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unwarranted demands for information about such matters as their race, national origin, religious beliefs and practices, sexual attitudes and conduct, and personal family relationships.61 Another necessary protection would be a prohibition on distribution of arrest records to private companies and severe restrictions on their availability within government.62

Seventh, is the need for America to take a stand on whether or not every person is to be numbered from cradle to grave, and if so whether or not that number is to be the social security number. Until now, the idea of a universal standard identifier has been merely discussed in philosophical terms, but the need to reduce people to digits for the computer age has prompted wide government use of the number for identifying individuals in government files. Private industries, businesses and organizations have followed suit to the dismay of many people who have registered strong complaints against this practice with the Subcommittee. They were supported by the findings of a Social Security Task Force which reported in 1971 that:

The increasing universality of the Social Security Number
in computer data collection and exchange presents both
substantial benefits and potential dangers to society; and
that in order to maximize the benefits and minimize the
dangers, there needs to be developed a national policy on
computer data exchange and personal identification in
America, including a consideration of what safeguards are
needed to protect individuals' rights of privacy and due
process.

63

In outlining the areas in which state legislatures and the Congress must make important judgments, this Task Force stated:

Defining the proper role of the Social Security Number in
society requires that broad social judgments be made first
about the desirability of large-scale computer recordkeeping
in various settings; second, about the kinds of data neces-
sary and appropriate to record about individuals within a
given setting; third, about the safeguards needed to insure
that the computer is being used within a given setting in
ways that protect fundamental human rights; and fourth,

61. See S. Rep. 92-554 for legislative history (Now pending before the House Post Office and Civil Service Committee with House versions).

62. 1971 Hearings at 782 (complaints read into the hearing record by the Chairman). 63. SOCIAL SECURITY NUMBER TASK FORCE REPORT to the Commissioner 17 (May, 1971).

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First Amendment: The Computer Age

about the desirability of any kind of universal identification
system in terms of its psychological impact on the indivi-
dual citizen."

Summary

64

45

From the Subcommittee study of privacy and government data banks one conclusion is undeniable. This is that the extensive use of computerized systems to classify and analyze men's thoughts, speech, attitudes, and lawful First Amendment behavior raises serious questions of denial of substantive due process to our entire society. To try to condense the truth about what men believe and why they believe is a futile exercise which can lead to that tyranny over the mind against which Thomas Jefferson swore eternal hostility. Without grave dangers to our constitutional system, we cannot permit government to reduce the realities of our political life and the healthy traffic in our marketplace of ideas to marks on magnetic tapes and data on a microfilm.

Professor Robert Boguslaw65 eloquently described the dangers posed by this "technology-screened power" when he wrote that "the specification of future and current system states within this orientation characteristically requires an insistence upon a uniformity of

64. Id. at 15.

It is clear that if the SSN became the single number around which all or most of
an individual's interactions with society were structured, and if practices of the
sort we have been discussing were to continue, the individual's opportunity to
control the circumstances under which information about himself is collected and
disclosed would be greatly circumscribed.

65. See BOGUSLAW, THE NEW UTOPIANS (1965), especially the chapter entitled The Power of Systems and Systems of Power at 181, 186, 190. I would dispute his observation of some years ago that people in the information-processing profession "are scientists and engineers-objective experts whose only concern is technical efficiency and scientific detachment." Id. at 198. It is indeed true, however, that:

to the extent that customers (and this may include government agencies or private
industry) abdicate their power prerogatives because of ignorance of the details of
system operation, de facto system decisions are made by equipment manu-
facturers or information-processing specialists. Id. at 198.

Implicit in the various issues raised during the Subcommittee Hearings is the wise observation of Professor Boguslaw that:

The paramount issues to be raised in connection with the design of our new
computerized utopias are not technological-they are issues of values and the
power through which these values become translated into action. Id. at 200.

In this case, I believe it is the constitutional value protected by the First Amendment.

46

Columbia Human Rights Law Review

[Vol. 4.

perspective, a standardization of language, and a consensus of values that is characteristic of highly authoritarian social structures. Nonconforming perspectives, language, and values can be and, indeed, must be excluded as system elements."

He further points out certain engineering truths and certain human truths which face every politician, administrator, analyst and programmer who tries to use computers to convey either more or less than the straight facts about people. First is the truth that the strength of high-speed computers precisely in their capacity to process binary choice data rapidly. But to process these data, the world of reality must at some point in time be reduced to binary form. Second is the truth "that the range of possibilities is ultimately set by the circuitry of the computer, which places finite limits on alternatives for data storage and processing." Third is the truth “that the structure of the language used to communicate with the computer restricts alternatives." Then there is the truth "that the programmer himself, through the specific sets of data he uses in his solution to a programming problem and the specific techniques he uses for his solution, places a final set of restrictions on action alternatives available within a computer-based system."

It is in this sense that computer programmers, the designers of computer equipment, and the developers of computer languages possess power in our society.

These limitations of men as well as machines are what I remembered as I listened to the young Army analyst describing his assignment to condense truth for the Army data systems by assigning numbers to people on the basis of their speech and thoughts.6

66

On the shoulders of technology experts who are aware citizens rests the responsibility for guiding those politicians who seek computer-based solutions to political problems. At this point in our history, they, more than anyone, realize that computers have only those values which are designed and programmed into them.

If the attitude of the present Administration is any indication, Government will make increasing use of computer technology in pursuit of its current claim to an inherent power to investigate lawful activities and to label people on the basis of their thoughts. Municipal, state and federal agencies continue to plan, devise and build intelligence systems for many purposes. It devolves on those people involved in computer technology to make known the restrictions and the limitations of the machines as well as the alternatives for what is

66. See note 53 supra.

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First Amendment: The Computer Age

proposed. When the political managers ignore or abdicate their responsibility to assure the application of due process of law, they may have the final say over the constitutional uses of power.

What they say may not be popular with those who use their services, especially government departments. But I would suggest that when they advise on extending the power of government, they serve a higher law-the Constitution.

The technological forces which affect the quality of our freedoms come in many guises and under strange terminology. They are dreamers who would decry the advent of the computer as casting some sorcerer's shadow across an idyllic land. In their philosophical rejection or fear of this most intricate of machines, they would deny the spark of divinity which is the genius of man's mind; they would reject the progress of civilization itself. So there is no reason to condemn out of hand every governmental application of computers to the field of information processing or to systems study.

Our society has much to gain from computer technology. To assure against its political misuse, however, we need new laws restricting the power of government and implementing constitutional guarantees. We need increased political awareness of an independent nature by information specialists who understand the machines and the systems they constitute.

We do not, as some suggest, need new constitutional amendments to deal with these problems. The words of the original amendments will do, because they envelop our national concepts of personal freedom and I believe they can encompass anything which jeopardizes that freedom.

As Justice Oliver Wendell Holmes said:

A word is not a crystal, transparent and unchanged; it is
the skin of a living thought and may vary greatly in color
and content according to the circumstances and the time in
which it is used.67

harder than

I believe that Americans will have to work ever before in our history so that the First Amendment remains a living thought in this computer age.

Otherwise, we may find the individual in our society represented not by a binary form, but by one digit.

And that will be "zero."

Otherwise, America may lose its cherished reputation as "the land of the Second Chance."

67. Towne v. Eisner, 245 U.S. 418, 425 (1918).

[From the Yale Law Journal, Vol. 82, No. 7 (June 1973)]

Privacy in the First Amendment

In the exercise of its traditional freedom, the press often discloses information about individuals which those individuals would rather conceal. When the information, though true, is particularly embarrassing or intimate, the person has sometimes felt sufficiently injured to sue the offending publisher-even though the publisher committed no physical intrusion, fraud or larceny to get the story. The claimed legal injury in such cases therefore consists only in having private information become public without the consent of the person whom the information concerns. When, in 1960, the late William Prosser sifted some 300 cases having to do with privacy,' he found that enough of these suits had been successful to constitute a common law cause of action. Prosser named the action "the public disclosure tort" and listed it as one of four American common law torts which protect personal privacy.3

Even as Prosser identified the public disclosure tort action, he recognized that its existence might well interfere with the First Amendment right of the press to report on matters of legitimate public interest.* In the intervening decade the definition of what is "of legitimate public interest" has rapidly expanded under a series of Supreme Court decisions, to the point where it is difficult to say confidently that any item of information which the press decides to publish is outside the

5

1. Prosser, Privacy, 48 CALIF. L. REV. 383 (1960).

2. For examples of such suits, see note 20 & p. 1470 infra.

3. Prosser, supra note 1, at 392-98.

Prosser did not attempt an exact definition of the public disclosure tort in his analysis. He described the tort generally as requiring that “something secret, secluded or private pertaining to the plaintiff" be invaded and that the something be publicized, but not requiring that the publication be false, or be for the commercial advantage of the defendant. Id. at 407. However, the examples he offered are mostly cases which do not fit neatly into the public disclosure category; the exception is Melvin v. Reid, 112 Cal. App. 285, 297 P. 91 (1931). See Prosser, supra note 1, at 392-98. Except for California, therefore, one finds it hard to say which states explicitly recognize the public disclosure tort. Most courts which uphold a "right to privacy" refuse to specify their rationale. Prosser himself ventures to identify only those states which recognize a privacy tort action in general, without breaking the recognized action down into his separate categories. Id. at 386-88. See also W. PROSSER, THE LAW OF TORTS § 117, at 804 (4th ed. 1971). The four categories, each depending on a different rationale and each punishing different

acts, are:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

5. See, e.g., Rosenbloom v. Metromedia, 403 U.S. 29 (1971); Curtis Publishing Co.

v. Butts, 388 U.S. 130 (1967); Time, Inc. v. Hill. 385 U.S. 374 (1967); New York Times Co. v. Sullivan, 376 US 254 (1964). See also pp. 1463-65 infra.