their records is illustrated by a regulation issued by the Attorney General last year restating the goal of the Federal Bureau of Investigation "to conduct the acquisition, collection, exchange, classification, and preservation of identification records on a mutually beneficial

...

There is major concern about the use of large computerized information files.
Thirty-eight percent of those surveyed believe computers represent a real threat to
people's privacy as opposed to fifty-four percent who disagreed. Sixty-two per-
cent are concerned that some large organizations keep information about millions
of people. In addition, fifty-three percent believe computerized information files
might be used to destroy individual freedoms; fifty-eight percent feel computers
will be used in the future to keep people under surveillance; and forty-two
percent believe there is no way to find out if information about you stored in a
computer is accurate. In general, the public believes government should make
increased usage of computers in a number of areas, that such usage will make
government more effective, and that there will, and should be, increasing govern-
mental involvement in the way computers are used.

29. Letter, identity withheld, in Subcommittee files with comment by the Director of the Federal Bureau of Investigation.

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First Amendment: The Computer Age

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basis." 30 Among the agencies listed as eligible to receive and supply information were railroad police, banking institutions and insurance companies.

In Washington, D.C., a young man who was an innocent bystander during a campus demonstration was arrested by police and then released. Knowing that the FBI could distribute such records to employers, he hired a lawyer and spent large sums of money in a suit to have his arrest record expunged. The lower court denied his request, but the Court of Appeals ruled that, in the District of Columbia at least, arrest records should be expunged for innocent bystanders caught up in mass police arrests.31

In another case, a young man was arrested on probable cause and fingerprinted in California. When the police could not connect him with the case, he was released. He sought to have his arrest record expunged, or alternatively, to have strict limitations placed on its dissemination to prospective employers and others by the Federal Bureau of Investigation. While the U.S. District Court denied his request for expungement, it did say that his arrest record may not be revealed to prospective employers except in the case of any Federal agency when he seeks employment with that agency. However, it could be distributed for law enforcement purposes. Congress later restored this power to the FBI temporarily in an annual appropriation bill.

Judge Gesell's comments in this case of Menard v. Mitchell3 2 are significant for the issue of arrest records, but also for the Army's computer surveillance program and for many other government in

30. 28 C.F.R. § 0.85 (b); codifying rulings by the Attorney General pursuant to 28 U.S.C. §534 which provides:

(a) The Attorney General shall

(b)

(c)

(1)

acquire, collect, classify, and preserve identification, crime and
other records; and

exchange these records with, and for the official use of, authorized
officials of the Federal Government, the States cities, and penal and
other institutions.

The exchange of records authorized by subsection (a) (2) of this section
is subject to cancellation if dissemination is made outside the receiving
departments or related agencies.

The Attorney General may appoint officials to perform the functions auth-
orized by this section.

31. Morrow v. District of Columbia, 417 F.2d 728 (D.C. Cir. 1969). For a summary of case law on this subject, see Longton, Maintenance and Dissemination of Records of Arrest Versus the Right to Privacy, 17 WAYNE L. REV. 995 (1971).

32. Menard v. Mitchell, 430 F.2d 486 (D.C. Cir. 1970), decision upon remand, 328 F. Supp. 718 (D.D.C. 1971). The Court construed 28 U.S.C. § 534 narrowly to avoid the constitutional issues raised by Menard and found that:

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[Vol. 4 telligence systems now being designed. He stated that while "conduct against the state may properly subject an individual to limitations upon his future freedom within tolerant limits, accusations not proven, charges made without supporting evidence when tested by the judicial process, ancient or juvenile transgressions long since expiated by responsible conduct, should not be indiscriminately broadcast under governmental auspices." He also said:

The increasing complexity of our society and technological
advances which facilitate massive accumulation and ready
regurgitation of farflung data have presented more problems
in this area, certainly problems not contemplated by the
framers of the Constitution. These developments emphasize
a pressing need to preserve and to redefine aspects of the
right of privacy to insure the basic freedoms guaranteed by
this democracy.

A heavy burden is placed on all branches of Government to
maintain a proper equilibrium between the acquisition of
information and the necessity to safeguard privacy. System-
atic recordation and dissemination of information about in-
dividual citizens in a form of surveillance and control which
may easily inhibit freedom to speak, to work, and to move
about in this land. If information available to Government
is misused to publicize past incidents in the lives of its
citizens the pressures for conformity will be irresistible.
Initiative and individuality can be suffocated and a resulting
dullness of mind and conduct will become the norm. We

It is abundantly clear that Congress never intended to, or in fact did, authorize
dissemination of arrest records to any state or local agency for purposes of
employment or licensing checks.

It found certain faults with the present system: (1) State and local agencies receive criminal record data for employment purposes whenever authorized by local enactment, and these vary state by state and locality by locality. (2) The Bureau cannot prevent improper dissemination and use of the material it supplies to hundreds of local agencies. There are no criminal or civil sanctions. Control of the data will be made more difficult and opportunities for improper use will increase with the development of centralized state information centers to be linked by computer to the Bureau. (3) The arrest record material is incomplete and hence often inaccurate, yet no procedure exists to enable individuals to obtain, correct or supplant the criminal record information used against them, nor indeed is there any assurance that the individual even knows his employment application is affected by an FBI fingerprint check.

The Court invited Congressional action, noting that:

with the increasing availability of fingerprints, technological developments, and
the enormous increase in population, the system is out of effective control. The
Bureau needs legislative guidance and there must be a national policy developed in
this area which will have built into it adequate sanctions and administrative safe-
guards.

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First Amendment: The Computer Age

are far from having reached this condition today, but surely
history teaches that inroads are most likely to occur during
unsettled times like these where fear or the passions of the
moment can lead to excesses.

27

There are many similar cases pending throughout the states. Present laws are not sufficient to assure that an individual will be judged on his merit and not by inaccurate arrest records distributed by a national law enforcement computer.

33

Law Enforcement Intelligence Records

Such threats to privacy and liberty arise with special force in the area of intelligence records. The Subcommittee study reveals two serious problems which have acquired national urgency through the introduction of computer technology. First, the problem of safeguarding intelligence information from improper release by government it

33. Congressional response to the District Court's invitation has taken several forms, among them, a bill, S. 2545, introduced, but not acted on, to authorize the Attorney General to exchange criminal record information with certain state and local agencies. Remarks by Senator Bible, S. 14558, 117 CONG. REC., (daily ed. Sept. 20, 1971); and an amendment to the Department of Justice Appropriation Act of 1972 temporarily restoring the power over arrest records limited by the Menard decision. 117 CONG. REC. S.20461 (daily ed. Dec. 3, 1971). House Judiciary Subcommittee No. 4 on Mar. 16 began hearings on H.R. 13315, a bill introduced by Rep. Edwards, "to provide for the dissemination and use of criminal arrest records in a manner that insures security and privacy."

A related, but more comprehensive bill, S.2546, was introduced by Senator Hruska on Sept. 20, 1971, 117 CONG. REC. (daily ed.) to insure the security and privacy of criminal justice information systems. This is termed the Attorney General's response to an amendment to the Omnibus Crime Control Act of 1970, 18 U.S.C. § § 351, 1752, 2516, 3731 (1964), requiring the Law Enforcement Assistance Administration to submit legislative recommendations to promote the integrity and accuracy of criminal justice data collection. LEAA demonstrated a prototype computerized system for exchange of criminal history information with the states, a project known as SEARCH - System for Electronic Analysis and Retrieval of Criminal Histories. In Dec. 1970, Project SEARCH was turned over to the FBI for the development of an operation system to be part of the National Crime Information System. The bill deals with criminal offender record information as well as criminal intelligence information.

A discussion of the philosophical, constitutional and legal issues and problems related to such a computerized system is found, with bibliographies, in Security and Privacy Consideration in Criminal History Information Systems, Technical Rept. No. 2, July, 1970, by Project SEARCH, California Crime Technological Research Foundation, funded by the Law Enforcement Assistance Administration, Department of Justice. Also pertinent is the testimony of LEAA officials on the use of information and intelligence systems by criminal justice agencies. 1971 Hearings, on the National Crime Information Center. Id. at 914.

For a model state act proposed for criminal offender record information, See generally Technical Memorandum No. 3, May, 1971 by Project SEARCH.

As we have a highly mobile population, so we have a highly mobile criminal population, which requires that governments be able to share rapidly the information in their data banks in the interest of law enforcement. The problem is determining what agencies and what officials should control what information.

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self, and secondly, the problem of confining its collection to appropriate areas and subjects.

Government has, and should have, power to collect information, raw, unverified intelligence information, in fields in which government has a lawful, legitimate interest. But this great power imposes a solemn responsibility to see that no one is given access to that information, except the Government itself for some legitimate purpose. There could never, for instance, be justification for Government to disclose intelligence gathered about citizens pursuant to its powers, to other citizens for their own personal or financial aggrandizement. Nor should Government through disclosure of confidential documents aid and abet the writing of sensational articles in private journals operated for commercial profit.

Nevertheless, the Subcommittee received testimony and evidence about two cases which illustrate the misuse of confidential intelligence information for such purposes.

One involved a man in political life, the mayor of San Francisco, who was the subject of an article in Look Magazine purporting to establish that he associated with persons involved in organized crime. When the Mayor sued the magazine for libel, he undertook through subpoena power to learn the basis for such charges and where and how the authors obtained their information. He learned that they had received confidential information and documents from intelligence data banks. The information came from files and computer printouts of a number of major Federal, state and local government law enforcement agencies. They involved the U.S. Attorney General's Office, the Federal Bureau of Investigation, Internal Revenue Service, Federal Bureau of Narcotics, the Customs Bureau, the Immigration and Naturalization Service, the California Criminal Identification and Investigation Bureau, the California State Department of Justice, and the Intelligence Unit of the Los Angeles Police Department. By their own testimony for the case, the authors of the article admitted that they examined, obtained or borrowed originals or copies of such law enforcement records containing much raw unevaluated intelligence information on numerous people including the names of three U.S. Presidents, the state Governor, a number of Senators, and many private law-abiding citizens, not accused of any crime. These documents were obtainable despite the fact that many of them were stamped "Confidential" or

Property of U.S. Government For official use only. May
not be disseminated or contents disclosed without permis-
sion ...