Mr. Chairman, this committee has a rare opportunity, and by our actions, we can demonstrate our resolve in meeting the problems created by technology while we continue in our commitment to the individual's right to privacy.

[The prepared statement of Senator Mathias follows:]

PREPARED STATEMENT OF HON. CHARLES MCC. MATHIAS, JR., a U.S. SENATOR FROM THE STATE OF MARYLAND

Mr. Chairman, it is with great pleasure that I attend today the joint hearings of the ad hoc privacy subcommittee of the Government Operations Committee and the Subcommittee on Constitutional Rights of the Judiciary Committee, as we inquire further into legislation to protect the right of privacy. My pleasure stems, Mr. Chairman, from the honor you do me in inviting me to participate in these hearings even though I am not a member of either subcommittee. But my greater pleasure stems from the fact that I see the Congress moving continually ahead to seek solutions in the privacy area, solutions that have been too long delayed.

What we are seeking today is privacy for the individual. And I think it is worth noting that the individual and his government are placed on a different footing when such questions arise. Privacy for the individual is desirable; privacy for the government is not, and we unflatteringly label the latter as government secrecy. We pass legislation against it designed to give the Congress needed access to information, we restrict it to limited exceptions when we enact a Freedom of Information Act, and we attempt to expose it when we consider legislation such as that I shall soon introduce to require the publication of all Executive Orders.

This rigorous denial of a right to privacy for the government coupled with our insistence and efforts on behalf of such a right for the individual is, I believe, one of the marvels of our system of government. It is a recognition that all authority rests ultimately with the individual. It is the expression of our belief in the worth of the individual. Dr. Samuel Johnson summed it up when he said:

Political liberty is good only so far as it produces private liberty. The threat to the privacy of the individual, I believe, stems from technological advances. The hardware which these advances have given us I will call, at the risk of oversimplification, the computer and the bug.

Of the bug, little need be said here. The increasing sophistication of eavesdropping and wiretapping equipment is cause for alarm. It's use by the state against individuals, as has been revealed during these sad last two years, is frightening. Congress will move quickly, I hope, to do something about this type of invasion of privacy and will give favorable consideration to the Bill of Rights Procedures Act which I have introduced.

The computer is the hardware which has brought us here today. The problems of massive gathering of information by the government and by private parties can be viewed as something apart from the development of the computer. Such information is dangerous and subject to misuse whether computerized or not. But the computer gives the potential for much greater use of such information and hence

greater incentive for its collection. The computer can manage tasks that would overburden an army of clerks. The computer gives the means for tapping the resources of our information-rich world. The challenge here stems from the computer and its potential for increasing the capability for the collection and organization of information and speeding its dissemination.

As I said at the earlier hearings on criminal justice data banks, to recognize this is not to reject the beneficial uses of the new technology. Rather, our task here is to reconcile them with older values where the two are in competition and to strike a balance which will serve both society and the individual.

And the agenda of problems is fairly well-known. The Subcommittee on Constitutional Rights is already studying legislation on criminal justice data banks. The National Crime Information Center has over five million files. Some are incomplete, and inadequate safeguards for their dissemination exist.

These subcommittees now have before them bills which deal with the collection of information by the Federal government, by state governments, and by private individuals. No one knows how much data the Federal government collects, a fact itself that is cause for alarm. Hopefully, these hearings will shed additional light on this question. In the private area, one credit company alone has nearly thirty-four million investigative reports in its files. Legislation designed to control such reporting has proven inadequate.

Attention has been focused by Senator Goldwater on the use of the social security number as a universal identifier by information systems. The need for the protection of bank records has been stated by myself and others. Problems of access and purging of records have received a good deal of attention lately, including the special problems in these areas which arise in the case of children. HEW has made a major contribution in its study on "Records, Computers and the Rights of Citizens."

I believe that we are nearing the end of the period of study of these problems and are entering on a period of resolution. The time is right for legislation. The Administration has made a major commitment in this area. A consensus of concern has ben forged among Senators and Congressmen of widely differing philosophical viewpoints. By acting now we can demonstrate our resolution to meet the problems created by technology and our continuing commitment to the individual's right to privacy.

Senator ERVIN. I am delighted that Senator Muskie, who has very kindly consented to chair these hearings today, has come in I think from a fishing trip. I hope he caught some fish.

Senator MUSKIE. Yes; I did. It was very productive and I hope these hearings are just as productive.

Senator ERVIN. And I would like to announce, after these hearings recess there is an impotrant meeting of the Judiciary Committee set which requires me to leave and Senator Muskie has very kindly consented to chair the hearing today and Senator Ribicoff has agreed to chair them tomorrow in the event Senator Muskie cannot be here. And I would like to give you and Senator Jackson an opportunity now to make an opening statement if you wish to do so.

Senator MUSKIE. Many apologies first of all for being late. I was preoccupied with matters in my office. I won't take time now to make a substantive statement on this issue. I would simply like to congratulate the chairman, and the other Senators on this committee who are interested in this issue, as well as our colleagues from the House who are here to lead off these hearings. I think it is a terribly important issue which involves the whole question of the extent to which the individual is going to be depersonalized and dehumanized in this technological age.

We are concerned about that and I congratulate everybody involved. I have become interested in large part because of the interest of the chairman and other members of this committee and I look forward to this hearing.

Senator ERVIN. Senator Jackson?

OPENING STATEMENT OF SENATOR JACKSON

Senator JACKSON. Mr. Chairman, I just want to take this opportunity to commend you, having been a pioneer in this area of the right of privacy, for bringing the committees together in a joint effort. As the Chair knows, our staff in the investigating committee has been looking into this for some time.

I think there has been tremendous emphasis in the area that concerns all of us, and that's just plain wiretapping, which comes within legal restraints at the present time. But I want to raise what to me is an aren that's not covered by the law, but such a basic violation of civil liberties of an individual, and that is what took place in the Oval Room in the White House. I think anyone who has been to Sunday school knows that you should not, a public official, starting at the highest level to the lowest, at least should not tap the conversation of another without their consent. And the tragedy in this period that we are going through is that we have to write laws on ethics, and what is right and what is wrong. But to me, this is an area, Mr. Chairman, where I think legislation is sorely needed.

I think it ought to be illegal for any public official at a minimum to record the conversation of another or others without their consent. And to me it is incredible that anyone would think of doing this, especially starting at the highest level of Government. We have had a lot of talk about. Watergate and I am not here to talk about that. But to me there has been very little discussion on this basic question. I think men of honor just don't do such things and I raise that question at this time beenuse I think it is one where we would want to have the benefit of the witnesses. To my knowledge, there is no legislation pending to cover that situation. I don't care whether it is the mayor of a town, any public official the private area raises something else, when you are in a private home that raises other questions of constitutionality and so on, but I think in the public domain there shouldn't be any question.

Sonator EnviN. I think your views were shared by many generations ngo when the common law in marriage and from the midst of history they had a criminal offense known as eavesdropping, a man who hid outside of the houses of others to listen to what conversations occurred on the inside,

Senator JACKSON. Well, I think we can still draw, Mr. Chairman, on the common law. It is our heritage, an Anglo-Saxon law, with all of its shortages, is still the best system in the world, and I think this is merely an extension of that common law injection that I had in mind. I thank the Chairman.

Senator ERVIN. I regret very much I have to leave at this time on account of another committee and I would ask Senator Muskie to take over and call the witnesses, but before I do that I have received a statement from Senator Bayh, who is a member of the committee, to be inserted in the record as if read. Senator Bayh was unable to be here because of other commitments. So, without objection, it is so ordered.

STATEMENT OF HON. BIRCH BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA

Mr. Chairman, as a Member of the Subcommittee on Constitutional Rights and as one who has been vitally concerned for many years with the safeguarding of citizens' personal privacy, I am most grateful of this opportunity to submit this testimony in support of Federal privacy legislation.

Data collection on individuals is not a new phenomenon. The Federal Government has been collecting immense amounts of personal information on individuals for decades-income tax, social security, and the census are those information systems that come immediately

to mind.

The Subcommittee on Constitutional Rights has just released its invaluable 4-year study on Federal data banks, and its findings make it clear that the task before us is of great importance and that constructive actions are imperative. The subcommittee report suggests that there are already in existence in excess of 858 data bank systems maintained by the Federal Government. The subcommittee study analyzed only those 858 systems voluntarily reported to them by the 54 agencies contacted in the study. The Departments of Commerce, Defense, and Justice, as well as the Office of Management and Budget did not report to the subcommittee any data systems which merely contained such information as social security number, salary, race, sex, history of drug abuse or the like because these departments did not regard this as "personal" information. The number of data banks not counted by the subcommittee on this basis might very well be incalculable.

Despite the burgeoning of data banks and the corresponding potential for abuse that has grown with it, we have yet to establish standards or procedures which would serve to both agencies Federal information gathering practices and safeguard our Constitutional right to privacy.

During the 92d Congress, along with Congressman Edward I. Koch of New York, I introduced the Citizen's Privacy Act, broadly based legislation which was designed to establish those standards and procedures necessary to protect the average citizen's right to be free from the unreasonable invasion of his privacy by the Federal Gov

ernment.

Unfortunately, the Congress failed to act on this legislation, and during the ensuing two years, we learned of new and more ominous invasions of privacy undertaken with the executive branch.

In light of these revelations, in October 1973, I introduced a revised version of my earlier legislation. My bill, S. 2542 which is now the subject of consideration before you tody, provides standards and procedures to regulate Federal information systems similar to those in my earlier bill, but this legislation also provides for a Federal Privacy Board to administer such regulations.

Last week, it gave me great pleasure to co-sponsor, along with you, Mr. Chairman, and our distinguished colleagues, Senators Kennedy, Goldwater, and Mathias, even more expansive privacy legislation, S. 3633, the Government Data Bank-Right to Privacy Act of 1974. This bill differs from an earlier version previously introduced in the House by Congressman Koch and Goldwater as well as a similar version introduced in the Senate, in three significant ways.

First, it does not attempt to cover private information systems. Our bill, S. 3633, applies only to Federal systems and those State governmental systems receiving Federal funding or which are interstate in nature. By limiting the coverage of the bill, we are not maintaining that there is no need to cover the private sector. There is concern, however, as to the statutory authority for such comprehensive coverage of the private sector provided in earlier legislation.

Second, S. 3633 will not apply to those Federal or State information systems which are subject to another statute affording at least the minimal protection set forth in the legislation. For those that are uncomfortable with setting another precedent of Federal dominance over the States, this provision will encourage State systems to develop their own stringent regulations.

Third, S. 3633 offers a different proposal as to the administration of the rules and regulations set up under the bill. Instead of creating a new Government-wide independent administering agency, S. 3633 proposes to establish an office within the General Accounting Office which shall be called the Federal Privacy Board. This proposal is consistent with oversight functions of GAO and would not add to the proliferating number of oversight agencies already in existence.

Under my earlier legislation, S. 2542, I had proposed the creation of the Federal Privacy Board as a separate agency, and I am not withdrawing my support for that proposal at this time. But, the installation of a Federal Privacy Board within GAO as proposed under S. 3633 is an alternative whose merits we should examine.

Because of the truly comprehensive nature of S. 3633, I would like to briefly examine some of its provisions, particularly in terms of their response to some of the basic problems confronting us as outlined in the summary of our Constitutional Rights Subcommittee report on Federal Data Banks.

Our comprehensive privacy bill, S. 3633, provides safeguards for personal privacy at all three stages of the Federal information systems process: collection of information, maintenance, and dissemination.

COLLECTION

One of the most worrisome practices of Federal agencies in gathering information on individuals for data bank systems, is the failure of these agencies or departments to adequately notify individuals that