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Privacy - Commerce Department Advisory Committee
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4520867
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Privacy - Commerce Department Advisory Committee
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Philip W. Buchen Files
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Department of Commerce. (1913 - )
Privacy, Right of
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The original documents are located in Box 56, folder "Privacy - Commerce Department
Advisory Committee" of the Philip Buchen Files at the Gerald R. Ford Presidential
Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 56 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
C.F.
MEMORANDUM OF INFORMATION FOR THE FILE
FG6-15-1
DATE 10/8/76
LETTER, MEMO, ETC.
TO:
FROM:
SUBJECT: Carrespondence from Barry Rath's office
dated aug. 1974. aug. 1976 re
the Domestic Council Committee on the
Right of Privacy
Filed CF Oversine attachment #257.
2
FUKU
s LIBRARY
CORRESPONDENCE FILED CENTRAL FILES - CONFIDENTIAL FILE
DEPARTMENT OF COMMERCE
U.S. DEPARTMENT OF COMMERCE
UNITED STATES OF AMERICA
September 5, 1974
To :
Philip Buchen
H.
From: G.
Committee Guidance & Control Officer
Enclosed are background materials
for the September 16 meeting of the
Advisory Committee on Privacy and
Confidentiality, and other items
of interest. Also enclosed is the
agenda.
We look forward to seeing you on the
16th.
Enclosures
TRANSMITTAL FORM CO-82A (10-67)
PRESCRIBED BY DAO 214-2
USCOMM-DC 1232-P57
FORD of STUD LIBAR 1
September 1974
STATUS REPORT ON ARCHIVAL USES OF 1900 CENSUS RECORDS
In December 1973 the 1900 Population Census records were opened to
inspection at the National Archives Building in Washington, D.C., in
accordance with procedures and restrictions established by the
Archivist of the United States.
At the end of 1974 a detailed report is expected on archival uses
of these records. Meanwhile, the staff of the National Archives
and Records Service has made available, informally, the following
information.
Access is limited to genealogical, historical, biographical, and
legal researchers. In each category, the searcher must sign the
1900 Population Census Data Use Agreement, and provide evidence of
qualifications, credentials, or authority.
The dominant type of inquiry has been for genealogical research,
averaging approximately 50 searches per week. All but a few of
these requests relate to individuals seeking information about their
own family ancestry. The remainder are searchers who have permission
from a family member to seek information.
Historical research accounts for about two dozen searches weekly,
which are usually related to studies of the economic and social
mobility of immigrants or other identifiable population groups.
Biographical searches account for approximately two searches per
week, mostly related to historical personages.
Legal searches are relatively infrequent, accounting for only about
one-half dozen inquiries during the first eight months of operation.
Legal researchers must show evidence of the court or tribunal of
which they are an agent seeking data to determine inheritance or
otherwise adjudicate a controversy.
No unusual problems have arisen thus far, though searchers
occasionally complain because the records are available only in
Washington, D.C., and no photocopying is permitted.
GERALD FORD LIBRABLE
INFORMATION REQUESTED FOR CONFIDENTIALITY STUDY
The Russell Sage Foundation is funding a study of events and
problems concerning the confidentiality of social science research
sources and data. The study will analyze such issues as the
confidentiality of survey research data, and the obligation of a
scholar to reveal his or her research sources to other scholars.
The study is sponsored by the American Sociological Association,
the. American Political Science Association, the American Anthropological
Association, the American Psychological Association, and the American
Historical Association. (The Association of American Law Schools,
the Association of American Geographers, the American Economic
Association, and the American Statistical Association are
considering sponsorship.)
The study will begin in February 1974 and end in December 1975.
Individuals and organizations are invited to send to the director
of the study a statement of (1) any events of which they have
knowledge that have raised questions concerning the confidentiality
of social science research sources and data, and (2) any problems
they have encountered that have involved questions concerning the
confidentiality of social science research sources and data. The
statement should specify the time and the place and the individuals
and the organizations and the circumstances involved in the events
and problems. Information provided in response to this request
will be treated as confidential unless the individual providing the
information consents to its release.
The statements will be used by the director and project board
to select events and problems for further analysis.
Statements should be sent to the principal investigator,
James D. Carroll, Director, Public Administration Programs, 200
Maxwell Hall, Syracuse University, Syracuse, New York, 13210,
Tel: (315) 423-2687.
FORD
SEAL or
UNITED STATES DEPARTMENT OF COMMERCE
Social and Economic Statistics Administration
BUREAU OF THE CENSUS
UNITED STATES OF AMERICA
Washington, D.C. 20233
OFFICE OF THE DIRECTOR
THE RIGHT OF PRIVACY AND THE
NEED TO KNOW
VINCENT P. BARABBA
DIRECTOR, BUREAU OF THE CENSUS
SOCIAL AND ECONOMIC STATISTICS ADMINISTRATION
U.S. DEPARTMENT OF COMMERCE
DISTINGUISHED VISITING PROFESSORS' LECTURE SERIES
UNIVERSITY OF SOUTHERN CALIFORNIA
SCHOOL OF PUBLIC ADMINISTRATION
AUGUST 8, 1974
RECENTLY I WAS REVIEWING A CENSUS BUREAU PROJECT TO DESIGN
AN IDEAL CENSUS FOR THE YEAR 2000, A PROJECT WHICH WE UNDERTOOK
TO STIMULATE SOME INNOVATIVE THINKING, IT OCCURRED TO ME THAT
WE ARE NOW IN AUGUST, 1974 CLOSER TO THE YEAR 2000 THAN WE
ARE TO THE END OF THE SECOND WORLD WAR. THAT'S HARD TO GRASP,
BECAUSE THE YEAR 2000 SOUNDS so FAR IN THE FUTURE. IT ALSO
OCCURRED TO ME THAT IN JUST TEN YEARS IT WILL BE 1984.
NINETEEN EIGHTY-FOUR, I'M SURE AS WE GET CLOSER TO THE
YEAR ITSELF THERE WILL BE ANOTHER PRINTING OF GEORGE ORWELL'S
POWERFUL WORK ABOUT WHAT TOTALITARIANISM CAN DO TO THE HUMAN
SPIRIT, RECENTLY I TOOK MY COPY DOWN FROM THE BOOKSHELF AND
REVIEWED IT. EVEN THOUGH THE NOVEL WAS PUBLISHED IN 1949 AND IT
HAD BEEN A LONG TIME SINCE I HAD PICKED IT UP, SEVERAL THINGS
REMAINED CLEAR IN MY MEMORY, FOR INSTANCE, THE SLOGANS OF THE
RULING PARTY: "WAR IS PEACE," "FREEDOM IS SLAVERY," AND "IGNORANCE
IS STRENGTH." MOST OF ALL, I REMEMBERED THE THOUGHT POLICE
REVOLUTION INCENTENNITY
MONITORING A PERSON'S EVERY MOVEMENT ON TWO-WAY TELEVISION BERAM SCREENS,
STARY
-2-
AND THE SAYING "BIG BROTHER IS WATCHING You."
THE VERY TITLE 1984 HAS COME TO STAND FOR ANYTHING WHICH
INFRINGES OR CONFLICTS WITH THE NATURAL DESIRES AND RIGHTS OF
THE INDIVIDUAL. To PUT IT ANOTHER WAY, 1984 STANDS FOR
DEHUMANIZATION, REGIMENTATION, AND THE LACK OF FREE CHOICE.
THE NOTED SOVIET AUTHOR, ALEXANDER SOLZHENITSYN HAS WRITTEN,
"As EVERY MAN GOES THROUGH LIFE HE FILLS IN A NUMBER OF FORMS
FOR THE RECORD, EACH CONTAINING A NUMBER OF QUESTIONS.
THERE
ARE THUS HUNDREDS OF LITTLE THREADS RADIATING FROM EVERY MAN,
MILLIONS OF THREADS IN ALL. IF THESE THREADS WERE SUDDENLY TO
BECOME VISIBLE, THE WHOLE SKY WOULD LOOK LIKE A SPIDER'S WEB,
AND IF THEY MATERIALIZED AS RUBBER BANDS, BUSES, TRAMS AND EVEN
PEOPLE WOULD ALL- LOSE THE ABILITY TO MOVE, AND THE WIND WOULD
BE UNABLE TO CARRY TORN-UP NEWSPAPERS OR AUTUMN LEAVES ALONG
THE STREETS OF THE CITY. THEY ARE NOT VISIBLE, THEY ARE NOT
MATERIAL, BUT EVERY MAN IS CONSTANTLY AWARE OF THEIR EXISTENCE
EACH MAN, PERMANENTLY AWARE OF HIS OWN INVISIBLE THREADS,
NATURALLY DEVELOPS A RESPECT FOR THE PEOPLE WHO MANIPULATE THE
THREADS.
AND THAT'S WHAT I WOULD LIKE TO TALK ABOUT TODAY--THE
RELATIONSHIP OF THE NATURAL DESIRES AND RIGHTS OF AN INDIVIDUAL
LIVING IN OUR SOCIETY, AND SPECIFICALLY THE RIGHT OF PRIVACY,
WITH THE LEGITIMATE NEED OF SOCIETY TO COLLECT INFORMATION ABOUT
THE INDIVIDUAL, IN ORDER FOR SOCIETY TO UNDERSTAND ITSELF.
-2-
GERALD FORD LIBRARY
-3-
THE SPECTOR OF GOVERNMENT INTRUSION INTO THE AFFAIRS OF
INDIVIDUAL CITIZENS HAS ALWAYS BEEN A HIGHLY EMOTIONAL SUBJECT,
AND UNFORTUNATELY, ONE WHICH IS OFTEN DISCUSSED IN THE FRAMEWORK
OF EMOTIONAL NEWSPAPER HEADLINES. EVENTS OF RECENT YEARS HAVE
BROUGHT THE ISSUE INTO THE FOREFRONT OF PUBLIC DEBATE; BUT AT
THE SAME TIME THE HIGHLY EMOTIONAL CHARACTER OF SUCH EVENTS AS
THE MILITARY SURVEILLANCE OF CIVILIANS, WIRETAPPING, AND POLITICAL
ESPIONAGE HAVE TENDED TO OBSCURE THE NATURE OF A WHOLE SERIES OF
PRIVACY RELATED QUESTIONS, AND HAVE REDUCED THIS VERY COMPLEX
PROBLEM TO A SIMPLISTIC ASSERTION THAT EACH MAN HAS AN INALIENABLE
RIGHT TO PRIVACY AND THAT NO MORE INVASIONS OF THAT PRIVACY SHOULD
BE ALLOWED. YET, THIS SORT OF DOGMATIC APPROACH OBSCURES AND
HAMPERS OBJECTIVE DEBATE, AS WELL AS DECISION MAKING, CONCERNING
ASPECTS OF INDIVIDUAL PRIVACY AND CONFIDENTIALITY THAT COLLIDE
WITH OUR SOCIETY'S NEED TO KNOW.
FOR EXAMPLE, IN VARIOUS SPEECHES AND CONGRESSIONAL TESTIMONY
SENATOR SAM ERVIN, A MOST DISTINGUISHED CONSTITUTIONAL LAWYER
AND ADVOCATE OF AN INDIVIDUAL'S RIGHT TO BE LET ALONE, HAS USED
AS EXAMPLES OF UNLAWFUL OR QUESTIONABLE GOVERNMENT INTRUSION THE
COLLECTION BY MILITARY INTELLIGENCE OF DOSSIERS ON CIVILIANS,
AND ALSO THE QUESTIONS ASKED IN THE DECENNIAL CENSUS AND OTHER
SURVEYS OF THE CENSUS BUREAU.
WHILE I KNOW THAT THE SENATOR UNDERSTANDS THE DISTINCTIONS
BETWEEN THESE ACTIVITIES, THE CONTEXT OF HIS SPEECH DOES NOT
REVEAL THE DIFFERENCES BETWEEN THE COLLECTION OF INFORMATION
FOR ADMINISTRATIVE PURPOSES, AND THE COLLECTION OF INFORMATION
FOR THE PUBLICATION OF ANONYMOUS STATISTICS. THE OVERSIGHT OF
-3-
-4-
FAILING TO DISTINGUISH BETWEEN TYPES OF DATA COLLECTED AND
THE PURPOSES FOR WHICH THEY ARE USED DOES MUCH TO CONTRIBUTE
TO THE SORT OF HEADLINES ON THE CLIPPINGS THAT CRAM MY FILES,
SUCH AS "REVERSING THE RUSH TO 1984," "WHO KNOWS? THE COMPUTER
KNOWS!," "BIG BROTHER SOCIETY FEARED," AND "FEDERAL DATA
GATHERING LIKE OCTOPUS."
MANY OF THESE HEADLINES ARE FOLLOWED BY ARTICLES WHICH
MENTION THE CENSUS BUREAU IN THEIR CATALOGUE OF "SINISTER OR
POTENTIALLY SINISTER" DATA-GATHERING AGENCIES, So FAR, THE
BUREAU HAS NOT BEEN DIRECTLY IDENTIFIED AS A CULPRIT, BUT SOME
OF THE ARTICLES AND MANY PUBLIC STATEMENTS LEAVE THE DISTINCT
IMPRESSION THAT IT HAS THE POTENTIAL TO BECOME ONE. THIS
IMPLICATION ALL TOO OFTEN OCCURS BECAUSE THE POTENTIAL DANGER
IS VIEWED IN ISOLATION, CURRENT BUREAU PROCEDURES FOR
CONFIDENTIALITY ARE NEVER MENTIONED. BUREAU HISTORY AS TO
CONFIDENTIALITY OF DATA IS NOT CONSIDERED. THE "WATCH-DOG"
NATURE OF THE CONGRESS IS NOT RAISED. I COULD NAME MANY MORE
ASPECTS OF THE PROBLEM THAT MUST BE CONSIDERED BEFORE ONE CAN
DRAW CONCLUSIONS CONCERNING THE ABUSIVE OR POTENTIAL ABUSIVE
NATURE OF A DATA COLLECTION SYSTEM. -- AND I WILL ATTEMPT TO
DEAL WITH THESE LATER IN THIS TALK.
BUT, WHEN ONE HEARS SUCH STATEMENTS BEING MADE BY RELIABLE
ELECTED OFFICIALS, AND WHEN WE ALL READ HEADLINES, IN ALMOST ANY
JOURNAL OR NEWSPAPER, LIKE THOSE I HAVE ALREADY MENTIONED TO YOU;
IT BECOMES APPARENT THAT REGARDLESS OF THE ACTUAL SITUATION THERE
IS A CLEAR CONCERN ON THE PART OF THE PUBLIC THAT ALL IS NOT AS
IT SHOULD BE. THE PUBLIC READS OF GOVERNMENT OFFICIALS ABUSING
-4-
-5-
DATA COLLECTED ABOUT INDIVIDUALS. THE CENSUS BUREAU IS A
COLLECTOR OF INFORMATION ABOUT INDIVIDUALS. THE PUBLIC IS
CONCERNED THAT THE BUREAU SHOULD NOT ABUSE SUCH INFORMATION.
PARTS OF THE PUBLIC MAY ALREADY BELIEVE THAT SUCH, INFORMATION
IS ABUSED. REGARDLESS OF HOW ONE WANTS TO CATEGORIZE PUBLIC
FEELINGS CONCERNING DATA COLLECTION NO ONE WOULD DENY THAT
THERE IS A GREAT AND GROWING ANXIETY THAT THERE IS ABUSE OF DATA
--THAT PEOPLE EITHER AS INDIVIDUALS OR IN THE MASS ARE BEING
MANIPULATED.
I SEE TWO TYPES OF ANXIETY REFLECTED IN THESE HEADLINES.
ONE IS ON THE PART OF THE INDIVIDUAL, THE OTHER BY SOCIETY AS
A WHOLE.
FIRST, LET'S LOOK BRIEFLY AT SOCIETY IN GENERAL. IF ONE
WERE GOING TO GENERALIZE ABOUT THE "DATA COLLECTION" CONCERNS
OF SOCIETY OR OF LARGE GROUPS OF INDIVIDUALS--THIS CONCERN
MIGHT BE BROKEN INTO TWO PARTS.
FIRST, THERE IS THE CONCERN FLOWING FROM THE MYRIAD OF
ADVERTISING AND MASS MEDIA CAMPAIGNS. THIS IS A FEAR THAT
UNCONSCIOUSLY THE PUBLIC IS BEING COERCED INTO ACTING AND
RESPONDING IN WAYS THAT ARE ACTUALLY THE OPPOSITE OF WHAT- IS
BEST FOR THE INDIVIDUAL. THAT IS, THAT STIMULANTS ARE BEING
APPLIED IN A SCIENTIFIC AND ORDERED FASHION TO CAUSE INDIVIDUALS
TO REACT AS THE ANONYMOUS "THEY" OF CORPORATE AMERICA AND
MADISON AVENUE WOULD HAVE THEM BEHAVE.
MUCH OF THIS CONCERN HAS ARISEN SINCE, AND IS NO DOUBT
LINKED TO, THE BIRTH AND GROWTH OF TELEVISION AND COMPUTERS, AND
THE FACT THAT THEY HAVE BECOME PART OF THE EVERYDAY SCENE GENALE IN AMERICA.
-5-
-6-
IT HAS EVEN BEEN ALLEGED THAT POLITICAL CANDIDATES ARE
BEING DISGUISED IN ORDER TO "SELL" THEM TO THE PUBLIC--A
PUBLIC THAT WOULD HAVE REJECTED THEM OUT OF HAND HAD IT NOT
BEEN FOR THE SO-CALLED MAGIC OF THE COMPUTER.
By THE LATE 1950's, COMPUTERS AND TELEVISION HAD BECOME
PART OF THE EVERYDAY SCENE IN AMERICA. VANCE PACKARD'S BOOK
THE HIDDEN PERSUADERS CRYSTALIZED A FEAR THAT HAD BEEN FORMING
FOR SOME YEARS--THE FEAR THAT INCREASED KNOWLEDGE ABOUT SOCIETY
IN GENERAL WOULD LEAD TO THE ABILITY TO MANIPULATE THE PUBLIC
MIND. WORDS SUCH AS "BRAINWASHING" AND "SUBLIMINAL ADVERTISING"
WERE CURRENT ON THE COCKTAIL PARTY CIRCUIT.
RAYMOND BAUER, WRITING IN THE HARVARD BUSINESS REVIEW A
FEW YEARS LATER, PUT THIS FEAR INTO PERSPECTIVE. HE SAID THAT
THE FEAR OF MANIPULATION IS AN OLD ONE ON THE PART OF SOCIETY,
AND POINTED OUT THAT SUPERSTITIONS SUCH AS POSSESSION BY DEMONS
AND BELIEF IN WITCHCRAFT HAVE BEEN REPLACED BY FEARS OF THE
UNKNOWN POTENTIAL OF NEW TECHNOLOGICAL INVENTIONS.
BUT, BAUER WENT ON TO STATE THAT THOSE WHO WOULD DESIRE TO
MANIPULATE THE PUBLIC MIND ARE ALWAYS ONE JUMP BEHIND THE PUBLIC
MIND--THAT AS WE ARE BOMBARDED BY TELEVISION, "EDUCATION", AND
THE EXPERIENCE OF LIVING IN A TECHNOLOGICAL SOCIETY--YOU AND I
BECOME MORE SOPHISTICATED, AND THAT OUR RESISTANCE LEVEL TO
PERSUASION INCREASES ALONG WITH OUR SOPHISTICATION. A CASE IN
POINT IS THE CONSUMER MOVEMENT WHO COULD HAVE FORETOLD SUCH A
POWERFUL GRASSROOTS PHENOMENON JUST A FEW YEARS AGO?
-6-
FORD
GERALD
-7-
THE SECOND CONCERN IS SOMEWHAT MORE SUBTLE AND IS PROBABLY
EVEN FURTHER FROM REALITY THAN ADVERTISING'S EFFORTS TO CONTROL
A SOPHISTICATED PUBLIC,
IN IMPERIAL ROME THE POLITICIANS DISCOVERED THAT GAMES AND
CIRCUSES PLUS FREE GRAIN WERE ALL THAT WAS REQUIRED TO PLACATE
THE MASSES so THAT NO REAL PUBLIC OPINION EVER FORMED CONCERNING
A VARIETY OF EXTREMELY IMPORTANT BUT MORE REMOTE ISSUES SUCH AS
LAND REFORM, OR THE DECLINE OF THE SENATORIAL SYSTEM.
So TODAY FEARS HAVE ARISEN THAT THE DATA COLLECTED ABOUT
INDIVIDUALS IS AGGREGATED AND COMPILED TO SHOW BOTH NEEDS,
DESIRES, AND MINIMUM LEVELS OF FULFILLMENT, WHICH THE PUBLIC
WILL ACCEPT AND THAT THE POLITICIANS HAVING DISCOVERED
THE "GAMES AND CIRCUSES" OF THE AMERICAN PEOPLE WILL
WHEREVER POSSIBLE PROMISE WHAT THE PEOPLE WANT TO
HEAR WHILE PROVIDING THE MINIMUM DESIRED. IN OTHER WORDS, BY
USING STATISTICAL DATA THE POLITICIAN IS ABLE TO GIVE THE VOTER
JUST ENOUGH TO KEEP HIM SATISFIED, AND THEN DOING HIS OWN THING
FOR HIS "SPECIAL INTERESTS."
THIS SORT OF ARGUMENT IGNORES A VERY FUNDAMENTAL TRUTH ABOUT
THE AMERICAN GOVERNMENT'S STATISTICAL PROGRAMS. THAT IS, SIMPLY,
THAT EVERY EFFORT POSSIBLE IS BEING MADE TO PRODUCE LOW COST
STATISTICS, TO MAKE DATA AVAILABLE TO ALL GROUPS WITHIN OUR
SOCIETY, AT REASONABLE COST, AND TO ALLOW GROUPS WITH SPECIAL
INTERESTS WHETHER THEY REPRESENT BLACK AMERICANS, OR THE HOUSING
INDUSTRY, TO HAVE ACCESS TO STATISTICS, SO THAT THEY MAY ANALYZE
THEM AND PREPARE THEIR ARGUMENTS AND EFFORTS BASED ON THIS
INVALUABLE INFORMATION. EVERYONE ADMITS THAT STATISTICAL INFORMATION
USED PROPERLY, IS ONE OF THE BEST TOOLS AVAILABLE FOR DECISION MAKING
-7-
-8-
AT A RECENT CONFERENCE OF GERMAN AND SWEDISH SCHOLARS,
HELD IN STOCKHOLM, IT WAS SUGGESTED THAT ONE OF THE FINEST
DEVICES EXISTING FOR COMBATING THE POSSIBLE MANIPULATION OF
SOCIETY WAS FOR INTERESTED GROUPS TO USE THE SAME STATISTICS TO
MANIPULATE THE MANIPULATORS." SOME OF THE MORE SUCCESSFUL
ACTIONS OF CONSUMER ADVOCATE, RALPH NADER, CERTAINLY SERVE AS
AN EXAMPLE OF PUTTING THIS ADVICE TO GOOD USE, So LONG AS NO
ONE GROUP HOLDS A MONOPOLY ON THE STATISTICAL INFORMATION
PRODUCED BY THE BUREAU AND OTHER AGENCIES I CANNOT IMAGINE THE
PEOPLE OF OUR COUNTRY BECOMING MERE "PUSHOVERS".
Now LET'S LOOK AT THE INDIVIDUAL'S PERSONAL CONCERNS, AT
THE TOP OF THE LIST IS THE QUESTION OF THE INDIVIDUAL DOSSIER.
THAT IS, THERE EXISTS A. POTENTIAL FOR ABUSE OF INFORMATION
COLLECTED FOR VARIOUS ADMINISTRATIVE PURPOSES, AT DIFFERENT
TIMES AND PLACES, UNDER EXTREMELY DIFFERENT CIRCUMSTANCES; BY
COMBINING IT WITHOUT THE DATA SUBJECT'S KNOWLEDGE INTO A HIDDEN
AND UNALTERABLE RECORD OF PAST PERFORMANCE, TO BE USED POSSIBLY
FOR QUESTIONS OF JOB TENURE, PROMOTION, OR FINANCIAL LOAN
SUITABILITY.
IF THERE IS AN AREA WHICH REQUIRES OUR ATTENTION THIS IS
IT! INFORMATION COLLECTED FROM THE AVERAGE PERSON FOR ONE PURPOSE,
POSSIBLY BEING USED LATER IN A WAY WHICH WILL INJURE EITHER HIM
OR HIS FAMILY. IN 1973 THE DEPARTMENT OF H.E.W. RELEASED A
WIDELY ACCLAIMED REPORT DEALING SQUARELY WITH THE ABOVE PROBLEM
---AND RECOMMENDED THAT THERE BE NO ADMINISTRATIVE RECORD KEPT
OF WHICH THE DATA SUBJECT WAS NOT AWARE, AND THAT DATA COLLECTED
-8-
-9-
FOR ONE PURPOSE NOT BE USED FOR ANOTHER WITHOUT THE PERMISSION
OF THE DATA SUBJECT, AT THE MOMENT THERE ARE SEVERAL BILLS
BEFORE THE CONGRESS THAT WOULD MAKE SOME OF THE HEW RECOMMENDATIONS
LAW.
AND THIS IS A PROBLEM THAT WE ALL FACE THAT THERE IS
ENOUGH TRUTH IN THE AVERAGE MAN'S FEAR OF INDIRECT OR DIRECT
MANIPULATION FOR THEM TO BE HARD TO PUT TO REST. BUT, ALMOST
WITHOUT EXCEPTION THE TYPES OF ABUSE THAT ARE DISCUSSED ARE
THOSE THAT CONCERN THE USE OF INDIVIDUAL DATA COLLECTED FOR
ADMINISTRATIVE PURPOSES AND HELD FOR INDIVIDUALLY IDENTIFIABLE
ACTION.
ALSO ON THE LIST OF THE INDIVIDUALS PERSONAL CONCERNS IS
THE "MAILING LIST, MANY PERSONS ARE ANNOYED BY THE USE OF THEIR
NAME ON MAILING LISTS, AND CONSIDER THIS TYPE OF MARKETING AN
INVASION OF THEIR PRIVACY,
I SOMETIMES PLAY A GAME WHEN I ORDER SOMETHING BY MAIL.
My MIDDLE INITIAL IS "P," BUT I OFTEN PUT DOWN ANOTHER INITIAL
AND KEEP TRACK OF WHETHER THE COMPANY I BUY SOMETHING FROM
SELLS OR USES MY NAME FOR ANOTHER PURPOSE, ACTUALLY, I DON'T
MIND BEING ADVISED BY MAIL OF SERVICES AND PRODUCTS WHICH I
MIGHT BE ABLE TO USE. I JUST WANT TO KNOW HOW SOMEBODY GOT
MY NAME.
-9-
SERALD
-10-
THE FEAR OF THE MISUSE OF PERSONAL INFORMATION IS FURTHER
EXAGGERATED BY THE POPULAR IMAGE OF THE COMPUTER. SPY MOVIES
AND TELEVISION HAVE FOSTERED A PUBLIC OVER-ESTIMATION OF THE
ABILITIES AND APPLICATIONS OF THE COMPUTER. TOGETHER WITH
RECENT HEADLINES, THIS HAS LED TO FEARS OF AN OMINOUS NATIONAL
DATA BANK WHICH WOULD STORE EVERY FACET OF OUR PERSONAL LIVES
FOR INSTANT RETRIEVAL BY ANY GOVERNMENT AGENCY WHICH REQUESTED
INFORMATION.
LET ME STATE THAT THIS FEAR TO BE REALIZED--FOR US TO
MOVE THAT CLOSE TO GEORGE ORWELL'S NIGHTMARE SOCIETY OF 1984--
THE UNITED STATES WOULD HAVE TO ABROGATE NOT ONLY CURRENT LAW
BUT ITS ENTIRE DEMOCRATIC TRADITION.
LET ME ADD EMPHASIS TO THIS THOUGHT BY QUOTING TO YOU A
KEY PORTION OF A PAPER WRITTEN BY OTIS DUDLEY DUNCAN WHICH
CONCERNED PLANS FOR THE 1970 CENSUS.
"
IN THIS COUNTRY WE HAVE PROVED THAT A STATISTICAL
SYSTEM CAN INCORPORATE RIGID SAFEGUARDS OF CONFIDENTIALITY.
THE INSTITUTIONALIZATION OF THESE SAFEGUARDS HAS PROCEEDED
TO THE POINT WHERE IT IS INCONCEIVABLE THAT THEY WOULD BREAK
DOWN, EXCEPT IN THE CATASTROPHIC EVENT OF A BREAKDOWN IN OUR
WHOLE SYSTEM OF INSTITUTIONS PROTECTING THE RIGHTS OF THE
INDIVIDUAL. IN THE CASE OF SUCH A CATASTROPHE, MY GUESS IS
THAT MUCH MORE DIRECT WAYS OF INFRINGING THESE RIGHTS WOULD
BE FOUND THAN THAT OF MAKING INAPPROPRIATE USE OF STATISTICAL
RECORDS SECURED OSTENSIBLY IN CONFIDENCE."
-10-
SERALD
-11-
NEVERTHELESS, THE IMAGE OF THE COMPUTER, IN THE PUBLIC
MIND, IS OFTEN THAT OF A VILLIAN---EITHER BECAUSE OF ITS
POTENTIAL FOR ABUSE OF PERSONAL INFORMATION, OR IRRITATING
ARGUMENTS WITH DEPARTMENT STORE COMPUTERS ABOUT INCORRECT BILLING,
YET, I THINK THE COMPUTER HAS MADE A PROFOUND CONTRIBUTION
TO THE PUBLIC GOOD---AND DONE IT so WELL WE TAKE IT FOR GRANTED.
JUST ONE EXAMPLE WHICH COMES TO MIND IS THE MILLIONS OF CHECKS
SOCIAL SECURITY RECIPIENTS GET EACH MONTH. THOSE CHECKS SIMPLY
WOULDN'T ARRIVE AS FAST OR AS ACCURATELY WITH MANUAL PROCESSING,
FURTHERMORE, AS REGARDS OUR TOPIC OF PRIVACY, THE ADVENT OF THE
COMPUTER HAS DONE A GREAT DEAL TO PROTECT AN INDIVIDUAL'S PRIVACY
--AS I HOPE TO DEMONSTRATE A LITTLE LATER IN THIS TALK.
WHILE I HAVE NO OBJECTION WITH THE PRESS OR ELECTED OFFICIALS
INVESTIGATING THE POTENTIAL FOR MISUSE OF ANY SYSTEM CONTAINING
INFORMATION ON OUR CITIZENS, I AM VERY CONCERNED THAT AS REAL
CULPRITS ARE IDENTIFIED THE CENSUS BUREAU WILL BE TARRED WITH
THE SAME BRUSH. YET, NO REAL INVESTIGATION OF BUREAU PROCEDURES
AND ITS STANDARDS OF PRIVACY AND CONFIDENTIALITY, AS WELL AS AN
ASSESSMENT OF THE IMPORTANCE OF THE SOCIETAL NEED THAT THE BUREAU'S
PRODUCTS FILL, APPEAR TO HAVE BEEN CONSIDERED BY THE VERY
INDIVIDUAL'S WHO ARE MOST CONCERNED WITH THESE MATTERS. A LOT
OF PEOPLE ARE JUST UNAWARE THAT THE CENSUS BUREAU IS THE ONLY
GOVERNMENT OR PRIVATE AGENCY THAT COLLECTS DATA ON EVERY HOUSEHOLD
IN AMERICA. NOR, DOES THE PUBLIC AT LARGE HAVE ANY GOOD IDEA OF
EXACTLY WHAT THE BUREAU DOES TO INSURE EACH CITIZEN'S PRIVACY
AND THE CONFIDENTIALITY OF THE INFORMATION WHICH EACH PERSON
PROVIDES.
FORD
-11-
SCHALD
LIDERRY
-12-
BECAUSE OF THE CONCERNS I'VE EXPRESSED, I WOULD LIKE
TO REVIEW FOR YOU HOW THE BUREAU LOOKS ON THE PRIVACY OF THE
CITIZENS FROM WHOM IT COLLECTS DATA, AND ITS POSITION AS REGARDS
THE CONFIDENTIALITY OF THE INFORMATION IT COLLECTS.
WE AT THE CENSUS BUREAU BELIEVE OUR MISSION IS TO GATHER
ACCURATE, TIMELY AND COMPLETE DATA FROM INDIVIDUALS, BUSINESSES,
AND GOVERNMENTS, WHILE MAKING THE MINIMUM INTRUSION INTO THEIR
PRIVACY, AND TO MAKE AVAILABLE TO THE PUBLIC AT LARGE GENERAL
ANONYMOUS STATISTICAL SUMMARIES OF THAT DATA, SPECIFICALLY
DESIGNED TO RESPECT THE CONFIDENTIALITY PROMISED EACH RESPONDENT,
FIRST OFF, WE SHOULD ADDRESS THE QUESTION OF WHETHER OR NOT
WE NEED A CENSUS BUREAU AT ALL, WHAT WOULD HAPPEN IF THE BUREAU
CLOSED DOWN OR GREATLY RESTRICTED ITS COLLECTION OF DATA? WITHOUT
CENSUS STATISTICS MUCH OF THE PLANNING IN THE PUBLIC AND PRIVATE
SECTORS WOULD HAVE TO BE BASED ON GENERAL ASSUMPTIONS WHICH COULD
NOT BE VERIFIED.
You MAY BE ASKING YOURSELF WHAT SORT OF USES ARE CENSUS
STATISTICS PUT To? SOME OF THE FIGURES WHICH THE BUREAU GENERATES
INCLUDE THOSE USED TO DETERMINE THE UNEMPLOYMENT RATE, THE
ALLOCATION OF FUNDS FOR FEDERAL REVENUE SHARING, THE GROSS NATIONAL
PRODUCT, CHARACTERISTICS CONCERNING THE LOW INCOME POPULATION,
CHARACTERISTICS OF MINORITIES WITHIN OUR COUNTRY -- INCLUDING
ON-GOING FIGURES ON BIRTH, EDUCATION AND UNEMPLOYMENT AMONG
THESE SUB GROUPS -- PROJECTIONS OF POPULATION, BIRTH EXPECTATIONS,
CHANGING AGE PATTERNS OF THE POPULATION, THE BALANCE OF U.S.
IMPORTS AND EXPORTS, AND CRIME VICTIMIZATION CHARACTERISTICS
R.
CLUB
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BY SOCIO-ECONOMIC STATUS -- TO NAME BUT A FEW. I SHOULD ADD
THAT ALL THESE EXAMPLES DO NOT INCLUDE THE MANY USES TO WHICH
THE DECENNIAL CENSUS IS PUT.
My EXAMPLES ARE INTENDED TO ADD EMPHASIS TO THE STATEMENT
THAT WITHOUT ACCURATE AND TIMELY CENSUS STATISTICS DECISION-
MAKING BOTH INSIDE AND OUTSIDE THE GOVERNMENT WOULD BE
HANDICAPPED AT ALL LEVELS.
IT IS PROBABLY OBVIOUS TO YOU, AND I WOULD BE LESS THAN
CANDID, IF I DID NOT SAY, THAT THERE IS AN INHERENT CONFLICT
IN GATHERING DATA FROM INDIVIDUALS. THAT CONFLICT IS BETWEEN
THE AMOUNT OF PRIVILEGE SOCIETY IS WILLING TO ACCORD THE
INDIVIDUAL IN ALLOWING HIM TO DECIDE WHETHER OR NOT TO DISCLOSE
INFORMATION ABOUT HIMSELF, AND THE SOCIETY S USE OF MANDATORY
PROCESSES TO OBTAIN THE INFORMATION IT NEEDS FOR VALID PURPOSES.
I HAVE NOT TALKED ABOUT THE INDIVIDUAL'S RIGHT TO BE LEFT
ALONE, BECAUSE I AM NOT SURE THAT IN ISOLATION SUCH A RIGHT
EXISTS. WHEN MEN CHOOSE TO LIVE IN A GROUP, CLAN, OR SOCIETY,
THEIR VERY PRESENCE IMPLIES A CERTAIN OBLIGATION TO THAT GROUP,
IF AN INDIVIDUAL OBTAINS BENEFITS FROM A GROUP LIVING SITUATION
THERE IS LITTLE DOUBT THAT HE WILL BE EXPECTED TO MAKE A
CONTRIBUTION TO THE ADVANCEMENT OR CONTINUATION OF THAT GROUP.
FEW GROUPS EXCEPT THE MOST PRIMITIVE TRIBES CAN BE IDENTIFIED
WHERE AN INDIVIDUAL IS ALLOWED TO REAP THE BENEFITS OF SOCIETY
AND YET DOES NOT CONTRIBUTE, IN SOME WAY--EVEN IF THE CONTRIBUTION
IS NOT MEASUREABLE. A CASE IN POINT IS THE SERVICE AND RESPECT
ACCORDED AN AGING TRIBAL MEMBER WHICH IN RETURN RESULTS IN
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TRIBAL UNITY, AND A FEELING THAT WHEN ONE IS IN THAT PERSON'S
SHOES THE TIME HONORED PROTECTIONS WILL CONTINUE.
THE OBLIGATIONS OF DWELLING IN A HIGHLY COMPLEX INDUSTRIAL
CIVILIZATION ARE PERHAPS EVEN GREATER THAN ANY THAT HAVE BEEN
LAID UPON THE INDIVIDUAL IN RECORDED HISTORY, EACH MAN, WOMAN
AND CHILD IN OUR SOCIETY REAPS BENEFITS AS WIDE RANGING AS
SECURITY OF THEIR DWELLINGS, TO PRODUCT CHOICE, OR A HIGH
QUALITY OF MEDICAL CARE, EACH OF THESE EXAMPLES IS RELATIVE,
VARYING FROM PLACE TO PLACE AND WITHIN THE SUB-GROUPS OF OUR
SOCIETY. YET, THERE IS LITTLE DOUBT THAT THE INDIVIDUAL AS A
SINGLE HUMAN UNIT DERIVES BENEFITS FROM DWELLING AMONG HIS FELLOW
MEN,
FOR INSTANCE, NO ONE FORCES A PERSON TO APPLY FOR A DRIVER'S
LICENSE, TO REGISTER TO VOTE, TO OBTAIN A PASSPORT, OR TO PRACTICE
A LICENSED PROFESSION. BUT IF A PERSON WANTS TO DO ANY OF THESE
THINGS HE OR SHE MUST PROVIDE CERTAIN INFORMATION THAT SOCIETY
HAS DEEMED NECESSARY TO ESTABLISH QUALIFICATIONS. THESE ARE
BASIC STEPS OF ORDER THAT SOCIETY TAKES TO PROTECT ITSELF.
WHAT THEN, SHOULD BE THE PRICE CHARGED AN INDIVIDUAL FOR
THE SERVICES AND BENEFITS, BOTH REALIZED, AND POTENTIAL, THAT HE-
RECEIVES? I WOULD SUGGEST THAT A BROAD DEFINITION WOULD REQUIRE
THAT EACH PERSON COOPERATE AS MUCH WITH THOSE PERSONS WHO
REPRESENT THE INSTITUTIONS OF A SOCIETY AS IS NECESSARY FOR THE
SMOOTH FUNCTIONING OF THE SOCIETY, THAT SOCIETY IN RETURN
MEET MOST OF ITS RESPONSIBILITIES TO THE INDIVIDUAL'S NEEDS,
MOST OF THE TIME. To DO THIS, THOSE OFFICIALS AND DECISION
MAKERS WHO ARE HELD RESPONSIBLE FOR THE ORDERED RUNNING OF THE
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SOCIO-ECONOMIC CONGLOMERATION WE CALL THE "STATE" MUST HAVE
ACCURATE INFORMATION. THEY MUST GET THIS INFORMATION FROM
THE INDIVIDUALS THAT CONSTITUTE THE SOCIETY IN ORDER TO
DETERMINE AND EVALUATE BOTH NEEDS, DEMANDS, TRENDS, AND A
VARIETY OF INFORMATION THAT IS INDISPENSIBLE TO THE INTELLIGENT
RUNNING OF SUCH A SYSTEM.
BASIC TO THIS DISCUSSION THEN, IS THE QUESTION -- WHAT
IS THE RIGHT OF PRIVACY? Is THAT RIGHT SOMETHING THAT CAN
BE BRUSHED ASIDE ANYTIME THAT A GOVERNMENTAL ORGANIZATION
BELIEVES IT NEEDS A NEW BRAND OF INFORMATION TO ASSIST IN A
PLAN TO HELP INDIVIDUALS? THE RIGHT TO PRIVACY IS INDEED A
VERY EASY TERM TO EVOKE, BUT A VERY DIFFICULT ONE TO DEFINE.
AMERICAN LEGAL AND ACADEMIC SCHOLARS HAVE WRESTLED WITH
THE PROBLEM OF PRIVACY EVER SINCE 1890 WHEN SAMUEL WARREN AND,
THE LATER TO BE, MR. JUSTICE BRANDEIS, PUBLISHED IN THE "HARVARD
LAW REVIEW" THEIR FAMOUS ARTICLE ENTITLED "THE RIGHT To PRIVACY",
WHICH THEY DEFINED AS A RIGHT TO BE LET ALONE,
TODAY, SEVERAL WEST EUROPEAN NATIONS HAVE COMMISSIONS AT
WORK THAT ARE REVIEWING THE PRIVACY SAFEGUARDS THAT PRESENTLY
EXIST, AND THAT SHOULD BE BROUGHT INTO EXISTENCE, IN ORDER TO
SAFEGUARD THE INDIVIDUAL'S DESIRE, AND NEED, TO BE LEFT ALONE.
I HAVE ALREADY MENTIONED PROPOSED AMERICAN LEGISLATION INTENDED
TO DEAL WITH THIS MATTER -- THE SWEDISH LEGISLATURE HAS RECENTLY
BROUGHT INTO BEING A "DATA AcT" DESIGNED TO COPE WITH PROBLEMS
OF INDIVIDUAL PRIVACY, AND SOME GERMAN STATES HAVE FOR SEVERAL
YEARS HAD A DATA PRIVACY AND CONFIDENTIALITY OMBUDSMAN WHOSE
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TASK HAS BEEN TO ACT AS AN INDEPENDENT INVESTIGATORY ARM,
REPORTING TO THE ELECTED OFFICIALS ON PROBLEMS OF INDIVIDUAL
DATA PRIVACY AND CONFIDENTIALITY.
WARREN AND BRANDEIS DEVELOPED THEIR QUASI-LEGAL DEFINITION
OF PRIVACY BY VIEWING IT AS A "RIGHT" BASICALLY TO BE SECURE
FROM UNDUE INTERFERENCE WITH ONE'S PERSON, PAPERS, PROPERTY,
OR THOUGHTS, AND TRACED THE DEVELOPMENT OF THIS RIGHT THROUGH
THE HISTORY OF THE COMMON LAW.
MORE RECENTLY, GERMAN PSYCHOLOGISTS HAVE ATTEMPTED TO
DEFINE PRIVACY AS THOSE AREAS OF INDIVIDUAL'S LIVES IN WHICH
THEY CAN ACT WITHOUT HAVING TO FEAR THAT INFORMATION MAY BE
PASSED ON IN A WAY DISFUNCTIONAL TO THEMSELVES, THUS, MULLER
AND KUHLMANN HAVE ADDED TO THE CONCEPT OF THE RIGHT TO BE LET
ALONE, THE IDEA OF SELECTIVE TRANSMISSION OF INFORMATION, BE IT
TO FAMILY, FRIENDS, ONE'S DOCTOR, OR A GOVERNMENT ORGANIZATION.
THEY VIEW PRIVACY IN THE MODERN SENSE, AS INCLUDING THE SELECTIVE
TRANSMISSION OF INFORMATION ABOUT ONÉ'S SELF.
FOR THE PURPOSES OF OUR DISCUSSION THIS AFTERNOON LET'S ACCEPT
THE NOTION THAT THE WORD PRIVACY REFERS TO A SPHERE IN WHICH THE
INDIVIDUAL IS ABLE TO DECIDE WHAT WILL AND WHAT WILL NOT BE
TRANSMITTED TO OTHERS, AND THAT IN ADDITION THIS SPHERE ALSO
INCLUDES CERTAIN CONFIDENTIAL RELATIONSHIPS WHERE THE INDIVIDUAL
BELIEVES THAT INFORMATION TRANSMITTED EITHER BY CHOICE OR
COMPULSION WILL GO NO FURTHER THAN THE PARTIES TO THAT RELATION,
AND WILL ONLY BE USED FOR THE PURPOSES THAT WERE IDENTIFIED AT
THE TIME THE INFORMATION WAS IMPARTED, GIVEN THIS NOTION WE CAN SEE THAT TH
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TERM "PRIVACY" DOES NOT MEAN A SACROSANCT AREA WHERE NO
QUESTIONS CAN BE ASKED; AS THAT IS ONLY PART OF THE DEFINITION.
ON TOP OF THAT WE HAVE A LARGER AREA WHERE QUESTIONS MAY BE
ASKED ON A VOLUNTARY OR MANDATORY BASIS, BUT THE INDIVIDUAL
UNDERSTANDS AND IS ABLE TO BELIEVE THAT THE ANSWERS HE GIVES
WILL NOT BE USED FOR OTHER THAN WHAT HE HAS BEEN TOLD OR
PERCEIVES.
THIS "SECURITY" OF BELIEF, ON THE PART OF EACH INDIVIDUAL,
WHEN COUPLED WITH THE PROMISE OF THE RECEIVER, STATED OR IMPLIED,
THAT INFORMATION WILL ONLY BE USED IN SPECIFIED WAYS, CREATES
A BOND BETWEEN THE GIVER AND RECEIVER WHICH I WOULD CALL A
"CONFIDENTIAL RELATIONSHIP". To ME, CONFIDENTIALITY MUST BE
CONSIDERED WHEN ANYONE ATTEMPTS TO ASSESS OR BALANCE INDIVIDUAL
PRIVACY AND SOCIETY'S NEED TO KNOW. BUT, WHAT EXACTLY ARE
CONFIDENTIAL RELATIONSHIPS?
THE MOST REVERAND MARK J. HURLEY, WRITING FOR THE KNIGHTS
OF COLUMBUS, DEFINED CONFIDENTIALITY AS SECRETS--TWO TYPES OF
WHICH ARE THE "PROMISED SECRET" AND THE "COMMITTED SECRET."
THE COMMITTED SECRET IS ONE KEPT BY REASON OF A TACIT
AGREEMENT BETWEEN THE PARTIES THAT THE INFORMATION WILL NOT BE
DIVULGED. EXAMPLES WOULD BE SECRETS BETWEEN LAWYER AND CLIENT,
DOCTOR AND PATIENT, COUNSELOR AND COUNSEL.
THE PROMISED SECRET IS ONE KEPT BY VIRTURE OF A PROMISE
MADE PRIOR TO LEARNING THE SECRET. SUCH A PROMISE MIGHT BE OUR
BUREAU'S PLEDGE THAT RESPONSES TO CENSUS QUESTIONNAIRES WILL BE
SEEN ONLY BY SWORN EMPLOYEES OF THE BUREAU. OR THE PRESIDENTIAL
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PROCLAMATIONS DEFINING THE NATURE OF THE CENSUS REQUEST AND
STATING THE SORT OF ACTIVITIES THAT INFORMATION GAINED FROM
INDIVIDUALS WILL NOT BE USED FOR,
THE SORT OF CONFIDENTIALITY WE ARE TALKING ABOUT WHEN WE
SAY CENSUS CONFIDENTIALITY RELATES TO INDIVIDUAL INFORMATION
IN THE HANDS OF INSTITUTIONS. AND HERE, IT IS IMPORTANT TO
REINFORCE THE DISTINCTION BETWEEN PERSONAL INFORMATION GATHERED
FOR STATISTICAL PURPOSES AS OPPOSED TO THAT COLLECTED FOR
ADMINISTRATIVE TASKS, THE INFORMATION COULD BE THE SAME IN
BOTH CASES, BUT ADMINISTRATIVE RECORDS ARE INTENDED TO AFFECT
THE INDIVIDUAL DIRECTLY, FOR INSTANCE THOSE USED BY THE INTERNAL
REVENUE SERVICE OR THE SOCIAL SECURITY SYSTEM. STATISTICAL
RECORDS--SUCH AS THOSE MAINTAINED BY THE CENSUS BUREAU DO NOT
DIRECTLY AFFECT INDIVIDUAL LIVES ON A ONE TO ONE BASIS.
ALL THAT I'VE REALLY BEEN TRYING TO POINT OUT IS THAT
"PRIVACY" DOESN'T EXIST IN AN ABSOLUTE SENSE ANYMORE THAN
FREEDOM DOES, THERE IS NO DOUBT THAT OUR CONSTITUTION IS LESS
THAN SPECIFIC ABOUT ALL THE ASPECTS OF INDIVIDUAL PRIVACY AND
YET OUR JUSTICES HAVE BEEN ABLE TO FIND IN THE FIRST TEN
AMENDMENTS SEVERAL REFERENCES TO THE SUBJECT THAT SERVE AS
GUIDEPOSTS FOR DEALING WITH SPECIFIC CASES THAT COULD NOT HAVE
BEEN CONTEMPLATED BY THE ORIGINAL DRAFTERS,
As OUR SUPREME COURT IS CALLED UPON TO ADJUDICATE
CONSTITUTIONAL QUESTIONS PERTAINING TO THE RIGHT TO PRIVACY --
THAT RIGHT MAY BE FURTHER EXPANDED AND BETTER DEFINED -- BUT WE
MUST REMEMBER THAT PRIVACY, AS FREEDOM, HAS MEANING ONLY IN THE
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CONTEXT OF HUMAN SOCIETY, AND OUR SOCIETY IS RAPIDLY CHANGING,
WHILE AT THE SAME TIME OTHER INDUSTRIAL SOCIETIES MAY HAVE VERY DIFFERENT
IDEAS ABOUT WHAT SHOULD BE THE LIMITS OF INDIVIDUAL FREEDOM
AND PRIVACY. As AMERICAN SOCIETY BECOMES MORE COMPLEX, WE
NEED TO KNOW MORE ABOUT OURSELVES IN ORDER TO ESTABLISH
PRIORITIES AND PROPERLY ALLOCATE OUR HUMAN, FINANCIAL AND
NATURAL RESOURCES,
ALL OF THIS MERELY REPRESENTS OUR PHILOSOPHICAL APPROACH
TO MATTERS OF INDIVIDUAL PRIVACY AND RESPONDENT-BUREAU
CONFIDENTIALITY. BUT, NONE OF THIS GOES VERY FAR TO SHOWING
YOU HOW THE BUREAU FACES THE TOUGH "REAL WORLD" DECISIONS
THAT ARE CONSTANTLY CONFRONTING IT.
FOR EXAMPLE, IN THE RURAL STYLE OF LIFE THAT EXISTED IN
1790, IT WOULD HAVE BEEN HARD TO JUSTIFY THE GOVERNMENT'S
INTEREST IN WHETHER OR NOT A HOUSEHOLD HAD ITS OWN BATHROOM
FACILITIES.
BUT, TODAY WITH SOCIETY'S COMMITMENT TO ELIMINATE SLUMS
AND SUB-STANDARD HOUSING, INFORMATION AS TO SANITARY FACILITIES
IS NEEDED TO ACCURATELY PINPOINT THE NUMBER AND GENERAL LOCATION
OF SUCH HOUSING SQ THAT THE TAXPAYERS' DOLLAR IS SPENT WISELY
AND NOT TOSSED AWAY ON GUESSWORK.
I'VE CITED TO YOU THE QUESTION ABOUT PLUMBING BECAUSE IT
IS ONE OF THE MANY WELL PUBLICIZED EXAMPLES THAT CRITICS OF THE
BUREAU USE TO SHOW, HOW MEANINGLESS OR SILLY, AND, HOW VERY
PERSONAL AND UNNECESSARY OUR QUESTIONS ARE.
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To CLAIM THAT THIS CENSUS QUESTION NOW CONSTITUTES A
VIOLATION OF AN INDIVIDUAL'S PRIVACY STRIKES ME AS A REBIRTH
OF THE KNOW - NOTHING PHILOSOPHY OF THE 19TH CENTURY. PUT
ANOTHER WAY IT IS AN ARGUMENT THAT THE INTERESTS OF THE
INDIVIDUAL IN BEING ABLE TO REFUSE TO ANSWER SUCH A QUESTION
TRANSCENDS THE INTEREST OF THE SOCIETY, AND HAVE PRIORITY
OVER PUBLIC EFFORTS TO ELIMINATE SLUMS AND ACCURATE RESOURCE
ALLOCATION.
BUT THE QUESTION OF A HOUSEHOLD'S PLUMBING IS NOT THE
ONLY EXAMPLE.
I DON'T NEED TO TELL THIS AUDIENCE THAT THE SALARIES AND
PENSIONS OF MILLIONS OF AMERICANS ARE TIED TO VARIATIONS IN
THE COST OF LIVING, WHICH IS GAUGED BY THE CONSUMER PRICE
INDEX. HOWEVER, RECENTLY, APPEARING BEFORE A COMMITTEE OF
THE HOUSE OF REPRESENTATIVES, I WAS QUESTIONED INTENSELY ABOUT
THE CENSUS QUESTIONNAIRE WHICH FORMS PART OF THE CONSUMER
EXPENDITURE SURVEY, WHICH IS THE BASIS FOR THE CONSUMER PRICE
INDEX.
THE FORM WHICH DREW THE COMMITTEE'S QUESTIONS IS A LONG
ONE, IT WAS USED TO RECORD OVER A PERIOD OF FIVE QUARTERS THE
DETAILS OF A HOUSEHOLD'S SPENDING.
ONE COMMITTEE MEMBER WANTED TO KNOW WHY THE ENTRY "HAIR
AND SCALP CARE FOR MEN AND BOYS" WAS IMPORTANT. OUT OF CONTEXT,
I ADMIT IT SOUNDS LUDICROUS, BUT AS ONE COMPONENT OF A FAMILY'S
TOTAL SPENDING RECORD, IT IS IMPORTANT. AND REMEMBER, THOSE
INDIVIDUALS WHOSE INCOME IS TIED TO THE CONSUMER PRICE INDEX ALSO
SPEND MONEY ON "HAIR AND SCALP CARE FOR MEN AND BOYS."
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THE CONSUMER EXPENDITURE SURVEY WAS TAKEN OF A
SCIENTIFICALLY SELECTED SAMPLE YIELDING 17,000 HOUSEHOLD
INTERVIEWS. As WITH ALL THE BUREAU'S CURRENT HOUSEHOLD SURVEYS,
PARTICIPATION WAS VOLUNTARY, I SHOULD ADD THAT DESPITE THE
FACT THAT THE SURVEY WAS VERY LENGTHY AND REQUIRED THAT THE
INTERVIEWER VISIT THE RESPONDENT SEVERAL TIMES OVER A TWO
YEAR PERIOD THE BUREAU OBTAINED APPROXIMATELY A 90% RESPONSE
RATE -- THIS VERY HIGH RATE INDICATES AN EXCELLENT DEGREE OF
COOPERATION ON THE PART OF THE PUBLIC AT LARGE, AND, THE
ANSWERS OF EACH FAMILY ARE VERY IMPORTANT, SINCE THE 17,000
HOUSEHOLDS REPRESENT THE ENTIRE CIVILIAN NON-INSTITUTIONAL
POPULATION OF THE UNITED STATES.
As LONG AS RESPONSIBLE GOVERNMENT LEADERS DETERMINE THAT
A DETAILED PICTURE OF HOW FAMILIES SPEND THEIR MONEY IS
ESSENTIAL, THERE IS NO OTHER WAY TO OBTAIN IT THAN TO ASK
SUCH DETAILED QUESTIONS.
ANOTHER EXAMPLE IS THE CENSUS QUESTION ABOUT HOW A PERSON
GETS TO WORK. IN 1970, SOME PEOPLE FELT THIS WAS NONE OF THE
GOVERNMENT'S BUSINESS, BUT WHEN THE ENERGY CRISIS HIT WITH
FULL FORCE, THE ONLY COMPLETE STATISTICS ABOUT THE NATION'S
COMMUTING HABITS CAME FROM SUMMARIES OF EACH PERSON'S ANSWER
TO THAT QUESTION.
THE BUREAU WAS ABLE TO RESPOND WITH STATISTICS ABOUT THE
NUMBER OF DRIVERS AND PASSENGERS FOR EACH METROPOLITAN AREA---
FIGURES WHICH SHOWED THAT A TOTAL OF 26 MILLION PERSONS DROVE
TO WORK ALONE EACH DAY,
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TAKING A QUESTION OUT OF CONTEXT TO IMPLY INVASION OF
PERSONAL PRIVACY IS THE MOST PERSISTENT TECHNIQUE USED TO
CRITICIZE THE BUREAU, AND IS THE MOST INTELLECTUALLY DISHONEST.
So, I'VE GIVEN YOU A FEW EXAMPLES OF QUESTIONS THAT SOME
PEOPLE FEEL SHOULD NOT BE ASKED BECAUSE THEY ARE BELIEVED TO
BE AN UNNECESSARY INVASION OF AN INDIVIDUAL'S PRIVATE SPHERE
AND I'VE TRIED -- BRIEFLY -- TO EXPLAIN WHY THEY ARE RELEVANT
AND NECESSARY QUESTIONS.
I THINK THAT SENATOR SAM ERVIN IN HIS ROLE AS CHAIRMAN OF
THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS SUMMED THE PROBLEM
UP WELL WHEN HE SAID:
"SOMEWHERE A BALANCE MUST BE STRUCK BETWEEN THE INDIVIDUAL'S
DESIRE TO KEEP SILENT AND THE GOVERNMENT'S NEEDS FOR INFORMATION.
IF IT IS PROVED NECESSARY TO INVADE CERTAIN RIGHTS, CLEARLY IT
IS THE CONSTITUTIONAL DUTY OF CONGRESS TO ESTABLISH PRECISELY
HOW AND UNDER WHAT CIRCUMSTANCES THIS MAY BE DONE."
CONGRESS HAS BEEN DOING EXACTLY THAT FOR ALMOST A CENTURY.
SINCE THE ACT WHICH PROVIDED FOR THE 1880 CENSUS, THE LAWS
PROTECTING THE CONFIDENTIALITY OF THE INFORMATION GIVEN IN
RESPONSE TO CENSUS QUESTIONS HAVE BEEN PROGRESSIVELY TIGHTENED.
WHILE AT THE SAME TIME WHAT THE BUREAU CAN COLLECT HAS BEEN
DEFINED AS WELL.
THIS WAS NOT ALWAYS THE CASE, To BEGIN WITH, UNTIL THIS
CENTURY THERE WAS NO PERMANENT CENSUS ORGANIZATION. FEDERAL
MARSHALS SUPERVISED THE ENUMERATION FROM THE FIRST CENSUS IN
1790 THROUGH THE COUNT OF 1870. IN FACT, THE RULES FOR THE FIRST
FIVE CENSUSES REQUIRED THAT THE MARSHALS POST COPIES OF THE LIST
LIBRARY
OF NAMES GATHERED IN TWO PUBLIC PLACES IN THEIR DISTRICTS.
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BETWEEN 1840 AND 1870 THERE WERE NO LEGAL RESTRICTIONS,
BUT CENSUS TAKERS IN THE FIELD WERE INSTRUCTED TO TREAT ALL
INFORMATION THEY GATHERED AS STRICTLY CONFIDENTIAL.
I DON'T KNOW IF THE URGE TO GOSSIP WAS STRONGER THAN
THOSE INSTRUCTIONS, BUT BEGINNING IN 1880 THE LAW REQUIRED
ALL ENUMERATORS TO TAKE AN OATH NOT TO DISCLOSE ANY PERSONAL
INFORMATION. ODDLY, THIS REQUIREMENT DID NOT EXTEND TO THEIR
SUPERVISORS,
THAT LOOPHOLE WAS CLOSED FOR 1900 WHEN ALL CENSUS
EMPLOYEES WERE MADE SUBJECT TO A 500 DOLLAR FINE FOR VIOLATION
OF THEIR OATH.
IN 1902, THE PERMANENT CENSUS BUREAU WAS ESTABLISHED. IT
HAD BECOME APPARENT THAT THE NEED FOR STATISTICS WAS A CONTINUING
ONE AND THAT THE SIZE OF THE JOB WAS SUCH THAT A FULL TIME
TRAINED STAFF WAS MUCH MORE EFFICIENT THAN SETTING UP AND
DISBANDING A NEW ORGANIZATION EVERY DECADE.
Up UNTIL 1910, CENSUS LAW REQUIRED THE DIRECTOR TO FURNISH
ON DEMAND TO GOVERNORS OR HEADS OF MUNICIPAL GOVERNMENTS CERTAIN
PARTS OF AN INDIVIDUAL'S RETURN THE NAME, AGE, SEX, BIRTH PLACE,
AND RACE,
THE ACT FOR THE 1910 CENSUS CHANGED THAT WORDING TO READ
THAT THE DIRECTOR COULD AT HIS DISCRETION FURNISH INFORMATION
FOR GENEALOGICAL AND OTHER PROPER PURPOSES.
FOR THE BUREAU, 1910 ALSO MARKED THE START OF ANOTHER
TRADITION THE PRESIDENTIAL PROCLAMATION. THE ONE ISSUED BY
PRESIDENT TAFT TOLD THE AMERICAN PEOPLE THEIR REPLIES TO CENSUS
QUESTIONS WERE TO BE USED ONLY TO COMPILE GENERAL STATISTICAL
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INFORMATION, AND THAT THEIR ANSWERS WERE PROTECTED BY LAW.
IN PART, IT READ: "THE CENSUS HAS NOTHING TO DO WITH TAXATION,
WITH ARMY OR JURY SERVICE
OR WITH THE ENFORCEMENT OF ANY
NATIONAL, STATE, OR LOCAL LAW OR ORDINANCE, NOR CAN ANY PERSON
BE HARMED IN ANY WAY BY FURNISHING THE INFORMATION REQUIRED."
THE CURRENT LAW UNDER WHICH THE CENSUS BUREAU OPERATES IS
TITLE 13 OF THE U.S. CODE, MOST OF WHICH DATES FROM 1929. THIS
LAW IS VERY SPECIFIC WHEN IT COMES TO PERSONAL INFORMATION. IT
REQUIRES THAT INFORMATION OBTAINED FROM AN INDIVIDUAL BE USED
ONLY FOR STATISTICAL PURPOSES. IT ALSO REQUIRES THAT PUBLISHED
DATA BE IN SUCH A FORM THAT IT IS NOT POSSIBLE TO IDENTIFY AN
INDIVIDUAL OR A SINGLE BUSINESS ESTABLISHMENT. THE LAW STIPULATES
THAT NO ONE OTHER THAN SWORN OFFICERS AND EMPLOYEES MAY HAVE
ACCESS TO INDIVIDUAL INFORMATION, AND EACH CENSUS EMPLOYEE HAS
SIGNED AN AFFIDAVIT OF NONDISCLOSURE TO UPHOLD THE LAW.
THE CURRENT LAW STILL HAS WORDING MUCH LIKE THAT OF 1910,
WHICH ALLOWS THE DIRECTOR AT HIS DISCRETION TO PROVIDE COPIES
OF INDIVIDUAL INFORMATION FOR GENEALOGICAL AND OTHER PROPER
PURPOSES. THE KEY WORD HERE IS "DISCRETION." OVER THE YEARS,
THE APPLICATION OF THIS RULE HAS BECOME RESTRICTIVE RATHER
THAN PERMISSIVE.
IN CURRENT BUREAU PRACTICE, THE TERM "CONFIDENTIALITY"
REPRESENTS NOTHING LESS THAN A CLEAR EXTENSION OF AN INDIVIDUAL'S
RIGHT TO PRIVACY. I THINK THE BEST WAY OF SHOWING THIS IS TO
REVIEW THE BUREAU'S TRACK RECORD REGARDING THE CONFIDENTIALITY
OF INDIVIDUAL DATA.
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UNTIL RECENTLY, MOST OF THE BUREAU STAFF ASSUMED THAT
INDIVIDUAL INFORMATION COLLECTED HAD ALWAYS BEEN HELD IN
STRICTEST CONFIDENCE. I MUST REPORT THAT THIS HAS NOT ALWAYS
BEEN THE CASE, BUT LOOKING AT THE WAY WE DID THINGS IN THE
PAST, AND COMPARING THEM WITH TODAY'S PRACTICES, MAKES ME EVEN
MORE CERTAIN THAT OUR CURRENT POSITION IS A VERY STRONG ONE.
BETWEEN 1900 AND THE MID-1920's, THERE WERE AUTHORIZED
RELEASES OF INDIVIDUAL DATA WHICH WERE AT THE TIME CONSIDERED
PROPER, THAT TODAY WOULD CAUSE A STORM OF PROTEST IN THE PRESS,
IN THE COURTS, AND IN CONGRESS. As FAR AS WE KNOW THIS PRACTICE
CAUSED NO SUCH OUTCRY THEN. I SAY AS FAR AS WE KNOW BECAUSE
COMPLETE RECORDS DO NOT EXIST.
WE DO HAVE SOME INFORMATION ON ONE CASE WHICH DEMONSTRATES
THE TYPE OF SITUATION IN WHICH IT WAS CONSIDERED PROPER IN THE
PAST TO RELEASE DATA ABOUT INDIVIDUALS. THIS RELEASE OCCURRED
IN 1918, DURING WORLD WAR ONE. CONGRESS HAD PASSED A WAR POWERS
AcT, AND PRESUMABLY THIS WAS THE BASIS FOR SUCH AN EXTREME USE
OF CENSUS DATA. INFORMATION ABOUT INDIVIDUALS WAS GIVEN TO THE
DEPARTMENT OF JUSTICE FOR USE AS EVIDENCE IN PROSECUTING YOUNG
MEN WHO CLAIMED THEY WERE TOO YOUNG TO REGISTER FOR THE DRAFT,
WHILE WE DO NOT KNOW THE EXACT CIRCUMSTANCES SURROUNDING THE
RELEASE, WE DO KNOW THAT PERSONAL INFORMATION FOR AT LEAST
SEVERAL HUNDRED YOUNG MEN WAS RELEASED TO COURTS, DRAFT BOARDS,
AND THE JUSTICE DEPARTMENT.
THE BUREAU STOPPED SUCH RELEASES DURING THE 1920's, A
POSITION WHICH WAS MADE OFFICIAL IN 1930 BY AN OPINION FROM
THE ATTORNEY GENERAL, HIS OPINION SAID THAT EVEN THE NAME AND
ADDRESS OF AN INDIVIDUAL WAS CONFIDENTIAL.
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AT ABOUT THIS SAME TIME, THE SECRETARY OF STATE ASKED
FOR DATA ABOUT INDIVIDUAL FARMS IN STEVENS COUNTY, WASHINGTON.
CLOUDS OF SULPHUR DIOXIDE FROM A SMELTER LOCATED ACROSS THE
BORDER IN CANADA HAD CAUSED EXTENSIVE DAMAGE TO CROPS IN THE
UNITED STATES, AND THE MATTER HAD BEEN HANDED OVER TO AN
INTERNATIONAL TRIBUNAL. THE CENSUS BUREAU REFUSED TO RELEASE
THE INFORMATION, AND THE TRIBUNAL DECIDED NOT TO PRESS THE
POINT, EVEN THOUGH IT FELT IT HAD THE NECESSARY POWER, THE
REASON? BECAUSE IT WOULD HAVE CAUSED THE UNITED STATES
GOVERNMENT TO BREACH A PROMISE IT HAD MADE TO ITS CITIZENS AS
WELL AS TO VIOLATE THE U.S. LAW OF CENSUS CONFIDENTIALITY.
ALTHOUGH THE CENSUS BUREAU DID PROVIDE AGGREGATED COUNTY DATA
WHICH ALLOWED THE COURT TO AWARD DAMAGES TO THE WASHINGTON
FARMERS.
Now WE JUMP TO 1941. IT'S HARD TO IMAGINE NOW, BUT WITH
WORLD WAR II UNDERWAY, THERE WAS NEAR HYSTERIA ABOUT THE
JAPANESE-AMERICANS LIVING ON THE WEST COAST EMOTION WHICH
LED TO ONE OF THE MOST EMBARRASSING MOMENTS IN U.S. HISTORY,
THE INTERNMENT OF LARGE NUMBERS OF THESE LOYAL AMERICANS. AT
THE HEIGHT OF THIS FEELING, THE SECRETARY. OF WAR REQUESTED
THAT THE CENSUS BUREAU SUPPLY THE NAMES, ADDRESSES, AND AGES
OF ALL PERSONS OF JAPANESE EXTRACTION LIVING ON THE WEST COAST.
THIS TIME--IN SPITE OF THE NATIONAL EMERGENCY-- THE BUREAU
HELD TO ITS POSITION ON CONFIDENTIALITY OF INDIVIDUAL RECORDS
AND REFUSED. HOWEVER, THE BUREAU DID SUPPLY SUMMARY DATA AT
TRACT LEVEL BUT NOT INDIVIDUAL DATA. I SHOULD ADD THAT TODAY
TRACT LEVEL DATA IS PART OF THE REGULAR PUBLICATION PROGRAM
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OF THE BUREAU--BUT, AS IN 1941, NO INDIVIDUAL DISCLOSURES, EVEN BY
INFERENCE, ARE ALLOWED.
IN 1947, DURING THE RISING CONCERN ABOUT POSSIBLE
COMMUNIST INFILTRATION AND SABOTAGE, THE ATTORNEY GENERAL
REQUESTED INFORMATION FROM CENSUS RECORDS ABOUT CERTAIN
INDIVIDUALS FOR USE BY THE FBI. AGAIN, THE REQUEST WAS DENIED.
A LOOPHOLE IN THE LAW TURNED UP IN A CASE IN THE EARLY
1960's WHEN THE COURTS RULED THAT FILE COPIES OF CENSUS FORMS
NOT KEPT BY THE BUREAU COULD BE SUBPOENAED. THIS RESULTED IN
CONGRESS AMENDING THE LAW TO EXTEND CENSUS CONFIDENTIALITY TO
INCLUDE EVEN COPIES OF CENSUS QUESTIONNAIRES WHICH ARE KEPT
BY BUSINESSES FOR THEIR OWN FILES.
THERE'S A TECHNOLOGICAL ASPECT OF THE BUREAU'S HISTORY
THAT I'D LIKE TO MENTION AS WELL. HERMAN HOLLERITH, AN
ENGINEER WHO HAD WORKED AS A SPECIAL AGENT IN THE 1880 CENSUS,
BECAME INTERESTED IN THE PROBLEM OF HOW THE VOLUMINOUS QUANTITY
OF MATERIAL GATHERED IN THE CENSUS WAS TO BE PROCESSED. AFTER
SOME EXPERIMENTATION HE INVENTED THE PUNCHED CARD SYSTEM FOR
RECORDING AND TABULATING THE CENSUS RETURNS. EVEN IN ITS
EARLIEST STAGE OF DEVELOPMENT, THE HOLLERITH SYSTEM SPEEDED
TABULATIONS TO SUCH AN EXTENT THAT ITS MERITS WERE DEMONSTRABLE
BEFORE THE 1890 ENUMERATION BEGAN.
THE ADVENT OF THIS NEW SYSTEM HAD DUAL IMPLICATIONS FOR
THE QUESTION OF CONFIDENTIALITY, ON THE ONE HAND, IT REMOVED
THE ACTUAL CENSUS RETURN ONE STEP FARTHER FROM THE FINAL
STATISTICAL PROCESS, ON THE OTHER HAND, IT MADE POSSIBLE THE
LORD
COLLECTION OF EVEN MORE INFORMATION ON INDIVIDUALS. IT IS
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PROBABLE THAT THE HOLLERITH SYSTEM ENHANCED THE ANONYMITY,
AND THUS THE CONFIDENTIALITY, OF CENSUS DATA. TECHNOLOGICALLY
IT WAS THE FORERUNNER OF MODERN COMPUTER BASED RECORD KEEPING,
WHICH, IF USED AS AT THE BUREAU, PROVIDES CONSIDERABLE
CONFIDENTIALITY FOR RESPONDENTS. BUT--MORE OF THIS IN A MOMENT.
BRIEFLY, THAT IS A SUMMARY OF HOW CONFIDENTIALITY GREW
TO BE AN INTEGRAL PART OF CENSUS TAKING. KEEPING THAT INFORMATION
IN MIND, AND MY EARLIER REMARKS ABOUT THE GENERALIZED FEAR OF
THE COMPUTER LET'S LOOK AT HOW A MODERN CENSUS IS TAKEN AND
PROCESSED.
As YOU KNOW, WE HAVE INCREASINGLY UTILIZED THE U.S. POSTAL
SYSTEM. IN 1960, FORMS WERE MAILED TO EACH HOUSEHOLD, AND
WERE PICKED UP BY ENUMERATORS, FOR 1970, THE FORMS WERE AGAIN
MAILED TO ALL HOUSEHOLDS. BUT THOSE PEOPLE LIVING IN LARGER
METROPOLITAN AREAS ALSO RETURNED THEIR FORMS BY MAIL. THIS
MEANT THAT IN ABOUT THREE-QUARTERS OF THE NATION'S HOMES,
PERSONAL INFORMATION DID NOT HAVE TO BE GIVEN FACE-TO-FACE TO
A NEIGHBOR OR A STRANGER, IN GREAT BRITAIN, A 1973 PARLIAMENTARY
PAPER DEALING WITH THE SECURITY OF THE CENSUS OF POPULATION
INDICATED THAT THE COUNCIL OF THE ROYAL STATISTICAL SOCIETY
VIEWED THE IDEA OF HAVING TO GIVE PERSONAL INFORMTION TO SOMEONE
WHO KNEW THE RESPONDENT, AS A PROBLEM THAT SHOULD BE DEALT WITH.
AFTER ALL THE FORMS ARE COLLECTED THE DATA ON THEM MUST
BE TRANSFERRED TO THE COMPUTER FOR TABULATION. IT USED TO BE
THAT THE DATA ON EACH FORM WAS MANUALLY TRANSFERRED TO PUNCHCARDS,
AND THE PUNCHCARDS FED TO COMPUTER TAPE, Now, WE BYPASS THIS
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LABORIOUS PROCESS. THE FORMS ARE MICROFILMED ON HIGH-SPEED
PAGE-TURNING MACHINES AND RETURNED TO STORAGE, THIS IS THE
LAST TIME EACH ORIGINAL FORM IS HANDLED UNTIL IT IS DESTROYED.
THE FIRST PAGE OF THE CENSUS FORM IS NOT MICROFILMED.
THIS PAGE HAS THE ADDRESS OF THE HOUSEHOLD. So THE ROLLS OF
MICROFILM, WHICH HAVE NAMES AND PERSONAL INFORMATION, CONTAIN
ONLY A GEOGRAPHIC CODE RELATING THAT INFORMATION TO THE BLOCK
ON WHICH THE HOUSEHOLD IS LOCATED, AND THE ADDRESS REGISTER IS
MAINTAINED IN A SEPARATE FILE.
ANOTHER SOPHISTICATED PIECE OF MACHINERY READS THE MICROFILM
AND TRANSFERS THE DOTS, THAT ORIGINATED WITH THE CITIZEN'S
PENCILLED-IN CIRCLES, DIRECTLY ONTO COMPUTER TAPE.
EVEN THIS IS NOT ENOUGH TO GUARANTEE THAT A PERSON COULD
NOT BE IDENTIFIED IN THE STATISTICAL SUMMARIES. SOME AREAS
HAVE SUCH A SMALL POPULATION THAT IT WOULD BE POSSIBLE, BY
DEDUCTION, TO KNOW WHOSE CHARACTERISTICS ARE IN THE TABLES.
OUR COMPUTER PROGRAM IS SET UP TO SUPPRESS ANY CHARACTERISTICS
THAT WOULD ENABLE AN ANALYST TO IDENTIFY INDIVIDUALS, So, AS
I'VE SAID A COUPLE OF TIMES ALREADY, HERE YOU CAN SEE HOW THE
COMPUTER IS A DIRECT ASSET TO CONTRIBUT-ING TO THE CONFIDENTIALITY
OF THE INFORMATION COLLECTED. THE BUREAU IS ABLE TO ACCURATELY
AND RAPIDLY PRODUCE DÉTAILED STATISTICS--THAT WOULD NOT BE
POSSIBLE IF THE EDITING OF POTENTIAL DISCLOSURES HAD TO BE DONE
BY HAND.
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WE ARE EXAMINING OTHER TECHNIQUES FOR PROTECTING
CONFIDENTIALITY. THESE INCLUDE ROUNDING NUMBERS TO THE
NEAREST 5, AND A "RANDOM NOISE" SYSTEM, IN WHICH VALUES OF
ONE AND NEGATIVE ONE ARE SCATTERED THROUGHOUT THE TABULATIONS,
BALANCING TO ZERO AT CERTAIN GEOGRAPHIC LEVELS, SUCH A SYSTEM
WOULD HAVE NO SUBSTANTIAL EFFECT ON STATISTICAL ANALYSIS.
WHEN IT COMES TO SUPPRESSION OF DATA FROM THE ECONOMIC
CENSUSES EVEN THE CUTOFF POINTS ARE CONFIDENTIAL--BECAUSE THAT
INFORMATION BY ITSELF COULD BE USED FOR DEDUCATION, SINCE
THE NUMBERS INVOLVED ARE SO MUCH SMALLER THAN POPULATION FIGURES,
I ALSO SHOULD MENTION HERE THE PUBLIC USE SAMPLE, WHICH
WE ESTABLISHED IN 1960. THESE ARE NOT SUMMARIES, BUT INDIVIDUAL
CENSUS RECORDS MINUS CERTAIN DATA WHICH ENSURE THAT THE
INDIVIDUAL CANNOT BE IDENTIFIED. THE SMALLEST AREA IDENTIFIER
FOR WHICH THESE RECORDS ARE AVAILABLE IS 250,000, AND EVEN
THEN CERTAIN DATA HAS BEEN TRUNCATED TO AVOID IDENTIFICATION,
AN EXAMPLE WOULD BE EXTREMELY HIGH SALARY FIGURES, FOR INSTANCE
---EVERYTHING OVER $50,000 IS SIMPLY MARKED "$50,000 AND OVER."
THESE SAMPLES HAVE PROVEN OF GREAT. VALUE TO THE ACADEMIC
AND BUSINESS COMMUNITIES FOR RESEARCH, AND FOR DETERMINING IF
SPECIAL TABULATIONS WOULD PROVIDE THE SUMMARY DATA DESIRED.
WHEN THE TABULATION OF A CENSUS IS FINISHED, THE ORIGINAL
PAPER FORMS WHICH HAVE BEEN STORED IN GUARDED BUILDINGS ON A
GOVERNMENT FACILITY ARE DESTROYED. THEY ARE SHIPPED IN SEALED
BOXCARS AND RECYCLED, WITH BUREAU OFFICIALS WATCHING UNTIL THEY
DROP INTO THE PULPING VATS.
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THAT LEAVES THE MICROFILM. WHERE DOES IT GO AFTER WE
ARE FINISHED PROCESSING THE DATA? THE ROLLS ARE SENT TO THE
PERSONAL CENSUS SERVICE BRANCH IN PITTSBURG, KANSAS, WHICH WE
COMMONLY REFER TO AS THE AGE SEARCH SERVICE. THIS IS A UNIQUE
SELF-SUPPORTING OPERATION WHICH HAS HELPED MILLIONS OF PEOPLE.
EVERY DAY THE BUREAU RECEIVES ABOUT 1,300 REQUESTS FROM PEOPLE
WHO NEED TO VERIFY SOME ITEM OF INFORMATION ABOUT THEMSELVES.
MOST ARE FOR SUBSTITUTES FOR BIRTH CERTIFICATES WHICH EITHER
NEVER EXISTED, OR HAVE BEEN LOST OR DESTROYED. PEOPLE NEED
THEM TO QUALIFY FOR RETIREMENT, FOR SOCIAL SECURITY, FOR
MEDICARE, TO GET A PASSPORT, AND MANY OTHER USES, FOR A VERY
SMALL FEE THE AGE SEARCH SERVICE WILL SEARCH OLD CENSUS RECORDS
AND ISSUE A CERTIFICATE WHICH HAS LEGAL STANDING,
THIS SERVICE IS PROVIDED ONLY AT THE REQUEST OF THE PERSON
HIMSELF. FOR EXAMPLE, A SON CANNOT ASK ABOUT HIS FATHER UNLESS
HE HAS A POWER OF ATTORNEY OR A DEATH CERTIFICATE. THIS
OPERATION IS THE ONLY USE MADE-TODAY OF THE DIRECTOR'S AUTHORITY
TO RELEASE PERSONAL INFORMATION AT HIS DISCRETION.
FINDING INFORMATION FOR THOSE WHO REQUEST IT IS NOT AN
EASY JOB, IT TAKES AN EXPERT TO UTILIZE THE MICROFILM. SINCE
THE CENSUS IS BASED ON ADDRESSES, NOT NAMES, THERE IS NO SUCH
THING AS A MASTER LIST OF RECORDS ARRANGED ALPHABETICALLY BY
NAME. FOR THE CORRECT REEL OF FILM TO BE LOCATED, THE PERSON
MAKING THE REQUEST MUST SUPPLY INFORMATION ABOUT WHERE HE LIVED.
REMEMBER, I SAID THE MICROFILM FOR 1970 DOES NOT CONTAIN
BOTH NAME AND ADDRESS, IN ORDER TO WORK BACKWARDS AND RELATE
NAME WITH ADDRESS, IT IS NECESSARY TO HAVE ACCESS TO THE GEOGRAPHIC
CODING INFORMATION ON THE FILM, AND THE MASTER LIST OF ADDRESSES,
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THE VERY SIZE OF THE U.S. POPULATION HELPS TO GUARANTEE
CONFIDENTIALITY. IT TOOK SOME 5,000 MILES OF MICROFILM TO
PROCESS THE 1970 CENSUS. FOR US TO MAKE THIS PROCESS OF WORKING
BACKWARD ANY EASIER WOULD BE EXTREMELY COSTLY, AND WOULD IN
THEORY, WEAKEN THE PROTECTION OF CONFIDENTIALITY.
Now WHERE DOES THE MICROFILM OF PAST CENSUSES EXIST?
THE RECORDS OF THE COUNTS FROM 1790 THROUGH 1880 ARE ACCESSIBLE
TO THE PUBLIC IN THE NATIONAL ARCHIVES. DATA IN THESE ENUMERATIONS
WERE NOT GATHERED UNDER LAWS OF CONFIDENTIALITY. THE CENSUS OF
1890 IS ALMOST NON-EXISTENT, HAVING BEEN MOSTLY DESTROYED BY FIRE.
THE PITTSBURG, KANSAS UNIT HAS MICROFILM FOR 1900 THROUGH
1960, AND LATE THIS YEAR WILL HAVE THE 1970 RECORDS SET UP TO
BE ABLE TO ANSWER THE QUERIES WHICH HAVE BEEN COMING IN. A
COPY OF THE 1960 AND 1970 RECORDS WILL BE HELD UNDER SECURITY
CONDITIONS AT JEFFERSONVILLE, so THAT IF ONE COPY WERE DESTROYED
THE WHOLE CENSUS WOULD NOT BE LOST, HERE I MIGHT SAY THAT A
TORNADO LIFTED ONE CORNER OF THE ROOF OF THE PITTSBURG BUILDING
A FEW YEARS AGO,
COPIES OF THE 1900 THROUGH 1950 RECORDS ARE ALSO HELD BY
THE NATIONAL ARCHIVES. THESE WERE SENT TO THE ARCHIVES FOR
STORAGE. IN DECEMBER OF LAST YEAR, THE ARCHIVES OPENED THE
1900 CENSUS TO LIMITED ACCESS BY QUALIFIED RESEARCHERS, A MOVE
OPPOSED BY THE CENSUS BUREAU. WHILE THIS ACCESS IS UNDER
CONTROLLED CIRCUMSTANCES, WE FEEL AT THE VERY LEAST IT VIOLATES
IN PRINCIPLE THE RIGHTS OF THE ESTIMATED SEVEN MILLION PERSONS
STILL ALIVE WHO WERE COUNTED IN THE 1900 CENSUS,
FORD
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THE LAW UNDER WHICH THE ARCHIVES OPERATES SAYS GOVERNMENT
RECORDS SHALL BE MADE PUBLIC AFTER 50 YEARS, UNLESS AN
INTERAGENCY AGREEMENT STIPULATES A LONGER PERIOD OF TIME. IN
1952, THE DIRECTOR OF THE CENSUS BUREAU AND THE ARCHIVIST
AGREED THAT CENSUS RECORDS SHOULD REMAIN CLOSED FOR 72 YEARS
---AN AVERAGE PERSON'S LIFETIME. THE BUREAU'S POSITION IS THAT
THE 1952 AGREEMENT WAS IN EXCESS OF THE DIRECTOR'S AUTHORITY,
AND THEREFORE IS INVALID. HOWEVER, AN OPINION FROM THE JUSTICE
DEPARTMENT DID NOT SUPPORT OUR VIEW.
REMEMBER THAT THERE WAS A DIFFERENCE IN THE STATUS OF
PROTECTION BETWEEN THE CENSUS OF 1900 AND THAT OF 1910. THE
1910 COUNT WAS PRECEDED BY A PRESIDENTIAL PROCLAMATION--A
PROMISE FROM PRESIDENT TAFT WHICH STATED: "THERE NEED BE NO
FEAR THAT ANY DISCLOSURE WILL BE MADE REGARDING ANY INDIVIDUAL
PERSON OR HIS AFFAIRS."
THE OBVIOUS QUESTION IS---HOW LONG DOES THAT PROMISE AND
THE LAW'S GUARANTEE OF CONFIDENTIALITY APPLY? A LIFETIME?
ONE HUNDRED YEARS? OR FOREVER? THE BUREAU HOPES CONGRESS WILL
CLOSE THIS FINAL LOOPHOLE IN THE LAWS RELATING TO CENSUS OF
CONFIDENTIALITY.
CONGRESS AT THE MOMENT HAS A LOT TO CONSIDER IN THE AREA
OF PRIVACY. SOME 100 BILLS ARE PENDING IN THE HOUSE AND SENATE.
THE BASIC QUESTION SEEMS TO BE NOT WHETHER SOMETHING MUST BE
DONE TO INSURE PRIVACY AND PROTECT IT, BUT WHAT, AND BY WHOM.
FOUR OF THOSE BILLS DEAL WITH CENSUS INFORMTION. EIGHT OF
THEM WOULD ESTABLISH A FEDERAL PRIVACY BOARD OR SOME COMMITTEE FORD
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OR COMMISSION AS AN OVERALL AUTHORITY, MANY OF THE BILLS
WOULD ALLOW THE CITIZEN THE RIGHT TO INSPECT HIS OWN RECORDS,
CORRECT THEM, AND BRING SUIT FOR DAMAGES RESULTING FROM
INCORRECT OR MISUSED RECORDS.
MUCH OF THE DATA BANK FEAR CENTERS ON THE USE OF A PERSON'S
SOCIAL SECURITY NUMBER AS A UNIVERSAL IDENTIFICATION NUMBER.
ONE BILL WOULD EXPRESSLY BAN USE OF SOCIAL SECURITY NUMBERS
FOR ANY IDENTIFICATION OTHER THAN THE RETIREMENT SYSTEM. THE
ARMED FORCES SCRAPPED THE OLD ID SERIAL NUMBER SEVERAL YEARS
AGO IN FAVOR OF SOCIAL SECURITY NUMBERS, AND SEVERAL STATES
ARE USING THESE NUMBERS ON THEIR DRIVERS' LICENSES, I WOULD
LIKE TO NOTE THAT SOCIAL SECURITY NUMBERS HAVE NOT BEEN ASKED
FOR IN THE DECENNIAL CENSUS, WHERE ANSWERS ARE MANDATORY,
WE HAVE ASKED FOR THESE NUMBERS IN SOME VOLUNTARY SURVEYS.
THIS ALLOWS US TO MATCH CURRENT ANSWERS WITH INFORMATION THE
GOVERNMENT HAS ALREADY GATHERED, TO EVALUATE THE ACCURACY AND
CONSISTENCY OF THE STATISTICS WE PRODUCE.
ONE OF THE MOST COMMON COMPLAINTS FROM THE PUBLIC IS THAT
SEVERAL AGENCIES OF THE GOVERNMENT ASK THEM THE SAME QUESTIONS.
So
WHERE IT -IS FEASIBLE, AND-WHEN AUTHORIZED BY LAW, THE
CENSUS BUREAU UTILIZES THE RECORDS OF OTHER AGENCIES. IT DOES
THIS EVEN THOUGH IT HAS THE AUTHORITY TO GO OUT AND COLLECT THE
DATA ITSELF, FOR TWO REASONS- TO SAVE MONEY, AND TO LESSEN THE
BURDEN ON THE PUBLIC OF ANSWERING QUESTIONNAIRES. WHEN WE DO
USE SUCH ADMINISTRATIVE RECORDS, THE INFORMATION COMES UNDER
THE SAME RULES OF CONFIDENTIALITY AS IF WE GATHERED IT OURSELVES.
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WHILE WE'RE ON THE SUBJECT OF THE BURDEN TO THE PUBLIC,
LET ME TELL YOU THAT THE BUREAU SPENDS A LOT OF TIME AND EFFORT
IN THE RESEARCH AND DEVELOPMENT OF QUESTIONNAIRES, AND TECHNIQUES
OF TAKING SURVEYS AND CENSUSES,
FOR A QUESTION TO BE USED, ITS PROPRIETY HAS TO BE WEIGHED
AGAINST THE SOCIAL NEED FOR THE INFORMATION. THE WORDING IS
ALSO VERY IMPORTANT. A QUESTION MUST RESULT IN THE MAXIMUM OF
INFORMATION FOR SOCIETY, WHILE CAUSING A MINIMUM OF INCONVENIENCE
FOR THE INDIVIDUAL.
HERE AGAIN, THE KINDS OF QUESTIONS CHANGE AS SOCIETY
CHANGES, WHEN THE NATION WAS NOT CROWDED WHEN BIG FAMILIES
WERE NEEDED TO RUN FARMS A QUESTION ASKING HOW MANY CHILDREN
A COUPLE EXPECTED TO HAVE WOULD HAVE BEEN OUT OF LINE. WITH
TODAY'S CONCERN ABOUT THE SIZE OF THE POPULATION, SUCH INFORMATION
BECOMES VERY IMPORTANT.
THE CONCERN FOR THE RIGHT TO PRIVACY WAS UNDERLINED WHEN
THE PRESIDENT ESTABLISHED A BLUE-RIBBON PANEL TO REVIEW BOTH
GOVERNMENT AND INDUSTRY PRACTICES RELATED TO THE COLLECTION
AND USE OF PERSONAL INFORMATION.
AT THE SAME TIME, COMMERCE SECRETARY FREDERICK DENT HAS
DIRECTED THE NATIONAL BUREAU OF STANDARDS TO FIND OUT HOW
COMPUTER INFORMATION MAY BE MADE MORE SECURE.
AND AT THE BUREAU, WE HAVE ESTABLISHED AN ADVISORY
COMMITTEE ON PRIVACY AND CONFIDENTIALITY, STAFFED WITH EXPERTS
FROM THE ENTIRE SPECTRUM OF DATA GATHERERS AND USERS, TO ADVISE
US ON PROCEDURES TO MAINTAIN AND STRENGTHEN OUR RECORD OF
CONFIDENTIALITY.
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You MIGHT WELL ASK WHY WE AT THE CENSUS BUREAU ARE SO
CONCERNED, IF OUR RECORD IS GOOD AND OUR INTENTIONS ARE CLEAR.
ASIDE FROM THE MORAL IMPLICATIONS, I'LL GIVE YOU A VERY PRACTICAL
ANSWER, A CENSUS OR A SURVEY IS ONLY AS GOOD AS THE CONTRACT
OR TRUST WITH THE PEOPLE WHO ANSWER THE QUESTIONS. IF THE
PUBLIC FEELS WE ARE NOT KEEPING OUR WORD THAT THEIR ANSWERS
WILL BE KEPT CONFIDENTIAL- OR EVEN THAT THE POTENTIAL FOR
SUCH VIOLATION OR THEIR TRUST EXISTS---THEIR ANSWERS WILL NOT
BE AS ACCURATE, OR GIVEN AS WILLINGLY. IF THIS OCCURS ON A
LARGE SCALE, THE QUALITY OF THE SUMMARY STATISTICS WILL
DETERIORATE. AND IF THIS OCCURS, THE NATION HAS LOST A
PRIME DECISION-MAKING TOOL, AND SOCIETY WILL BE THE LOSER.
THIS WOULD BE A TRÁGEDY! IT WOULD COME JUST AS MORE AND
MORE DECISION MAKERS IN THE PUBLIC AND PRIVATE SECTORS ARE
BECOMING AWARE OF HOW VALUABLE CENSUS DATA IS TO THEM--AND
IT WOULD COME AS THE BUREAU'S MAIN THRUST IS TO INCREASE THE
UTILITY OF THE DATA IT GATHERS,
To THE CENSUS BUREAU, A PROMISE IS A PROMISE. THE
CALENDAR MAY READ 1984 IN TEN YEARS, BUT I WANT TO MAKE IT CLEAR
THAT AS FAR AS THE BUREAU IS CONCERNED, -1984 WILL NEVER COME.
IN HIS REMARKS TO THE MOST RECENT MEETING OF THE ADVISORY
COMMITTEE ON PRIVACY AND CONFIDENTIALITY, SECRETARY DENT SAID:
"I THINK PERHAPS THE STRONGEST BRAND NAME IN AMERICA MIGHT BE
THAT OF THE CENSUS BUREAU."
WE PLAN TO KEEP IT THAT WAY.
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FORD
Statement of
Mr. Vincent P. Barabba,
Director, Bureau of the Census,
before the
Subcommittee on Foreign Operations and
Government Information
of the
House Committee on Government Operations
April 30, 1974
I am very pleased to have this opportunity to discuss the views of the
Department of Commerce on H.R. 12206, its successor, H.R. 13303, and
related bills which would provide that persons be apprised of and have
access to records concerning them maintained by Federal agencies.
It is our purpose to be wholly constructive in our comments, both
because the issues are fundamental to the operations of government, and
because we have long accepted and supported the principle of fair informa-
tion practice. We think the Department has an excellent record on this
score.
H. R. 13303 has an attractive simplicity, but we believe its terms are
too general and sweeping, given the complex problems and issues involved--
some distinctions are needed among different types of records, different
uses, and different impacts on individuals, which the bill does not recognize.
Considering specific provisions of the legislation, we shall be speaking
primarily of H.R. 13303, which differs from H.R. 12206 primarily in that
information provided by the data subject is covered. H.R. 13872 and
H.R. 14163 will be mentioned as the issues are discussed.
R.
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2
Initially, a necessary classification which affects completely the
scope of the bill has to be made. We agree with the interpretation by
Mr. Thomas Mc Fee in his testimony for the Department of Health,
Education, and Welfare, that the word "person, 11 unless otherwise defined,
would apply to individuals and the public and private organizations and
associations defined in section 551 of title 5. As presumably it was
intended solely to protect individual privacy, the term "person" should
be defined specifically in that respect for the new section 552a being
proposed.
In fact, the bill could use several definitions to clarify its intent.
The term "disclosure, 11 for example, is defined in H. R. 13872 as
including oral, written or wire transmission, but not in the other bills.
It is also desirable to define "notification, 11 and to spell out the situations
in which notification must take any particular form. Of course, the whole
question of definitions depends upon the scope of the bill.
A fundamental provision of the bill is that without notification of the
data subject, an agency shall "refrain from disclosing the record or
any information contained therein to any other agency". "Disclose to
any other agency" covers many different processes of information ex-
change. We will note only a few. Does this include disclosure between
two bureaus within a single Administration? Agencies within a Department?
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3
It appears to include a telephone conversation between two supervisors
of two agencies concerning the qualification of a job applicant, the trans-
fer of information from millions of Social Security Administration
records to State agencies as referred to by Mr. Mc Fee, the exchange
of information between agencies for statistical purposes which are not
at all concerned with the identity and characteristics of a single person,
and the transfer of active records to inactive storage or archival storage
and use.
We cannot believe that each such event is equally and sufficiently
critical to each data subject's welfare or privacy as to require the
major burden of such notice contained in (a)(1)(A) of H.R. 13303.
We think that before a data subject notification requirement is
agreed on, very thorough examination should be made of the circum-
stances in which it would be very burdensome and costly with little or
no benefit or advantage to a data subject. Under section (a)(1)(B) of
H. R. 13303, every record made publicly available under the Freedom
of Information Act or similar law requires notification to any person
identified in such record.
It may also be desirable from a practical standpoint, after consider-
ing under what conditions notification is most vital to a data subject, to
impose more rigorous requirements on newly-created records than upon
existing records, which must number in the hundreds of millions. I
might
add here that an effective date 90 days after enactment is certainly
not adequate time to prepare to implement the bill's provisions.
4
A most important distinction we find missing in H. R. 13303 - -but
present in H.R. 14163 -is that between administrative records systems
and statistical records systems. Though both may contain identical or
similar information, the former is intended to affect the individual
directly, whereas the statistical record will not affect the individual
and his privacy when used solely for the compilation and analysis of
aggregate data. I assume, of course, here that release of data is in
a form that does not disclose any individual's identity or characteristics.
We strongly endorse Mr. McFee's testimony on this point.
With regard to individual records used solely for statistical purposes,
or used administratively only in the sense of returning the data to the data
subject on his own request, we urge that a third exemption be added under
subsection (b) which would then state: "This section shall not apply to
records
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authorized by law to be collected and used solely for
statistical purposes or as authorized by section 8, title 13 U.S.C."
The Census Bureau under section 8 is able to perform the valuable
service to individuals of furnishing extracts of otherwise strictly confi-
dential information contained in population census reports about themselves
and their immediate family for birth, inheritance, and other such proper
purposes. Thousands of such requests are handled yearly, without any
detriment to the individuals concerned. Notification to each person ORD named
in these extracts will be a costly and uncalled for administrative burden.
5
We do not suggest this exemption lightly. There are millions of
statistical records in existence. There are also very specific pro-
cedures and rigorous safeguards as to how such records may be used.
There is no reason to believe the statistical uses would ever adversely
affect an individual. The exemption will remove an incalculable
administrative burden which would serve no privacy purpose. Further-
more, if individuals were permitted to alter information about themselves
as reported on census and survey questionnaires, the production and
dissemination of statistics would be endlessly interrupted and hopelessly
frustrated, with very serious results as to the timeliness of data.
Subsection (a)(2) of H.R. 13303 would restrict disclosures within
an agency to persons with job-related needs to know. This provision is
a salutory one, but superfluous from our viewpoint, in that there are no
records systems in the Department which are accessible to the casual or
curious employee without a job-related purpose for inspecting records.
We would be surprised if this were not true of all agencies.
Subsection (a)(3) requires that records be kept of the names and
addresses of all persons to whom information on data subjects is dis- -
closed. For personnel records and statistical records this would be
a horrendous administrative burden at considerable cost and with little
benefit.
FORD
6
With respect to access to personnel records, the practices of this
and most agencies are derived from statutory or administrative re-
quirements, and regulations of the Civil Service Commission. With
regard to statistical records, all Department employees are subject
to criminal penalty under section 1905 of title 18 for unauthorized
disclosures of data held to be confidential, and access is limited
to those authorized by law to see it. In the unique case of the Bureau
of the Census, all employees may have either processing or analysis
access to the data which are confidential by law. Almost all employees
need access, and all are subject to heavy penalties for disclosure. At
the Census Bureau, a log of entrants to the data files would serve no
purpose not already being carried out under title 13, U.S.C. Since
millions of records are handled in a year, the costs of the recordkeeping
proposed in the bill could be very substantial.
Subection (a)(4) of H.R. 13303 would permit any person to inspect
his own record and have copies made at his expense. This is no
problem when "inspection" is as simple as looking through a file cabinet
for the folder with an identifying name.
It should be recognized, however, that large-scale record systems
are not usually arranged for easy retrieval by name, and that in some
cases they are not maintained in a single location. Census records
7
would often need to be recalled from storage, even for inspection,
and this entails substantial cost. We suggest that the reference to
expense should read, "in no event shall be greater than the cost of
making such copies and making such record available for inspection. "
Subsection (3) of H.R. 13303 would require agencies to publish
rules regarding their records in sufficient detail so that data subjects
know what categories of information are maintained, and when, how,
where, and at what cost they can have access to their record. We
agree it is desirable to develop such rules, at least for personal
records systems that have a significant impact on individual rights.
Also desirable is subsection (b)(8) of H.R. 13872, which would
require agencies to inform people whether or not the supplying of
information is legally required, and the consequences of providing or
not providing the data requested.
A final comment on H. R. 13303 concerns the type of data transfer
involved in an archival records system. The bill makes no mention of
records which are disclosed to the National Archives in accordance
with the Records Disposal Act of 1945 and the Archives Act of 1950.
We are especially concerned with the problem of notification in this
instance because, if it applies to data transfers undertaken in the past,
it would appear that the Census Bureau would have to notify hundreds of
8
millions of Americans as to the transfer of their personal census
records to Archives, not only for permanent preservation, but to
be used for historical and genealogical research. The prospect of
notifying all living persons reported in each census since the turn
of the century that their records have been transferred to another
agency for archival purposes leads us to contemplate costs to the
Census Bureau of tens of millions of dollars annually, as well as
very poor results because so many persons have, over the interven-
ing years, moved from the address of their birthplace or residence at
census time. Further, what desirable purpose would it serve to make
such notification?
H. R. 14163, the new bill recently introduced by Mr. Goldwater for
himself and Mr. Koch, entitled the "Right to Privacy Act", has a much
wider sweep than H. R. 13303. It is not limited to governmental record-
keeping, and it applies to all information which in any way "describes,
locates or indexes" anything about anybody.
There has not been sufficient time to focus on the wide ramifica-
tions of H. R. 14163, particularly as they would affect recordkeeping
of the entire business community. Certainly the business burden and
costs which would result, as well as impairment of business operations
which now convenience the consumer, will need the closest scrutiny.
FOND
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The Domestic Council Committee on the Right to Privacy headed
by Vice President Ford is considering the role and responsibilities
of the private as well as the public sector--and we look to its findings
for guidance.
What is affordable must be in the balance as the citizenry will foot
the bill for H.R. 14163 through both taxes and pass-through of costs
to prices. The broad sweep is expensive. There is, we believe, need
for focus on the specific information practices which are subject to
the most consequential abuse - as Congress did in the case of the Fair
Credit Reporting Act. With the right balance, the individual will con-
tinue to enjoy at reasonable cost both services wanted and protection
against abuses of information systems.
In conclusion, we are pleased that some of the ideas contained in
the most recent bills have been refined from earlier versions, such
as H.R. 667, but we think further work is needed on these concepts
as they would apply even to Federal agencies. We urge that statistical
records, properly defined, be exempted altogether, and that there be
focus on those kinds of administrative records which are most vulnerable
to frequent or unintended secondary uses that significantly and adversely
affect individuals.
in
FORD
I will be glad to attempt to answer any questions.
GERALD
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STATEMENT OF PHILIP W. BUCHEN, EXECUTIVE DIRECTOR,
DOMESTIC COUNCIL COMMITTEE ON THE RIGHT OF PRIVACY,
INCORPORATING A COMMUNICATION OF THE VICE PRESIDENT
TO THE SENATE GOVERNMENT OPERATIONS AD HOC SUBCOMMITTEE
AND THE JUDICIARY SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
CONCERNING THE RIGHT OF PRIVACY, JUNE 19, 1974.
Mr. Chairman, I appreciate this opportunity to present a
communication by the Vice President to you and members of the two
Subcommittees in joint session, to testify on the importance of
protecting the right to privacy, and to review briefly the progress of
the Domestic Council Committee on the Right of Privacy. Accompanying
me is Douglas W. Metz, Deputy Executive Director of the Committee.
I would like first to read a letter from the Vice President to
the Chairman:
Honorable Sam J. Ervin, Jr., Chairman
Government Operations Committee
Judiciary Subcommittee on Constitutional Rights
United States Senate
Washington, D. C. 20510
Dear Mr. Chairman:
It is a distinct pleasure and honor for me to respond
to your invitation to communicate with the Senate's
Government Operations Ad Hoc Subcommittee and the
Judiciary Subcommittee on Constitutional Rights as you
undertake joint hearings on legislation to protect the right
of privacy.
GERALE FORD
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As each member of the Committees is aware, my concern
for the protection of personal privacy was heightened by the
intense investigation directed at me in connection with my
nomination to be Vice President. Subsequently, the President
afforded me an opportunity to continue my interest by naming
me Chairman of the Domestic Council Committee on the Right
of Privacy.
The Committee was given the challenging mandate to review
a broad spectrum of privacy concerns and to make recommendations
as soon as possible for new initiatives to advance the right of
personal privacy.
There have been previous commitments, hearings, studies
and recommendations to deal with privacy problems. Many
findings have been ignored and too little actually done. The time
has come for action. I will do all in my power to get results.
Currently the Congress has pending before it over 140 bills
dealing with privacy issues. Legislation has already passed
the Senate to control the maintenance and use of sensitive records
about pupils in our schools and to protect the privacy of Federal
employees. This session may consider bills to regulate the
information practices of the Federal government and the
collection and dissemination of criminal history records
States and the Federal government. Proposals have been
by BERALD FORD LIBRARY
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introduced in other problem areas including military surveillance
of civilian politics, wiretapping and electronic surveillance,
and amendments to strengthen the Fair Credit Reporting Act.
There is extensive activity at the State level. Since the
beginning of this year, over 65 measures governing privacy have
been introduced in State legislatures, some of which have already
been enacted into law.
My first act as Chairman involved complaints about an
Executive Order of the President that permitted the Department
of Agriculture to review the income tax returns of farmers to
obtain data for statistical purposes. The President asked me to
look into the matter. I immediately discussed the Executive Order
with Secretary Butz and recommended that it be withdrawn. The
President accepted my recommendation.
Only a few weeks ago plans for the largest nonmilitary
government data processing and communications procurement in
American history were shelved, partly at my urging, so that the
proper privacy safeguards could be developed. The contemplated
system, known as FEDNET, without proper safeguards, could have
escalated the fears of the people over the collection and dissemination
of personal information.
FORD
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In addition to these initiatives, I can report that the
Administration is planning to submit to the Congress draft
legislation that would prohibit "snooping" and monitoring of
communications entering and leaving a citizen's home via cable
television. It would forbid disclosure of identifiable information
about the viewing habits of subscribers of cable television
systems without their consent. Safeguards are essential to
prevent the abuses of a "wired society" and to assure that
advanced technology remains the servant of our society's most
cherished freedoms.
In these hearings the Senate commences formal consideration
of legislation with a scope which will impact the lives of every
American in terms of his right to informational privacy. In our
zeal to protect this right more adequately, we should not attempt
to remedy all abuses within the four corners of one bill. Potential
intrusions on personal privacy have too many facets and the public
interests involved are too complex to permit all-inclusive remedies.
The burden of legislating in this field requires a delicate balancing
of the interests of each individual to control the gathering and use
of information about him and the interests of government in
obtaining the information needed to administer its services and
enforce its laws.
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I would hope that the legislation you act upon will embody
several basic principles which provide the individual with
fundamental safeguards to protect his privacy:
(1) The Federal government should not maintain any
record-keeping system whose very existence is secret
from either the elected representatives of the people
or the public-at-large.
(2) The Federal government should collect from individuals
only the amount and types of information that are
reasonably necessary for public protection and for the
provision of governmental services.
(3) The Federal government should provide a means for the
individual to inspect his records and challenge the accuracy,
timeliness, and relevance of their content in relation to
the purpose for which the records are kept.
(4) The Federal government should use information collected
from individuals only for purposes reasonably understood
and intended at the time it is collected unless the government
gives notice to or obtains the informed consent of the
individual.
FORD
GERALD
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(5) The Federal government should act as a trustee for
sensitive personal information it collects and in so
doing provide reasonable safeguards to protect the
security and confidentiality of such information in
existing and future record-keeping systems.
These principles are not new. In one form or another they have
been articulated by informed observers, researchers, concerned
citizens and in studies such as the recent report of the HE W
Secretary's Advisory Committee on Automated Personal Data
Systems.
I have asked the Executive Director of the Domestic Council
Committee on the Right of Privacy, my friend and colleague of
long standing, Mr. Philip W. Buchen, to report to you and the
Subcommittees in joint session about the plans and progress of
the Committee which I chair and to provide his own thoughts
concerning needs and opportunities for new legislative initiatives.
Privacy is a bipartisan cause. We can and should close ranks
on this vital issue of growing and legitimate concern to the
American people. Our zeal for this cause, however, should not
tempt us to overlook the complexity of the problems involved or
to resist study and debate on questions of the scope, timing, and
suitability of different possible remedies for advancing the
cause FORD CISHAEL
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of personal privacy without inhibiting government or business
in its proper functions.
I want to express appreciation for your prompt and cordial
response to my request that the staff of the Privacy Committee
have access to the results of the questionnaire of the Subcommittee
on Constitutional Rights sent to executive agencies to obtain
information about the nature and content of their data banks.
This survey, as well as the hearings you have held over the years,
has yielded an enduring legacy of leadership and essential information
vital to those formulating public policy so that Americans forever
remain the masters rather than the servants of the record-keepers.
You and the Subcommittees can be assured of my continued
cooperation and that of the Privacy Committee staff as you consider
new legislation. Such a relationship now exists with Chairman
Moorhead and the staff of the House Government Operations
Subcommittee on Foreign Operations and Government Information,
which is currently marking up legislation similar to that which you
are taking up.
Let us begin now to work together so that we can celebrate
our Nation's Bicentennial confident that we have vindicated the best
hopes of the architects of our Constitutional liberties and have
GREATO FORD LIBRAGE
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added sound legislative and administrative structures to secure
the right of privacy for future generations.
Sincerely yours,
Gerald R. Ford
Mr. Chairman, I would like to take this opportunity to bring the
members of the Subcommittees up to date on the work of the Domestic
Council Committee on the Right of Privacy.
The Committee was established by the President on February 23,
1974. The Committee was charged with formulating by midyear an
action plan for decision-making and implementation in the ensuing months.
Because of the Congressionally created National Commission on Wiretapping
and Electronic Surveillance, the President asked the Committee to defer
recommendations in this area pending receipt of the Commission's report.
I was appointed Executive Director by the Vice President on
March 15, 1974. The initial task was to form a small staff capable of
rapid development of a comprehensive work program, mobilization of
the executive agency resources, liaison with the Congress, and com-
munications with informed and interested individuals and groups outside
the Federal government.
As preparation for addressing the complexities and subtleties of
privacy, the Privacy Committee staff sought, and continues to seek,FORD
GERALD
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ideas and recommendations from the Congress, State governments,
industry, citizens' groups, private individuals, academic experts,
and Federal agencies not represented on our Committee.
In developing our work program we gave primary emphasis to
action-oriented activities rather than additional research. We sought
projects that met two criteria: first, the relative urgency of the need
for immediate steps to protect personal privacy and second, the likelihood
that substantial action could be obtained this year.
We identified over sixteen major projects meeting these criteria.
In April, we selected eight for immediate consideration. These projects
were assigned, in most instances, to interagency task forces composed
of representatives of Federal agencies, and, where appropriate,
individuals outside the Federal government.
The first project is reviewing Federal policy to cope with the
problem of the growing use of the Social Security Number for purposes
never envisioned by the founders of the Social Security system.
The second project seeks to define the needs for further protection
of the consumer's right to privacy in the marketplace -- examining not
only proposals to strengthen the Fair Credit Reporting Act but other
initiatives affecting consumer privacy interests.
FORD is GRAND LIBRA
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Another project is examining further executive and legislative
safeguards to protect the confidentiality of personal information
contained in the millions of records collected and used for statistical
and research purposes.
The fourth project aims at greater restraints in government data
collection by developing practical means of assuring that individuals
are aware of their rights and obligations with respect to the information
they are asked to provide to Federal agencies.
A further project is reviewing policy governing the dissemination
and use of Federal mailing lists and the impact of these practices on
the individual's right of privacy.
The sixth project is concerned with new initiatives for safeguarding
the confidentiality of taxpayer data.
An additional project is developing policies to assure that personal
privacy rights are given prominence in the planning, coordination and
procurement of Federal data processing and data communications systems.
The eighth project seeks to accelerate the development of guidelines
and standards. for data security in computer systems and networks.
Besides these efforts, the Privacy Committee staff is devoting
a significant portion of its time to analyzing legislative proposals on
privacy introduced in the Congress. These efforts have been supplemented
by close collaboration with OMB in its preparation of a newly proposed
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bill dealing with certain information systems of the Federal
government, the text of which will shortly be made available to the
House Government Operations Subcommittee on Foreign Operations
and Government Information and to your Subcommittees.
Notwithstanding our orientation toward action, we have not
overlooked the need for further research on the right to privacy and
are seeking support for worthy longer-range studies from agencies such
as the National Science Foundation.
The Privacy Committee staff is now reviewing the initial reports
of some of the project task forces in preparation for a meeting of the
Committee early next month. I, of course, cannot predict the outcome
of our work and the extent of its acceptance. I am confident, however,
that a new beginning has been made in the Executive Branch. The work
of the Committee has developed a new awareness that the protection of
privacy is an obligation of government more serious than ever before.
The work of the Committee has been aided immeasurably by the
interest of many members of Congress and, in particular, the cooperation
and assistance of many Congressional staff members. The staff of the
Privacy Committee is aware that in length of Federal service we are
junior to the individuals in the Congress and the Executive Branch who
can properly be called pioneers in the cause of privacy. We wish to
consider ourselves, however, their equals in dedication and zeal for
is
FORD
GENALD
LIBRARY
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seeking sound and effective remedies against violations of what
Mr. Justice Brandeis has called "the right most valued by civilized
men" -- the right of privacy.
Nevertheless, we should not minimize the immensity of our
common task and the difficulties in devising remedies for problems so
complex and with so many facets and ramifications as those of intrusions
on privacy interests. Deciding on the proper balance between privacy
interests and the public need to collect information involves varying
considerations for different kinds and uses of information. Controls
of information practices ought to accommodate for situations where the
problems are not alike and where the same remedies are not equally
workable or useful.
Generally, it has been assumed that criminal justice or law
enforcement information (whether used by government or in the private
sector) gives rise to problems requiring treatment different from that
of information used to carry out social, health, or money benefit
programs, to administer revenue and regulatory laws, to select and
manage employees and outside contractors, and to conduct the multiplicity
of other operations by government or business. However, even within
the broad range of separate informational relationships between individuals
and government or between individuals and business, where criminal
detection and apprehension or enforcement of regulatory laws is not the
LIBRA FORD
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object, wide differences occur. Material differences occur in the
kinds and volume of information used, in the manner of collecting
and disseminating information, in the degrees of data sensitivity,
in the uses made of the information, and in the risks of possible
abuse.
Our Committee staff and one of our task forces is in the process
now of using the valuable survey of Federal data banks by the
Subcommittee on Constitutional Rights of the Committee on the Judiciary
of the United States Senate to propose a classification system for the
va rieties of information held by Federal departments and agencies.
This survey has identified about 850 separate data banks in the Federal
government which contain data on individuals, and many more informa-
tion systems, including manual ones, are actually in existence. It was
estimated in 1967 that the Federal government possessed about
3, 111, 500, 000 individual person-records. We can be sure that by now
this incredible number of records has grown even larger.
It is unnecessary to think of making all of the systems containing
these records, or even the great bulk of them, subject to the same
public notice requireme nts, to similar procedures for keeping each
record item current, accurate, and relevant, and for allowing access,
inspection, and correction by every information subject, and to uniform
standards for safeguarding confidentiality and controlling use. I fear
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that with remedies so comprehensive as these, preservation of
the right of privacy may become bogged down in an administrative
morass.
Therefore, I would urge that any legislation affecting files in
the Federal government should not treat all record systems alike.
Surely dormant or archival files should be distinguished from active
files. Data used for statistical or research purposes should be
distinguished from records dedicated to specific ongoing relationships
between Federal agencies and individuals. The latte r records which are
subject to checking and correction on a transactional basis where only
hard data is relied on and no administrative discretion is involved in
granting or withholding benefits may be treated differently from more
complex records which could be the basis for exercise of administrative
discretion.
Possibly information supplied entirely by or at the request and
with the knowledge of the data subject should be distinguished, at least
for some purposes, from third-party information, the existence of which
is unknown to the data subject. Also, distinctions may be appropriate
for some purposes on the basis of relative sensitivity of different
categories of data. Information derived from public records would
not generally deserve such protection of confidentiality or such restrictions
FORD
BENALD
LIBRARY
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on use as would information containing intimate details of personal
behavior or health. Vaccination records are surely not so sensitive
as records of mental illness.
Other appropriate distinctions for control of information
practices may concern the relationship of the data subject to the users
of particular data. The collection and management of information about
individuals for personnel or contractual purposes involves different
problems of awareness and access than occur in cases of persons at
large about whom information is needed to administer programs for their
benefit. If the relationship is one that in the public interest calls for
regular testing or audits of information supplied or representations
made, then another factor is injected that may expand the need to know
so as to include otherwise confidential information.
The purpose of suggesting such distinctions is to urge legislation
which varies the controls or procedures to fit the varying privacy risks
and public needs involved and which more accurately balances private
interests with the public interest according to the character and purposes
of the information system involved and according to the relationship
between the data subject and the users of the information.
There are practical limits to the niceties of distinctions and the
refinements in controls or remedies that can be provided for in legislation.
FORD
However, legislation that overlooks the complex realities of problems
LIBRAR
may prove unworkable and cause disservice to either private or public
interests or to both such interests.
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For the reasons stated, it would seem desirable to confine initial
legislation to information practices of the Federal government rather
than reaching at once into state government operations or into private
business. Before claiming confidence in the workability and the
effectiveness of particular controls to solve problems so complex as
those posed by information systems everywhere in our society, it would
seem prudent to gain experience from their application solely within the
Federal government. The problems are certainly large enough in scope
right here, and the groundwork done to arrive at solutions, however
thoughtful, hardly promises assured success in all respects.
Even legislation affecting only Federal information practices
should not go beyond what a single bill can reasonably accomplish to
deal discretely with distinct features and problems of different
information systems and of different informational relationships as
discussed above. Yet there is certainly need now to make a strong
start in laying down basic principles of fair information practices.
Also procedures should be prescribed which adapt those principles
in a flexible but effective manner to the different information systems
covered. Then, after experience is gained, further legislation can
be passed to expand effective application of those principles to
additional Federal information systems, and, if necessary, to ones
a
FORD
outside the Federal government.
GERRED
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In conclusion, I would stress again the importance of action
this year by the Congress on legislation to implement the basic
obligations of the Federal government to the individual with respect
to fair information practice safeguards to protect personal privacy.
I thank you very much for your kind attention to this account of
how the work of the Privacy Committee has gotten underway; also for
your kindly allowing me to express my views of the demanding challenges
posed by the privacy problems which arise in different ways from various
kinds of information needs and uses.
FORD
LIBRAR
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