1971] PRIVACY AND THE COMPUTER 867 siers pursuant to "the written instructions of" the subject. But obviously, when the subject is seeking employment, insurance or even credit this consent in many cases will be far from voluntary.116 Similarly, the proposed legislation applicable to some federal compilers would— with generous exceptions for "national security" and "law enforcement" files-forbid disclosure of information without the "permission" of the subject. Here again, any consent given by a subject seeking federal employment will often not be voluntary. In any instance, the limited sanctions available under these proposals are likely neither to deter improper disclosure, nor to provide effective relief to one injured by disclosure. C. Limiting the Contents of Dossiers There have been suggestions that limitations be placed upon the content of personal dossiers. Some proponents of a formal National Data Center, for instance, suggested that its files include only "statistical" data and not the personalized data found in FBI, IRS, military, civil service and medical records.117 But these proponents came up with no standard precise enough to permit effective control. Moreover, they apparently contemplated the continued compilation of dossiers that would not be included in the National Data Center, and it is the existence of these dossiers combined with the ubiquitous computer that provides the present, informal, National Data Center. One proposed version of the Fair Credit Reporting Act sought to forbid commercial compilers from reporting "information which is not reasonably relevant for the purpose for which it is sought or which constitutes an undue infringement of the individual's right of privacy."118 The compilers were able to persuade Congressmen that this restriction was intolerably vague. With the present state of knowledge about the contents and the uses of dossiers, it seems unlikely that we can effectively define either the "legitimacy" of the "need" permitting access, or what information is "relevant" to that need. Even less can we define the balance to be struck between the "need" and a desirable preservation of privacy. 116 Indeed, one of the compilers' arguments against compelling them to give the subject a copy of his dossier was that someone else might, by economic coercion, "invade his privacy" by compelling him to produce it. Senate Credit Bureau Hearings 1, supra note 1, at 65; Senate Credit Bureau Hearings II, supra note 1, at 226. 117 See Note, Privacy and Efficient Government: Proposals for a National Data Center, 82 HARV. L. REV. 400, 413-414 (1968). 118 H.R. 16340, 91st Cong., 2d Sess. § 54 (1970). 37-583 74 pt. 27 868 TEXAS LAW REVIEW IV. BUT WHAT ABOUT PRIVACY? [Vol. 49:837 Even if all dossiers were absolutely accurate, or if remedies for inaccuracy were completely adequate, the question of the right to privacy would remain. By a "right to privacy" I do not mean to confine myself to the right to protection against unwanted publicity and palpable intrusion into private affairs that finds limited protection in some jurisdictions.119 Nor do I confine myself to those recently emerging constitutional concepts that thus far have forged only slightly beyond the fourth amendment to permit married persons to receive birth control information, 120 or to allow individuals to contemplate obscene material in the sanctity of their own homes.121 I refer instead to a concept of privacy confined neither to protection against publicity nor to palpable intrusions, to a concept that Justice Brandeis described as "the right to be let alone—the most comprehensive of rights and the right most valued by civilized men."122 Justice Douglas has characterized this concept as the freedom of the individual "to select for himself the time and circumstances when he will share his secrets with others and decide the extent of that sharing."123 As others have said, "the essence of privacy is no more, and certainly no less, than the freedom of the individual to pick and choose for himself the time and circumstances under which, and most importantly, the extent to which, his attitudes, beliefs, behavior and opinions are to be shared with or withheld from others."124 Such a concept of privacy is offended by the gross compilation of personal details, however accurately and delicately the dossier be compiled, and by the dissemination of those details whether to private or public users of the information and regardless of their number. It seems inconceivable that courts or state legislatures, either by developing legal remedies or expanding constitutional safeguards, will establish this concept of privacy in time to meet the dangers of the computerized dossier. Only the Congress seems capable of acting with the requisite speed. And, in order for it to act effectively, it must first come to comprehend the concept of privacy that its efforts must be de 119 See text accompanying notes 25-28 supra. 120 Griswold v. Connecticut, 381 U.S. 479 (1965). 121 Stanley v. Georgia, 394 U.S. 479 (1965). This decision is already suffering some erosion. See United States v. Thirty-Seven Photographs, 39 U.S.L.W. 4518 (U.S. May 3, 1971); United States v. Reidel, 39 U.S.L.W. 4523 (U.S. May 3, 1971). 122 Olmstead v. United States, 277 U.S. 438, 478 (1928) (dissenting opinion). 123 Warden v. Hayden, 387 U.S. 294, 323 (1967) (dissenting opinion). 124 Ruebhausen & Brim, Privacy and Behavioral Research, 65 Colum. L. Rev. 1184, 1189 (1965). 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. |