1972] First Amendment: The Computer Age 29 29 There is more about these and other disclosures in the hearing record but I believe the Mayor's testimony34 illustrates many of the dangers to privacy in this age of large investigative networks and instant computerized dossiers. It also illustrates the lack of sufficient criminal, civil, or administrative sanctions against unwarranted sharing and disclosure of such confidential information. To my knowledge, no punitive action was taken except for a disciplinary personnel action filed against an agent of the Federal Bureau of Investigation, who was then allowed to retire. The weakness of any applicable regulations is demonstrated by the report of the Bureau of Narcotics and Dangerous Drugs that its current disclosure order "would not cover the release of collateral intelligence information, information contained in dead files, or information on nondefendants, such as that disclosed in the Alioto testimony." The Bureau further stated that under the provisions of its new Agents Manual it is only a "breach of integrity" to make unauthorized disclosure of files which are restricted to official use.35 Misuse of Military Intelligence Records Another case36 illustrates how the Army's investigative intelligence services and files were put to private use to obtain the dismissal 34. See 1971 Hearings at 493-530, Testimony of Joseph Alioto, Mayor of San Francisco, and exhibits submitted. For response of Justice Department officials, see testimony of William Rehnquist, id. at 604, 878-88, and a series of memoranda from the Federal Bureau of Investigation, the Bureau of Narcotics and Dangerous Drugs, which memoranda were submitted by Assistant Attorney General Rehnquist with the caveat that: Under the traditional notions of separation of powers, it seems to me probable 35. 1971 Hearings, Part II at 1375. In his memorandum of Mar. 5, 1971, the Director of the Bureau of Narcotics and Dangerous Drugs noted "... it is possible that the documents or information in these four exhibits could have been passed to the LOOK reporters by a BNDD employee.” He cites BNDD Order 0-98, May 27, 1970 as the Bureau's current public information policy and as essentially a restatement of 28 C.F.R. Pt. 50, § 50.2, which covers the dissemination of most types of information for the Department. However, he states that the strongest applicable regulations in this matter are found in 28 C.F.R. Pt. 45, § Obviously, the disclosure of documents stamped "For official use only" 36. For statement submitted by a Special Agent of Military Intelligence and related correspondence, see 1971 Hearings, Part II at 1451-1457. 30 30 Columbia Human Rights Law Review [Vol. 4 of an employee of a private business. In this instance an Army intelligence agent whose routine duties involved security investigations and surveillance for the Army's civil disturbance prevention program described to the Subcommittee how he was ordered by his superiors to conduct an investigation of the bank loan records, police and court records of the private citizen and was told to give the resulting information to the employee's supervisor. He later learned that the investigation had been ordered by an intelligence officer as a personal favor for an official of the company. When the agent reported this to his superiors, he was told in a classified letter that the matter involved "national security." A year later, following his separation from the service, the agent reported the incident to the Inspector General of the Assistant Chief of Staff for the Pentagon, who began an investigation. All of his allegations were confirmed and firm disciplinary actions were taken against the guilty officers. It was too late, however, for the subject of the Army investigative report, who had already been dismissed. These cases illustrate the concerns over political administrative and technical problems of access, confidentiality and purging of erroneous or outdated records in computer systems. But these are issues which have long concerned legislatures, bar associations and others. The major reason for public apprehension about computer technology and information sciences is the use of them to acquire, process, analyze and store information about activities and matters which are protected by the First Amendment. What people writing to Congress fear most is the uses to which this technology may be put by men of little understanding but great zeal. They know that, applied to unlawful or unwise programs, computers merely absorb the follies and foibles of misguided politicallyminded administrators. In Federal Government, the new technology, combined with extended Federal-state services and their spin-off information systems, have produced vast numbers of investigators, analysts, and programmers devoted to the study of people and society. With the zeal of dedicated civil servants, they are devoted to the building of data bases on the habits, attitudes and beliefs of law-abiding citizens. Much of what they gather is trivial; much of it goes far beyond the needs of government. Some of it is shared extensively and often unnecessarily by agencies who are components of these large information systems. People seeking government jobs in some agencies are told to reply to personality tests asking: I believe there is a God. 1972] First Amendment: The Computer Age I believe in the second coming of Christ. I believe in a life hereafter. I am very religious (more than most people). I go to church almost every week. I am very strongly attracted by members of my own sex. I love my father. My sex life is satisfactory. Once in a while I feel hate towards members of my family whom I usually love. I wish I were not bothered by thoughts about sex. 31 When the Subcommittee held hearings on these practices, government officials explained that there was no right or wrong answer to the questions, that the responses were coded and analyzed by the computer.37 I asked whether they did not think such inquiries violated the privacy of the individual's thoughts about matters that were none of the business of government. The reply was that there was no Supreme Court decision holding that people who apply for federal employment have a constitutional right to privacy. There was a Civil Service program telling employees to fill out computer punch cards stating their racial, ethnic or national origin along with their social security number.38 In the land renowned for being the "melting pot" of the world, over 3 million individuals had to analyze their backgrounds and reduce them to one of four squares on an IBM card. If they protested that these matters were none of the business of government, they were blacklisted in their offices and harrassed with computer-produced orders to return the completed 37. See generally Hearings on Psychological Tests and Constitutional Rights Before the Subcomm. on Constitutional Rights of the State Comm. on the Judiciary, 89th Cong., 1st Sess. (1965) and Hearings on S. 3779 on Privacy and the Rights of Government Employees, 89th Cong., 2d Sess. (1966). 38. See 1966 Hearings, supra note 37. In connection with a proposal introduced to protect the constitutional rights of employees of the executive branch and to prevent unwarranted governmental invasion of their privacy, see Senate remarks of Senator Ervin including discussion of need for law prohibiting requirements to reveal information on race, religion, national origin, personal family relationships, sexual attitudes and conduct and religious beliefs and practices in 112 CONG. REC. 16081, 18634 (1966), 113 CONG. REC. 4039, 10663, 27994 (1967), 114 CONG. REC. 11235, 17161, 19613 (1968), 115 CONG. REC. 2343, 117 CONG. REC. (daily ed. Apr. 1 and May 11, 1971). By such legislation, government may be prevented from intruding into protected First Amendment areas on subjects which should have nothing to do with the operation of a civil service merit system. By exclusion of such sensitive, subjective information from the computer systems, initially, government will be precluded from basing individual or general social judgments on outdated standards, changing mores, variants in ethnic, cultural or geographical backgrounds, or previous conditions of the individual's mind, heart, and personality. It will necessarily be confined to a consideration of current information relevant and pertinent to the problem at hand. 32 Columbia Human Rights Law Review [Vol. 4 questionnaire. The resemblances between this program and those of totalitarian governments in our recent history were all too obvious. The Census Bureau makes more use of computer technology for personal inquiries than anyone.39 It conducts surveys for its own uses backed by the criminal and civil sanctions. One of these, the decennial census, asked people such questions as: Marital Status: Now married, divorced, widowed, (If a woman) How many babies have you ever had, Do you have a flush toilet? Have you been married more than once? Did your first marriage end because of death of wife or husband? What was your major activity 5 years ago? What is your rent? What is your monthly electric bill? Did you work at any time last week? Do you have a dishwasher? Built-in or portable? private auto; passenger, private auto; subway; How many bedrooms do you have? Do you have a health condition or disability which How long have you had this condition or disability? Under even heavier sanctions, the Census Bureau puts questionnaires to farmers, lawyers, owners of businesses, and others, selected at random, about the way they handle their business and finances." 40 39. See generally Hearings on S.1791 and Privacy, the Census and Federal Questionnaires Before the Subcomm, on Constitutional Rights of the Senate Judiciary Committee, 91st Cong., 1st Sess. (1969) and hundreds of letters and complaints about coercive statistical questionnaires. Appendix also contains judicial, legal and constitutional research materials as well as examples of many social and economic questionnaires. See also Pipe and Russell, Privacy: Establishing Restrictions on Government Inquiry, 18 AMER. UNIV. L. REV. 516 (1969). For a summary of the hearings, see Senate remarks of Senator Ervin, 115 CONG. REC. 17718 (1969). For possible political uses of such information acquired as economic and social indicators, see Report by House Government Operations Committee, Subcommittee on Government Information, on Department of Labor briefings on economic statistics; and 23 WESTERN POL. Q. 235 (1970). See also the finding and recommendations on privacy and confidentiality of the PRESIDENT'S COMMISSION ON FEDERAL STATISTICS (1971). 40. See 1969 Hearings, supra note 39,. testimony on behalf of the National Federation of Independent Business at 199, of attorney and farm owner William Van Tillburg at 74, W. Schliestett, businessman at 66, J. Cannon, attorney at 7,263. 1972] First Amendment: The Computer Age 33 The Census Bureau also makes surveys for many other departments and agencies." 41 For example, they put out statistical questionnaires which the Department of Health, Education and Welfare wanted to send to retired people asking: - How often they call their parents; What they spend on presents for grandchildren; How many newspapers and magazines they buy a month; -"Taking things all together, would you say you're very And many other questions about things on which govern- These people are not told that their answers are voluntary, but are harrassed to reply and are given the impression they will be penalized if they do not answer. 42 There are many other examples of inquiring social and economic data that are backed by the psychological, economic, or penal sanction of government. Clearly, Government has great need for all kinds of information about people in order to govern efficiently and administer the laws well; similarly, Congress must have large amounts of meaningful information in order to legislate wisely. However, I believe these examples of governmental data collection illustrate my contention that the First Amendment wraps up the principle of free speech, which includes the right to speak one's thoughts and opinions as well as the right to be free of governmental coercion to speak them. There are other examples of government programs which, wellmeaning in purpose, are fraught with danger for the very freedoms which were designed to make the minds and spirits of all Americans 41. Id. at 830. Table of Census surveys of population and households, conducted for other government agencies, with indication of penalties and compliance techniques. In many of these, the data is kept on tape or film by both the Census Bureau and the sponsoring agency, and the confidentiality rules of the sponsoring agency apply. 42. Id. at 251. Assistant Secretary of Commerce Chartener: Assistant Secretary of Commerce Chartener: The wording deliberately has been Senator Ervin: Do you not agree with me that such a procedure is designed to 37-583 74 pt. 23 |