Where does it end?
Rule, James B.
WHERE DOES IT END? JAMES B. RULE THE PUBLIC INVASION OF PRIVACY One bracing feature of Watergate was the sweeping indictments of public institutions it elicited from figures of impeccable...
...Since its inception in 1967, this agency has steadily broadened the coverage of its files...
...The events of Watergate—for example, the effort to mobilize IRS data on Nixon's enemies in order to harass them—had conveyed a chilling vision of the politics of personal data...
...But it should most emphatically apply to admininstrative and commercial uses of personal data...
...Most Americans, already disenchanted with the official deceptions that had led to the Vietnam quagmire, now contemplated perhaps a still more fearsome prospect: A thoroughly uncivil state, commanding vast amounts of sensitive data on its citizens and prepared to exploit these informational riches to suppress domestic dissent...
...In seeking to "protect privacy," we seek to avoid slipping into a world where those at the centers of power can mobilize any data on any citizen at will—for any purpose...
...But it would be disastrous to imagine that these are the only values involved...
...What compels concern here is not any single privacy-invading "error in judgment," to use the delicate term chosen by Proctor and Gamble's chief executive for his actions...
...ut nothing in the Privacy Act, or any other measure enacted in this connection, has provided an effective basis for opposing new bureaucratic opportunities for centralized monitoring of the sort noted here...
...It creates due process rules by which one can challenge the accuracy and pertinence of data held in a file...
...Particularly pernicious is the notion that the extension of institutional monitoring of "private" life is warranted, whenever the organizations involved show a genuine "need" for it...
...Always acutely responsive to the political moods of the executive branch, OMB has treated the act with less-than-benign neglect...
...During formalities at U.S...
...It mandates public acknowledgment of the existence of data files, and access to one's own file...
...The agencies entering such names were to be notified whenever these names were the subject of inquiries elsewhere in the system for example, when another law-enforcement agency encountered the individual in question and entered an inquiry on him or her...
...In the words of a subsequent Wall Street Journal account, Cincinnati Bell "had to search through some 655,297 home and business telephone lines and 35 million toll calls" between March I and June 15...
...here we would do well to establish a kind of property right in commercial exploitation of personal data—as sociologist Kenneth Laudon and others have suggested...
...And should a test appear to reveal some trace of drug use, that information in itself provides the basis for all sorts of influence over the employee, both on the job and in any future setting where that data may surface...
...For example, "If we have learned anything in the last year of Watergate, it is that there must be limits upon what the government can know about each of its citizens...
...In fact "private protection" is a peculiar term for the values at stake here...
...Similarly, unilateral requirements by government bureaucracies for data demonstrably needed to collect taxes, issue passports, license drivers and the like should dismay no one...
...Stripped of our privacy, we lose our rights and privileges...
...16: 14 February 1992 Commonweal...
...We need vigorous public discussion of such matters as how readily government investigators should have access to logs of private citizens' phone calls, or when company physicians should disclose medical data to employers, or when IRS or Social Security data should be used to enforce obligations like child support...
...The principle—the presumption that one remains in control of one's own data, unless a compelling interest to the contrary is legally recognized—may be gaining recognition...
...In some instances, participating agencies require immediate notification of the movements of specific persons...
...For the more the government or any institution knows about us, the more power it has over us...
...Even where it is not clear what harm would result from surrender of one's data, the presumption ought to be that control over it remains with the individual, in the absence of a specific mandate otherwise...
...In an effort to curtail the flow of embarrassing information from company insiders to the Wall Street Journal, top executives of the company instigated a computerized dragnet of telephone records...
...But it would be salutary to require specific legal authority before demands by government agencies and private organizations seeking such data could be considered binding...
...What has been at stake in legislation and policy like the Privacy Act has had more to do with the dangers of disclosure, not as an experience in itself, but as a means to other ends...
...The Bill of Rights then becomes just so many words...
...Consider the privacy-invading information dragnet initiated last spring by the corporate giant Procter and Gamble...
...We need to think harder and deeper than the authors of the Privacy Act did about where to draw the line on such matters...
...The very existence of such data or the belief that they do, or may, exist—has potent effects...
...They show, in particular, that the power issues associated with appropriation of personal data are still visible to many, even in a relatively conservative period...
...As more and more law-enforcement agencies routinely enter names of persons they encounter into the NCIC computer in hopes of a "hit"—that is, of an indication that a person they have encountered is wanted for arrest—the potential of such a system for tracking persons "of interest" grows...
...No such presumption should apply to collection of personal information for purposes of journalism, scholarship, or public debate...
...Such authority should be granted sparingly...
...Vigorously opposed by the industry, the bill was vetoed by Republican Governor George Deukmejian...
...Who could then have predicted, for example, that Americans in the 1990s would tolerate massive government-directed programs of mandatory urine testing in the workplace—a program aimed not at those whose behavior gave suspicion of drug-taking, but against the possibility of drug use...
...Computerized telephone records are just one of the more visible systems of this kind...
...Education, insurance, medical care, trade union membership, and a variety of other basic social relationships clearly presume at least a modicum of record-keeping...
...For now, details of how such rights might be implemented matter less than the principle...
...The case for a presumption of confidentiality holds a fortiori for private-sector recycling of personal data...
...A vigorous public life demands conditions in which the boundaries between public and private information are clearly understood, and conscientiously respected...
...These legislative efforts are the merest of straws in the wind...
...And often these gains support values that no one could fault, from fighting crime to increasing safety and productivity in the workplace...
...As a result, the United States now stands virtually alone among the industrial democracies of North America, Europe, and Australia in lacking an agency of this kind...
...Consider a much less well-known case—the Treasury Enforcement Communications System (TECS...
...Or consider another development in institutional monitoring of Americans' lives and movements: the National Crime Information Center, the computerized personal data service maintained by the FBI for use by the nation's law-enforcement agencies...
...Besides having responsibility for enforcing the act, the board was to have been empowered to investigate privacy-relevant practices of federal, state, and local government agencies, and to act in defense of privacy interests against data-keeping bureaucracies...
...Public and private bureaucracies consistently find ways to "do better" by knowing more about the people they deal with, and by spreading such knowledge more widely...
...Ervin's original legislation provided for a permanent Privacy Board a kind of personal-data ombudsman within the federal establishment...
...New ventures in personal data collection like these shift a subtle balance in power and prerogative from "private" individuals to the institutions appropriating their data...
...The Privacy Act applies only to data held by federal agencies...
...Like polygraph testing, drug testing is an exercise in intimidation...
...The Privacy Act is also notable for what it lacks...
...Ultimately, these objections had their effect...
...The purpose was to identify "all 513 area code numbers that dialed the home or office phone number" of the author of the unflattering stories...
...What we object to in the creation of sweeping systems of personal monitoring, in other words, is not that the data should be disclosed at all, but that it should be mobilized so as to confer new powers and subject individuals to new institutional pressures...
...And it gives grounds for redress when personal information is used for purposes other than those for which the file is officially intended...
...in other cases, agencies relying on the system electronically sift through the backlogs of data to trace past movements of persons of interest to them...
...J. Edgar Hoover's extraordinary influence over public affairs, it appears, stemmed from the widespread belief that he had amassed embarrassing or incriminating data on vast numbers of public figures...
...What has to be opposed, in such debates, is the assumption that efficient operation of the organizations claiming and using personal data is the only, or the paramount value at stake...
...But the values of "doing better" in this connection are hardly the only ones that require attention—and often they are not the most important...
...Instead, it is the steady growth of systems for generating, storing, and communicating personal information on vast scales...
...In the absence of a Privacy Board, responsibility for oversight of the act was conferred on the Office of Management and Budget...
...This proposal spurred sharp criticism from civil libertarians, including Representative Don Edwards (D-Cal if...
...What practical principles should we invoke to weigh the acceptability of collection and use of personal data...
...In extremis, the sense that nearly any personal information about one's self might be recorded somewhere, and subjected to unfriendly use, chills all sorts of desirable public participation...
...But similar principles guide legislation governing other personal data systems, both government and private, including those maintained by credit reporting firms and banks...
...Instead, we should regard access to anyone's personal information as a potential infringement on his or her personal autonomy or freedom of action—like the signing of a power of attorney...
...These data are then made available to a variety of participating agencies, 14: 14 February 1992 Commonweal ranging from the State Department and IRS to the FBI and CIA...
...Similarly, a bill that passed the California legislature in 1990 would have accorded customers the right to veto dissemination of their credit files, except to government investigators...
...providing for such a modicum should not be controversial...
...In March 1989, FBI Director William Sessions dropped the controversial proposal from the organization's $40 million plan for modernization of the NCIC...
...What is won in efficiency has to be weighed against the potential inherent in systems of this kind for damage to individual autonomy and privacy...
...The legislation that Ervin was seeking to promote went on to become the Privacy Act of 1974—more of this below...
...sibilities...
...The trouble is, such "needs," though often authentic, are in principle insatiable...
...Contrary to what consumers were led to believe, data so collected were not necessary to effect the sale, but were used as a basis for cheap junk-mail appeals...
...The values at stake here thus cannot be reckoned simply in additive terms—as though the "social bads" resulting from misuse of personal information were the total of the personal grievances of individuals whose data are misused...
...One goal well worth striving for is a world where citizens could conduct all their affairs on a simple assumption to wit, that personally-identifiable data about one's self will not become part of any institutional data system in the absence of ( l) a mutual, interactive relationship between one's self and the data-keeping organization that requires personal records, or (2) specific legal authority to require the surrender of data...
...Some of the disappointment stems from treatment the Privacy Act has received from indifferent or hostile administrations since 1974...
...The speaker was Senator Sam Ervin, seeking to rally congressional opponents of the Nixon administration against abuse of government power...
...True, qualifications are needed...
...Thus we must question the wisdom of government systems that automatically generate data about what Americans were at a particular place, or traveling from a particular destination, at a particular moment—and with whom...
...In 1988, the FBI proposed what many no doubt saw as the natural, if not inevitable next step in development of the NCIC—its extension to include names of persons "of interest" to participating agencies, but not actually wanted for arrest...
...How could we accomplish what the Privacy Act of 1974 leaves undone...
...President Gerald Ford, realizing that a permanent Privacy Board would constitute an enduring check on executive branch discretion over personal data, managed to kill the provision...
...For any change in patterns of appropriation or access to personal information cannot help but raise power issues—much Commonweal 14 February 1992: 15 as official language may seek to downplay them...
...The same concerns hold for private-sector appropriation of personal information...
...Granting employers the option of demanding that employees produce urine for drug testing creates a powerful means of potential pressure, one whose use is at employers' discretion...
...The Privacy Act is still the most important federal legislation governing treatment of personal data...
...JAMES B. RULE THE PUBLIC INVASION OF PRIVACY One bracing feature of Watergate was the sweeping indictments of public institutions it elicited from figures of impeccable establishment credentials...
...It would be rash to imagine that we have heard the last of the idea...
...border crossings, U.S, officials seek to enter in this system the names of all those arriving in this country...
...In the process, of course, vast amounts of what had once been considered "private" citizens' "private" communications were exposed...
...When the government knows all of our secrets, we stand naked before official power...
...There can be no doubt that these new personal data systems, and countless others like them, offer major gains in efficiency for the organizations concerned...
...Computerized record keeping makes such searches highly feasible...
...Such a right would provide individuals the option of vetoing the sale of "their" data by charities, credit card firms, mail order houses, telephone companies, and other organizations to direct mail firms and other marketers...
...More to the point, the years since passage of the Privacy Act have seen continued growth of new possibilities of institutional scrutiny over what used to be considered private affairs—and an ever-rising appetite of those in charge to exploit such posJAMES B. RULE, a member of the editorial board of Dissent, teaches sociology at the State University of New York at Stony Brook...
...But they do remind us that the sensitivities that sought expression in the privacy protection efforts of the early 1970s are not extinct...
...But a sea change separates the current state of privacy and institutional collection of personal data in America from the Watergate era...
...At that moment, in the summer of 1974, Ervin knew that he was jabbing at one of the tenderest nerves in American public opinion...
...The state of New York has recently outlawed a merchandizing practice that had become quite common: the requirement that customers provide their home addresses and phone numbers to merchants on making credit card purchases...
...So much for generalities...
...Each time we give up a bit of information about ourselves to the government, we give up some of our freedom...
...More subtle, but potentially more important, are the holistic interests of a public concerned with the possibilities of full public discourse and uninhibited grass-roots action...
...Measured against the original aspirations of Ervin and the public anxieties he sought to mobilize, privacy protection efforts have fallen far short...
...In addition, a key provision of the act—specifying that data provided to one federal agency for a particular purpose must not he made available to other agencies without the individual's consent—has been completely circumvented...
...It could also enable citizens to claim royalties in exchange for release of "their" data—thus gaining a share in the considerable profits stemming from commodification of personal information...
Vol. 119 • February 1992 • No. 3
