166 LAW FORUM [Vol. 1971 statutory duty of care on everyone connected with the data-handling process, which would encourage privacy consciousness, or of (2) enacting detailed privacy-oriented technical requirements, which would have to be followed by computer manufacturers. These would include sophisticated protective schemes involving access regulations, personnel controls, and mechanical devices that can discriminate among users and differentiate data on the basis of sensitivity that would have to be complied with by handlers of personal information. But detailed congressional legislation is difficult to draft and the best solution may be to give over the task of regulation to an administrative agency that would act as an information ombudsman or a privacy auditor. The notion of an independent information agency is not a new one. Many of the congressional witnesses and commentators on the proposal to create a National Data Center, myself included, stressed the importance of locating control of such an organization outside the existing regulatory framework. 18 Administrative regulation would obviate the need to make highly detailed policy judgments in statutory form at what may be a premature time. It also would guarantee that the problem is placed in the hands of a watchdog group, hopefully composed of experts drawn from many fields, that could exercise continuing supervision over the data handling community.19 A number of Congressmen already have recognized the need for some controls and have introduced legislation to protect privacy. Unfortunately, the activity is somewhat reminiscent of Leacock's Man, who jumped on his horse and rode off in all directions at once. Bills have appeared to regulate credit bureaus, mailing list companies, the census, employee privacy, government inquiries, and psychological testing. Thus far only the Fair Credit Reporting Act, mentioned earlier, has been enacted into law. But Senator Ervin and Congressmen Gallagher and Koch have proposed broad regulation of computers and data gathering activities and we can expect continued activity in this field for some time. When the dust ultimately settles, I hope we shall have struck the necessary balance. This probably will require give on both sides. No doubt we can coerce, wheedle, and cajole an individual into giving up part, or even all, of his informational profile. But what price would we pay for it? Alienation, distrust of the government, deceptive re 18. See Hearings on Computer Privacy Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 90th Cong., 2d Sess. (1968) (statement of Professor Arthur R. Miller); Note, Privacy and Efficient Government: Proposals for a National Data Center, 82 HARV. L. REV. 400, 404 (1968). See also Ruggles, On the Needs and Values of Data Banks, in Symposium-Computers, Data Banks, and Individual Privacy, 53 MINN. L. REV. 211, 218-19 (1963); Zwick, A National Data Center, in A.B.A. Section of Individual Rights and Responsibilities, Monograph No. 1, at 32, 33 (1967). 19. This theme is developed in A. MILLER, supra note 5, at 228-38. No. 21 THE DOSSIER SOCIETY 167 sponses, obfuscation of certain data gathering objectives (as I think may be true of the census goal of enumerating the population), numbing of privacy values, and an atmosphere of suspicion. Instead of the stick, perhaps we should rely on the carrot. Governmental and private planners must refine their information handling techniques, reduce the burden on the individual, and assure us accuracy of the files and security against improper dissemination. If this is done, perhaps we will feel less apprehensive about yielding a little of ourselves. Few aspects of life, even in a free society, can survive as absolutes-and that includes privacy. If some of my remarks seem slightly alarmist in tone, it is because I feel it is necessary to counteract the syndrome referred to by the poet e.e. cummings, when he wrote "progress is a comfortable disease."20 We must overcome the all-too-often complacent attitude of citizens toward the management of our affairs by what frequently are astigmatic administrators in both government and the private sector. The very real benefits conferred by information technology may opiate our awareness of the price that may be exacted in terms of personal freedom. It thus seems desirable to sound the klaxon to arouse a greater awareness of the possibility that the computer is precipitating a realignment in the patterns of societal power and is becoming an increasingly important decision-making tool in practically all of our significant governmental and nongovernmental institutions. As society becomes more and more information oriented, the central issue that emerges to challenge us is how to contain the excesses and channel the benefits of this new form of power. If the concept of personal privacy is fundamental to our tradition of individual autonomy, and if its preservation is deemed desirable, then I feel that the expenditure of some verbal horsepower on its behalf is justified. Unless we overcome inertia, there will be no one to blame but ourselves if some day we discover that the mantle of policymaking is being worn by those specially trained technicians who have found the time to master the machine and are using it for their own purposes. To paraphrase the French sociologist, Jacques Ellul, that it is to be a dictatorship of dossiers and data banks rather than of hobnailed boots will not make it any less a dictatorship.21 20. e.e. cummings, 100 SELECTED POEMS 89 (paperback ed. 1959). [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 THE POOR† Michael Harrington* THE TOPIC I will discuss was dramatized recently when President Nixon addressed the White House Conference on Children. He told of how his daughter Tricia had visited a school and had been terribly upset because at lunch time the children who brought their own lunches were permitted to stay in the classrom and eat, but the children who got free lunches were required to eat in an auditorium. Mr. Nixon. stated, "We have got to find ways of ending. . . [this] stigmatizing by separation of the welfare children as welfare children." For once, I agree completely with the President of the United States. Poor people have a right to dignity; their misery must not be aggravated by discriminatory treatment. Before I get to the subject of poverty and privacy, however, I should like to put into context the importance of privacy to our society as a whole. As Kenneth Boulding put it in a telling metaphor, the growth of population in the world and the strain on our resources is now such that we must consider ourselves as riding space ship Earth.2 We are going to have to recycle more and more of life's processes; we are going to have to organize life much more carefully if it is to sustain everyone. So the process of survival is going to menace the privacy of us all. In that sense, I think that the issue of privacy-in particular, one's ability to be free from bureaucratic intrusions-is one of the basic issues of our times. This morning I shall look at invasions of privacy particularly from the point of view of the poor-first, as a system of legal discrimination against the poor; second, I shall touch on extralegal discrimination which, I think, affects the privacy of the poor to an even greater extent than does legal discrimination. Finally, I shall draw some conclusions about the nature of the law in relation to poverty and privacy and the direction which it ought to take. Through a system of legal discrimination, the government has in + These remarks were originally delivered as a lecture in the Privacy and the Law Series at the University of Illinois College of Law, December 15, 1970. * A.B. 1947, Holy Cross College; M.A. 1949, University of Chicago. Mr. Harrington, who attended Yale Law School for a year, was George A. Miller Visiting Professor of Law at the College of Law during the fall 1970-71 semester. No. 2] PRIVACY AND THE POOR 169 creasingly encroached upon the privacy of everyone. Since most people in the labor market earn their income from jobs, their privacy usually has not been invaded. More and more, however, invasions of privacy are appearing even in the labor market. For example, black lists, which developed in the 1950's for all kinds of government jobs, are now used in government-related jobs to aid in the employment, or more appropriately the unemployment, of stevedores and seamen. They are also used in the movie and television industry to eliminate so-called undesirables on the basis of past activities. Recently, the House Internal Security Committee, the successor to the House Un-American Activities Committee, compiled a new list of allegedly radical college campus speakers and how much money each had received. The list is a not too subtle hint to college administrators not to engage these people as speakers in the future. In addition to government probes into personal privacy, the enormous growth of credit as an institution has given rise to a huge private bureaucracy which now checks on people. This development struck home fortuitously several years ago when, due to a small misunderstanding with American Express, my credit card was cancelled. I had called Avis to rent a station wagon and was informed by a young lady that Avis did not rent station wagons to people who had only money with no credit. In short, the denial of my credit privileges for a while meant that I could not rent an automobile. In response to my entreaties the young lady acknowledged that a quick credit check could. be run to establish my credit. When she learned that I had no employer, however, she replied that in that case it would be rather difficult to run a quick credit check. But Avis does try harder. When I stated that I was a writer, that I had just had a book published, and that my picture was on the back of the book, she conceded that that would establish me as a man of means in the community. So I took a copy of Toward a Democratic Left to the Avis office for my quick credit check, and I got the automobile. My point in telling this anecdote is that in terms of credit, one's privacy-middle class privacy-is being subverted by private and largely unregulated bureaucracies. The poor and their privacy are related in a somewhat different fashion. Many poor people get their incomes from welfare, and, as a price of getting welfare, they make an enormous surrender of their right to privacy. In a sense they have to pay for welfare. Let me make it clear at the outset, however, that not all poor people are on welfare. Most poor people are not; so when I talk about the problems of poverty, privacy, and welfare, I am talking only about one-third of the poor." 3. Further publication of the list has been enjoined. Hentoff v. Ichord, 318 F. Supp. 1175 (D.D.C. 1970). 4. Armstrong, The Looming Money Revolution Down South, FORTUNE, June 1970, at 66, 152. 37-583 74 pt. 2 10 170 LAW FORUM [Vol. 1971 Indeed, I suggest that the invasion of privacy which accompanies welfare is designed to keep these people off welfare. The welfare system hounds the poor in such a way that those who are unwilling to surrender their privacy will not apply for welfare. One of the excuses for forcing those on welfare to surrender their privacy lies in the widespread American assumption that people on welfare are lazy cheats. There is, therefore, no general revulsion over welfare applicants being investigated carefully and their statements thoroughly checked out. Recently, however, an interesting experiment has been carried out in a series of pilot programs. We have taken poor people at their word. Rather than conducting meticulous investigations into their alleged impoverishment, we have asked them simply to state in their welfare applications what they have and what their situation is. We have told them that their statements will be believed. In these experiments, a certain percentage of applications has been spot checked to determine the extent of cheating. We have discovered that poor people do cheat somewhat but not very much. Indeed, the percentage of misstatements on welfare applications is less than that of upper and middle income people when they file their tax returns. These people, however, are outraged to hear of poor people cheating on welfare, although their own federal income tax returns become a work of high art and imagination. So, one source reports, the federal government has decided on pragmatic grounds to stop this unnecessary invasion of privacy. The Department of Health, Education and Welfare will now require welfare departments to adopt the procedure of trusting the poor and not checking on every statement in deciding who is qualified for benefits.5 6 A second example of the invasion of the privacy and the dignity of the poor is the requirement that in many situations poor persons reveal and give up the possibility of future income in order to qualify for welfare. If a welfare applicant has any possible asset, he may have to deed it over to the state. For instance, as a price of getting welfare now, he may have to give up a pending lawsuit that could bring him some money in the future and make him independent again. He has to show himself to be totally destitute. Third, there is an invasion of privacy which anybody can observe in the supermarket. When a person who has food stamps goes into a checkout line, he finds a sign stating that he must declare himself. So he has to stand there and raise his hand and say, "I am poor, because I've got food stamps." Furthermore, that sign tells him that there are certain foods he cannot buy with food stamps; that his use of the 5. St. Louis Post Dispatch, Dec. 13, 1970, at 1B, col. 4. 6. See, e.g., ILL. Rev. Stat. ch. 23 § 3-10 (1969) (lien on real property of welfare recipients). |