FAIR CREDIT REPORTING ACT crime control, national security and the necessity to maintain 89 Just as ecology means more than cleaning up polluted streams and smogdense air, so too privacy means more than being "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."115 As one author described it, "the invasion of privacy should more accurately be called the invasion of self. The right to protect oneself from informational assault is basic to the inviolability of the individual." Informational assault is a relatively recent phenomenon primarily because it was never a real possibility until the computer had acquired a certain degree of sophistication." Comparisons between various computer development stages are referred to as "generations" because the advancements are so major. It is understandable, therefore, that the ordinary man tends to ignore that which may eventually become his greatest threat to privacy. The threat arises not so much from invasion in the normal “physical" sense, but from the computer's capacity to store a fantastic amount of data on an individual and to retrieve and transmit it to anyone with an access key. 118 The problem of controlling this information is central to a discussion of privacy in the context of information usage. One author described privacy as that aspect of social order by which persons control access to Schrag. Dossier Dictatorship. Saturday Rev., April 17, 1971, at 25. Nader, The Dossier Invades the Home, SATURDAY REV., April 17, 1971, at 59. See generally A. MILLER, THE ASSAULT ON PRIVACY: COMPUTERS, DATA BANKS, AND DOSSIERS (1971). Professor Alan Westin's description of the future trend in data surveillance indicates the immediate and crucial need for a complete and totally objective re-evaluation of the evolutions of data retrieval systems and implication of such systems for the future. He describes the "laser memory process" whereby on one 4800-foot reel of one-inch plastic tape twenty pages of information on every man, woman, and child in the United States can be stored in digital form. The extent of the information that could be contained on ten or a hundred such reels staggers the imagination. See A. WESTIN, Privacy and Freedom 163-68 (1967). *Ms. Jane Kadish, a former computer expert for the Department of Health, Education and Welfare, recently remarked to the author that "the computer is the only machine that is obsolete by the time it hits the market." 37-583 74 pt. 2 12 90 JOURNAL OF PUBLIC LAW EMORY LAW SCHOOL sence of information about ourselves; it is the feeling of control 120 Only recently did Congress become aware of the potential erosion of the individual's right to privacy. Lately this has been expanded to include the "consumer's right of privacy." As Senator Proxmire stated: “At some point the individual's right to privacy must take precedence over the creditor's right to obtain information." In fact, the restriction on reporting highly personal information as an unjustifiable invasion of privacy was originally within the scope of the legislation when the hearings were held. 123 Informational privacy is only the latest of the many aspects of privacy which the courts and commentators are beginning to view as a recognizable right.124 One can control one's right to privacy only if one can control the interference with one's life. This is accomplished by continually redefining the growing fringes of the first ten amendments. The penumbra of the first amendment, where privacy is protected from government intrusion, was recognized in NAACP v. Alabama where the Supreme Court protected the "freedom to associate and privacy in one's associations."125 Without the peripheral right to educate a child in a school of the parents' choice126 or the peripheral right to study a foreign language127 the specific rights of the first amendment would be less secure. 128 In Griswold v. Connecticut Justice Douglas, writing for the Court, defined the right to marital privacy and said that "specific guarantees in the Bill of Freid, Privacy, 77 YALE L.J. 475, 493 (1968). See H.R. REP. No. 1842, 90th Cong., 2d Sess. (1968). 121 Hearings on S. 823, supra note 42, at 74, 82. See also Note, supra note 7; S. REP. NO. 517, 91st Cong., 1st Sess. 4 (1969). 12TIME, May 3, 1971, at 87 (quoting Senator William Proxmire). 123H.R. REP. No. 16,340, 91st Cong., 2d Sess. 54 (1970). It was originally proposed that the industries be restricted to reporting only information "reasonably relevant" to the purpose for which the report was to be used. See also Note, The Fair Credit Reporting Act, 56 Minn. L. Rev. 819 (1972). See Miller, Computers, Data Banks and Individual Privacy: An Overview, 4 COLUM. HUMAN RIGHTS L. Rev. 1 (1972). Considering today's technology, perhaps it is the computer which has too much privacy. One U.S. Senator has recently suggested that the Congress, the press, and the public should have available to them a habeas corpus action for entire computer systems and programs. If not lawful and relevant, the systems should be exposed for what they are-attempts to intimidate citizens into silence and conformity. See Ervin, The First Amendment: A Living Thought in The Computer Age, 4 COLUM. HUMAN Rights L. Rev. 13, 42 (1972). 125357 U.S. 449, 462 (1958). Pierce v. Society of Sisters, 268 U.S. 510 (1925). "Meyer v. Nebraska, 262 U.S. 390 (1923). Griswold v. Connecticut, 381 U.S. 479, 483 (1965). FAIR CREDIT REPORTING ACT 91 Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."" The right to privacy is not new. What is new is the expansion of the concept. Various guarantees create zones of privacy. The right of association is within the first amendment; the third amendment is another facet of that privacy. The fourth amendment affirms the right to privacy against unreasonable searches and seizures; the fifth amendment gives a person a zone of privacy which government may not force him to surrender to his detriment; and the ninth amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Concurring in Griswold, Justice Goldberg differed with the majority in that his conception of personal liberty and rights reserved under the ninth amendment encompassed the right to marital privacy, and obviated the necessity of pinning that right to penumbral emanations of other specific constitutional guarantees. 131 "130 The Supreme Court, in its recent decision on the question of abortion, has defined a new aspect of privacy. The Court held that the right to privacy, whether based on the fourteenth amendment's concept of personal liberty or on the ninth amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.132 In a concurring opinion, Justice Douglas recites a catalogue of those "certain rights. . . retained by the people" in the ninth amendment which includes customary, traditional, and time-honored rights, amenities, privi- He then proceeded to set out those rights which come within the meaning of the term "liberty" as used in the fourteenth amendment. First, is the individual's control over the development and expression of his intellect, Id. at 484. Id. For the Court's discussion of these penumbral rights of privacy and repose see Wyman v. James, 400 U.S. 309 (1971); Stanley v. Georgia, 394 U.S. 557 (1969); Katz v. United States, 389 U.S. 347 (1967); See v. Seattle, 387 U.S. 541 (1967); Camara v. Municipal Court, 387 U.S. 523, 528 (1967); Lanza v. New York, 370 U.S. 139 (1962); Monroe v. Pape, 365 U.S. 167 (1961); Frank v. Maryland, 359 U.S. 360 (1959); Public Utilities Comm'n v. Pollak, 343 U.S. 451 (1952); Rochin v. California, 342 U.S. 165, 172 (1952); Breard v. Alexandria, 341 U.S. 622, 626 (1951); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); Boyd v. United States, 116 U.S. 616 (1886). 381 U.S. at 486-99. Roe v. Wade, 93 S.Ct. 705 (1973). 1993 S. Ct. at 757. 92 JOURNAL OF PUBLIC LAW EMORY LAW SCHOOL interests, tastes, and personality.134 Second, is freedom of choice in the basic decisions of life involving marriage, divorce, procreation, contraception, and the education and upbringing of children.135 Third, is the freedom to care for one's health and person, to be free from bodily restraint or compulsion, and to walk, stroll, or loaf, 136 As new zones of privacy are defined, we are reminded of Justice Brandeis' dissenting opinion in Olmstead v. United States: The makers of our Constitution. . . sought to protect Americans Yet, as informational privacy is gaining recognition, collected information is only one aspect of the threat to that privacy. The method in which it is gathered is as great a concern, and it is to this problem which the Fair Credit Reporting Act addresses itself. The Fair Credit Reporting Act On August 2, 1968, Senator William Proxmire introduced a draft of the 14See, e.g.. United States v. Van Leeuwan, 397 U.S. 249, 253 (1970); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (Black, Douglas, JJ., concurring): Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697 (1958) (Douglas, J., concurring); Roth v. United States. 354 U.S. 476, 508 (1957) (Douglas, J., dissenting); Watkins v. United States. 354 U.S. 178, 196-199 (1957); Terminiello v. Chicago, 337 U.S. 1 (1948). Justice Douglas views these rights which are protected by the first amendment as absolute, permitting of no exceptions. Roe v. Wade, 93 S. Ct. 705, 757 (1973) (Douglas J., concurring). 135 See, eg.. Eisenstadt v. Baird, 405 U.S. 438 (1972); Kramer v. Union Free School Dist.. 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969); Loving v. Virginia, 388 U.S. 1 (1967): Griswold v. Connecticut, 381 U.S. 479 (1965); Carrington v. Rash, 380 U.S. 89 (1965); Sherbert v. Verner, 374 U.S. 398 (1963); NAACP v. Alabama, 357 U.S. 449 (1958); Kent v. Dulles, 357 U.S. 116, 126 (1958); Skinner v. Oklahoma, 316 U.S. 535 (1942); Pierce v. Society of Sisters, 268 U.S. 510 (1925). Justice Douglas views these rights as fundamental, and, in order to support some legislative control of them, a statute must be narrowly and precisely drawn, and a “compelling state interest" must be shown to support a limitation. Roe v. Wade, 93 S. Ct. 705, 758 (1973) (Douglas, J., concurring). Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972); Terry v. Ohio, 392 U.S. 1. 8-9 (1968); Katz v. United States, 389 U.S. 347, 350 (1967); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Jacobson v. Massachusetts, 197 U.S. 11, 29, (1905); Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252 (1891). Justice Douglas states that these rights, while also fundamental, are subject to regulation on a showing of "compelling state interest". Roe v. Wade, (93 S. Ct. 705, 758 (1973) (Douglas, J., concurring). 137277 U.S. 438, 478 (1928). FAIR CREDIT REPORTING ACT 93 Fair Credit Reporting Bill. 13 The bill was first presented in its skeletal form for the stated purpose of bringing it to the immediate attention of the other members of Congress so that they might give it serious consideration and focus in on the issues and problems it was designed to correct. 139 Consumer issues were an important and appealing political concern, especially after the Gallagher hearings exposed some of the serious, yet heretofore unknown, problems dealing with credit reporting. The advantage of imposing uniform regulation through congressional action was obvious. The need, at least insofar as the consumers were concerned, was immediate. Having recently passed the Consumer Credit Protection Act, 140 Congress had a perspective from which to evaluate problems dealing with the broad topic of credit as well as an interest in the specific area of credit reporting. In a certain sense the time was right. Senator Proxmire had become aware of the problem of credit reporting while working toward passage of the Truth in Lending Act." This experience was supplemented by correspondence he received during that time. which pointed to other consumer credit problems. The draft of the Fair Credit Reporting Bill included only major areas and objectives because of a lack of specific expertise in the area, in spite of the Gallagher hearings, as well as a desire for as much constructive input as possible. Proxmire had hoped that this input would be the result of hearings which he wanted to conduct later that same year. However, these hearings never materialized because the new Congress was more concerned with other matters. In the interim, Senator Philip Hart held two days of hearings on the credit industry in mid-December. 142 He was then chairman of the Subcommittee on Antitrust and Monopoly which was used as an effective forum for investigating and documenting abuse under the guise of considering the possible antitrust implications of credit agencies being controlled by a handful of people. The testimony and the witnesses were basically repeats of the Gallagher hearings. The subcommittee held hearings again in January of the following year. However, no legislative action was forthcoming. 143 During the same month, Gallagher presented to Congress the self See 114 CONG. REC. 10031 (daily ed. Aug. 2, 1968). See id. at 10029. 15 U.S.C. § 1601 et seq. (1970) (effective May 29, 1968). Much of the information which follows was obtained from an interview with Mr. Kenneth McLean, staff economists for the Senate Committee on Banking and Currency. March 24, 1972. See Hearings on the Credit Industry Before the Subcomm. on Antitrust and Monopoly of the Senate Comm. on the Judiciary, 90th Cong., 2d Sess. (1968). 1427 CONGRESSIONAL QUARTERLY 13 (January 3, 1969) (Weekly Report). |