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TEXAS LAW REVIEW

developed that will give adequate protection against technological raiding, illegal activity by government officials, or a change in policy by the limitation-imposer. Nothing that Professor Alschuler has to say allays my fears in this regard.

If I am "essentially backward-looking" and guilty of seeking "to recapture the era before the computerized personal dossier and the national data bank came into existence," or at least some segment of that era, I believe that Professor Alschuler is not sufficiently forwardlooking to appreciate the dangers ahead. The incident of Judge Carswell illustrates what I mean. Both Professor Alschuler and I thought that blocking Judge Carswell's appointment to the Supreme Court served a vital public purpose. Since the FBI did not have a complete and accurate computerized dossier on Judge Carswell and its investigators were not as diligent as newspaper reporters, several highly relevant pieces of information about Judge Carswell were not unearthed until after his nomination was submitted to the Senate. It would have been more efficient-and it might have spared the President, the Senate and Judge Carswell himself considerable pain-if the FBI had been able to produce a complete and accurate dossier on Judge Carswell from its computers. If present trends continue, the FBI will be able to produce such dossiers on virtually all prospective nominees. In my view, it would be less damaging to our society to have Judge Carswell on the Supreme Court.

[EXCERPTS FROM THE UNIVERSITY OF ILLINOIS LAW FORUM, VOL. 1971, No. 2]

Copyright 1972 by the Board of Trustees of the University of Illinois

PRIVACY AND GOVERNMENT

INVESTIGATIONS†

Senator Sam J. Ervin, Jr.*

SINCE THE DAWN of civil society, men have contended over the ways government exercises its investigative power as they have contended over the ways to reach heaven. Americans in the twentieth century offer no exception to this truth. Their concern is the greater because privacy is valued in our society as a hallmark of freedom. Yet recently it has been threatened or diminished in ways and for reasons that to some people seem beyond our challenge or our control.

There are those in our country who believe that to enforce the laws, government should investigate everything and there are those who believe that to preserve liberty, government should investigate nothing. There are those, and I count myself among them, who believe that government must have ample power to investigate and to gather information in order to govern, but who also believe that there are certain things which are none of the business of government. There are those, and I count myself among them, who believe that a free society must take some risks in order to remain free, but who also believe that, similarly, the individual under a government of laws must assume the risks and the legal consequences for his actions.

The glory of our constitutional system is that its authors set down for the ages the lessons learned about man's struggle to control governmental power. As we discuss the power of government to investigate and to monitor the activities of those it governs, we have ever before us certain fundamental principles governing the exercise and control of power over the individual in our society. It is those constitutional principles, designed to keep all men free in their minds and in their spirits, which I believe will see America through any crisis. If these principles are meticulously observed, I believe neither wars nor natural disasters, neither threats from beyond our borders nor threats from within, neither dissent nor rebellion, neither economic perils nor political instability will founder this nation.

In the crisis atmosphere in which government officials must frequently operate as they attempt to solve major social and economic

†These remarks were originally delivered as a lecture in the Privacy and the Law Series at the University of Illinois College of Law, May 7, 1971. *United States Senator from North Carolina. B.A. 1917, University of North Carolina; LL.B. 1922, LL.D. 1951, Harvard University; LL.D. 1955, Western Carolina College.

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[Vol. 1971 problems, there are some forces at work which often make it difficult to assure the proper balance between the needs of government and the freedom of the individual guaranteed by the Constitution. I want to stress that while we should be on guard against the adverse effects of these forces, I think that properly channeled, they may be counted among America's best hopes for creative progress.

One of these forces is the increasing demands on government for new and better services of all kinds. Another is the greater political awareness and activity on the part of citizens from every walk of life who want to have greater influence on their government and a larger role in helping to shape policy.

Another force is computer technology and the use of scientific methods of systems analysis which it encourages. In a study by the Constitutional Rights Subcommittee, we found that the increased use of government and private computer-based systems is making it vastly more economical to acquire and store information about people for reasons which should give Americans serious pause. It is creating not only an army of specialists in the information-processing field, but battalions of investigators and analysts specializing in seeking out and reporting derogatory information on individuals.1 It is feeding the zeal of statistics collectors in government who claim they need information for research and who back their requests for data with the sanctions of criminal and civil law.2

There is another force affecting our privacy caused by the development of the behavioral sciences with their emphasis on analysis of man's behavior in society and organizations, their emphasis on what makes him think as he does and act as he does, and on what elements go to make up his personality. This wave of personality study has taken over government and private industry alike. In its name, many sophisticated questionnaires and pseudoscientific instruments such as personality tests and lie detectors have been developed to elicit personal information.3

The result of all this is that officials at every level of our national life who make decisions about people for limited purposes seem possessed by a desire to know the "total man" by gathering every possible

1. See Ervin, The Computer and Individual Privacy, 113 CONG. REC. 5898 (1967) (address before the American Management Association, on March 6, 1967); see also comments by Senator Ervin on computer abuses and suggested remedies, 115 id. 33576, 39114 (1969).

2. See generally Hearings on S. 1791 and Privacy, the Census and Federal Questionnaires Before the Subcomm. on Constitutional Rights of the Senate Judiciary Comm., 91st Cong., 1st Sess. (1969). Ervin, Privacy, the Census and Federal Questionnaires, 115 CONG. REC. 17718 (1969).

3. See Hearings on Psychological Tests and Constitutional Rights Before the Subcomm. on Constitutional Rights of the Senate Judiciary Comm. (1965); Remarks of Senator Ervin on S. 2156, A Bill To Protect Against Invasion of Privacy by Prohibiting Lie Detectors, 117 CONG. REC. S. 9870 (daily ed. June 24, 1971).

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bit of information about him. The further result is that government and private computers and dossiers are filled to overflowing with the trivia of the daily lives of people. Although frequently meaningless, the trivia obtain in official reports of government agencies and credit companies an infallibility which can adversely affect a person's life and fortunes, and even his honor.*

Yet all of these forces are at work on agencies and organizations operating under laws meant, for the most part, for another era, less oriented to the need for total information and less in need of rapid analysis and cross-country transmission of data.

There have been many charges recently of illegal privacy invasion, especially about the surveillance practices of the Federal Bureau of Investigation. Many people equate the activities of that agency with those of the Army, whose broad program for data-gathering on civilian politics has been widely criticized and discussed recently. I believe they fail to realize the differences. The FBI, it is true, has very broad investigative powers, and along with other agencies its investigative reports frequently contain nothing but trivia. Its methods, along with those of other agencies, may need some ethical refurbishing. On the other hand, it is sometimes forgotten that, unlike the Army, the Bureau has been given legal responsibilities for investigating a great range of federal criminal laws, many of them vaguely worded. These include all of our espionage and security laws. They include the broad investigations demanded by the 1954 executive order which President Eisenhower issued requiring the FBI, the Civil Service Commission, and other agencies to investigate an individual's character, morals, emotional stability, and good judgment in order to determine if he might become a security risk. So, if some are finding that in our computer age the investigative power of federal law enforcement officers should perhaps be better defined in writing, that is not necessarily the same as saying that the officers have been acting illegally.

While there may be misunderstanding on the part of some about the FBI, I do not agree with those who claim it is "political demagoguery" and "hysteria" to speak of violations of privacy and constitutional rights by government investigations. Indeed, I believe it is timely to do so if our fundamental freedoms are to be preserved.

I say this because it is clear to me from the complaints coming to Congress that the combination of executive branch politics and these

4. A.R. MILLER, THE ASSAULT ON PRIVACY 67-89 (1971); Hearings on S. 823 and Fair Credit Reporting Before the Subcomm. on Financial Institutions of the Senate Comm. on Banking and Currency, 91st Cong., 1st Sess. (1969); Hearings on H.R. 16340 and Fair Credit Reporting Before the Subcomm. on Consumer Affairs of the House Comm. on Banking and Currency (1970).

5. Security Requirements for Government Employment, Exec. Order No. 10,450, 3 C.F.R. 936 (1953), as amended, Exec. Order No. 10,550, 3 C.F.R. 200 (1954).

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[Vol. 1971 three social forces I have described has produced a novel claim in the executive branch to an inherent constitutional power to investigate people whose only crime is exercise of their first amendment freedoms.

This claim of investigative power is founded in the desire to predict violations of the law and to take preventive measures before there is any overt sign of intent to commit a crime. It is founded in a very human curiosity to know what people are thinking. The problem is that it clashes with the fundamental constitutional principle that what people are thinking is none of the business of government investigators. I believe that, unchecked, the exercise of such an inherent power can quickly give this nation the trappings of a police state.

The Subcommittee has discovered a number of instances of agencies who started out with a worthy purpose for investigating, but who, under the inherent power concept, went so far beyond what was needed in the way of information that the individual's privacy and right to due process of law are threatened by the very existence of the files the agencies collected."

One massive investigative program pursued under this inherent power theory was the Army's civil disturbance prediction program which caused it to spy on thousands of Americans in order to try to predict when disturbances would occur which could not be controlled by local or state police power and when the President would be requested to supply military assistance."

Concern about Army prying into civilian affairs has been expressed to Congress by people in every state of the Union. There has been special concern in Illinois because of the publicity given the surveillance activities of the 113th Military Intelligence agents.

It is the students of the law who because of their special knowledge of the Constitution can perhaps best understand the threats to liberty caused by the kind of Army surveillance, investigation, and data collection described recently before the Senate Constitutional Rights Subcommittee.8

I think it should be stated here that despite their failings, Army officials were not the chief focus of our investigation. For a number of years, the Subcommittee has received many complaints about excessive

6. See generally Remarks by Senator Ervin announcing hearings on computers and data banks and describing responses to Subcommittee survey of federal departments and agencies, 116 CONG. REC. 30797 (1970), 117 id. S. 985 (daily ed. Feb. 8, 1971).

7. For an account of developments in this investigation of the Army surveillance and data banks, together with relevant articles and texts of correspondence see generally 116 CONG. REC. 2225, 5496, 26327, 41751, 43944 (1970) (Remarks of Senator Ervin).

8. Pyle, Conus Intelligence: The Army Watches Civilian Politics, Washington Monthly, Jan. 1970; Pyle, Conus Revisited, id. July 1970. These articles also appear with remarks by Senator Ervin, 116 CONG. REC. 2225, 5496 (1970).

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