1971] PRIVACY AND THE COMPUTER 869 signed to insure. It must also rid itself of three misconceptions which it shares with many outside the Congress: 1. The misconception that whatever technology can produce 2. The misconception that anyone who can show that information If a meaningful concept of privacy be adopted and these three misconceptions be discarded, Congress could then approach the problem on the assumption that so long as dossiers exist on the present scale they will be used in disregard of whatever restrictions may be imposed on their use. Law enforcement officials "in an excess of zeal" will disregard those restrictions and, in an excess of tolerance, will not invoke criminal sanctions against themselves or others who similarly disregard those restrictions. And with the use of dossiers in its present magnitude, any privately enforceable remedies will not suffice to check unauthorized use. The only hope for substantial protection of privacy against the computerized dossiers, therefore, is that they not exist at least that they not exist on the present scale. And if the "legitimate need" for the dossiers were appraised as an actual need for a vital public purpose, rather than as a convenience or a comfort for any acceptable purpose, the great bulk of existing dossiers could be eliminated and the growth of dossiers in the future drastically curtailed. Careful study of the contents of various compilations, and careful consideration of the justification therefor, would be required before lines could be drawn. But it seems apparent that a rigorous application of the test of actual need for a vital public purpose would drastically clear the files. To cite but a few examples: No such need justifies the retention in FBI files of all information amassed by it on all persons investigated in connection with a particular crime after the case has been closed. Similarly, there is no need to retain in both FBI and Civil Service Commission files the collection of gossip, rumor and hearsay-or even of hard facts-on an applicant for federal employment after his application has been denied. The only possible need for preserving keys to personal identity in the Census Bureau's population statistics is to facilitate keeping statistics current and adapting them to new 870 TEXAS LAW REVIEW [Vol. 49:837 uses during the ten-year period between censuses. But is that need so vital, and could it not perhaps be met instead by taking a population census at more frequent intervals? There is no need at all for the highly untrustworthy files of the House Internal Security Committee. There is even room to doubt the need for those permanent dossiers that constitute the life-blood of the credit bureaus. As previously indicated, they are as likely to induce as to preclude unwise credit extension. Yet the business volume of the users of dossiers is so high that their losses are almost infinitesimal.125 If credit bureau customers can do this well on the unreliable information they now receive, how much worse would they do if left to their own devices? It is often assumed that without credit bureau dossiers losses would greatly increase, with a concomitant increase in the cost of consumer credit and a throttling of the economy based on that credit. However, this mere assumption has not been explored sufficiently to justify perpetuation of credit bureau dossier compilation. A rigorous inquiry into the actual need for existing compilations would doubtless produce even louder incantations from compilers about efficiency. It is more efficient to preserve dossiers for future possible use than to require a new investigation of the subject whenever information about him becomes necessary, or helpful, or comforting. Certainly it is more efficient. But it is also more efficient to provide an accessible file of every police investigation of anyone ever made, no matter how unwarranted, against the possibility that another investigation may be made in the future. It is also more efficient for the Selective Service to provide the FBI with fingerprints and other data on all persons it processes against the possibility that a small percentage of them may be future law violators. It would also be more efficient to extend the Alien Registration Act126 to civilians. But we have not, in this country, permitted efficiency to be the determining factor when individual liberty is jeopardized. Instead, we have opted against efficiency and in favor of constitutional guarantees against unlawful searches and seizures and self-incrimination and for jury trials in 125 I have asked many bankers and finance company representatives about their loss ratios on consumer receivables and have yet to be given a figure higher than 0.5%. In other instances the consumer finance companies have claimed a loss ratio of 1.5%. See J. CHAPMAN & R. SHAY, THE CONSUMER FINANCE INDUSTRY 24 (1967). The bankers have claimed 2%. P. McCracken, J. Mao & C. Fricke, Consumer Installment Credit and Public POLICY 116 (1965). But the latest word I have seen, from a spokesman for the American Bankers Association, is that on consumer transactions "in commercial banks the loss ratio is less than half a percent; it is perhaps now getting close to a quarter of 1 percent." Senate Credit Bureau Hearings II, supra note 1, at 322. 126 8 U.S.C. §§ 1301-1306 (1964). 1971] PRIVACY AND THE COMPUTER 871 criminal cases. In view of the massive threat to individual privacy posed by the present and growing body of computerized dossiers, efficiency will hardly serve as a justification for their preservation. These are the assumptions on which Congressional inquiry should proceed. Recognizing these assumptions, Congress would doubtless conclude that most of our present National Data Bank must be wiped out, and that preservation of and access to the surviving dossiers must be restricted to an actual need to further a vital public purpose. Finally, mindful of these assumptions, Congress would not vest the policing of restrictions in the hands of the most probable violators. We have not yet had an inquiry based on such assumptions. The time for that inquiry is overdue. The computerized dossiers are multiplying by the day. And we are only thirteen years from 1984. A DIFFERENT VIEW OF PRIVACY ALBERT W. ALSCHULER* Professor Countryman's Orgain Lecture1 is an important addition to the growing literature of privacy. It presents a comprehensive picture of the threat that modern technology and organization pose to our sense of control over basic information about ourselves. Professor Countryman calls for action: We cannot leave the cause of privacy to the forces of laissez faire. I fully agree. I believe, however, that Professor Countryman's lecture shares one defect with a number of lesser studies. It focuses too much of its energy on the mechanisms that now exist for compiling and distributing information, and not enough on the concept of privacy that it seeks to advance. In my view, Professor Countryman's study, like other recent writing in the field, does not put first things first. Before one can sensibly decide what to do about proliferating data banks, one must reach some judgment concerning the extent to which an individual should be able to control the use of information about himself. A precise, substantive concept of privacy should precede any procedural solution, and Professor Countryman's own concept of privacy is, in my view, too often implicit rather than carefully thought out and expressed. The result, when it comes to solution, is a proposal that is essentially backward-looking. It seeks to recapture the era before the computerized personal dossier and the national data bank came into existence. Professor Countryman urges that except in cases of "actual need for a vital public purpose," data banks containing personal information should be abolished. Because the technological revolution that surrounds us has diminished our sense of privacy, Professor Countryman apparently sees technology, and organization itself, as our villains. In my judgment, this proposal and others like it tend to go both too far and not far enough. By focusing on today's mechanisms of sharing information, they protect substantive privacy only haphazardly. At the same time, these proposals would impose gratuitous hardship on persons whose right to use and share information Professor Countryman does not challenge. • Professor of Law, University of Texas; B.A., Harvard, 1962; LL.B., Harvard, 1965. 1 Countryman, The Diminishing Right of Privacy: The Personal Dossier and the Computer, 49 TEXAS L. REV. 837 (1971). A DIFFERENT VIEW OF PRIVACY 873 Consider just one example. Under Professor Countryman's proposal, a department store contemplating an extension of credit ap parently would not have access to the files of a consumer credit bureau. Professor Countryman would not, however, require the store to extend or deny credit in darkness or on the basis of an applicant's grooming and personal appearance. The store would apparently be free to seek information from the customer himself, from the references that he provided, and from other individuals and commercial institutions as well. As Professor Countryman puts it, the store would be "left to [its] own devices." Under this regime, I suspect that most department stores would quickly adopt a "long form" credit application that would itself invade the customer's privacy. The form would require a substantial amount of time and energy for the customer to complete. Following this paperwork, the store would delay each application for a number of weeks while it contacted the customer's references and "verified" the information that he provided. The customer would repeat this process with every credit application, for there would be no mechanism by which he could "waive" his right to privacy and permit the accumulation of personal data by a credit bureau. (If there were such a mechanism, it would be difficult to prevent an information gatherer from automatically requiring a "waiver" as a condition of extending credit. The present situation might therefore be rapidly duplicated.) The central point is one that Professor Countryman recognizes: abolishing the consumer credit bureau would be inefficient-not only for the commercial institution but for the customer as well. Professor Countryman's proposal would tend to consume the consumer in paperwork and delay and discourage him from seeking services that he would otherwise obtain and value. Professor Countryman argues that we must rid ourselves of "the misconception that whatever is efficient is desirable," and it is true that there are many situations in which free men must sacrifice efficiency to the cause of human dignity. But efficiency, though not the end of human existence, is a value nevertheless. I believe that we should receive something in return for our trade. If the invasion of privacy turns out to be the same in the end, it might as well be done efficiently. I do not deny that there would be some gain to privacy under Professor Countryman's proposal. For one thing, there might be a |