42 Columbia Human Rights Law Review [Vol. 4 chance to expunge, update and correct his records. With the advent of systematic record-keeping, a man needs the chance which a businessman has to go into economic bankruptcy and obtain a discharge from his past. I believe, however, that we must go beyond that relationship between the individual and his records. We must act to restore a healthy balance to the relationship between the citizen and his government, and necessarily between Congress and the Executive Branch. Mere access to and knowledge of his individual file is not enough. Remedial action must be addressed to the curbing of the power of government over the individual and to restricting its power to deny information about government programs. The claim to an inherent power to monitor, investigate and compile dossiers on lawabiding citizens on the off-chance that they might need to be investigated for a legitimate governmental purpose at some time in the future must also be opposed. As a result of the Subcommittee's experience in playing hideand-go-seek with the Federal Government's computers and with the people who plan and supervise them, I am convinced these computers have too much privacy today. The Congress, the press and the public should have available an habeas corpus action for entire computer systems and programs themselves. No department should be able to hide such broad-based data programs and information systems. If they are lawful, the American people then have a right to full knowledge about the operation of their government. If they are not lawful and relevant for some purpose, they should be exposed for what they are attempts to intimidate citizens into silence and conformity. First, we need to devise some judicial remedy for confronting and testing the nature, purpose, legality and constitutionality of governmental data banks and large-scale intelligence information systems which by their very existence may threaten the quality of our First Amendment freedoms or whose contents may affect economic prospects, reputations or rights. Now pending before the United States Supreme Court is just such a challenge to the Army surveillance program and the military data banks, including at least four computer systems for storing and processing information on American across the land. [Tatum v. Laird, no. 71-288 (1971) (argued March 27, 1972)] The lower court has denied standing to sue to plaintiffs who were subjects of surveillance and computer dossiers on grounds that they have not shown injury. [44 F.2d 947 (D.C. Cir. 1971)]. Congress must strengthen and enforce reporting requirements for computer systems. Not even in the audit of computers which the 1972] First Amendment: The Computer Age 43 present law requires the General Services Administration to conduct each year is it possible for Congress, the press, and the public to get minimum information about all of the management uses of computers in government. Secondly, I believe we must devise legal means of assuring the reporting of large government data banks to a central office established independently of the executive branch. This would require the filing of policy statements describing exactly what agencies feed a particular information system and who would receive or access data routinely from a particular data bank. These policy statements should be public records. In this way, people would have due notice of possible sharing of information by other agencies or state or local governments. Thirdly, out of these directives, a graphic national informationflow chart would be designed and made available for public inspection. An individual concerned about his record could then go to the respective agencies and exercise his rights under the Freedom of Information Law to inspect his files. Fourth, there is a need to fully implement the principle of open government implicit in the Freedom of Information Law by reducing the number of exemptions in it which the Executive Branch may use to deny or withhold information. This would make the judicial remedies it contains more meaningful. Fifth, I believe there must be established a new independent agency for setting and enforcing strict standards in software and hardware for the assurance of security, confidentiality and privacy of records. These would be applied to all phases of gathering, processing and transmitting information about people by government computer systems. This would include such problems as interception of electronic transmissions and tapping of systems. Sixth, Congress must enact specific prohibitions on unconstitu or unwise practices which unfairly augment government's power to invade individual privacy. Examples of such legislation would be: (1) a ban on use of military resources to conduct unwarranted surveillance over civilians and to create and share data banks on them, and (2) a ban on unconstitutional means of coercing citizens into revealing personal information about themselves.59 Such a bill is S. 2156 which would prohibit requirements on applicants and employees to submit to lie detectors in order to work.60 Another bill is S. 1438, designed to protect federal employees and applicants from 59. S.1791, 91st Cong., 1st Sess. (1969). 60. Senate remarks of Senator Ervin, 117 CONG. REC. (daily ed. June 24, 1971.) 44 Columbia Human Rights Law Review [Vol. 4 unwarranted demands for information about such matters as their race, national origin, religious beliefs and practices, sexual attitudes and conduct, and personal family relationships.61 Another necessary protection would be a prohibition on distribution of arrest records to private companies and severe restrictions on their availability within government." Seventh, is the need for America to take a stand on whether or not every person is to be numbered from cradle to grave, and if so whether or not that number is to be the social security number. Until now, the idea of a universal standard identifier has been merely discussed in philosophical terms, but the need to reduce people to digits for the computer age has prompted wide government use of the number for identifying individuals in government files. Private industries, businesses and organizations have followed suit to the dismay of many people who have registered strong complaints against this practice with the Subcommittee. They were supported by the findings of a Social Security Task Force which reported in 1971 that: The increasing universality of the Social Security Number 63 In outlining the areas in which state legislatures and the Congress must make important judgments, this Task Force stated: Defining the proper role of the Social Security Number in 61. See S. Rep. 92-554 for legislative history (Now pending before the House Post Office and Civil Service Committee with House versions). 62. 1971 Hearings at 782 (complaints read into the hearing record by the Chairman). 63. SOCIAL SECURITY NUMBER TASK FORCE REPORT to the Commissioner 17 (May, 1971). 1972] First Amendment: The Computer Age about the desirability of any kind of universal identification Summary 45 From the Subcommittee study of privacy and government data banks one conclusion is undeniable. This is that the extensive use of computerized systems to classify and analyze men's thoughts, speech, attitudes, and lawful First Amendment behavior raises serious questions of denial of substantive due process to our entire society. To try to condense the truth about what men believe and why they believe is a futile exercise which can lead to that tyranny over the mind against which Thomas Jefferson swore eternal hostility. Without grave dangers to our constitutional system, we cannot permit government to reduce the realities of our political life and the healthy traffic in our marketplace of ideas to marks on magnetic tapes and data on a microfilm. Professor Robert Boguslaw65 eloquently described the dangers posed by this "technology-screened power" when he wrote that "the specification of future and current system states within this orientation characteristically requires an insistence upon a uniformity of 64. Id. at 15. It is clear that if the SSN became the single number around which all or most of 65. See BOGUSLAW, THE NEW UTOPIANS (1965), especially the chapter entitled The Power of Systems and Systems of Power at 181, 186, 190. I would dispute his observation of some years ago that people in the information-processing profession "are scientists and engineers-objective experts whose only concern is technical efficiency and scientific detachment." Id. at 198. It is indeed true, however, that: to the extent that customers (and this may include government agencies or private Implicit in the various issues raised during the Subcommittee Hearings is the wise observation of Professor Boguslaw that: The paramount issues to be raised in connection with the design of our new In this case, I believe it is the constitutional value protected by the First Amendment. 9 46 Columbia Human Rights Law Review [Vol. 4. perspective, a standardization of language, and a consensus of values that is characteristic of highly authoritarian social structures. Nonconforming perspectives, language, and values can be and, indeed, must be excluded as system elements." He further points out certain engineering truths and certain human truths which face every politician, administrator, analyst and programmer who tries to use computers to convey either more or less than the straight facts about people. First is the truth that the strength of high-speed computers precisely in their capacity to process binary choice data rapidly. But to process these data, the world of reality must at some point in time be reduced to binary form. Second is the truth "that the range of possibilities is ultimately set by the circuitry of the computer, which places finite limits on alternatives for data storage and processing." Third is the truth "that the structure of the language used to communicate with the computer restricts alternatives." Then there is the truth "that the programmer himself, through the specific sets of data he uses in his solution to a programming problem and the specific techniques he uses for his solution, places a final set of restrictions on action alternatives available within a computer-based system." It is in this sense that computer programmers, the designers of computer equipment, and the developers of computer languages possess power in our society. These limitations of men as well as machines are what I remembered as I listened to the young Army analyst describing his assignment to condense truth for the Army data systems by assigning numbers to people on the basis of their speech and thoughts." On the shoulders of technology experts who are aware citizens rests the responsibility for guiding those politicians who seek computer-based solutions to political problems. At this point in our history, they, more than anyone, realize that computers have only those values which are designed and programmed into them. If the attitude of the present Administration is any indication, Government will make increasing use of computer technology in pursuit of its current claim to an inherent power to investigate lawful activities and to label people on the basis of their thoughts. Municipal, state and federal agencies continue to plan, devise and build intelligence systems for many purposes. It devolves on those people involved in computer technology to make known the restrictions and the limitations of the machines as well as the alternatives for what is 66. See note 53 supra. |