ARGUMENT V

THE EXERCISE OF POWER BY THE SECRETARY OF
COMMERCE CONSTITUTED AN INVASION OF THE
DEFENDANT'S CONSTITUTIONAL RIGHT TO PRIVACY

The Right to Privacy has been defined in Johnson v. Boeing Airplane Co., 262 P.2d 808 as the right to be let alone, right to be free from unwarranted interference by the public in matters with which the public is not necessarily concerned.

In the case of McGrain v. Dougherty, 273 U.S. 135, 183, 47

S. Ct. 319, 328, 71 L. Ed. 580, the Supreme Court stated two propositions:

"One that the two houses of Congress, in

their separate relations, possess not only such
powers as are expressly granted to them by the
Constitution, but such auxiliary powers as are
necessary and appropriate to make the express
powers effective; and, the other, that neither
house is invested with 'general' power to
inquire into private affairs and compel dis-
closures, but only with such limited power of
inquiry as is shown to exist when the rule of
constitutional interpretation just stated is
rightly applied. "

The aforesaid case shows that while the power of inquiry

is an essential and appropriate auxiliary to the legislative function, it must be exerted with due regard for the rights of citizens, and that a citizen may refuse to answer where the bounds of the power are exceeded or where the questions asked are not pertinent to the matter under inquiry. In Kilbourn v. Thompson, 103 U.S. 168, 190, 26 L. Ed. 377,

the Supreme Court said:

"We are sure that no person can be
punished for contumacy as a witness before
either house, unless his testimony is re-
quired in a matter into which that house has
jurisdiction to inquire, and we feel equally
sure that neither of these bodies possess
the general power of making inquiry into
the private affairs of the citizens."

Referring to the authorizing resolution's failure to state

the purpose of the inquiry, the court went on to say:

"Was it to be simply a fruitless investi-
gation into the personal affairs of individuals?
If so, the House of Representatives had no power
or authority in the matter more than any other
equal number of gentlemen interest for the
government of their country. By 'fruitless' we
mean that it could result in no valid legislation
on the subject to which the inquiry referred."
Kilbourn v. Thompson, supra, at page 195.

The aforesaid case has been described as one which "will

stand for all time as a bulwark against the invasion of the right of the citizen to protection in his private affairs against the unlimited scrutiny of investigation by a congressional committee." In re Pacific Railway Commission (Circuit Court, N. D. Cal.) 32 F. 241 at page 253.

Mr. Justice Harlan delivered the opinion of the Supreme Court

in Interstate Commerce Commission v. Brimson, 154, U.S. 447, 14 S. Ct.

1125, 38 L. Ed. 1047 wherein it was said:

"We do not overlook these constitutional
limitations which for the protection of personal
rights, must necessarily attend all investigations
conducted under the authority of Congress.
Neither branch of the legislative department,
still less any merely administrative body,
established by Congress, possesses, or can
be invested with, a general power of making

inquiry into the private affairs of the citizens.
... We said in Boyd v. United States, 116 U.S.
616, 630, 6 S. Ct. 524, 29 L. Ed. 746 -- and it
cannot be too often repeated that the principles
that embody the essence of constitutional liberty
and security forbid all invasions on the part of
the government and its employees of the sanctity
of a man's home and the privacies of his life."

It has been said that few, if any, of the rights of citizens

are of greater importance to their happiness and safety than the right
to be free from unauthorized, arbitrary, or unreasonable inquiries and
disclosures which delve into personal and private affairs. The Supreme

Court has shown in the cases cited above, its recognition of the constitutional limitations on Congressional inquiry.

MISCELLANEOUS

Before the Federal Communications Commission, Washington, D.C.

[Docket No. 16979]

RESPONSE OF BUSINESS EQUIPMENT MANUFACTURERS ASSOCIATION (BEMA) IN THE
MATTER OF REGULATORY AND POLICY PROBLEMS PRESENTED BY THE INTERDEPEND-
ENCE OF COMPUTER AND COMMUNICATION SERVICES AND FACILITIES

Section V.-Security of Data Stored in Computers and Transmitted over
Communications Facilities

ITEM J

"What measures are required by the computer industry and common carriers to protect the privacy and proprietary nature of data stored in computers and transmitted over communication facilities, including:

1. Description of those measures which are now being taken and are under consideration; and

2. Recommendations as to legislative or other governmental action that should be taken."

Introduction

In this record-keeping civilization, the person in our society whose name is not inscribed within someone's filing system simply does not exist. Each of us, from birth, begins to deposit information about himself in various public and private files. Our increasing social interdependence assures an acceleration of the rate at which personal data are accumulated and stored.

Moreover, as the Commission recognizes, modern applications in both computer hardware and communication techniques have evidenced a trend toward concentrating commercial and personal data at computer centers. It is thus increasingly possible to collect and retain stores of information concerning various aspects of business and government, and relating to companies, groups of companies, and especially private individuals. The Commission's view is that "[t]his concentration, resulting in the ready availability in one place of detailed personal and business data, raises serious problems of how this information can be kept from unauthorized persons or unauthorized use." (Notice, para. 22). This recognition of the problem has led to the questions raised in this Inquiry concerning measures that are currently available and those that are contemplated to ensure the privacy of personal and proprietary data transmitted over communication facilities.

Certainly the Commission is correct in its recognition of the growth in the automation and centralization of data storage. The utilization of advanced techniques has not only become a necessity if we are to avoid disappearing beneath an avalanche of cumbersome record-keeping techniques, but also provides increased effectiveness in certain vital areas such as medical diagnosis, etc. In brief, personal and business data files, like others, are more and more being transferred from filing cabinets to computers, permitting the collection and storage of more detailed data, its collation in more meaningful form and speedier access to stored data. This practice has been made possible and accelerated by the major advances and innovations made in data processing techniques.

As shown in Attachment 11 the growing use of data banks spans a wide scale of government and private industry use. Governmental agencies, both Federal and state, are currently planning and developing major automated data banks. For instance, the Federal Bureau of Investigation is currently piloting the operation of a National Crime Information Center whereby law enforcement agencies throughout the country feed in data concerning stolen automobiles and

1 Attachment 1, pp. 188-190.