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judgment proof or incapable of responding in damages for the full injury caused.82

C. The Benevolent Compilers

Many of those who compile personal dossiers, or who support their compilation, are interested not in the individual subjects but in groups. Included in this category are the government officials and business executives who seek to make informed decisions and plans, and the scholars (particularly the social scientists) who seek to aid decision making and planning. Although the interest is confined to groups, it is inescapable that information about groups must come from, and relate to, individuals.

At first blush it might seem that group information could be obtained and compiled without preserving a record of the identity of the component individuals. Unfortunately, some key to the identity of the subjects must be retained if group compilations are to be kept current and if the compilations are to be available for new uses. So long as keys to the identity of those in the group are retained, these compilations provide a potential source of personal dossiers, either as a consequence of unauthorized use or as a consequence of a change in the policy of the compilers. Unfortunately, many of those who use group compilations are so single-mindedly devoted to their own purposes that they are heedless of this danger. Thus, a committee of the Social Science Research Council in 1965 proposed that the Bureau

32 Both of these facts were dramatically demonstrated by a distinguished and coura geous graduate of the University of Texas, John Henry Faulk. He lost his position with CBS in 1956 as a consequence of a publication of a dossier-largely based on erroneous information in the files of the House Un-American Activities Committee-in a bulletin published by Aware, Inc. In part, also, the loss of his job was due to an advertising boycott launched by the owner of a chain of grocery supermarkets after the bulletin was published. Faulk sued Aware, one of its employees and the supermarket owner for libel, realizing that Aware and its employee were not capable of responding in damages in any sufficient amount. After a trial in which the court ruled that the defense of qualified privilege was not available and that defendants had failed to prove the defense of truth, the jury returned a verdict for $3,500,000 of which $1,000,000 was actual damages against all three defendants, $1,250,000 was punitive damages against Aware, and $1,250,000 was punitive damages against its employee. There was no award of punitive damages against the supermarket owner because, unfortunately, he died shortly before the case went to the jury. The judgment against him was settled with his disappointingly small estate for $175,000. After an appeal by the surviving defendants in which they were castigated as "malicious" and "vicious" purveyors of libel, the judgment was reduced to $400,000 total actual damages, $50,000 punitive damages against Aware and $100,000 punitive damages against its employce, no part of which was collectible from Aware or its employee. Faulk v. Aware, Inc. 19 App. Div. 2d 464, 244 N.Y.S.2d 259 (1968), aff'd, 14 N.Y.S.2d 899, 200 N.E.2d 778, 252 N.Y.S.2d 95 (1964), cert. denied, 380 U.S. 916 (1965). See also J. FAULK, FEAR ON TRIAL (1964). Faulk's attorney has also written about the case in his usual self-effacing manner. See L. NIZER, THE JURY RETURNS 225-438 (1966). Neither book reveals how much of the $175,000 actually collected went to Faulk.

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of the Budget establish a National Data Center to collect and computerize all machine-readable data of all federal agencies for use both by the government and by individual scholars. The report was eloquent on the "efficiency" of such an operation, but took account of the threat to individual privacy only to the extent of suggesting that when a government agency has obtained data under a pledge of confidentiality, "it is often possible to disguise the information in such a way that specific data cannot be traced to any individual respondent."83

A personal experience provides another illustration of the scholar's insensitivity to problems of privacy where his thirst for knowledge is concerned. Early in 1969, a private foundation sent out a questionnaire to university graduate students seeking their opinions on a variety of subjects ranging from drug use to forcible overthrow of the government. Since the students were instructed to return these questionnairses with their names on them, one graduate student called me to ask if there was any danger, despite the foundation's assurance of confidentiality, that his replies might come into the hands of a government agency. My advice, subsequently printed in the Harvard Crimson, was that the foundation would have no defense to an administrative or legislative subpoena. I thereupon received a lengthy letter from a Harvard professor of government taking me to task. First, he explained to me that he had nothing to do with the particular questionnaire but assured me, based on his thirty-five years of experience, that it was "typical of those used by both academic and commercial pollsters." Second, he explained to me-not quite as adequately as I have explained to you-why the identity of those polled must be preserved. Third, he expressed doubt that any government agency would seek to obtain the information. Fourth, though he was not a lawyer, he ventured the opinion that the courts would very likely create some sort of

33 The report is printed in Hearings on the Computer and Invasion of Privacy Before the Spec. Subcomm. on Invasion of Privacy of the House Comm. on Gov't Operations, 89th Cong., 2d Sess., ser. 1, pt. 1, at 195, 202.

The Bureau referred the report for review to a research analyst employed by Resources for the Future, Inc., a private foundation. He endorsed the proposal in a report much concerned with organizational and operational problems but which did not mention problems of privacy. Id. at 254. The Bureau next created a task force, consisting of one statisti cian and five academicians, to consider the problem. The task force also endorsed the proposed National Data Center, but its report took account of hearings on the subject wherein congressmen had been highly critical of the danger to privacy. The task force took this criticism rather lightly, however, since it thought that Congress could define a standard for access to the data in the center that could be enforced and that the technical possibility that the federal computers might themselves be tapped by technological means could be met by unspecified "organizational and technical means available to control

and limit the risks." This report is printed in Hearings on S. Res. 25 on Computer Privacy Before the Subcomm. on Ad. Practice & Procedure of the Senate Judiciary Comm., 90th Cong., 1st Sess., ser. 1, pt. 1, at 25, 37 (1967).

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privilege to block a government subpoena. Fifth, he pointed out that advice such as mine might well reduce the number of responses to the questionnaire. Finally, he urged me to reconsider and to issue another statement on the matter. I declined his invitation on the grounds that I thought my legal advice was better than his and that the students were entitled to have that advice so that they, rather than he, I, or the foundation, could do their own speculating about the likelihood of a government subpoena.

This is not to suggest that all group compilers are insensitive to the privacy problem or to the danger that the compilations might provide a source for personal dossiers. But, even awareness of this danger betokens only the intention, not the ability, to safeguard the compilations. Once the data has been amassed, even the best intentioned compiler can do little more than attempt to guard the identity of subjects and hope that his successors in control of the compilation will be similarly sensitive to the danger.34

II. PUBLICLY COMPILED DOSSIERS

If information on private compilers of dossiers is incomplete, the information available on governmental compilers is fragmentary. The little that is known is based on disclosures made by the news media and on sporadic hearings conducted by Senate subcommittees.

Since the government can compel the subject to provide information about himself, the government has a unique source of information. In addition, governmental compilers also rely, as does the Retail Credit Company, on the personal interviewing of neighbors, associates, and acquaintances of the subject. Although government investigators are better paid, and hopefully better qualified and trained, than private inspectors, the difference may not be enough to inspire great confidence in the objectivity of their work product.35

84 The problem is well illustrated by the United Planing Organization (UPO) of Washington, D.C., a private organization devoted to combatting problems of poverty. In the course of its work, UPO has found it useful to compile data from public records on such matters as juvenile arrests, school dropouts, evictions and welfare payments. To guard the identity of its subjects, UPO transferred all of its data to a trustee under an irrevocable trust with strictures which permit UPO to have continued access to it only so long as it does not reveal the identity of its subjects. Hearings on S. Res. 25 on Computer Privacy Before the Subcomm. on Ad. Practice & Procedure of the Senate Judiciary Comm., 90th Cong., 2d Sess., ser. 16, pt. 2, at 309-317 (1968). Under the terms of the trust, UPO apparently will indeed lose access to the data if it changes its policy and discloses the identity of its subjects or, possibly, if one of its officers or employees makes an unauthorized disclosure. But, by that time, personal dossiers on all of its subjects may be in someone else's computer. 35 Those in academic life are familiar with the FBI agent and the military investigator who comes to inquire about former students seeking government employment or a military commission. Most would agree that there is no faster way to get the visitor out of the

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Governmental compilers have another source of information disclaimed by Retail Credit Company: wiretapping and electronic bugging 36 Because of what it reveals, with regard both to governmental attitudes toward individual privacy and to the feasibility of legislative efforts to protect privacy, it will be instructive to survey briefly the history of the use of these devices.

In 1928 the Supreme Court held that government wiretapping did not violate the fourth amendment.37 In the Communications Act of 1934 Congress made it a crime for anyone, without authority of the sender, wilfully to intercept any communication by wire or radio and to divulge the contents of the intercepted communication to any other person.38 Thereafter, the Court held that because a wiretap was illegal, evidence so obtained,39 including the "fruit of the poisonous tree," was inadmissible in federal courts. Despite the clear holding that federal agents commit a federal crime when they tap telephones, the FBI has, with Presidential approval, continued to engage in wiretapping.41

office than to make clear that you have nothing derogatory to say about the subject. And I can testify from my own experience that the visitor will depart almost as rapidly if, in a case where you have something to say which might conceivably be considered derogatory, you tell the visitor you want your secretary to take down your statement so that you can send a copy to the subject.

36 Spokesmen for Retail Credit Co. emphatically and repeatedly deny resorting to such methods. See House Credit Bureau Hearings II, supra note 1, at 16; Senate Credit Bureau Hearings 1, supra note 1, at 101; Senate Credit Bureau Hearings II, supra note 1, at 180; House Credit Bureau Hearings III, supra note 1, at 473.

37 Olmstead v. United States, 277 U.S. 438 (1928).

38 47 U.S.C. §§ 501, 605 (1964).

39 Nardone v. United States, 302 U.S. 379 (1937). See also Weiss v. United States, 308 U.S. 321 (1939).

40 Nardone v. United States, 308 U.S. 338 (1939).

41 The FBI commenced the practice in 1931 and continued until March 1940, when Attorney General Jackson ordered it stopped, admitting that it was illegal. Brownell, The Public Security and Wire Tapping, 39 Corn. L.Q. 195, 197-199 (1954). Emerson & Haber, Reply by the Authors, 58 YALE L.J. 412, 414-415 (1949). In May 1940, however, President Roosevelt issued a secret directive, the existence of which was not made public until after his death, ordering wiretapping resumed against "persons suspected of subversive activities against the Government of the United States, including suspected spics." Brief of the United States at Appendix A, United States v. Dellinger, No. 69CR180 (N.D. Ill., Feb. 20, 1970); Theoharis & Meyers, The "National Security" Justification for Electronic Eavesdropping: An Elusive Exception, 14 WAYNE L. REV. 749, 759 (1968); Rogers, The Case for Wire Tapping, 63 YALE L.J. 798, 795 (1954); Rejoinder by Mr. Hoover, 58 YALE L.J. 422, 423 (1949). Thereafter, Attorney General Biddle in 1941 announced that the Department of Justice intended to use wire tapping in "espionage, sabotage, and kidnapping cases when the circumstances warranted," and President Truman in 1947 approved the use of wire tapping "in cases vitally affecting the domestic security, or where human life is in jeopardy." Brief of United States at Appendix B, United States v. Dellinger, No. 69CR 180 (N.D. Ill. Feb. 20, 1970); Rogers, supra at 798. In 1964 President Johnson issued a directive forbidding wire tapping by federal agents, except in national security cases. And in 1965 Attorney General Katzenbach testified that, "under present law, [wire tapping] should be permitted only where national security is involved" and acknowledged that the department had 62 wiretaps then

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The practice of electronic bugging has been governed by a series of decisions holding that the fourth amendment is not violated by the interception of communications by means of detectaphones or informers wired for sound, so long as the interception is accomplished without a physical trespass.12

Regardless of the state of the law or of the current content of executive directives, FBI Director Hoover has annually since 1965 assured the House Appropriations Committee that every wiretap undertaken by the FBI has been "approved in advance and in writing by the Attorney General" and that all taps were limited to "national security" or "internal security" cases.43 But less than two months after he gave that testimony in 1969 an FBI agent testified in the trial of Cassius Clay that the FBI had tapped the wires of Martin Luther King for four years before his death in 1968." Hoover then produced his version of an "approval in writing in advance by the Attorney General" -a memorandum written by one of Hoover's own subordinates, reciting that in 1963 Attorney General Robert Kennedy, now also deceased, had inquired "if it was feasible to use electronic devices" to

in effect "under my specific direction." Hearings on S. Res. 39 on Invasion of Privacy (Gov't Agencies) Before the Subcomm. on Ad. Practice & Procedure of the Senate Judiciary Committee, 89th Cong., 1st Sess., ser. 33, pt. 3, at 1155, 1641 (1965). In 1967 Attorney General Ramsey Clark issued a memorandum requiring prior written approval of the Attorney General for any federal wiretap or electronic bugging save in "national security" cases, which "shall continue to be taken up directly with the Attorney General in the light of existing stringent restrictions." Theoharis & Meyers, supra at 755-756. Since the Communications Act contains no exceptions, it is quite clear that the Department of Justice has been violating that Act for most of the time since its enactment. From time to time spokesmen for the Department have made the argument that the contents of wiretaps are not "divulged"-and hence the Communications Act is not violated-where the content are merely communicated from one federal agent to another. Katzenbach, An Approach to the Problems of Wiretapping, 32 F.R.D. 107 (1963); Brownell, supra at 198. But this proposition has never been tested in the courts-the Department of Justice has never seen fit to prosecute an FBI agent or any other federal agent for violation of the Communications Act, even in cases where convictions of others have been reversed because the contents of wiretaps were divulged in court.

42 Osborn v. United States, 385 U.S. 323 (1966); Lopez v. United States, 373 U.S. 427 (1963); On Lee v. United States, 343 U.S. 747 (1952); Goldman v. United States, 316 U.S. 129 (1942); cf. Silverman v. United States, 365 U.S. 505 (1960) (use of "spike mike" in party wall held a forbidden physical trespass).

43 Hearings on Dep't of Justice Appropriations for 1970 Before a Subcomm. of the House Comm. on Appropriations, 91st Cong., 1st Sess., 544 (1969); Hearings on Dep't of Justice Appropriations for 1969 Before a Subcomm. of the House Comm. on Appropriations, 90th Cong., 2d Sess., 549 (1968); Hearings on Dep't of Justice Appropriations for 1968 Before a Subcomm. of the House Comm. on Appropriations, 90th Cong., 1st Sess., 626 (1967); Hearings on Dep't of Justice Appropriations for 1967 Before a Subcomm. of the House Comm. on Appropriations, 89th Cong., 2d Sess., 262 (1966); Hearings on Dep't of Justice Appropriations for 1966 Before a Subcomm, of the House Comm. on Appropriations, 89th Cong., 1st Sess., 323 (1965).

44 N.Y. Times, June 5, 1969, at 27, col. 1. See also United States v. Clay, 430 F.2d 165 (5th Cir. 1970), cert. granted, 91 S. Ct. 457 (1971). Later testimony in the same trial revealed that the FBI had also tapped the wires of Black Muslim leader Elijah Muhammad from 1962 until 1966. N.Y. Times, June 8, 1969, at 29, col. 1.

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