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CONGRESSIONAL RECORD EXCERPTS
EXCERPTS CONTAINING
REMARKS ON PRIVACY BY MEMBERS OF CONGRESS

[From the Congressional Record, Senate, June 11, 1974]

NOTICE OF JOINT LEGISLATIVE HEARINGS ON PRIVACY AND GOVERNMENT INFORMATION SYSTEMS

Mr. ERVIN. Mr. President, hearings on bills relating to privacy and Government information systems will be held before an ad hoc subcommittee of the Senate Government Operations Committee and the Judiciary Subcommittee on Constitutional Rights on June 18, 19, and 20. The joint hearings will be held in room 3302 of the Dirksen Senate Office Building at 10 a.m.

The legislation before the Government Operations Committee is S. 3418, which I have cosponsored with Senators Percy and Muskie, to establish an administrative structure to oversee rules for the gathering and disclosure of information concerning individuals, and to provide management systems in Federal agencies, State and local governments and other organizations concerning such information, and for other purposes.

Bills pending before the Constitutional Rights Subcommittee of which I am also chairman, are: S. 2810, introduced by Senator Goldwater, to protect the constitutional right of privacy of individuals concerning whom identifying numbers or identifiable information is recorded by enacting principles of information practice in furtherance of amendments I, III, IV, V, IX, X, and XIV of the U.S. Constitution;

S. 2542, introduced by Senator Bayh to protect the constitutional right of privacy of those individuals concerning whom certain records are maintained; and S. 3116, introduced by Senator Hatfield, to protect the individual's right to privacy by prohibiting the sale or distribution of certain information.

With these legislative hearings, the Government Operations Committee will continue its oversight of the development and uses of automatic data processing in the Federal Government. The intergovernmental nature of nationwide systems involving electronic and manual transmission, sharing and distribution of data about citizens has significant implications for our federal system. In its attempt to respond to citizens' demands for quality and quantity in services, government and the private sector have turned to the large data banks, computerized information systems and management techniques which will help them get the job done. Where these practices and systems neglect the administrative and technical concern for privacy, due process, and surveillance over the individual, they are taking a toll, which is yet unmeasured, on constitutional principles of accountability, responsibility and limited government. The cost to the taxpayer in dollars and cents concerns every American, for in the interest of promoting efficient government, the taxpayer may also be paying for loss of his privacy. That may be the price of insufficient monitoring by the public and Congress of the haphazard, ad hoc, ways modern government has found to meet its information needs, and which public officials use to meet their political needs.

Two Subcommittees of the Government Operations Committee are presently conducting oversight into major aspects of this problem. For instance, the Permanent Subcommittee on Investigations, chaired by Senator Jackson, is presently conducting an inquiry into surveillance practices in and out of government, including government wiretapping, eavesdropping, recording, industrial espionage and bugging of labor negotiations, and other monitoring practices. The Intergovernment Relations Subcommittee chaired by Senator Muskie, who is also a sponsor of the pending bill, is considering legislation concerning electronic surveillance and the need to reorganize departments and agencies

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engaging in such practices. That subcommittee is also studying a major aspect of Federal administration which affects individual privacy; this is the classification of Federal records and the laws and rules governing access, release and withholding of information which government collects about people.

The sponsors have introduced S. 3418 for purposes of discussion on the issues of what standards Congress should set for the protection of privacy in the development and management of Federal information systems, especially those which have been computerized with capacity for the sharing of records among departments and governments and across State boundaries. I expect hearings to produce expert advice not only on the standards to be set, but on the scope of the bill and how far the law should affect State, local, and private data banks. The hearings will also help us determine what kind of Federal structure should be established to enforce or advise on standards.

Congress is now considering a number of legislative proposals directed to specific problem areas of the law governing the privacy of the individual such as criminal justice data banks, military surveillance of civilian politics, wiretapping and eavesdropping, private credit data banks, employee privacy, behavior modification, lie detectors, and computer technology. These are some of the techniques and governmental programs which have concerned Congress and the public.

In contrast to such special legislation, the proposals considered in the June hearings represent general legislation to protect the privacy of all citizens and to build into the structure and practices of government a strengthened respect for the privacy and other freedoms guaranteed by the Bill of Rights.

S. 3418 is similar, but not identical, to omnibus legislation introduced by Representatives Edward Koch and Barry Goldwater, Jr., which is being considered by the House Government Operations Subcommittee on Foreign Operations and Government Information chaired by Representative William Moorhead. Their joint efforts are contributing greatly to the chances for enactment of major privacy protections this year. Individually, many Members of the House of Representatives have for a number of years sponsored bills reflecting sections of this proposal relating to mailing lists, a Federal privacy board, Federal questionnaires, and changes in the freedom of information law.

Portions of S. 3418 are similar to the measures pending before the Constitutional Rights Subcommittee. Another portion is comparable to my bill S. 1791 of the 91st Congress, which was to limit the threats to privacy from burdensome, overly personal questionnaires by which Government agencies sought statistical information through coercive collection techniques.

S. 3418 and the related bills deal with requirements to reveal one's social security number to government and private organizations, with personal statistical questionnaires, mailing lists, and remedies for official information programs which may pass constitutional boundaries.

In addition to the thousands of complaints which people have sent to Congress, we now have for guidance on this subject the investigative hearings, reports, and findings of a number of congressional committees, private organizations and Government departments. One of these studies, "Records, Computers and Rights of Citizens," was ordered by the former Secretary of Health, Education, and Welfare, Elliot Richardson, who will testify on June 18 on the findings of his study and the need for congressional and administrative action.

Another influential and comprehensive report entitled "Privacy and Freedom" by the Assocition of the Bar of the City of New York was directed by Prof. Alan F. Westin of Columbia University. Recently, Dr. Westin conducted another study with Michael F. Baker for the National Academy of Sciences entitled “Databanks in a Free Society." I am pleased to announce that in addition to presenting testimony on the pending legislation, Dr. Westin has agreed to serve as a consultant to our our hearings and to give us the benefits of his considerable research and analysis in this area of the law.

With the establishment of the new Domestic Council Committee on Right to Privacy chaired by the Vice President. Congress now has additional resources and assistance in its efforts to protect privacy, and we look forward to their cooperation in our studies.

Vice President Ford has accepted an invitation to present a statement on June 19 which will be delivered by the committee's Executive Director, Mr. Philip Buchan.

Other witnesses with special knowledge in this area of the law and administration will include Members of Congress who have sponsored privacy legislation, representatives of the National Governors Conference, the National Legislative

Conference, the National Association for State Information Systems, Government Management Information Sciences, the National League of Cities, the U.S. Conference of Mayors, the American Civil Liberties Union, Liberty Lobby, public administration specialists, and other interested organizations and individuals. The Subcommittee on Constitutional Rights conducted excellent hearings in March of this year on criminal justice data bank legislation, in 1971 on "Federal Data Banks, Computers and the Bill of Rights," and in 1969 on "Privacy the Census and Federal Questionnaires." These hearings elicited for Congress a wealth of information about public complaints and attitudes concerning the establishment and the management of Federal programs to investigate citizens in order to store, distribute, and exchange information about them. We found that some of these programs were none of the business of the Government and infringed totally or in part on constitutional freedoms. Other programs were meant to obtain the great amount of information which Congress must have to legislate wisely and which the executive branch must have in order to administer the laws properly. In some instances, however, it was charged that lawful programs went beyond their purpose in scope, and in some cases, that the lack of adequate control permitted unauthorized access to this Government information, or allowed its transfer and distribution to unauthorized persons and those who had no need for it in the performance of their duties.

It is a rare person who has escaped the quest of modern goverment for information. Complaints which have come to the Constitutional Rights Subcommittee and to Congress over the course of several administrations show that this is a bipartisan issue which effects people in all walks of life. The complaints have shown that despite our reverence for the constitutional principles of limited Government and freedom of the individual. Government is in danger of tilting the scales against those concepts by means of its information-gathering tactics and its technical capacity to store and distribute information. When this quite natural tendency of Government to acquire and keep and share information about citizens is enhanced by computer technology and when it is subjected to the unrestrained motives of countless political administrators, the resulting threat to individual privacy make it necessary for Congress to reaffirm the principle of limited Government on behalf of freedom.

The complaints show that many Americans are more concerned than ever before about what might be in their records because Government has abused, and may abuse, its power to investigate and store information.

They are concerned about the transfer of information from data bank to data bank and black list to black list because they have seen instances of it.

They are concerned about intrusive statistical questionnaires backed by the sanctions of criminal law or the threat of it because they have been subject to these practices over a number of years.

The pending legislation represents a partial solution to these concerns. There are alternatives to some of the provisions. For instance, enforcement of the act and the advisory functions which are located in an independent privacy board might be relocated or distributed to the General Accounting Office and the courts. Furthermore, after receiving testimony the committee may want to alter the scope of the legislation.

I want to commend Senator Percy for his interest in this subject and his initiative in working with House sponsors to bring the legislation before the Government Operations Committee in connection with its oversight of the use of governmental data banks and computer technology, and its monitoring of surveillance practices throughout government which may threaten freedom.

I hope the joint efforts of the Senate Government Operations Committee and the Constitutional Rights Subcommittee, whose members and staff have great expertise in this area of the law, will result in enactment of the basic legislative guarantees which are needed if America is to face up to the computer age.

It should be noted that these pending bills follow patterns and raise issues similar to those in criminal justice legislation, S. 2963 and S. 2964, which I have cosponsored with the following Senators who include members of the Judiciary and Government Operations Committees: Senators Hruska, Mathias, Kennedy, Bayh. Tunney, Young, Brooke, Mansfield, Robert Byrd, Burdick, Roth, Hugh Scott, Thurmond, Fong, and Gurney.

We welcome suggestions and comments from Members of Congress and others with an interest in and knowledge about these matters. Those wishing to submit statements for the record should communicate with the Government Operations Committee, room 3306 of the Dirksen Office Building, Washington, D.C. 20510, telephone 225–7469.

In an article entitled "The First Amendment-A Living Thought in the Computer Age," from volume 4 of the Columbia Human Rights Review, 1972, I have described some of the many complaints which people have registered to the Constitutional Rights Subcommittee and to Members of Congress about attitudes and program of government which threaten the privacy guaranteed under the first amendment. At the conclusion of the article, there is suggested a seven-part legislative program to remedy these complaints, part of which is reflected in the pending legislation. Additional examples of questionable data banks have been revealed, many of them documented in the forthcoming report of the subcommittee's comprehensive survey of the laws and rules affecting individual privacy in Federal data banks and computerized information systems. These new revelations to Congress merely serve to reaffirm my conviction that early congressional action is needed to implement the Constitution.

[From Congressional Record, Vol. 117, No. 13, Feb. 8, 1971]

ANNOUNCEMENT OF HEARINGS ON COMPUTERS, DATA BANKS, AND THE BILL OF RIGHTS

Mr. ERVIN. Mr. President, I am pleased to announce that the Subcommittee on Constitutional Rights has now rescheduled hearings on Computers, Data Banks, and the Bill of Rights. These will commence on Tuesday, February 23 at 10 a.m., and will continue on February 24 and 25, March 2, 3, and 4 and March 9, 10, and 11. They will be held in room 318 of the Old Senate Office Building every day except March 2 when they will be in room 1202 of the New Senate Office Building.

The subcommittee had planned to conduct hearings last October to consider the effect on individual rights of Government data banks and computer information techniques. I outlined for the Senate the purpose and scope of the subcommittee's study on September 8, 1970.

Unfortunately, the pressure of the Senate business made it impossible for the subcommittee to conduct the hearings with the full attention this vital subject requires. For that reason they were postponed until this time.

It has become increasingly clear that unless we take command now of the new technology with all that it means in terms of substantive due process for the individual who is computerized, we may well discover some day that the machines stand above the laws. By then, it will make no difference who mans the systems or what political party makes use of them, for the pattern of mechanized surveillance will have become so institutionalized throughout our land that it may defeat the ingenuity of the God-given powers of man to alter our national course. "Liberty" will then sound only as a word in our history books, the lamented dream of our Founding Fathers.

It was with these concerns in mind that the subcommittee initiated its Government-wide survey and investigation of computers and data banks. The overall goal of our hearings and studies therefore is fourfold: To learn, first what Government data banks have been developed; second, how far they are already computerized or automated; third, what constitutional rights, if any, are affected by them; and, fourth, what overall legislative controls, if any, are required.

We shall hear experts in computer technology discuss for us the development and application of computer systems as they affect the constitutional rights of individuals and the uses of political power in the United States.

Leadoff witnesses on February 23 will be Prof. Arthur R. Miller of the University of Michigan Law School and author of "The Assault on Privacy," a comprehensive analysis of this problem just published this week. Others in the field of computer technology will include invited representatives of the computer industry, including on March 3, Robert Henderson, vice president of Honeywell Corp. and on February 23, an official of the International Business Machines Corp. Robert Bigelow, attorney and chairman of the Committee on Computers and Society of the Association of Computing Machinery, and professor of computer science Caxton C. Foster will testify on March 10.

A major State computerized information system will be discussed on March 10 by Dr. Robert Gallati, director of the New York State Identification and Intelligence System. Furthermore, in his capacity as chairman of the project SEARCH privacy committee, he will discuss a major and singular report on a proposed national Federal-State computerized information system under the auspices of the Department of Justice.

While much of the current controversy revolves around computerization of law-enforcement information systems and data banks on special groups, there are other data-banking devices which concern every American, for they are essential to the lives of millions. Two of these are the social security number and the driver's license. The complaints received by the subcommittee indicate that these are two major problem areas of privacy and confidentiality.

It is becoming all too clear that these are common means of computerizing individuals and thereby locating them, investigating them, monitoring their activities for many purposes, and possibly invading their privacy and violating the confidentiality of the personal records stored in government and private computers.

The Secretary of Health, Education, and Welfare, Elliot Richardson, has recently expressed his concern about this and reported that he is studying the possibility that the Social Security number may be too broadly used. In a letter to me on September 15, 1970, he states:

"Social Security numbers are currently being used throughout industry and government as a means of clearly identifying individuals and avoiding the confusion and mistakes which can arise when a number of individuals have common or similar names. These numbers provide a unique means of identification applicable to most individuals in the United States . . .: Despite . . . restrictions, the Department is concerned that if the Social Security number were used too broadly, such widespread use and dependence upon the number might lend itself to abuses of individual privacy. Because of this concern, the Social Security Administration is currently reviewing the policies governing the issuance, maintenance, and usage of the Social Security number."

The subcommittee has invited Secretary Richardson to discuss this study of the uses of the Social Security number on March 11, as well as the various data banks used or sponsored by his Department. An invitation has also been extended to Secretary of Transportation John Volpe to appear on March 11 and discuss the Department's computerized national data bank of driver's license holders. This system contains information on all Americans whose licenses have ever been revoked; denied, withdrawn or suspended for any purpose.

As a data program established and expanded by Congress, one of concern to all Americans, and one developed and used cooperatively by Federal, State, local, and private agencies, this system should provide a useful example of the benefits and problems created by computer technology within the federal system. Mr. President, beyond the constitutional and legal issues presented by the impact and uses of computer technology, there is a more profound question confronting the country. This is the extent to which the new computer science and information management techniques equip politicians with rapid and efficient tools for programs which have political ramifications for our entire society. Instant blacklisting, rapid cross-country exchange of dossiers, million-name master indexes, and scientific surveillance can easily become the order of the political day in this era of systems analysis and applied scientific management techniques.

These are practices suggested by the scope of some present Federal programs and they go to the heart of the constitutional exercise of first-amendment freedoms for every person in our society.

Since the issues here are of momentous concern, I believe they merit the careful scrutiny of this subcommittee and the Senate. The hearings, therefore, have significance in several ways, for they look to the way the power of government will be exercised over the individual in decades to come-they look even to the fate of our liberty in this century.

The scbcommittee's concern has been particularly prompted by increasing public interest and complaints about unwarranted governmental invasion of personal privacy through official surveillance and note taking on the political and personal activities of citizens who have broken no laws.

I am reluctant to attribute unsavory political motives to these programs, but there is no doubt that they were human responses to political forces at work in our society and in our Government. These official monitoring actions have been undertaken in the pursuit of a number of high sounding Federal programs, worthy in their inception. But, because of their scope, they threaten in operation to become, and in some cases actually have grown to be, monsters of the laws, stalking the privacy and trampling the first-amendment rights of individual citizens.

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