1972] First Amendment: The Computer Age 17 What the electronic revolution has done is to magnify any adverse effects flowing from these influences on the life of the individual and on his proper enjoyment of the rights, benefits and privileges due a free man in a free society. I reject the notion of division of Americans on the basis of scientific and technological values. If I had the unhappy and well-nigh impossible task of distinguishing two types of Americans, I believe I would distinguish between those who understand the proper limits and uses of governmental power and those who do not. However much we try to rationalize decisions through the use of machines, there is one factor for which the machine can never allow. That is the insatiable curiosity of government to know everything about those it governs. Nor can it predict the ingenuity applied by government officials to find out what they think they must know to achieve their ends. It is this curiosity, combined with the technological and electronic means of satisfying it, which has recently intensified governmental surveillance and official inquiries that I believe infringe on the constitutional rights of individuals. Congress received so many complaints about unauthorized government data banks and information programs that the Subcommittee undertook a survey to discover what computerized and mechanized data banks government agencies maintain on people, especially about their personal habits, attitudes, and political behavior. We have also sought to learn what government-wide or nation-wide information systems have been created by integrating or sharing the separate data bases. Through our questionnaire, we have sought to learn what laws and regulations govern the creation, access and use of the major data banks in government." The replies we are receiving are astounding, not only for the information they are disclosing, but for the attitudes displayed toward the right of Congress and the American people to know what Government is doing. In some cases, the departments were willing to tell the Subcommittee what they were doing, but classified it so no one else could know. In one case, they were willing to tell all, but classified the legal authority on which they relied for their information power. 7. For a sample of questionnaire sent to all agencies and departments with slight alterations, see Letter to Secretary of Defense Melvin Laird, July 20, 1970, 1971 Hearings at 1182, and to Attorney General Mitchell, June 9, 1970. Id. at 1312. 8. See, e.g., State Department response to questionnaire, concerning its "Lookout File." See Letter of Sept. 9, 1970 to Subcommittee Chairman from Assistant Secretary of Defense Robert Moot, and list of classified enclosures. 1971 Hearings at 1186. 9. Navy Department response, Aug. 13, 1970, citing a Roosevelt Executive memorandum assigning responsibilities for intelligence activities. Id. at 1201. 37-583 74 pt. 22 18 Columbia Human Rights Law Review [Vol. 4 Some reports are evasive and misleading. Some agencies take the attitude that the information belongs to them and that the last person who should see it is the individual whom it is about.10 A few departments and agencies effectively deny the information by not responding until urged to do so.11 They reflect the attitude of the Army captain who knew Congress was investigating the Army data banks and issued a directive stating: The Army General Counsel has re-emphasized the long- So, on the basis of this study, and on the withholdings of information from the American people which the Subcommittee has experienced,1 I have concluded that the claim of the Government departments to their own privacy is greatly overstated. The truth is that they have too much privacy in some of their information activities. They may cite the Freedom of Information Act14 as authority for keeping files secret from the individual as well as from Congress. They then turn around and cite "inherent power' or "housekeeping authority"16 as a reason for maintaining data banks and computerized files on certain individuals; or they may cite the conclusions of independent Presidential factfinding commissions.17 1 5 10. Department of Transportation response. Testimony of Secretary Volpe. Id. at 720. Many other agencies will inform the individual of the general contents of his file, if he is denied some right, benefit or privilege and regulations permit a hearing or right of confrontation or cross-examination-but not before. 11. Department of Health, Education and Welfare, series of letters over a two year period on file with Subcommittee, and as of March, 1972, no response has been received containing substantive answers. 12. Directive, ICGP-G-S3, Jan. 9, 1971, Release of Official Information to Legislative Branch of Government. 1971 Hearings, at 1179. 13. Ervin, Secrecy in a Free Society, 213 NATION 454 (1971). See generally Hearings on Executive Privilege Before the Subcomm, on Separation of Powers of the Senate Comm, on the Judiciary, 92d Cong., 1st Sess. (1971). Testimony by Senator Tunney at 381 and William Rehnquist at 420. 14. 5 U.S.C. § 552 (1970). 15. See, e.g., 1971 Hearings, at 375, 431, 385. Testimony of Assistant Secretary of Defense Froehlke. Id. at 602, 599; testimony of Assistant Attorney General Rehnquist, note 13, supra. 16. See, e.g., Justice Department response to Subcommittee questionnaire. 17. For Defense Department reliance on the findings of the National Advisory Commission on Civil Disorders (Kerner Commission), see testimony of Assistant Secretary of Defense 1972] First Amendment: The Computer Age 19 So far the survey results show a very wide-ranging use of such technology to process and store the information and to exchange it with other federal agencies, with state and local governments and, sometimes, with private agencies. Most of this is done in connection with administration of Government's service programs. However, a number of these data banks and information programs may partake of the nature of largescale blacklists. This is so because they may encompass masses of irrelevant, outdated or even incorrect investigative information based on personalities, behavior and beliefs. Unwisely applied or loosely supervised, they can operate to deprive a person of some basic right. For instance, a Federal Communications Commission response1 shows that the FCC uses computers to aid it in keeping track of political broadcast time, in monitoring and assigning spectrums, and in helping it make prompt checks on people who apply for licenses. The Commission reported that it also maintains a Check List, which now has about 10,900 names. This Check List, in the form of a computer print-out, is circulated to the various Bureaus within the Commission. It contains the names and addresses of organizations and individuals whose qualifications are believed to require close examination in the event they apply for a license. A name may be put on the list by Commission personnel for a variety of reasons, such as a refusal to pay an outstanding forfeiture, unlicensed operation, license Froehlke, 1971 Hearings, at 379; noting the Commission's finding that the "absence of accurate information, both before and during disorder, has created special control problems for police," and the recommendation that "Federal-State planning should ensure that Federal troops are prepared to provide aid to cities...." The Department also cited a report filed by Cyrus Vance following the Detroit 1967 disturbances. 1971 Hearings, at 378. For law enforcement reliance on the Kerner Commission and similar commissions, see e.g., testimony of Richard Velde for the Law Enforcement Assistance Administration. 1971, Hearings at 608: Several States are also developing with LEAA funds information systems related For reliance on Warren Commission finding of information gaps, see response to Subcommittee questionnaries by the Secret Service, Nov. 21, 1969, reprinted at 115 CONG. REC. 39,114 (1969), and by the State Department Jan. 4 and Mar. 10, 1970; both responses in Subcommittee file. 18. Response to questionnaire, in Subcommittee files, Mar. 25, 1971. 20 20 Columbia Human Rights Law Review [Vol. 4 suspension, the issuance of a bad check to the Commission or stopping payment on a fee check after failing a Commission examination. In addition, this list incorporates the names and addresses of individuals and organizations appearing in several lists prepared by the Department of Justice, other Government agencies, and Congressional committees. For example, the list contains information from the "FBI Withhold List," which contains the names of individuals or organizations which are allegedly subversive, and from the Department of Justice's "Organized Crime and Racketeering List," which contains the names of individuals who are or have been subjects of investigation in connection with activities identified with organized crime. Also included in the list are names obtained from other Government sources, such as the Internal Revenue Service, the Central Intelligence Agency, and the House Committee on Internal Security. According to the Commission, the use of the data arose in 1964 because during the course of Senate Hearings chaired by Senator McClellan, it was discovered that a reputed racketeering boss in New Orleans, Louisiana, held a Commission license. In order that such licensing not take place in the future, the Commission established liaison with the responsible divisions within the Department of Justice to be kept current on persons who might have such affiliations. The Civil Service Commission maintains a "security file" in electrically powered rotary cabinets containing 2,120,000 index cards.19 According to the Commission, these bear lead information relating to possible questions of suitability involving loyalty and subversive activity. The lead information contained in these files has been developed from published hearings of Congressional committees, State legislative committees, public investigative bodies, reports of investigation, publications of subversive organizations, and various other newspapers and periodicals. This file is not new, but has been growing since World War II. The Commission chairman reported: Investigative and intelligence officials of the various depart- 19. Id. Aug. 18, 1970. 1972] First Amendment: The Computer Age 271 21 In another "security investigations index" the Commission maintains 10,250,000 index cards filed alphabetically covering personnel investigations made by the Civil Service Commission and other agencies since 1939. Records in this index relate to incumbents of Federal positions, former employees, and applicants on whom investigations were made or are in process of being made. Then, the Commission keeps an "investigative file" of approximately 625,000 file folders containing reports of investigation on cases investigated by the Commission. In addition, about 2,100,000 earlier investigative files are maintained at the Washington National Records Center in security storage. These are kept to avoid duplication of investigations or for updating previous investigations. The Housing and Urban Development Department is considering automation of a departmental system which would integrate records now included in FHA's Sponsor Identification File, Department of Justice's Organized Crime and Rackets File, and HUD's Adverse Information File.20 A data bank consisting of approximately 325,000 3x5 index cards has been prepared covering any individual or firm which was the subject of, or mentioned prominently in, any investigations dating from 1954 to the present. This includes all FBI investigations of housing matters as well. In the area of law enforcement, the Bureau of Customs has installed a central automated data processing intelligence network which is a comprehensive data bank of suspect information available on a 24-hour-a-day basis to Customs terminals throughout the country. 21 According to the Secretary of the Treasury: These records include current information from our in- There is the "Lookout File" of the Passport Office and the Bureau of Security and Consular Affairs.22 This computerized file illustrates the "good neighbor" policy agencies observe by exchanging information in order to keep individuals under surveillance for intelligence and law enforcement purposes. Maintained apart from the 20. Id. June 22, 1970. 21. Id. May 28, 1970. 22. Id. Jan. 4, 1970. |