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But, with reference to this bill, it seems to me that the kind of a case that you make would probably call for some kind of an exception to be in it.
In other words, you used a good term, “hot pursuit.” It does take a little time to get an order from a judge. It might come in the middle of the night and you might have to go to his home. You might lose 2 or 3 hours. It seems to me that information of this kind might be needed in case of a kidnaping where ransom has been paid and so forth, that it might be needed quickly.
I thought under the legislation passed and under the regulations drawn up that bank accounts were protected. I hope we can get somebody to suggest some kind of exceptions to make to take care of the cases that required immediate attention, such as the one that the chairman mentioned. What would be your thought on that?
Mr. ANDERSON. I think there is some way it could be written into the law, but I would be careful of creating a loophole that could be picked upon because I think the likelihood of a kidnaper depositing the ransom in a bank is so remote that I don't think it should give us
Senator SPARKMAN. I don't agree with you that it is remote. We read of people being kidnaped and the ransom paid. Those banknotes are right fresh out of the bank, and that is the thing I am talking about. They might need to get those serial numbers immediately.
Mr. ANDERSON. I don't think that is covered in our discussion here. I think what we want to protect is the individual's private bank account. I would certainly have no objection to checking the serial numbers on ransom money.
Senator SPARKMAN. I am glad to hear you say that, although I judge from the question that Senator Proxmire asked and your discussion of it that there might be a problem in connection with kidnaping, and I thought of this as being one of the problems that we do run into so often in the case of kidnaping.
Mr. ANDERSON. We certainly wouldn't want to have anything impede the capture of kidnapers.
Senator SPARKMAN. I notice in your statement, or perhaps it is in this exhibit that you gave us, in each of these cases, it refers to "any information pertaining to the above must be let out only on subpena duces tecum,” and that it shall be served on a named person. Is that an FBI notation?
Mr. ANDERSON. That is an FBI notation. What the FBI is saying is, "Hey, we got this information privately, but if you are going to use it in a court or a formal proceeding, you can't rely on this file,
you have to go in with a formal subpena and get it. Meanwhile, without the subpena, here it is for your guidance. If you are going to do anything formally with it, you have to go through the right procedures."
Senator SPARKMAN. I just wanted to be sure. I assumed that was it. That is all.
Senator PROXMIRE. Mr. Anderson, I have something that troubles me that maybe you can help me with. Unlike some of my colleagues in the Senate, perhaps, I have great admiration for the FBI. One thing about the FBI is that it is scandal free.
No. 2, I just feel strongly in favor of open public disclosure of almost anything. In Wisconsin from 1923 to 1953, we had open public
inspection of everybody's income tax returns. I could go in and ask for the income tax return of my opponent and get it, and use it against him in the campaign.
I think the most devastating part of your testimony is that this is not now open to anybody. It is concealed except in cases where people are dissenters and want to speak out, and these people can be harrassed and intimidated in some way. I must say my problem is that I don't see that either Jane Fonda, or Mr. Spock, or Floyd McKissick have been really intimidated. I don't know how you could intimidate Jane Fonda, or Spock or McKissick. They are people who don't seem to care. More power to them. They have the courage of their convictions.
You have a situation here. I am not sure there is a record of effective intimidation of dissenters, thank God. They are one of the most valuable parts of our society. But I don't think a disclosure of private bank accounts is going to keep anyone from speaking their mind.
Mr. ANDERSON. I think it is a matter of principle. To the extent that these individuals are intimidated is, of course, something you have to ask them about. I agree with you that they don't seem to be intimidated, but that doesn't mean the next fellow won't be. I agree with what you say about the FBI, Senator. I have written it. It has been a scandal-free organization, but there has been one great violation that the FBI has committed that I think is intolerable in a democracy. The FBI has been used for political purposes. The FBI has an ideology. The FBI investigates people whose views are not in accord with the top brass at the FBI.
As I say, people who got involved in the antiwar movement or the black power movement or the campus movement, who came out in support of Indian rights, or almost any other minority rights, you would find them suddenly under FBI surveillance. I think that is a very dangerous precedent. I think that is intolerable for a police force in a democracy, and I would warn that it can work both ways. .
Those who take comfort and say, “Yes, Jane Fonda and Floyd McKissick have to be investigated," may find themselves being investigated at some future time. George McGovern might win, and maybe he would put Ramsey Clark in as head of the FBI, and instead of investigating Jane Fonda, maybe they will start investigating John Wayne. [Laughter.]
It is improper for the FBI, regardless of the scandal-free record, or regardless of the personal integrity of the members, to be running around the country looking into the bank accounts, into the drinking habits, into the sex lives and into the private affairs of people who are guilty of no crimes, who are not likely to commit any crimes, and who have come under FBI surveillance simply because they are nonconformists or they take an unpopular view. In this country, no matter how unpopular the view may be, it is the right of our citizens to stand up and speak out.
(Excerpts from an article by Mr. Anderson on this subject may be found at page 335.)
Senator PROXMIRE. Thank you very much. You put your case strongly. We appreciate your testimony.
Our next witness is Dr. Arthur R. Miller, professor of law, Harvard University.
STATEMENT OF ARTHUR R. MILLER, PROFESSOR OF LAW,
Senator PROXMIRE. Mr. Miller, I understand you have a very long statement, and we would appreciate it very much if you could abbreviate it. I might say that the Anderson documentations we received will be placed in the committee's safe. It won't be available to the public, but it will be available to members of the committee.
Could you give your statement in about 10 minutes ?
Mr. MILLER. I never had any intention to read it, Senator. I doubt I have the stamina to do that.
Senator PROXMIRE. The entire statement will be printed in full in the record (see p. 152).
Mr. MILLER. Mr. Chairman, I have been studying questions of individual privacy, the impact of the new technologies, and the status of constitutional rights and civil liberties in this country for approximately 5 years. On the basis of considerable research into the activities
5 of information gatherers, both here in Washington and elsewhere, approximately 2 years ago I came to the sad conclusion that privacy in the United States is in serious danger of erosion as a result of three basic factors.
First, Americans today are scrutinized, measured, counted, watched, and interrogated by more governmental agencies, law enforcement officials, social scientists, and polltakers, than any people in the world.
Second, probably in no nation on earth is as much individualized information collected, recorded, and disseminated as in the United States.
Third, the information-gathering and surveillance activities of the Federal Government, as well as the State and local governments, have expanded to such an extent that they now constitute a threat to several basic rights of every American-privacy, speech, assembly, association, and petition of the Government.
In the 2 years since coming to that conclusion, Mr. Chairman, we have read of the investigations by Senator Ervin's Subcommittee on Constitutional Rights into military surveillance of lawful civilian activities and a wide spectrum of other governmental information practices. That picture is very similar to the one just presented to this subcommittee by Mr. Anderson. Apparently, there have been great excesses on the part of the military in their investigations into the private lives of hundreds of thousands of citizens whose sole crime appears to have been disagreement with the National Government's policy with regard to Southeast Asia or disagreement with the Government's policy with regard to priorities here in the United States.
An examination of the record made before Senator Ervin's subcommittee makes it perfectly clear that there is extensive surveillance and intrusion into the lives of countless Americans, and the sources of these activities are not simply the FBI. Account must be taken of the Secret Service, the CIA, the branches of the military, the IRS, State and local law enforcement agencies, and investigative groups of every size, shape, and form at every level of government.
To me, Public Law 508 of the 91st Congress, particularly the regulations recently issued by the Department of the Treasury, create yet another source of governmental surveillance capability. But as is com
mon in these matters there is a vacuum of leadership within the organization engaging in these practices to look after the privacy and civil rights of those placed under scrutiny. However benign the intent of the draftsman of the regulations under Public Law 91–508, their effect is to enable the Federal Government to place the financial affairs of every economically viable American under scrutiny and surveillance.
I second your point, Senator, that perhaps, in a more perfect world, the great goldfish bowl theory of opening everyone's records to everyone else might prove to be sound. But that is a risky experiment to undertake in an imperfect world and I must reemphasize a point that you yourself made-namely, that under the Treasury Department regulations the surveillance is a one-way street. The examination of the records now required to be maintained by banks on their customers is a right that is available only to the Federal Government and those on the State and local level who can gain access to the bank's files. Moreover, it is typically done without any notice or indication to the individual that he is under scrutiny, let alone an opportunity to challenge the legitimacy of that surveillance.
The heart of the problem is subpart (c) of the regulations. Employing the very general authority delegated to the Secretary of the Treasury by the Congress in Public Law 91–508, these regulations require every bank to maintain certain information on their customers. First, a record of each depositor's social security or taxpayer identification number. Second, the original or a microfilmed copy of every check, money order, ledger card, signature authority document, and a wide variety of other items relating to the account holder's financial activities must be preserved. Third, these documents must be filed or stored “in a way as to be accessible within a reasonable period of time.” Fourth, most of this information must be retained for 5 years.
One would expect that, after authorizing this massive record maintenance program, the regulations would go on to prescribe a series of well-thought-out exemptions to the requirements so as to assure that the vast majority of Americans are not under any risk of unguarded official scrutiny, inasmuch as the vast majority of Americans are not likely to have engaged in any criminal conduct and are entitled to some level of privacy in their financial lives.
Unfortunately, Mr. Chairman, there are no exemptions of that character in the regulations, and as Senator Tunney pointed out in connection with the introduction of S. 3814, the present regulations enable agencies of the Federal Government, not merely the FBI, to scrutinize every $5 check to a liquor store or boutique if they are motivated to do so.
One might also expect that as part of this program of record maintenance by banks the Treasury Department regulations would contain a series of procedural safeguards to make sure that access to the records now required to be maintained was possible only for legitimate law enforcement purposes, to make sure that these records were protected against misuse by applying Federal confidentiality restricttions to them, to provide the individual some information when his financial life is placed under scrutiny, and to impose sanctions for the violation of these rules.
No safeguards along any of these lines appear in the regulations.
Therefore, we have the following situation: The Federal Government under the new regulations requires banks and financial institutions to maintain records about the financial activities of Americans, many of which were never maintained before, at least to the degree and for the length of time now required by these regulations.
In addition to the maintenance or recordation of this information, the files must be preserved for 5 years. Moreover, to make them accessible to investigators, as the regulations demand, these files eventually will be organized under the social security number.
In their testimony last Friday, the Departments of the Treasury and Justice strongly argued that the regulations, in and of themselves, do not grant wider access to financial records than existed prior to their promulgation.
In a sense, that is right, Mr. Chairman, but the present situation is intolerable-governmental access to bank records either upon demand or following the on-the-spot, ex parte, uncontrolled issuance of an administrative subpena. Moreover, the Treasury and Justice Departments statements ignore several secondary and remote effects these regulations have on the privacy of citizens.
In the first place, the regulations require that information that never existed before to be created, preserved, and organized for ready access. In other words, the amount of information vulnerable to surveillance has been enlarged considerably.
Second, these regulations neither prohibit nor create any standards whatsoever as to who should have access to the records created under them. Now, this is a very important point, Mr. Chairman. Think well beyond the relatively remote situation of the FBI in hot pursuit of a kidnaper. That is a very sympathetic case, which I suggest can be easily taken care of by adopting the model offered by title III of the Omnibus Safe Streets and Crime Control Act. That statute permits emergency wiretapping without prior judicial authorization, subject to later approval. If this principle were adopted, it would enable the FBI to issue a subpena for the necessary bank records subject only to the issuance of an ex post facto court order within 48 hours of the event. That is a model that this Congress chose to use in connection with wiretapping and it has great applicability in the present situation.
But the point I started to make before digressing is that, by creating a new store of financial records in the banks without controlling or at least establishing standards with regard to access, the Treasury Department is nurturing a very fruitful surveillance plum tree that is available for picking not simply by the FBI, but State police, local police, perhaps even news people, political operators, credit bureaus, and business competitors.
The new information required to be maintained under the Treasury Department regulations is now at the mercy of State and local subpena and confidentiality laws, many of which are extremely porous and contain no limitations with regard to who can gain access to bank records.
Now, Mr. Chairman, you made the point, and I think it is completely appropriate, that Floyd McKissick, Jane Fonda, and other people who are active public spokesmen for various causes are not