1971] PRIVACY AND THE COMPUTER 857 It might be supposed that information that the government compels the citizen to supply in his tax returns would be held in confidence and used only for the purpose for which it is supplied. In fact, the confidentiality of tax returns is preserved by a statute that has all of the containing qualities of a sieve.70 Tax returns are fully available to state tax officials," to any Congressional committee "authorized to investigate returns," and to anyone authorized by Executive Order.72 3. The Armed Services.-The Army, of course, has personal files on those who are, or have been, in its service. In addition, as a former captain of Army intelligence recently revealed, the Army since 1965 has been collecting information on civilians in its computerized data bank at Fort Holabird in Baltimore, ostensibly to enable the Army to anticipate civil disturbances. Subsequently, the Army assured a congressman that the surveillance of civilians would cease and that all 73 annoyingly specific about the items to be seized, and there have even been instances where warrants have been refused. Hence, the IRS hit upon a more "efficient" scheme. Provisions of the Internal Revenue Code authorize the IRS to make its own administrative levy on "property of" a taxpayer "for the payment of" taxes. 26 U.S.C. § 6331 (1964), as amended, (Supp. V, 1970). These provisions also direct that "as soon as practicable after the seizure of the property" it shall be sold. 26 U.S.C. § 6335 (1964), as amended, (Supp. V, 1970). In any event, they reach only to property of the taxpayer, and postal regulations provide that the sender of mail may reclaim it at any time before it is delivered to the addressee. 39 C.F.R. § 153.5 (1970). Nonetheless, it was the practice of the IRS to serve levies on the Post Office and the practice of the Post Office to surrender undelivered mail addressed to taxpayers-not for the purpose of sale, but for the purpose of opening and examining by the IRS. Hearings on Invasion of Privacy (Gov't Agencies) Before the Subcomm. on Ad. Practice & Procedure of the Senate Judiciary Comm., 89th Cong., 1st Sess., pt. 2, at 352-54, 360-61, 366-67, 369-71, 380-86 (1965). When this practice was exposed, Congress promptly amended the Internal Revenue Code to exempt all undelivered mail from the IRS levy. 26 U.S.C. § 6334(a) (5) (Supp. V, 1970). 70 26 U.S.C. § 6103 (1964), as amended, (Supp. V, 1970). 71 It has been reported that at least 45 million of some 75 million returns filed in 1970 were put on computer tapes and mailed to at least 30 states. Wall St. J., April 21, 1970, at 1, col. 6. 72 Between 1957 and 1970 53 such orders have been issued. Historical note to 26 U.S.C.A. § 6103 (1967 & Supp. 1971). These orders are not confined to the returns of named persons, but authorize inspections of all returns for designated periods of years. They have opened the federal tax returns to various federal agencies and Congressional committees not charged with tax responsibilities. Two of the chief beneficiaries of these Presidential dispensations have been two committees that have nothing to do with internal revenue matters. One is the House Internal Security Committee (neé House Un-American Activities Committee). See, e.g., Exec. Order No. 11465, 3 C.F.R. § 116 (1969). The other is the Senate Subcommittee on Internal Security. See, e.g., Exec. Order No. 11505, 35 Fed. Reg. 939 (1970). Moreover, in relying on these Executive Orders, I am substantially understating the extent to which tax returns or their contents are disseminated. Disclosures about a year ago that Presidential aide Clark Mollenhoff was examining tax returns without an Executive Order-or at least without a published order-led to further disclosures that similar practices were followed in the Kennedy administration. It was reported also that IRS employees had not infrequently leaked the contents of returns to others and that in one instance a friendly revenue agent had obliged a federal prosecutor by screening the tax returns of 150 prospective jurors in a tax case. No one could recall, however, that any IRS employee had ever been prosecuted under a statute, e.g., 26 U.S.C. § 7213 (1964), imposing criminal penalties for such activities. Wall St. J., April 21, 1970, at 1, col. 6; Wall St. J., April 27, 1970, at 8, col. 2. 18 Pyle, CONUS Intelligence: The Army Watches Civilian Politics, WASH. MONTHLY, Jan. 1970, at 4; N.Y. Times, Jan. 16, 1970, át 26, col. 1. 858 TEXAS LAW REVIEW [Vol. 49:837 dossiers would be destroyed." Belying this assurance was a later announcement by Secretary Laird that surveillance operations had been transferred to civilian control in the Department of Defense.75 In hearings currently in process before a Senate subcommittee, Defense Department spokesmen revealed that since 1968 the Department has maintained an index of 25 million names that includes both civilians who have taken part in civil rights or antiwar activities, and prominent persons" friendly with such suspects. In defense of this practice, the Army assured Congress that its share of the dossiers-about 8 million was accessible to only 688 authorized officials.78 In addition, Assistant Attorney General William Rehnquist conceded abuses due to "excessive zeal," and testified that the surveillance of civilians has now been transferred from Defense to Justice. However, he opposed any legislative limitations on such surveillance and urged the Congress to rely upon the "self-discipline" of the executive branch.79 4. The House Internal Security Committee.-Not all the dossier compilers in the federal government are in the executive branch. Since 1938 the House Un-American Activities Committee (rechristened the House Internal Security Committee in 1969) has been compiling dossiers on persons and organizations not sufficiently anti-Communist to suit its tastes. (In a much more sporadic fashion, the Senate Internal Security Subcommittee has done the same thing.) Although the Supreme Court has ruled 80 that the Committee's procedures do not include minimum safeguards to insure the rationality of its compilations, these compilations are, nonetheless, widely used and easily available. Anyone can obtain a copy of a Committee dossier merely by having it requested by a member of Congress.8 81 74 N.Y. Times, March 13, 1970, at 26, col. 6. 75 N.Y. Times, Dec. 24, 1970, at 1, col. 2. 76 See remarks of Senator Birch Bayh, 117 CONG. REC. S. 2290 (daily ed. March 2, 1971); N.Y. Times, Feb. 26, 1971, at 8, col. 3; Boston Globe, Feb. 28, 1971, at 31, col. 1. 77 The list includes Senator Adlai Stevenson III, Representative Abner Mikva, and former Illinois Governor Otto Kerner. N.Y. Times, Feb. 13, 1971, at 31, col. 1. 78 Washington Post, March 3, 1971, at 1, col. 2. 79 N.Y. Times, March 10, 1971, at 1, col. 6; Washington Post, March 10, 1971, at 1, col. 4. Before the Congressional hearings started, the ACLU had filed two actions to enjoin the Army's civilian surveillance programs as a violation of the first and fourth amend ments and of a constitutionally protected right of privacy. In each instance the complaint was dismissed, and in both cases appeals were taken. In one of the cases the Court of Appeals for the District of Columbia reversed and ordered the Army to trial. Tatum v. Laird, No. 24203 (D.C. Cir., Apr. 27, 1971); ACLU v. Westmoreland, 39 U.S.L.W. 2401 (N.D. III., Jan 5, 1971). 80 Dombrowski v. Pfister, 380 U.S. 479, 496 (1965). 81 During the past year the Committee responded to over 1000 such requests, and its files were also examined by 25 executive departments and agencies of the federal govern. ment. H.R. REP. No. 92-14, 91st Cong., 2d Sess., 166 (1970). In 1968 Congressman Don Edwards wrote to several executive agencies and departments and asked them to what extent they searched Committee files and why. All responded that they searched the files 1971] PRIVACY AND THE COMPUTER 859 The Committee publishes a cumulative index that includes the names of all individuals, organizations and publications mentioned in any of the various publications of the Committee. An index for the period 1938-54 included some 38,000 names of individuals;82 a supplement published last year lists about 25,000 names mentioned between 1955 and 1968 in Committee reports, hearings or "consultations."'83 Of course one has no grounds to protest inclusion in a list which includes, among others, all known and suspected members of the Communist party and the Ku Klux Klan, since the Committee declares (in fine print) in the front of the index: The fact that a name appears in this index simply indicates Anyone who has the time and access to the Committee's many hearings and reports can check out the basis for including most of the names in the listing. The Committee does not explain, however, how one is in connection with the federal loyalty-security program and estimated the frequency of their searches as follows: Housing and Urban Development Dep't, “[A]bout once a month"; Health, Education and Welfare Dep't, "[S]everal times each week"; Defense Dep't, "[A]Pproximately 120 times a week"; Civil Service Comm'n, "[A]pproximately 288,000 times in fiscal 1967." 114 CONG. REC. 6271-6272 (1968). Congressman Edward Koch has recently introduced a bill, applicable only to the House Internal Security Committee, which would require the Committee to notify each individual on which it keeps a file, to allow the individual to inspect and supplement the file (but not learn the source of information in it), and to forbid any disclosure of the file outside the Committee and its staff without the consent of the subject-but with a blanket exception from all these provisions for files that two-thirds of the Committee decide should "be kept secret in the interest of national security." H.R. 841, 92d Cong., 1st Sess. (1971). Last summer the Committee sent a questionnaire to 179 colleges and universities asking them to list all campus speakers for the previous two year period, together with the honoraria paid. By matching the replies received with its dossiers on those named, the Committee produced and released to the press a list of 65 "radical" campus speakers. N.Y. Times, Oct. 15, 1970, at 23, col. 3. Some of these listed protested and the list was pared down to 57. The American Civil Liberties Union brought an action to enjoin official publication and distribution of the list. Judge Gesell decided that he could not direct an injunction to Committee members because of the speech or debate clause, U.S. CONST. art. I, § 6, d. 1, but the court did enjoin the Public Printer from printing or distributing the list, which he found to have no legitimate legislative purpose, but to be designed solely to appeal to college officials, alumni and parents in an effort to inhibit free speech on the campuses. Hentoff v. Ichord, 318 F. Supp. 1175 (D.D.C. 1970). Although the government has appealed the decision, the Committee persuaded the House to adopt a resolution directing the Printer to publish the list and he has done so. See 116 CONG. REC. H. 11606-25 (daily ed. Dec. 14, 1970); H.R. REP. No. 91-1732, 91st Cong., 2d Sess. 7 (1970). 82 CUMULATIVE INDEX TO Publications of THE COMM. ON UN-AMERICAN ACTIVITIES 193854, at 15-961 (1962). 83 SUPPLEMEnt to Cumulative Index TO PUBLICATIONS OF THE COMM. ON UN-AMERICAN ACTIVITIES 1955-68, at 19-587 (1970). 84 Id. at 1. 860 TEXAS LAW REVIEW [Vol. 49:837 to check out its "consultations." Presumably one asks his Congressman to obtain a copy of the Committee's dossier on the subject. 5. The Census Bureau.-Although the Constitution directs: decennial "enumeration" of the population for the purposes of ap portioning representatives among the states,85 the Department of Com merce through the Census Bureau is now directed by statute to collec and publish information not only on the population but also on in dustry, business, agriculture, governments, on crime and on defective dependent and delinquent classes.86 The population census, far fron being a mere "enumeration," now covers matters of sex, race national origin, place of birth, marital status, family size, nature o household, quality of housing, geographical location, and mobility. In addition to information collected for itself, the Census Bureau als obtains information from other agencies, such as the Internal Revenu Service and the Social Security Administration.88 Like the benevoler private compilers, the Census Bureau is interested not in individual: but in groups. But, as with private compilers, the Bureau's compilation cannot be kept up to date or programmed for new uses unless a key t the identity of each individual is preserved. The law requires everyone over the age of eighteen to respond t the Bureau's inquiries.89 The Bureau is authorized to furnish stat governments, courts, and individuals with "data for genealogical an other proper purposes" although the information so furnished is nc to be "used to the detriment of" the subject.90 The Bureau is fo bidden to use the information for "other than . . . statistical purposes or to permit anyone outside the Department of Commerce to "examin . . individual reports" and criminal penalties are prescribed fo unauthorized disclosure of information.92 85 U.S. CONST., art. 1, § 2, cl. 3. 86 13 U.S.C. §§ 101-61 (1964). 87 Not all 200 million of us answer all questions. In the 1970 census, 80% received short form questionnaire covering age, race, marital status and housing. Fifteen percer received a longer form and 5% received the longest form. N.Y. Times, April 1, 1970, at 4 col. 4. A citizen's attempt to compel the Bureau to frame inquiries that would lay th basis for reduction in the Congressional representation pursuant to § 2 of the fourteent amendment for states discriminating against voters on the basis of race ended in dismiss of his complaint in Lampkin v. Connor, 360 F.2d 505 (D.C. Cir. 1966). See also Prieto Stans, 321 F. Supp. 420 (N.D. Cal. 1970). 88 Hearings on 1970 Census Questions Before the House Comm. on Post Office an Civil Service, 89th Cong., 2d Sess. 28 (1966). 89 13 U.S.C. § 221 (1964). See United States v. Sharrow, 309 F.2d 77 (2d Cir. 1962), cer denied, 372 U.S. 949 (1963). The fourth amendment offers no protection. United States Rickenbacker, 309 F.2d 462 (2d Cir. 1962), cert. denied, 371 U.Ŝ. 962 (1963). 90 13 U.S.C. § 8 (1964). 91 13 U.S.C. § 9(a) (1964). 92 13 U.S.C. 214 (1964). 1971] PRIVACY AND THE COMPUTER 861 The Bureau claims that there has never been a known violation of these restrictions on use and that it does not supply individual information to other federal agencies. But the Federal Trade Commission found a loophole. Pursuant to an investigation of possible violation of antitrust laws, it issued an administrative subpoena for a corporation's file copy of its census returns. The Supreme Court, in an opinion equally applicable to all census returns and probably to tax returns as well, held that the subpoena should be judicially enforced although the "confidential" census report form stated that it could not "be used for purposes of taxation, investigation or regulation." Both the legend on the forms and the statutory restrictions on disclosure were held to run only against the Census Bureau and not to impose limitations on the power of other governmental agencies to compel the subject to disclose its file copies. Congress promptly amended the law to forbid any governmental agency to obtain copies of census returns retained by the subject.95 94 This survey of official dossier compilers is by no means complete, even at the federal level. For instance, an Associated Press study last year reported that the Civil Service Commission has files on 10 million persons who have sought federal jobs since 1939 and additional files on 1.5 million suspected of "subversive activities," all of whom presumably have lost or will never obtain federal employment. The Secret Service also has computerized 100,000 names and accumulated 50,000 dossiers.96 Personal files are also kept on virtually all of the labor force by the Social Security Administration and the Passport Office keeps a computerized file of more than 243,000 citizens whose applications for passports are to be brought to the attention of law enforcement agencies.97 A 1966 survey of all federal executive departments and agencies revealed that they had 3.1 billion personal files, including 264.6 million police records, 342 million medical histories, 279.6 million psychiatric records and 187.8 million "security or other investigative reports."'98 Congressman Edward Koch and Senator Birch Bayh have intro 93 Hearings on 1970 Census Questions Before the House Comm. on Post Office and Civil Service, 89th Cong., 2d Sess. 27-28 (1966). 94 St. Regis Paper Co. v. United States, 368 U.S. 208 (1961). 95 13 U.S.C. § 9 (1964). 96 Boston Herald-Traveler, April 19, 1970, at 43, col. 1. 97 N.Y. Times, Feb. 11, 1971, at 11, col. 1. 98 SENATE SUBCOMM. ON AD. PRACTICE & PROCEDURE, GOV'T DOSSIER (SURVEY OF INFORMATION CONTAINED IN GOV'T FILES) 90th Cong., 1st Sess., 19, 26-27 (Comm. Print 1967). See also The Computerization of Government Files: What Impact on the Individual?, 15 Ú.C.L.A.L. Rev. 1371 (1968); S. WHEELER, ON RECORD (1969). |