176 LAW FORUM [Vol. 1971 ing and so forth and so on. We must abandon our present attitude towards welfare and instead presume a right to privacy. Lawyers must present and courts apply that presumption. Second, still from the negative point of view, laws must be enacted to control bureaucracies in the area of welfare as well as in many other areas of American life. I suggested the appropriate weapon some time ago, and I reemphasize it now. What we need in this society is a National Bureaucratic Relations Act similar to the National Labor Relations Act. Prior to the National Labor Relations Act, we assumed that conflicts between labor and management were private and within contractual confines. A different outlook emerged in the 1930's, brought on primarily by the struggle of millions of working people. This country realized that a social structure had to be established in which struggles between management and labor could take place. Society asserted its ultimate power and laid down the rules of the game. I suggest now that for the poor especially the problem of bureaucracy is increasing. We need legislation which would establish the rights of citizens vis-à-vis the bureaucrats. For example, I imagine one aspect of the legislation would be to require every bureaucracy to establish an independent review board similar to the independent review board of the United Automobile Workers' Union. A group of people independent of the bureaucracy would then review all complaints against that bureaucracy. A charge of police brutality, for instance, would be investigated by an independent civilian board and not by the police, who have a certain self interest in clearing themselves. All welfare institutions should also be overseen by an independent review board, so that grievances can be reviewed by someone outside of the system. A major problem that the poor often face with the police, the school system, or the welfare system is that their complaints go only to the associates of those against whom their complaints are directed. Therefore, if we are to protect the poor from bureaucratic intrusions we must have a Bureaucratic Relations Act complete with independent review boards. A third area in which the law can be helpful in a negative sense is by removing the constraints occasioned by zoning. One of the reasons why poor people are concentrated as they are is that so many of our cities have the famous white noose around the black central cities. Zoning restrictions keep people jammed together, making it impossible to break out into the privacy which suburbia offers. To challenge these zoning restrictions in order to provide access to privacy for poor people, not only must existing legal principles be used but new legislation must be sought. Let me now turn to positive ways in which we can act to get bureaucrats and laws off the backs of the poor. I think only in the sphere of positive, creative action will the issue of privacy for the poor be set No. 2] PRIVACY AND THE POOR 177 tled. We must take positive action to eliminate nonfunctional invasions of privacy. Moreover, unless we solve the housing problem, we will be unable to give the poor privacy no matter what else we do. To solve the housing problem adequately will require planned investments of billions of dollars. On a broader plane, we are going to have to plan the use of many other things, such as beaches. In the New York City area every community which has ocean beaches is beginning to put restrictions on the use of those beaches. Beachfront communities do not want city folks coming out and making the beaches less private. The motivation behind the restrictions may not be consciously racist. Nevertheless, these restrictions, just as zoning restrictions, particularly strike out against Blacks, Puerto Ricans, and other minorities. We must work to plan the use of beaches and other limited facilities for everyone. Paradoxically, if there is to be more privacy for everyone in our society, we are going to have to rely increasingly on public planning. This is paradoxical because it would seem that to increase public planning would remove more from the sphere of private influence and place it into the area of public decision. I think, however, that is the only way to deal with these problems. I also think in terms of resolving the more important issues associated with privacy and poverty that there will have to be a political struggle. A legal struggle will not be enough. I cite as support for my theory the recent events involving the man-inthe house rule. The Supreme Court in striking down the man-in-the house rule, properly stated that the Social Security Act provided monies for children not for mothers, and that it was unlawful to take money away from kids on the basis of what their mothers might have done. But no sooner had we begun to move towards a rational policy by abandoning the outrageous invasions of privacy inspired by the manin-the house rule than the reactionaries in Congress counterattacked through the proposed Family Assistance Plan. They have set as their price of approval of a minimum income for poor people in the United States the reestablishment of the man-in-the house rule. So, if I may summarize briefly, I suggest to you first in terms of law that the poor legally have less privacy than any of us-particularly those poor who are on welfare and who are required for nonfunctional reasons to surrender a good deal of their privacy to investigators who police their morality. Second, even if all legal discrimination were eliminated and legal invasions of privacy stopped, the economic and social conditions under which most of the poor live would still allow them little privacy. The dense concentration of the impoverished has affected their mental health, sexuality, family life, and just about every other aspect of their existence. Third, I propose that we should deal with these problems by taking positive action to create an environment in which the possibilities for privacy for poor people are enhanced. This change would mean getting poor people out of the urban concen 178 LAW FORUM [Vol. 1971 tration camps in which they have been locked by so many economic, social, and legal policies. It would mean getting them out where they too could enjoy space, air, and privacy. This change has ultimately to be made politically. To make a summary point on this area and on the whole subject of poverty, I am really not saying that we should treat the poor better than anyone else; all I am saying-and it is a radical thing to say is that we should treat the poor not as people who have a special right to privacy but only as people who have a moral, political, legal, and social right to as much privacy as the rest of us in this society enjoy. VOL. 22 JOURNAL OF PUBLIC LAW (1973) THE FAIR CREDIT REPORTING ACT: A LEGISLATIVE OVERVIEW Robert M. McNamara, Jr.* "If your name is not in the records of at least one credit H. BLACK, BUY NOW, PAY LATER 37 (1961) "We have become the greatest data-generating society in A. WESTIN, PRIVACY AND FREEDOM 159 (1967) IN ONE OF ITS VARIOUS FORMS, CREDIT is probably one of the oldest constants of any economic system. It exists today in as widely divergent social groups as the food-gathering societies of the South Pacific, the rural co-ops in Africa, and the World Bank. In some areas, such as the United States, it has almost completely replaced money as a form of exchange. As one author has said, "Ours is a credit economy." Many causes have contributed to this situation: the auto loan, the installment contract, the revolving charge, and, of course, the credit card. Various reasons for this phenomenon could be given ranging from simple convenience to conspicuous consumption to socio-economic evolution. The fact is, however, that the credit system is with us and all indications are that it has become a permanent fixture in the average American's daily life. *B.A. Mount Carmel College; A.B. John Carroll University; J.D. Georgetown University. The author would like to acknowledge his appreciation to Ms. Judith F. Dobkin for her assistance in the final preparation of this article. 'W. KAYE & ASSOCIATES, CONSUMER CREDIT AND THE LOW-INCOME CONSUMER (Preliminary Report) i (1969). Since 1950, the outstanding consumer credit has risen from $21 billion to $113 billion in 1968. Id. at 3. In 1967 consumer credit in the United States was $95 billion, exclusive of home mortgages. It has been estimated that 60 percent of the average individual's income now goes to pay off credit obligations. Hearings on Commercial Credit Bureaus Before a Subcomm. on Invasion of Privacy of the House Comm. on Government Operations, 90th Cong., 2d Sess. 5 (1968) (hereinafter cited as Hearings on Commercial Credit Bureaus (Statement of Dr. Alan F. Westin, Professor, Public Law & Government, Columbia University). Consumer credit is extended at the rate of $8 billion per month, TIME, Dec. 20, 1968, at 79, and was equal to 19 percent of disposable personal income in 1969. U.S. BUREAU OF STATISTICS, Statistical AbstRACTS OF THE UNITED STATES 317 (1969). The growth of consumer credit since 1945 has been at the rate of four and one half times the growth rate of our national economy. 1969 U.S. Code Cong. & AD. News 1965-55. Between 75 and 81 percent of the population use credit for purchases. D. Caplovitz, The Poor Pay More 10001 (1963). 68 JOURNAL OF PUBLIC LAW EMORY LAW SCHOOL As the use of credit grew and became an ordinary method of transacting business, it also became more risky for businesses, and, consequently, certain safeguards were necessary to protect those who were extending credit to their customers. Originally, merchants exchanged information regarding the credit reliability of their customers. When there was a lack of information on a particular person, an agent was sent to collect sufficient information to determine his credit-worthiness. The agents gradually evolved into agencies which functioned as independent contractors. The growth of these mercantile or credit agencies paralleled the increasing use of credit in everyday transactions. Today these credit agencies are, to a certain extent, essential to the maintenance of a credit economy. They are also big business. These credit agencies gather information concerning the credit-worthiness of individuals and corporations engaged in trade or commerce and pass it on to their subscribers so that they may conduct business with a minimum of risk. The function performed by credit agencies is vital if lenders and 'State v. Morgan, 2 S.D. 32, 52-54 (1891), outlines the general evolution and history of credit bureaus. 'See Note, The Mercantile Agency and Conditional Privilege in Defamation, 11 S.C.L.Q. 256, 261 (1959). 'A credit bureau is any person, firm, partnership, corporation, organization, association, or any other legal entity engaged in gathering, recording and disseminating favorable as well as unfavorable information relative to the credit-worthiness, financial responsibility, paying habits, and character of individuals, firms, corporations, or any other legal entity being considered for credit extension, so that a prospective creditor may be able to make a sound decision in the extension of credit. Hearings on Commercial Credit Bureaus, supra note 1, at 104 (Statement of John J. Spafford, Executive Vice-President, Associated Credit Bureaus of America, citing the definition embodied in the Federal Trade Commission industry guides). 'The Associated Credit Bureaus of America has over 2,200 member bureaus, servicing 400,000 "credit grantors in 36,000 communities across the nation and in many foreign countries. Its members maintain credit files on more than 110 million individuals, and in 1967 they issued 97.1 million reports." Hearings on Commercial Credit Bureaus, supra note 1, at 5 (Statement of Dr. Alan F. Westin). In 1968, the Wall Street Journal discussed the future of these files: Eventually any of Associated Credit Bureau's 110 million files will be available to local bureaus at the touch of a button. A.C.B., working with International Business Machines Corp., and the Dallas and Houston credit bureaus, is designing a computerized system that it expects to become nationwide in time. A central switching system will connect computers at all local bureaus. Wall Street Journal, Feb. 5, 1968, at 1, col. 6, and at 12, col. 1. Credit Data Corporation, a California-based operation, already has approximately 20 million individuals in its computerized files and can retrieve information on an individual in approximately two minutes. Hearings on Commercial Credit Bureaus, supra note 1, at 68 (Statement of H.C. Jordan, President, Credit Data Corp.). This system has added to it approximately 50,000 new files a week. Id. at 69. Asked how long it would be before every American's name would be listed with Credit Data Corp., Dr. Jordan replied, "[W]e regard it as approximately a five-year job." Id. 'See Mitchell v. Bradstreet Co., 116 Mo. 226, 231, 22 S.W. 358 (1893). |