NOTICE OF JOINT LEGISLATIVE HEARINGS ON PRIVACY AND GOVERNMENT INFORMATION SYSTEMS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP76M00527R000700140093-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 19, 2016
• Document Release Date: November 21, 2001
• Sequence Number: 93
• Publication Date: June 11, 1974
• Content Type: OPEN

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S 10252
CONGRESSIONAL RECORD -SENATE June 11, 1974
the applicable base period (as those terms
are defined in subsection (0)). If he deter-
mines that the price index had changed by a
percentage (of its level in the base period)
equal to 3 per centum or more, the amount of
the educational assistance or subsistence al-
allowance payable to eligible veterans or eli-
gible persons pursuing a program of educa-
tion or training, other than a program by cor-
respondence or a program of flight training,
in an educational institution under chapter
31, 34, or 35 of this titlV shall be changed
by the same percentage (adjusted to the
nearest one-tenth of 1 per centum), effective
with respect to such allowances for months
after the quarter in which the determina-
tion is made.
"(b) In the case of any individual who first
becomes entitled to an educational assistance
or subsistence allowance in or after the
month in which a change becomes effective
under subsection (a), the amount of such
allowances payable to or with respect to him
on the basis of such entitlement shall be de-
termined by applying such change (or, if
more than One change has become effective
under subsection (a), by applying all such
case may be, without regard to this secti .
"(c) Any change under subsection )
shall apply with respect to all educat al
pa ble
assistance or subsistence allowances i
under chapters 31, 34, and 35 of this'itle
during the period in which. such cha a is
effective regardless of the provisions Jinder
which such allowances are payable r the
manner in which the amounts pay le are
determined, but shall be applied th re-
spect to the allowances payable to" r" with
respect to any particular individ al only
after all of the other applicable pr isions of
this title which relate to eligibe for and
the amount of such allowances, a all prior
changes made in such allowancender this
"(d) If the amount of the c e in any
educational assistance or substenng ts allow-
ance under subsection (a) is t a multiple
of $0.10 it shall be raised to a next higher
multiple of $0.10 In the case a multiple of
$0.05 or adjusted to the ne est multiple of
"(e) For purposes of tsection-
-,(I) the term 'price dex' means the
Consumer Price Index 11 items, United
States city average) pu shed monthly by
the Bureau of Labor . tistica; and the
average level of the pri index for the three
months in any calen r quarter shall be
deemed to be the level;i- . f the price index in
"(2) the term 'bas period' means-
"(A) the calenda quarter commencing
July 1, 1974, with r set to the first change
under subsection (a ', and
"(B) the ealendKr quarter immediately
preceding the qu er in which the deter-
mination constit ng the basis of the most
recent change der subsection (a) was
made, with respe to any change under sub-
section (a) afte the first such change."
(b) The tabi_ of sections at the beginning
of chapter 36 title 38, United States Code,
is amended by, ? ding at the end thereof the
an s."
(c) The erdment made by subsection
(a) of this ction shall apply only with re-
spect to 'angel in educational assistance
and subsi nee allowances under chapters
31, 34, an 35 of title 38, United States Code,
for mon s in and after the second calen-
dar qu r beginning after the date of the
enactm t of this section on the basis of
Bete ations made (under section 1796 of
such le, as added by subsection (a) of
this section) In and after the first calendar
quarter beginning after the date of the
enactment of this section.
NATIONAL CO SSION ON SUP-
PLIES AND ORTAGES ACT OF
1974-AME NTS
AMENDM 9 NOS. 1441 AND 1442
(Ordered, be printed, and to lie on
Mr. YMPHREY submitted two
amendn ts, intended. to be proposed
by himo the bill (S. 3523) to establish
a Te orary National Commission on
Supptes and Shortages.
AMENDMENTS
AMENDMENT NO. 1348
Senator from Indiana (Mr. HARTKE), the
Senator from Maine (Mr. HATHAWAY),
the Senator from Iowa (Mr. HUGHES),
the Senator from Wyoming (Mr. Mc-
GEE), the Senator from New Hampshire
(Mr. MCINTYRE), the Senator from Min-
nesota (Mr. MONDALE), and the Senator
from Wisconsin (Mr. NELSON) were
added as cosponsors of Amendment No.
1348 to the bill (S. 2005) to provide ade-
quate reserves of certain agricultural
commodities, and for other. commodities.
AMENDMENT NO. 1428
At the request of Mr. PROXMIRE, the
Senator from Tennessee (Mr. BROCK)
was added as a cosponsor of Amendment
No. 1426 to the bill (H.R. 11221) to pro-
vide full deposit insurance for public
units and to increase deposit insurance
from $20,000 to $50,000.
NOTICE OF JOINT LEGISLATIVE
HEARINGS ON PRIVACY AND GOV-
ERNMENT INFORMATION SYS-
TEMS
Mr. ERVIN. Mr. President, hearings
on bills relating to privacy ? and Govern-
ment information systems will be held
before an ad hoc subcommittee of the
Senate Government Operations Com-
mittee and the Judiciary Subcommittee
on Constitutional Rights On June 18, 19,
and 20. The joint hearings will be held in
room 3302 of the Dirksen Senate Office
Building at 10 a.m.
The legislation before the Govern-
ment Operations Committee is S. 3418,
which I have cosponsored with Senators
PERCY and MUSKIE, to establish an ad-
ministrative structure to oversee rules
for the gathering and disclosure of in-
formation concerning individuals, and to
provide management systems in Federal
agencies, State and local governments
and other organizations concerning such
information, and for other purposes.
Bills pending before the Constitutional
Rights Subcommittee of which I am also
chairman, are: S. 2810, introduced by
Senator GOLDWATER, to protect the con-
stitutional right of privacy of individuals
concerning whom identifying numbers
or identifiable information is recorded by
enacting principles of information prac-
tice in furtherance of amendments I, III,
IV, V, IX, X, and XIV of the U.S. Con-
stitution;
S. 2542, introduced by Senator BAYH
to protect the constitutional right of pri-
vacy of those individuals concerning
whom certain records are maintained;
and
S. 3116, introduced by Senator HAT-
FIELD, to protect the individual's right to
privacy by prohibiting the sale or dis-
tribution of certain information.
With these legislative hearings, the
Government Operations Committee will
continue its oversight of the develop-
ment and uses of automatic data pro-
cessing in the Federal Government. The
intergovernmental nature of nationwide
systems involving electronic and manual
transmission, sharing and distribution of
data about citizens has significant im-
plications for our federal system. In its
attempt to respond to citizens' demands
for quality and quantity in services, gov-
ernment and the private sector have
turned to the large data banks, compu-
terized information systems and man-
agement techniques which will help
them get the job done. Where these
practices and systems neglect the ad-
ministrative and technical concern for
privacy, due process, and surveillance
over the individual, they are taking a toll,
which is yet unmeasured, on constitu-
tional principles of accountability, re-
sponsibility and limited government. The
cost to the taxpayer in dollars and cents
concerns every American, for in the in-
terest of promoting efficient government,
the taxpayer may also be paying for loss
of his privacy. That may be the price of
insufficient monitoring by the public and
Congress of the haphazard, ad hoc,
ways modern government has found to
meet its information needs, and which
public officials use to meet. their political
needs.
Two Subcommittees of the Govern-
ment Operations Committee are pre-
sently conducting oversight into major
aspects of this problem. For instance, the
'Permanent Subcommittee on Investiga-
tions, chaired by Senator JACKSON, is pre-
sently conducting an inquiry into sur-
veillance practices in and out of govern-
ment, including government wiretapping,
eavesdropping, recording, industrial es-
pionage and bugging of labor negotia-
tions, and other monitoring practices.
The Intergovernment Relations Sub-
committee chaired by Senator MusKIE,
who is also a sponsor of the pending bill,
is considering legislation concerning
electronic surveillance and the need to
reorganize departments and agencies en-
gaging in such practices. That subcom-
mittee is also studying a major aspect
of Federal administration which affects
individual privacy; this is~ the classifica-
tion of Federal records and the laws and
rules governing access, release and with-
holding of information which govern-
ment collects about people.
The sponsors have introduced S. 3418
for purposes of discussion on the issues
of what standards Congress should set
for the protection of privacy in the devel-
opment and management of Federal in-
formation systems, especially those
which have been computerized with
capacity for the sharing of records
among departments and governments
and across State boundaries. I expect
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J2.cr?4e 11, 1974
CONGRESSIONAL RECORD - SENATE
Mr. JAvrrs. I point out that i list of
States not covered includes such rsely
populated States as Montana and Lo na,
so forth. I thank the Senator from Utah for
making that clear. There is no exclusivity
about this.
Mr. LONG. Mr. President, I ask unanimous
consent to have printed In the RECORD a list
of the States that would benefit under what
we we;^e able to work out with the House.
There being no objection, the list was or-
dered to be printed in the RECORD, as follows:
Estimated Estimated maxi-
maximum mum total
number of additional costs
beneficiaries (thousands)
Alaska________________ 1,100-1,500 $600-$800
Maine __------------- - 7,000-8,000 3,000-3,500
Massachusetts--------_- 49,300 30, 000
Michigan- _.---- _----- - 71,400-97,300 40,700-55,400
Nevada____ ____________ 6, 700 3,600
New Jersey . :__________ 80,000-120,000 48, 000-72, 000
Puerto Rico ------ 33, 000-42, 000 9, 000-11:000
Rhode Island ---------- - 8, 000-9, 000 5,000
Vermont-_ ---- _-____ 3,600 2,000-3,000
Washington. _______-___ 42, 000 17,000.
Total -------------- 300.000-380,000 160, 900-202,100
Federal share__- _____________________ 80,000-I01,000
The PRESIDING OFFICER. The question is on
agreeing to the conference report.
The conference report was agreed to.
Mr. l.c:NG. Mr. President, I move to recon-
sider the vote by which the conference report
was agreed to.
Mr. IBENNETT. I move to lay that motion on
the table.
The motion to lay on the table was agreed
to.
Mr. JAVITS. Mr. President, that com-
mitment was given to myself and the
Senator from California (Mr. TuNNEY) In.
October of 1972. Since that time, it has
become clear that remedial action must
be taken In order to permit the Federal-
State extended unemployment compen-
sation program to function as Congress
intended. That need is highlighted by the
string of temporary amendments to
which Congress agreed In an attempt to
remedy the defects in the trigger mecha-
nism on a temporary basis In June 1973,
December 1973, and March 1974.
These amendments will again lapse on
July 1 of this year unless further action
Is taken. It Is time that we sought a per-
manent solution to the Inadequacy of
those trigger requirements so that we can
offer some measure of assurance to those
workers who are unemployed that there
will be an adequate program of benefits
available to them.
The amendment that I am privileged
to cosponsor would provide for the ex-
tended benefits program to trigger on In
any State in which the insured unem-
ployment rate equaled or exceeded 4 per-
cent for any 13-week period. The off
trigger would be activated when the in-
sured unemployment rate in that State
dropped below 4 percent for any 13-week
period. The thrust of this amendment is
to eliminate the requirement that the in-
sured unemployment rate exceed the rate
for the corresponding period of the pre-
vious 2 years by at least 20 percent. If
any State is experiencing a severe unem-
ployment problem, it is of little relevance,
particularly to the individual unem-
ployed worker seeking a job, whether
that State has experienced such similar
periods of high unemployment previ-
Under this amendment the following
2 4! tates are currently eligible to pay
ex t ed unemployment benefits :
AIa , California, Connecticut, Dela-
ware, all, Idaho, Maine, Massachu-
setts gan, Minnesota, Montana, , MI Nevada. Jersey, New Mexico, New
York, Nort akota, Oregon, Pennsyl-
vania, Puerto co, Rhode Island, Utah,
Vermont, Was gton, and West Vir-
ginia.
Only two States, ichigan and Dela-
ware, would be eiigi to continue pay-
ing those benefits of July 1 if this
amendment is not agr to. The con-
tir. uation of this amendm t would pro-
vice for the payment of ded bene-
fits for up to 1,400,000 woraker ither cur-
rently receiving, or potential] igible to
receive benefits during ficsal y 1975.
]: hasten to point out to the tors
that this amendment simply perms the
States to trigger into the extended b e-
or :aot they wish to participate in the pro-
gram. In addition, this amendment in-
volves no increased general fund expend-
itures on the part of the Federal Govern-
ment since the extended benefits pro-
gram is financed in equal part from the
various State unemployment accounts,
and from the Federal extended benefits
account, both of which are financed by
an employer payroll tax.
Mr. President, I ask unanimous con-
ser. t that a table showing the number
of ;;iotentiatl beneficiaries of this amend-
ment supplied by the Department of
Labor be inserted Into the RECORD.
The PRESIDING OFFICER. Without
objection, it Is so ordered.
Et:TIMATED EXTENDED BENEFITS. FISCAL YEAR 1975
[Asst mptions- (r) Drop 120 percent Trigger Criteria; (2) Insured
un:mployment rate-3.8 percent; (3) All States affected will
pa:.s conforming legislation]
Number of Total costs
beneficiaries (millions)
Alabama----------------------------- '
Alaska__________________ 2,000 01.1
Arizoia-------------- - -- __
Arkansas---------------- 2,800 1.4
Califc rnia------------ ____ 244,100 136.2
Colorado---------------------- -
Connucticut_-__--c_--_--. 75,000 52.4
Delaware -'
Distri:t of Columbia_______y
Florica---------------- - --- --'
Georgia--- -------------- ---
-------------------------------'
Guam------ --------------------------------
Hawa i------------------ . 3,000 2.1
Idaho_______________-_-~ 3,100 1.0
Illinois -_------
-----------------------------------------=
Indiana------------------ --
Iowa-------------------__---
Kansas- - - --------------------------=
____________
Kentucky---------------- ---?-------------
Louisiana-----------?--`--? =-------------------------
Maine ____________--_-__. 19,200 7.0
Mary Iand------------ ----- =_=------_----------'
Masse chusetts-.________-- 122,500 .79.6
Michigan______________143,200 $5.9
Minnesota_______________ 12,500 4.9
Missi:sippi----------------------------------------- -----_
510251
Number of Total casts
beneficiaries (motions)
Missouii_________________ 15, 000 $5.7
Montana_________________ 2, 500 .7
Nebraska -------------------------------
Nevada------------------ 7,800 4.5
New Hempshire------------------------------?----------
NewJersey______________ 167,400 101.0
New Mexico______________ 2,900 .9
New York________________ 270, 000 164.7
North Carolina------------------------ -----------------
North Cakota_____________ 1, 600 .6
Ohio---------------------------------------------`------
Oklahoma-----------------------------------------------
Oregon------------------ 21,400 10.9
Pennsylvania ------------- 55,600 35.0
Puerto Rica______________ 106, 400 26.8
Rhode Istand_____________ 21,200 12.0
South Carolina-------------------------------------------
South Dakota --------------------------------------------
Tennessee-----------------------------------------------
Texas-- Utah -------------------- 1,500 .5
Vermon;_________________ 4,700 3.0
Virginia -------------------------------------------------
Virgin Islands --------------------- -------------------- ---
Washington -------------- 108,800 60.7
West Virginia_____________ 3, 700 1.4
Wisconsin------------------------------------------------
Wyoming-----------------------------------------------
United States total-------- 1,417,900 800.0
Note: Costs would be shared 50-50 by States and Federal
Government.
FAIR CREDIT BILLING ACT-
AMENDMENT
(Ordered to be printed, and to lie on
he table.)
to d to be proposed by them, jointly,
to t bill (H.R. 11221) to provide full
depo - insurance for public units and to
lucre deposit insurance from $20,000
INCRE OF ALLOWANCES TO
VE S-AMENDMENT
AM MENT NO. 1440
(Ordered to printed, and to lie on
Mr. BELLMO r. President, S. 2784
has recently been eported out of the
Senate Veterans' 'rs Committee and
placed on the Sena calendar. During
consideration of t most important
measure it is my in t to offer an
amendment calling fo an escalator
subsistence and educatio allowances
similar to present provisio of the so-
Mr. President, I ask ous con-
sent that the full text of amend-
ment be printed in the Rncoiw t this
ment Was ordered to be printed in
RECORD, as follows:
AMENDMENT No. 1440
On page 105, line -, insert the following
new section:
Title VI. Sec. 601. Chapter 36 of title 38,
United States Code, Is amended by adding at
the end thereof a new section as follows:
1796. COST-OF-LIVING INCREASE IN EDUCA-
TIONAL ASSISTANCE AND SUBSIST-
ENCE ALLOWANCES.
"(a) As soon as possible after the begin-
ning of each calendar quarter, the Admin-
istrator sifall determine the extent by which
the price Index in the preceding calendar
quarter was different than the price Index
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June 11, 1974 CONGRESSIONAL RECORD -SENATE
hearings to produce expert advice not
only on the standards to be set, but on
the scope of the bill and how far the
law should affect State, local, and private
data banks. The hearings will also help
us determine what kind of Federal struc-
ture should be established to enforce or
advise on standards.
Congress is now considering a number
of legislative proposals directed to spe-
cific problem areas of the law governing
the privacy of the individual such as
criminal justice data banks, military
surveillance of civilian politics, wiretap-
ping and eavesdropping, private credit
data banks, employee privacy, behavior
modification, lie detectors, and com-
puter technology. These are some of the
techniques and governmental programs
which have concerned Congress and the
public.
In contrast to such special legislation,
the proposals considered in the June
hearings represent general legislation to
protect the privacy of all citizens and to
build into the structure and practices of
government a strengthened respect for
the privacy and other freedoms guaran-
teed by the Bill of Rights.
S. 3418 is similar, but not identical, to
omnibus legislation introduced by Rep-
resentatives EDWARD KOCH and BARRY
GOLDWATER, JR., which is being consid-
ered by the House Government Opera-
tions Subcommittee on Foreign Opera-
tions and Government Information
chaired by Representative WILLIAM
MOORHEAD. Their. joint efforts are con-
tributing greatly to the chances for en-
actment of major privacy protections
this year. Individually, many Members
of the House of Representatives have
for a number of years sponsored ' bills
reflecting sections of this proposal re-
lating to mailing lists, a Federal privacy
board, Federal questionnaires, and
changes in the freedom of information
law.
Portions of S. 3418 are similar to the
measures pending before the Constitu-
tional Rights Subcommittee. Another
portion is comparable to my bill S. 1791
of the 91st Congress, which was to limit
the threats to privacy from burdensome,
overly personal questionnaires by which
Government agencies sought statistical
information through coercive collection
techniques.
S. 3418 and the related bills deal with
requirements to reveal one's social secu-
rity number to government and private
organizations, with personal statistical
questionnaires, mailing lists, and reme-
dies for official information programs
which may pass constitutional bound-
aries.
In addition to the thousands of com-
plaints which people have sent to Con-
gress, we now have for guidance on this
subject the investigative hearings, re-
ports, and findings of a number of con-
gressional committees, private organiza-
tions and Government departments. One
of these studies, "Records, Computers
and Rights of Citizens," was ordered by
the former Secretary of Health, Educa-
tion, and Welfare, Elliot Richardson, who
will testify on June 18 on the findings
of his study and the need for congres-
sional and administrative action.
Another influential and comprehensive
report entitled "Privacy and ? Freedom"
by the Association of the Bar of the City
of New York was directed by Prof. Alan
F. Westin of Columbia University. Re-
cently, Dr. Westin conducted another
study with Michael F. Baker for the.
National Academy of Sciences entitled
"Databanks in a Free Society." I am
pleased to announce that in addition to
presenting testimony on the pending leg-
islation, Dr. Westin has agreed to serve
as a consultant to our hearings and to
give us the benefits of his considerable
research and analysis in this area of the
law.
With the establishment of the new
Domestic Council Committee on Right to
Privacy chaired by the Vice President,
Congress now has additional resources
and assistance in its efforts to protect
privacy, and we look "forward to their
cooperation in our studies.
Vice President FORD has accepted an
invitation to present a statement on
June 19 which will be delivered by the
committee's Executive Director, Mr.
Philip Buchan.
Other witnesses with special knowl-
edge in this area of the law and admin-
istration will include Members of Con-
gress - who have sponsored privacy leg-
islation, representatives of the National
Governors Conference, the National Leg-
islative Conference, the. National As-
sociation for State Information Systems,
Government Management Information
Sciences, the National League of Cities,
the U.S. Conference of Mayors, the
American Civil Liberties Union, Liberty
Lobby, public administration specialists,
and other interested organizations and
individuals.
The Subcommittee on Constitutional
Rights conducted excellent hearings in
March of this year on criminal justice
data bank legislation, in 1971 on "Fed-
eral Data Banks, Computers and the
Bill of Rights," and in 1969 on "Privacy,
the Census and Federal Questionnaires."
These hearings elicited for Congress a
wealth of information about public com-
plaints and attitudes concerning the
establishment and the management of
Federal programs to investigate citizens
in order to store, distribute, and ex-
change information about them. We
found that some of these programs were
none of the business of the Government
and infringed totally or in part on con-
stitutional freedoms. Other programs
were meant to obtain the great amount
of information which Congress must
have to legislate wisely and which the
executive branch must have in order
to 'administer the laws properly. In
some instances, however, it was charged
that lawful programs went beyond their
purpose in scope, and in some cases, that
the lack of adequate control permitted
unauthorized access to this Government
information, or allowed its transfer and
distribution to unauthorized persons and
those who had no need for it in the per-
formance of their duties.
It is a rare person who has escaped
the quest of modern government for
information. Complaints which have
come to the Constitutional Rights Sub-
committee and to Congress. over the
S 10253
course of several administrations show
that this is a bipartisan issue which ef-
fects people in all walks of life. The com-
plaints have shown that despite our rev-
erence for the constitutional principles
of limited Government and freedom of
the individual, Government is in dan-
ger of tilting the scales against those
concepts by means of its information-
gathering tactics and its technical ca-
pacity to store and distribute informa-
tion. When this quite natural tendency
of Government to acquire and keep and
share information about citizens is en-
hanced by computer technology and
when it is subjected to the unrestrained
motives of countless political adminis-
trators, the resulting threat to individ-
ual privacy make it necessary for Con-
gress to reaffirm the principle of limited
Government on behalf of freedom.
The complaints show that many Amer-
icans are more concerned than ever be-
fore about what might be in their records
because Government has abused, and
may abuse, its power to investigate and
store information.
They are concerned about the transfer
of information from data bank to data
bank and black list to black list because
they have seen instances of it.
They are concerned about intrusive
statistical questionnaires backed by the
sanctions of criminal law or the threat
of it because they have been subject to
these practices over a number of years.
The pending legislation represents a
partial solution to these concerns. There
are alternatives to some of the provisions.
For instance, enforcement of the act
and the advisory functions which are
located in an independent privacy board
might be relocated or distributed to the
General Accounting Office and the courts.
Furthermore, after receiving testimony
the committee may want to alter the
scope of the legislation.
I want to commend Senator PERCY for
his interest in this subject and his
initiative in working with House spon-
sors to bring the legislation before the
Government Operations Committee in
connection with its oversight of the use
of governmental data banks and com-
puter technology, and its monitoring of
surveillance practices throughout gov-
ernment which may threaten freedom.
I hope the joint efforts of the Senate
Government Operations Committee and
the Constitutional Rights Subcommittee,
whose members and staff have great
expertise in this area of the law, will
result in enactment of the basic legisla-
tive guarantees which are 'needed if
America is to face up to the computer
age.
It should be noted that these pending
bills follow patterns and raise- Issues
similar to those in criminal justice legis-
lation, S. 2963 and S. 2964, which I have
cosponsored with the following Senators
who include members of the Judiciary
and Government Operations Commit-
tees: Senators HRUSKA, MATHIAS, KEN-
NEDY, BAYH, TUNNEY, YOUNG, BROOKE,
MANSFIELD, ROBERT BYRD, BURDICK, ROTH,
HUGH SCOTT, THURMOND, FONG, and
GURNEY.
We welcome suggestions and com-
ments from Members of Congress and
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S 10254
CONGRESSIONAL RECORD - SENATE June 11, 1974
others with an interest in and knowl-
edge about these matters. Those wishing
to submit statements for the record
should communicate with the Govern-
ment Operations Committee,. room 3306
of the Dirksen Office Building, Washing-
ton. D. C. 20510, telephone [phone].
I?.~i an article entitled "The First
Amendment-A Living Thought in the
Computer Age," from volume 4 of the
Columbia Human Rights Review, 1972,
I have described some of the many com-
plaints which people have registered to
the Constitutional Rights Subcommittee
and to Members of Congress about atti-
tudes and program of government which
threaten the privacy guaranteed under
the first amendment. At the conclusion
of the article, there is suggested a seven-
part legislative program to remedy these
complaints, part of which is reflected in
the pending legislation. Additional ex-
afnmles of questionable data banks have
been revealed, many of them documented
in the forthcoming report of the sub-
committee's comprehensive survey of the
laws and rules affecting individual pri-
vacy in. Federal data banks and com-
puterized information systems. These
new revelations to Congress merely
serve to reaffirm my conviction that early
congressional action is needed to imple-
ment the Constitution.
I ask unanimous consent that the ar-
ticles be printed at this point in the
RECORD.
There being no objection, the articles
were ordered to be printed in the RECORD,
as follows:
From the Columbia Human Rights Review,
Volume 4, No. 1 (1972) ]
TI -TT, FIRST AMENDMENT: A LMNG THOUGHT
IN THE COMPUTER AGEI
(By Sass J. EsvIN, Jr.')
Sherwood Anderson wrote words about
America as true today as they were in the
thh,d decade of this century:
":America ain't cemented and plastered yet.
'I'acy're still building 1t.... All America asks
is to look at it andlisten to it and under-
stand it if you can. Only the understanding
aint important either; the important thing
is to believe in it even if you don't under-
stand it. and then try to tell it, put it down,
Because tomorrow America is going to be
scmething different, something more and
new to watch and listen to and try to under-
stand; and, even if you can't understand,
believe.,,
Anyone seeking to understand contem-
porary America must deal with our national
experience with computer technology. They
must understand that it has become an es-
sential tool in the "cementing and plaster-
ing' of our nation. They must understand
that it has at once presented our country its
greatest hope and its greatest challenge;
keeping faith with our historical heritage
ant. commitment to freedom, while enjoying
the fruits of a rich industrialized society
urnler a democratic constitution.
Throughout our nation the people involved
with computer technology have charge of a
great national resource which will affect the
course of our economic and social progress.
wore important, insofar as it affects the exer-
cise of governmental power andthe power of
large special interest groups, the new tech-
nology may help determine the course of
freedom and human rights in our land.
In the process, I believe Americans could
find wisdom in Sherwood Anderson's advice
"to believe" in America. I say this because,
as we grasp for the new computer technology
and seek theories of systems analysis for our
social problems, Americans may tend to for-
get to look to the -z own history. Some, in
their haste to solve today's problems, may
fear to translate America's promise of free-
dom into the program language of the ccin-
puter age.
Those whose are initiated Into the te?h-
nological mysteries of computer hardware
and software may take great pride. Through
their deeds and genius they have helped
people go to the moon, produce music, create
art, conduct off-track betting, run railroads,
and administer welfare systems. They help
maintain our national defense and they keep
our economy running. They aid in catching
criminals and they establish instant credit.
They locate marriage-mates for people and
they prejudge elections almost- before the
votes are cast.
A tape storage system has been described
which -will make it possible to store a dossier
on every living person in the United States
and to retrieve any one of them in a maxi-
mum of 28 seconds.. With such feats to their
credit, these people know better than any
body that in the application of their knowl-
edge, they plan a major role in the economic
and social well-being of our society. They are
responsible for bringing to our nation all the
wondrous blessing of computer technology,
especially scientific methods of processing
information.
They can bend these machines to their will
and make them perform feats undreamed of
ten or even five years ago.
They have a special understanding of the
new information flow charts for the vast data
systems in our government.
They hold the access code to control ever
the technology as it affects the individua` in
our society.
They may hold the key to the final achieve-
ment of the rule of law which is the promise
of our constitution-
With this body of knowledge, theref ire,
they bear special responsibility for the
preservation of liberty in our country. That
they have accepted this responsibility is clear
from the Privacy themes of many recent con-
ferences of computer professionals, equip-
ment manufacturers, and computer user:, in
the governmental and private sectors.
Their power Is not limited to their teelni-
cal expertise, but is augmented by the steer
numbers in the computer-related pro?es-
sions.
Advertisements on TV. radio, In news-
papers, and even on buses daily remind the
public of the inducements and rewards of
a career in computer and data process-tng
fields.
In the Federal Government, their
numbers are growing. An inventory of auto-
matic data processing equipment shows that
in 1952 there were probably two computers
in government. In 1971, there were 5,961
In 1960, there were 48,700 man-years used
In federal automated data processing func-
tions. This includes systems analysis and de-
sign, programming. equipment selection and
operation, key punching, equipment main-
tenauoe and administrative support. In l'170,
there were about 136,504 man-years useu in
direct ADP work.
A recent illuminating report by the Na-
tional Association. for State Information 1'iys-
tem: shows that in 35 states in 1971, over
twenty-four and a half thousand people were
engaged in. ADP. Twenty -eight states to-
gether spent 181 million dollars of their
budgets on such personnel:!
To glance through their professional jour-
nals, newspapers and bulletins each month
Is to be constantly amazed at the breadth
and reach of the theories and aceompi.sh-
menrs4 It also deepens a layman's wonder
at the complex language which sometimes
defies translation Into ordinary English.
For all of these reasons, the general pub-
lic stands in superstitious awe of the skills
and knowledge, the machines and instru-
ments, and the products derived and trans-
mitted by them. For the uninitiated, the
computer print-out bears a mystique and an
aura of scientific rationality which makes it
appear infallible. This is true for most law-
yers and probably for most people In politi-
cal life.
There is a theory abroad today in aca-
demic circles that America is divided Into
two worlds. One of them is the world of
science and technology ,5 inhabited by peo-
ple who are part of a technological and elec-
tronic revolution. In the other world are said
to live all the rest of the people whose ideas
and values are based on an earlier age.
In accordance with their theory, some have
tried to stamp the scientist with motives and
values different from those of other Ameri-
cans; with goals oriented only toward effici-
ency or shorn of compassion, or, alternative-
1y, with exclusive ability to determine social
priorities. I cannot agree with this analysis,
for I believe there is a yearning In every hu-
man heart for liberty, and for the freedom to
express oneself according to the dictates of
conscience. Despite a man's commitment to
a chosen profession, he wants the freedom to
fulfill himself as an individual and to use his
Clod-given faculties free from the coercion of
government.
So I do not believe Americans dwell in two
worlds. Regardless of our origins, I believe
we share a common heritage and a common
destiny in that we are all engaged in seach-
ing for freedom. We share, according to the
mandates of the Constitution, a common
understanding that the best protection for
that freedom rests on the limitations on the
power of government and on the division of
that power.
I cannot agree with such an analysis for
another reason. Since the Senate Constitu-
tional Rights Subcommittee began its study
of computers, data banks and the Bill of
Rights, I have received many letters from
computer specialists, systems designers, engi-
neers, programmers, professors and others
in the scientific community which prove
that despite, and perhaps because of their
professions, they share the same concern
about invasion of privacy as all other Amer-
icans, the same apprehensions about excesses
of governmental surveillance and inquiries.
Above all, they realize, perhaps better than
others, that while the information technology
they deal with can extend the intellect of
man for the betterment of society, it also
extends the power of government a million-
fold.'
It makes it possible for government to ad-
minister more efficiently and to offer vastly
better services to the taxpayers.
At the same time, it extends and unifies
official power to make Inquiries, conduct in-
vestigations, and to take note of the
thoughts, habits and behavior of individuals.
Of course, government has always had such
power, but on a much smaller scale than to-
day. Similarly, men possessing the power of
government have always had the capacity for
bad motives, simple errors or misguided pur-
pose. There have always been problems with
errors in the manual files. Now, computers
may broadcast the image of these errors
throughtout a national information system.
What the electronic revolution has done
is to magnify any adverse affects flowing
from these influences on the life of the in-
dividual and on his proper enjoyment of the
Tights, benefits and privileges due a free
man in a free society.
I reject the notion of division of Ainerf-
aans on the basis of scientific and techno-
logical values. If I had the unhappy and
well-nigh impossible task of distinguishing
two types of Americans, I believe I would dis-
tinguish between those who understand the
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tune 11, 19'74 . CONGRESSIONAL RECORD -SENATE
terized dossiers. It also illustrates the lack
of sufficient criminal, civil, or administrative
sanctions against unwarranted sharing and
disclosure of such confidential information.
To my knowledge, no punitive action was
taken except for a disciplinary personnel ac-
tion filed against an agent of the Federal Bu-
reau of Investigation, who was then allowed
to retire.
The weakness of any applicable regulations
is demonstrated by the report of the Bureau
of Narcotics and Dangerous Drugs that its
current disclosure order "would not cover the
release of collateral intelligence information,
information contained in dead files, or in-
formation on nondefendants, such as that
disclosed in the Alioto testimony." The Bu-
reau further stated that under the provisions
of its new Agents Manual it is only a "breach
of integrity" to make unauthorized disclosure
of files which are restricted to official use.a5
MISUSE OF MMITARY INTELLIGENCE RECORDS
Another case as illustrates how the Army's
investigative intelligence services and files
were put to private use to obtain the dismis-
sal of an employee of a private business. In
this instance an Army intelligence agent
whose routine duties involved security in-
vestigations and surveillance -for the Army's
civil disturbance prevention program de-
scribed to the Subcommittee how he was
ordered by his superiors to conduct an in-
vestigation of the bank loan records, police
and court records of the private citizen and
was told to give the resulting Information
to the employee's supervisor. He later learned
that the investigation had been ordered by
an intelligence officer as a personal favor for
an official of the company. When the agent
reported this to his superiors, he was told
in a classified letter that the matter involved
"national security" A year later, following
his separation from the service, the agent
reported the incident to the Inspector Gen-
eral of the Assistant Chief of Staff for the
Pentagon, who began an investigation. All of
his allegations were confirmed and firm disci-
plinary actions were taken against the guilty
officers. It was too late, however, for the sub-
ject of the Army investigative report, who
had already been dismissed.
These cases illustrate the concerns over
political administrative and technical prob-
lems of access, confidentiality and purging
of erroneous or outdated records in computer
systems. But these are issues which have
long concerned legislatures, bar associations
and others.
The major reason for public apprehension
about computer technology and information
sciences is the use of them to acquire, proc-
ess, analyze and store information about
activities and matters which are protected
by the First Amendment.
What people writing to Congress fear most
is the uses to which this technology may be
put by men of little understanding but
great zeal. They know that, applied to un-
lawful or unwise programs, computers merely
absorb the follies and foibles of misguided
politically-minded administrators.
In Federal Government, the new technol-
ogy, combined with extended Federal-state
services and their spin-off information sys-
tems; have produced vast numbers of in-
vestigators, analysts, and programmers de-
voted to the study of people and society.
With the zeal of dedicated civil servants,
they are devoted to the building of data
bases on the habits, attitudes and beliefs of
law-abiding citizens. Much of what they
gather is trivial; much of it goes far beyond
the needs of government. Some of it is shared
extensively and often unnecessarily by agen-
cies who are components of these large in-
formation systems.
People seeking government jobs in some
agencies are told to reply to personality tests
asking:
I believe there is a God. _
I believe in the second coming of Christ.
I believe in a life hereafter.
I am very religious (more than most
people).
I go to church almost every week.
I am very strongly attracted by members
of my own sex.
I love my father.
My sex life is satisfactory.
Once in a while I feel hate toward mem-
bers of my family whom I usually love.
I wish I were not bothered by thoughts
about sex.
When the Subcommittee held hearings on
these practices, government officials ex-
plained that there was no right or wrong
answer to the questions, that the responses
were coded and analyzed by the computer .37
I asked whether they did not think such
inquiries violated the privacy of the indi-
vidual's thought about matters that were
none of the business of government. The reply
was that there was no Supreme Court deci-
sion holding that people who apply for fed-
eral employment have a constitutional right
to privacy.
- There was a Civil Service program telling
employees to fill out computer punch cards
stating their racial, ethnic or national origin
along with their social security number .'18
In the land renowned for being the "melting
pot" of the world, over 3 million individuals
had to analyze their backgrounds and reduce
them to one of four squares on an IBM card.
If they protested that these matters were
none of the business of government, they
were blacklisted in their offices and harassed
with computer-produced orders to return the
completed questionnaire. The resemblances
between this. program and those of totali-
tarian. governments in our recent history
were all too obvious.
The Census Bureau makes more use of
computer technology for personal inquiries
than anyone? It conducts surveys for its own
uses backed by the criminal and civil sanc-
tions. One of these, the decennial census,
asked people such questions as:
Marital Status: Now married, divorced,
widowed, separated, never married.
(If a woman) How many babies have you
ever had, not counting stillbirths?
Do you have a flush toilet?
Have you been married more than once?
Did your first marriage end because of
death of wife or husband?
What was your major activity 5 years ago?
What is your rent?
What is your monthly electric bill?
Did you work at any time last week?
Do you have a dishwasher? Built-in or
portable? ,
How did you get to work last week? (Driver,
private auto; passenger, private auto; sub-
way; bus; taxi; walked only; other means).
How many bedrooms do you have?
Do you have a health condition or dis-
ability which limits the amount of work you
can do at a job?
How long have you had this condition or
disability?
Under even heavier sanctions, the Census
Bureau puts questionnaires to farmers, law-
yers, owners of businesses, and others, se-
lected at random, about the way they handle
their business and finances'0
The Census Bureau also makes surveys
for many other departments and agencies.e
For example, they put out statistical ques-
tionnaires which the Department of Health,
Education, and Welfare wanted to send to
retired people asking:
How often they call their parents;
What they spend on presents for grand-
children;
How many newspapers and magazines they
buy a month; ,
If they wear artificial dentures;
"Taking things all together, would you
say you're very happy, pretty happy, or not
too happy these days?"
S 10257
And many other questions about things
on which government has no business de-
manding answers.
These people are not told that their
answers are voluntary, but are harassed to
reply and are given the impression they will
be penalized if they do not answer?-
There are many other examples of in-
quiring social and economic data that are
backed by the psychological, economic, or
penal sanction of government. Clearly, Gov-
ernment has great need for all kinds of in-
formation about people in order to govern
efficiently and administer the laws well;
similarly, Congress must have large amounts
of meaningful information in order to legis-
late wisely.
However, I believe these examples of gov-
ernmental data collection illustrate my con-
tention that the First Amendment wraps
up the principle of free speech, which in-
cludes the right to speak one's thoughts
and opinions as well as the right to be free
of governmental coercion to speak them.
There are other examples of government
programs which, well-meaning in purpose,
are fraught with danger for the very free-
doms which were designed to make the
minds and spirits of all Americans free, and
which work to keep America a free society.
A number of these would be impractical, if
not impossible, without the assistance of
computer technology and scientific data
processing.
It is those First Amendment freedoms
which are the most precious rights con-
ferred upon us by our Constitution: the free-
dom to assemble peaceably with others and
petition government for a redress of griev-
ances; the freedom to worship according to
the dictates of one's own conscience free
of government note-taking; the freedom to
think one's own thoughts regardless of
whether they are pleasing to government or
not; the freedom to speak what one believes
whether his speech is pleasing to the govern-
ment or not; the freedom to associate with
others of like mind to further ideas or poli-
cies which one believes beneficial to our
country, whether such association is pleas-
ing to government or not.
THE SECRET SERVICE
In the pursuit of its programs to protect
high government officials from harm and
federal buildings from damage'" the Secret
Service has been pressured to create a com-
puterized data bank. Their guidelines for in-
clusion of citizens in this data bank re-
quested much, legitimate information but
also called for information on "professional
gate crashers;" "civil disturbances;" "anti-
American or anti-U.S. Government demon-
strations in the United States or overseas;"
pertaining to a threat, plan, or attempt by
an individual or group to "embarrass per-
sons protected by the Secret Service or any
other high U.S. Government official at home
or abroad;" "persons who insist upon per-
sonally contacting high government officials
for the purpose of redress of imaginary
grievances;" and "information on any per-
son who makes oral or written statements
about high government officials in the fol-
lowing categories: (1) threatening state-
ments, (2) irrational statements, and (3)
abusive statements."
Americans have always been proud of their
First Amendment freedoms which enable
them to speak their minds about the short-
comings of their elected officials. As one in
political life, I have myself received letters
I considered abusive. Similarly, I have ut-
tered words which others have deemed
abusive. While I am not a "professional gate
Crasher," I am a malcontent on many issues.
I have written the President and other high
government officials complaining of griev-
ances which some may consider imaginary;
and on occasion, I may also have "embar-
rassed" high government officials.
One man wrote me his concern about this
program and commented:
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CONGRESSIONAL RECORD - SENATE June 11, 1974
"^T`he Secret Service ought to go after my
moi.her-in-law, too. On her last visit she said
tha. the Vice President doesn't seem to
havi too many brains. She also said that
Seliator - has a face like a carbuncle.
SY.o?ild I report this to the Secret Service? "
Tere is no doubt that the physical pro-
te--tion of the President and high govern-
ment officials is a legitimate government
purpose and all reasonable means must be
taken in pursuit of It. Nevertheless, such
broad and vaguely worded standards for in-
ves=.igating and adversely reporting Ameri-
can:3 to their government on the basis of
their utterances could, at one time or an-
othcr, include most members of Congress
and most politically aware citizens. It could
cover heated words exchanged in political
debate and discussion anywhere in the
country. Yet civil and military officials
throughout the Federal government and in
some local law enforcement agencies were
requested to report people coming to their
attention who were thought to fit these
criteria.
"1'he Subcommittee has not received com-
plete answers to our questionnaire on the
subject of this computer and the national
reporting system it serves. However, we have
indications that other broad and zealous in-
forination programs, including the Army
civil disturbance system" are sharing or
feeding on entries which, if not carefully
evaluated, may produce serious consequences
for the rights and privileges of citizens. Il-
lustrating the misunderstandings and mis-
interpretations possible is the fact that mlli-
tarv doctors have expressed to me their con-
cern about an allegedly "secret" agreement
between the Defense Department and the
Secret Service which they were told was a
recent one and which required reporting of
all servicemen receiving administrative dis-
charges. One psychiatrist writes' of his con-
cern for the confidentiality of medical rec-
ords in such action:
"' see very little reason for this. My im-
pression of the individuals whom I recom;
mended for such a discharge was that these
were immature individuals who were not
able to adapt to the service for one reason
or another. Not by any stretch of the im-
agination were these individuals unpatriotic
or a threat to the security of the nation.""
When I asked the Secretary of the Navy
about this, the Subcommittee was informed
that a person is not reported to the Secret
Service merely because he received an ad-
ministrative discharge from the Navy or Ma-
rine Corps47 However, we were informed that
Pursuant to Naval regulations issued under
a secret 1965 Agreement," the Navy reports
an average of 400 persons annually. We
learned, for example, that among the many
categories of people to be reported were
not only servicemen but civilian employees
of the Defense Department who were dis-
charged on security or suitability grounds
anc: who showed "evidence of emotional in-
stailflity or irrational or suicidal behavior,
expressed strong or violent sentiments
against the United States," or who had "pre-
vio is arrests, convictions, conduct or state-
ments indicating a propensity for violence
anc antipathy for good order In Govern-
C4@_7 t." n9
MILITARY SPYING
e'? aother example of First Amendment in-
for nation programs is the Army program
for spying on Americans who exercised their
First Amendment rights. Despite these rights,
ant despite the constitutional division of
poser between the federal and state govern-
ments, despite laws and decisions defining
the legal role and duties of the Army, the
Army was given the power to create an in-
formation system of data banks and com-
puter programs which threatened to erode
these restrictions on governmental power.,"
Allegedly, for the purpose of predicting
and preventing civil disturbances wl?tch
might develop beyond the control of state
and local officials, Army agents were sent
throughout the country to keep surveillance
over the way the civilian population ex-
pressed their sentiments about government
policies. In churches, on campuses, in class-
rooms, in public .meetings, they took notes,
tape-recorded, and photographed people who
dissented in thought, word or deed. This in-
cluded clergymen, editors, public officials, and
anyone who sympathized with the dissenters.
With very few, if any, directives 51 to guide
their activities, they monitored the member-
ship and policies of peaceful organizations
who were concerned with the war in South-
east Asia, the draft, racial and labor prob-
lems, and community welfare. Out of this
surveillance the Army created blacklists; of
organizations and personalities which were
circulated to many federal, state and local
agencies, who were all requested to supple-
ment the data provided. Not only descrip-
tions of the contents of speeches and politi-
cal comments were included, but irrelevant
entries about personal finances, such as the
fact that a militant leader's credit card was
withdrawn. In some cases, a psychiatric diag-
nosis taken from Army or other medical -ec-
ords was included.
This information on individuals was pro-
grammed into at least four computers ac-
cording to their political beliefs, or their
memberships, or their geographic residely e g
The Army did not just collect and share
this information. Analysts were assigned the
task of evaluating and labeling these people
on the basis of reports on their attitudes,
remarks and activities. They were then coded
for entry into computers or microfilm data
banks .
The Army attempts to justify its surveil-
lance of civilians by asserting that it was col-
lecting information to enable the President
to predict when and where civilians might
engage in domestic violence, and that the
President was empowered to assign this task
to it by the statutes conferring upon him
the power to use the armed forces to sup-
press domestic violence.
I challenge the validity of this assertion.
Under our system, the power to investigate
to determine whether civilians are abofi to
violate federal laws is committed to federal
civil agencies, such as the FBI; and the
power to investigate to determine whether
civilians are about to violate state laws is
reposed in state law enforcement officers.
If President Johnson believed he ought to
have had information to enable him to pre-
dict when and where civilians might engage
in future domestic violence, he ought to have
called upon the FBI or appropriate state law
enforcement officers for the information,
He had no power to convert the Army into
a detective force and require it to spy on
civilians.
This conclusion is made plain by the Con-
stitution and every act of Congress relating
to the subject. Sections 331, 332, 333 and 334
of Title 10 of the United States Code :er-
tainly did not confer any such power on the
President. These statutes merely authorised
him to use the armed forces to suppress
domestic violence of the high degree specified
in them, and conditioned their use for that
purpose upon his issuing a proclamation im-
mediately ordering the offenders "to disperse
and retire peaceably to their abodes within
a limited time."
The only other statute relevant to the
subject is section 1385 of Title 18 of the
Code, which prohibits the use of any part of
the Army or Air Force "as a posse comitt;tus
or otherwise to execute the law . . . except in
cases and under circumstances expressly au-
thorized by the Constitution or Act. of
Congress."
The legislative history of this statute is
fully revealed in the opinion of United States
District Judge Dooling in Wrynn v. United
States, 200 F. Supp. 457 (E.D.N.Y. 1961).
When the words of this statute are read in
the light of its legislative history, it is ob-
vious that the statute is not limited by the
expression "as a posse comitatus or other-
wise," but operates as a prohibition against
the use of the Army to execute the laws
without reference to whether it is employed
as a posse comitatus or as a portion of the
Army. Indeed, the statute embodies "the in-
herited antipathy of the American to the
use of troops for civil purposes." 1200 F.
Supp. at 4651.
President Johnson's use of the troops to
spy on civilians, to build data banks and
create computerized information systems,
discloses that relevance of this statute to our
day is sadly clear. Since neither the Consti-
tution nor any Act of Congress expressly, or
impliedly, authorized such use, the Presi-
dent was forbidden by section 1385 of Title
18 of the United States Code to use the Army
to spy on civilians.
The Army's spying violated First Amend-
ment freedoms -of the civilians who became
aware that they or the groups to which they
belonged had been placed under surveillance.
This is so because it undoubtedly stifled
their willingness to exercise their freedom of
speech, association and assembly."
If any proof were needed of the logic and
truth of this statement, it can be drawn
from such testimony as the Subcommittee
received from Dr. Jerome Wiesner who com-
mented:
"Many, many students are afraid to par-
ticipate in political activities of various kinds
which might attract them because of their
concern about the consequences of having
a record of such activites in a central file.
They fear that at same future date, it might
possibly cost them a job or at least make
their clearance for a job more difficult to
obtain." "
The Subcommittee has heard no testimony
yet that the Army's information program
was useful to anyone. The only result of the
testimony by the Defense_ Department was to
confirm my belief that under the Constitu-
tion and under the laws, the Army had no
business engaging in such data-gathering
and that the scope and breadth' of the sur-
veillance was so broad as to be irrelevant to
the purpose.
Congress has still to discover the complete
truth about these Army computers. Appar-
ently, even officials responsible for intelli-
gence did not know of the existence of the
computers for implementing the program.
The Subcommittee has repeatedly requested
the testimony of the Army Generals who
would he most knowledgeable about the com-
puters and what they contained. We have
just as-repeatedly been denied their testi-
mony as well as delivery and declassification
of pertinent documents demonstrating the
scope and purpose of the program .m The
Army said it would cut back on the data-
gathering on lawabiding citizens and would
defer to the Department of Justice. So I
asked the Justice Department officials how
many computers that Department had con-
taining information on people who lawfully
exercised their First Amendment free-
doms." 57
I had seen newspaper articles quoting the
director of the Justice Department's Inter-
divisional Information Unit. He said there
that the computer's list of thousands of
names is not a register of "good guys" or
"bad guys." "It is simply a list of who par-
ticipated in demonstrations, rallies and the
like." This would include non-violent peo-
ple as well as violent, he said "e On the basis
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June 11, 1974 CONGRESSIONAL RECORD - SENATE
proper limits and uses of governmental
power and those who do not.
HoWever much we try to rationalize deci-
sions through the use of machines, there
is one factor for which the machine can
never allow. That is the insatiable curiosity
of government to know everything about
those it governs. Nor can it predict the in-
genuity applied by government officials to
find out what they think they must know
to achieve their ends.
It is this curiosity, combined with the
technological and electronic means of satis-
fying it, which has recently intensified gov-
ernmental surveillance and official inquiries
that I believe infringe on the constitutional
rights of individuals.
Congress received so many complaint about
unauthorized government data banks and in-
formation programs that the Subcommittee
undertook a survey to discover what compu-
terized and mechanized data banks govern-
ment agencies maintain on people, especially
about their personal habits, attitudes, and
political behavior. We have also sought to
learn what government-wide or nation-wide
information systems have been created by
integrating or sharing the separate data
bases. Through our questionnaire, we have
sought. to learn what laws and regulations
govern the creation, access and use of the
major data banks in government?
The replies we are receiving are astound.
ing, not only for the information they are
disclosing, but for the attitudes displayed
toward the right of Congress and the Amer-
ican people to know what Government is
doing.
In some cases, the departments were
willing to tell the Subcommittee what they
were doing, but classified it so no one else
could know .8 In one case, they were willing
to tell all, but classified the legal authority
on which they relied for their information
powerg
Some reports are evasive and misleading.
Some agencies take the attitude that the in-
formation belongs to them and that the last
person who should see it is the individual
whom it is about Y0 A few departments and
agencies effectively deny the information by
not responding until urged to do so.n
They reflect the attitude of the Army cap-
tain who knew Congress was investigating
the Army data banks and issued a directive
stating:
"The Army General Counsel has re-em-
phasized the long-standing policy of the Ex-
ecutive Branch of the Government . . . that
all files, records and information in the pos-
session of the Executive Branch is privileged
and is not releasable to any part of the Legis-
lative Branch of the Government without
specific direction of the President."13
So, on the basis of this study, and on the
withholdings of information from the Amer-
ican people which the Subcommittee has ex-
perienced, >s I have concluded that the claim
of the Government departments to their own
privacy is greatly overstated. The truth is
that they have too much privacy in some of
their information activities. They may cite
the Freedom of Information Act 14 as author-
ity for keeping files secret from the Individ-
ual as well as from the Congress. They then
turnaround and cite "inherent power"16 or
"housekeeping authority"10 as a reason for
maintaining data banks and computerized
files on certain individuals; or they may cite
the conclusions of independent Presidential
factfinding commissions 17
So far the survey results show a very wide-
ranging use of such technology to process
and store the information and to exchange it
with other federal agencies, with state and
local governments and, sometimes, with pri-
vate agencies.
Most of this is done in connection with ad-
ministration of Government's service pro-
grams. However, a number of these data
banks and information programs may par-
take of the nature of largescale blacklists.
This is so because they may encompass
masses of irrelevant, outdated or even In-
correct investigative information based on
personalities, behavior and beliefs. Unwisely
applied or loosely supervised, they can oper-
ate to deprive a person of some basic right.
For Instance, a Federal Communications
Commission response v shows that the FCC
uses computers to aid it in keeping track of
political broadcast time, in monitoring and
assigning spectrums, and in helping it make,
prompt checks on people who apply for
licenses. The Commission reported that it
also maintains a Check List, which now has
about 10,900 names. This Check List, in the
form of a computer print-out, is circulated
to the various Bureaus within the Commis-
sion. It contains the names and addresses
of organizations and individuals whose qual-
ifications are believed to require close ex-
amination in the event they apply for a
license. A name may be put on the list by
Commission personnel for a variety of rea-
sons, such as a refusal to pay an outstand.
ing forfeiture, unlicensed operation, license
suspension, the issuance of a bad check to
the Commission or stopping payment on a
fee check after failing a Commission exam-
ination.
In addition, this list incorporates the
names and addresses of individuals and or-
ganizations appearing in several lists pre-
pared by the Department of Justice, other
Government agencies, and Congressional
committees. For example, the list contains
information from the "FBI Withhold List,"
which contains the names of individuals or
organizations which are allegedly subver.
sive, and from the Department of Justice's
"Organized Crime and Racketeering List,"
which contains the names of individuals
who are or have been subjects of investiga-
tion in connection with activities identified
with organized crime. Also included in the
list are names obtained from other Govern-
ment sources, such as the Internal Revenue
Service, the Central Intelligence Agency, and
the House Committee on Internal Security.
According to the Commission, the use of the
data arose in 1964 because during the course
of Senate Hearings chaired by Senator Mc-
Clellan, it was discovered that a reputed
racketeering boss in New Orleans, Louisiana,
held a Commission license. In order that such
licensing not take place in the future, the
Commission established liaison with the re-
sponsible divisions within the Department
of Justice to be kept current on persons who
might have such affiliations.
The Civil Service Commission maintains
a "security file" in electrically powered rotary
cabinets containing 2,120,000 index cards 19
According to the Commission, these bear lead
information relating to possible questions of
suitability involving loyalty and subversive
activity. The lead information contained in
these files has been developed from published
hearings of Congressional committees, State
legislative committees, public investigative
bodies, reports of investigation, publications
of subversive organizations, and various
other newspapers and periodicals. This file
is not new, but has been growing since World
War II.
The Commission chairman reported:
"Investigative and intelligence officials of
the various departments anca agencies of the
Federal Government make extensive official
use of the file through their requests for
searches relating to investigations they are
conducting."
In another "security investigations index"
the Commission maintains 10,250,000 index
cards filed alphabetically covering personnel
investigations made by the Civil Service
S 10255
applicants on whom investigations were
made or are in process of being made.
Then, the Commission keeps an "inves-
tigative file" of approximately 625,000 file
folders containing reports of investigation
on cases investigated by the Commission. In
addition, about 2,100,000 earlier Investiga-
tive files are maintained at the Washington
National Records Center in security storage.
These are kept to avoid duplication of in-
vestigations or for updating previous in-
vestigations. ?
The Housing and Urban Development De-
partment in considering automation of a de-
partmental system which would integrate
records now included in FHA's Sponsor
Identification File, Department of Justice's
Organized Crime and Rackets File, and
HUD's Adverse Information FileR? A data bank
consisting of approximately 325,000 3 x 5 in-
dex cards has been prepared covering any in-
dividual or firm which was subject of or
mentioned prominently in, any investigations
dating from 1954 to the present. This in-
cludes all FBI investigations of housing mat-
ters as well.
In the area of law enforcement, the Bureau
of Customs has Installed a central automated
data processing intelligence network which is
a comprehensive data bank of suspect in-
formatioll available on a 24-hour-a-day basis
to Customs terminals throughout the coun-
try?'
According to the Secretary of the Treasury:
"These records include current information
from our informer, fugitive and suspect lists
that have been maintained throughout the
Bureau's history as an enforcement tool and
which have been available at all major ports
of entry, though in much less accessible and
unable form. With the coordinated efforts of
the Agency Service's intelligence activities,
steady growth of the suspect files is ex-
pected."
There is the "Lookout File" of the Passport
Office and the Bureau of Security and Con-
sular Affairs= This computerized file il-
lustrates the "good neighbor" policy agencies
observe by exchanging information in order
to keep individuals under surveillance for in-
telligence and law enforcement purposes.
Maintained apart from the twenty million
other passport files, its basic purpose is to
assist in screening passport applicants to
make certain they are citizens of the United
States and that they are eligible to receive
passports. Requests for entry into this sys-
tem are received from component agencies
of the Department, from other government
agencies, or in the limited category of child
custory, from an interested parent or guard-
ian.
The Department assured the Subcommit-
tee that data recorded in this "Lookout File"
is not disseminated. Rather, it serves as a
"flag" which, if a "hit" or suspect Is recorded,
is furnished to the original source of the
lookout and consists of the name of the in-
dividual and the fact that he has applied
for a passport. The individual is not told
that he Is in the file until the information
is used adversely against him. Then, accord-
ing to the report, "he is fully informed and
given an opportunity to explain or rebut the
information on which the adverse action is
based."
Among some of the reasons listed for peo-
ple being in the Lookout File are the follow-
ing:
If the individual's actions do not reflect to
the credit of U.S. abroad;
If he is wanted by a law enforcement
agency in connection with criminal activity;
If a court order restricting travel is out-
standing or the individual is involved in a
custody or desertion case;
"If he is a known or suspected Communist
or subversive;
"If he is on the Organized Crime
d
an
Records in this index relate to Incumbents of Rackets List or is a suspected delinquent in
Federal positions, former employees, and military obligations."
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S 10256
CONGRESSIONAL RECORD - SENATE June 11, 104
The Defense Industrial Security Clearance
Office is preparing to computerize its card
flies on over one and a half million private
citizens who are employees of businesses do-
ing classified contract work for the Federal
Government w
r: a Federal Deposit Insurance Corpora-
tion maintains information on people now
associated with banks insured by the FDIC
or who have been associated with such banks
in the past U It keeps a file on the names
of individuals gained from newspapers and
other public sources if they are character-
ize d as having an unsatisfactory relationship
with any insured bank or any closed insured
bank. This also includes information sup-
plied to the Corporation by other investiga-
tive or regulatory agencies an persons con-
nected with an insured bank.
The Army maintains the U.S. Army In-
vestigative Records Repository (USAIRR)
which contains about 7,000,000 files relating
principally to security and criminal investi-
gations of former and present members of
the Army, civilian employees and employees
of private contractors doing business with
the Army. The other services maintain simi-
lar Investigative flles.-
There is a Defense Central Index of In-
ve.atigation operated by the Army for the
entire Defense Department. The Index is de-
signed to locate any security or criminal in-
vestigative file for any Defense agency and
will be computerized shortly. It contains
identifying data such as name, date of birth
and social security number on people who
have ever been the subject of investiga-
tions fB
There are all the data banks and oom-
pc:teers in the Department of Justice 29 for
intelligence, for civil disturbance preven-
tion_: for "bad checks passers;" for organized
crime surveillance; and for federal-etate law
enforcement cooperation through the com-
puterized National Crime Information
Center.
On the basis of our investigation of oom-
plaints reviewed by Congress,e I am con-
viaced that people throughout the country
are more fearful than ever before about
those applications of computer technology
and scientific information processing which
may adversely affect their constitutional
rights. Furthermore, my study of the Con-
stitution convinces me that their fears are
wel? founded.
First, they are concerned that through a
computer error they may be denied basic
fairness and due process of law with respect
to benefits and privileges for which they
have applied.
Secondly, they are concerned about illegal
access and violation of confidentiality of
personal information which is obtained
about them by government or industry.
These are actions which for any one in-
dividual or for entire groups may lead to a
loss of the ability to exercise that "pursuit
of happiness" which the Declaration of In-
dependence declares is one of the unalien-
able rights of man.
These are actions which, by producing
erroneous reports, may limit or deny a per-
son's economic prospects and thereby impair
that liberty which under the 5th and 14th
amendments government may not impair
wit-lout due process of law.
ARREST RECORDS
This possibility is Illustrated by a letters.
I received from a man who describes the ef-
fect on his life of an incident which occurred
when he was fifteen years of age. In connnec-
tion with a locker theft, he was taken to the
police station, finger printed, questioned and
then he left, cleared of charges. He was not
involved in any incident subsequently except
a few minor traflic violations. He served 11
years in the armed services and held the
highest security clearances. After gaining
employment with a city government, he dis-
covered that the youthful incident was, 15
years later, part of an FBI file and dis-
tributed to employers on request. He was
asked to explain the incident for personnel
records and to state why he withheld the hi-
formation. Although he was unaware of the
record, he believes the failure to list the inci-
dent was a factor in not gaining employment
in several instances, and he was told he
would have to institute court action to have
the record expunged.
The problem he and millions of others
face with respect to their records is illus-
trated by a regulation issued by the Attor-
ney General last year restating the goal of
the Federal Bureau of Investigation "toeon-
duct the acquisition, collection, exchange,
classification, and preservation of ldentlfi_a-
tion records . . . on a mutually beneficial
basis." ED Among the agencies listed as eligible
to receive and supply information were rail-
road police, bankin,; institutions and insur-
ance companies.
In Washington, D,C., a young man who was
an Innocent bystander during a campus
demonstration was arrested by police and
then released. Knowing that the FBI could
distribute such records to employers, he hired
a lawyer and spent large sums of money in a
suit to have his arrest record expunged. The
lawer court denied his request, but the Court
of Appeals ruled that, in the District of Co-
lumbia at least, arrest records should be ex-
punged for innocent bystanders caught up in
mass police arrests 3L
In another case, a young man was arrested
on probable cause and fingerprinted in Cali-
fornia. When the police could not connect
him with the case, he was released. He sought
to have his arrest record expunged, or alter-
natively, to have strict limitations placed
on its dissemination to prospective employ-
ers and others by the Federal Bureau of
Investigation. While the U.S. District Court
denied his request for expungement, it did
say that his arrest record may not be revealed
to prospective employers except in the case
of any Federal agency when he seeks employ-
ment with that agency. However, it could
be distributed for law enforcement purpo>es.
Congress later restored this power to the
FBI temporarily in an annual appropriation
bill.
Judge Gesell's comments in this case of
Menard v. Mitchell 22 are significant for the
issue of arrest records, but also for the Army's
computer surveillance program and for many
other government intelligence systems now
being designed. He stated that while "can-
duct against the state may properly subject
an individual to limitations upon his future
freedom within tolerant limits, accusations
not proven, charges made without supporting
evidence when tested by the judicial process,
ancient or juveni)e transgressions long since
expiated by respdnsible conduct, should not
be indiscriminately broadcast under govern-
mental auspices." He also said:
"The increasing complexity of our society
and technological advances which facilitate
massive accumulation and ready regurgita-
tion of farflung data have presented rr:)re
problems in this area, certainly problems not
contemplated by the framers of the Constitu-
tion. These developments emphasize a press-
ing need to preserve and to redefine aspects
of the right of privacy to insure the basic
freedoms guaranteed by this democracy.
"A heavy burden is placed on all branches
of Government to maintain a proper equilib-
rium between the acquisition of Information
and the necessity to safeguard privacy.
Systematic recordation and dissemination of
information about individual citizens in a
form of surveillance and control which may
easily Inhibit freedom to speak, to work, and
to move about in this land. If information
available to Government is misused to pub-
licize past incidents in the lives of its citizens
the pressures for conformity will be Irresisti-
ble. Initiative and Individuality can be suffo-
cated End a resulting dullness of mind and
conduct will become the norm. We are far
from having reached this condition today,
but surely history teaches that inroads are
most likely to occur during unsettled times
like these where fear or the passions of the
moment can lead to excesses."
There are many similar cases pending
throughout the states. Present laws are not
sufficient to assure that an individual will be
judged on his merit and not by inacurrate
arrests records distributed 'by a national
law enforcement computer.w
LAW ENFORCEMENT INTELLIGENCE RECORDS
Such threats to privacy and liberty arise
with special force in the area of intelligence
records. The Subcommittee study reveals
two serious problems which have acquired
national urgency through the introduction
of computer technology. First, the problem of
safeguarding intelligence Information from
improper release by government Itself, and
secondly, the problem of confining its collet.
tion to appropriate areas and subjects.
Government has, and should have, power
to collect information, even raw, unverified
intelligence information, in fields in which
government has a lawful, legitimate interest.
But this great power imposes a solemn re-
sponsibility to see that no one is given access
to that information, except the Government
itself for some legitimate purpose. There
could never, for instance, be justification for
Government to disclose intelligence gathered
about citizens pursuant to its powers, to
other citizens for their own personal or
financial aggrandizement. Nor should Gov-
ernment through disclosure of confidential
documents aid and abet the writing of
sensational articles in private journals
operated for commercial profit. '
Nevertheless, the Subcommittee received
testimony and evidence about two cases,
which illustrate the misuse of confidiential
intelligence information for such purposes.
One involved a man In political life, the
mayor of San Francisco, who was the subject
of an article in Look Magazine purporting to
establish that he associated with persons
involved in organized crime. When the
Mayor sued the magazine for libel, he under-
took through subpoena power to learn the
basis for such charges and where and how
the authors obtained their information. He
learned that they bad received confidential
information-and documents from intelligence
data banks. The information came from files
and computer printouts of a number of
major Federal, state and local government
law enforcement agencies. They involved
the U.S. Attorney General's Office, the Federal
Bureau of Investigation, Internal Revenue
Service, Federal Bureau of Narcotics, the
Customs Bureau, the Immigration and Na-
turalization Service, the California Criminal
Identification and Investigation Bureau, the
California State Department of Justice, and
the Intelligence Unit of the Los Angeles Po-
lice Department. By their own testimony for
the case, the authors of the article admitted
that they examined, obtained or borrowed
originals or copies of such law enforcement
records containing much raw unevaluated
intelligence information on numerous people
Including the names of three U.S. Presidents,
the state Governor, a number of Senators,
and manyprivate law-abiding citizens, not
accused of any crime. These documents were
obtainable despite the fact that many of
them were stamped "Confidential" or-
Property of U.S. Government For official
use only. May not be disseminated or con-
?ents disclosed without perms ,lion.... .
There is more about these and other dis-
closures in.the hearing reco_, but I believe
the Mayor's testimony 24 illustrates many of
of the dangers to privacy in this age of large
Investigative networks and instant compu-
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 Approved For Release 2006/10/20: CIA-RDP76M00527R000700140093-6
June 11, 1974 CONGRESSIONAL RECORD - SENATE
proper limits and uses of governmental
power and those who do not.
However much we try to rationalize deci-
sions through the use of machines, there
is one factor for which the machine can
never allow. That is the insatiable curiosity
of government to know everything about
those it governs. Nor can it predict the in-
genuity applied by government officials to
find out what they think they must know
to achieve their ends.
It is this curiosity, combined with the
technological and electronic means of satis-
fying it, which has recently intensified gov-
ernmental surveillance and official inquiries
that I believe Infringe on the constitutional
rights of individuals.
Congress received so many complaint about
unauthorized government data banks and in-
formation programs that the Subcommittee
undertook a survey to discover what compu-
terized and mechanized data banks govern-
ment agencies maintain on people, especially
about their personal habits, attitudes, and
political behavior. We have also sought to
learn what government-wide or nation-wide
information systems have been created by
integrating or sharing the separate data
bases. Through our questionnaire, we have
sought to learn what laws and regulations
govern the creation, access and use of the
major data banks in government .7
The replies we are receiving are astound-
ing, not only for the information they are
disclosing, but for the attitudes displayed
toward the right of Congress and the Amer-
ican people to know what Government is
doing.
In some cases, the departments were
willing to tell the Subcommittee what they
were doing, but classified it so no one else
could know .9 In one case, they were willing
to tell all, but classified the legal authority
on which they relied for their information
power .9
Some reports are evasive and misleading.
Some agencies take the attitude that the in-
formation belongs to them and that the last
person who should see it is the individual
whom it is about 30 A few departments and
agencies effectively deny the information by
not responding until urged to do so.n
They reflect the attitude of the Army cap-
tain who knew Congress was investigating
the Army data banks and issued a directive
stating:
"The Army General Counsel has re-em-
phasized the long-standing policy of the Ex-
ecutive Branch of the Government ... that
all files, records and information in the pos-
session of the Executive Branch is privileged
and is not releasable to any part of the Legis-
lative Branch of the Government without
specific direction of the President."'a
So, on the basis of this study, and on the
withholdings of information from the Amer-
ican people which the Subcommittee has ex-
perienced, 18 I have concluded that the claim
of the Government departments to their own
privacy is greatly overstated. The truth is
that they have too much privacy in some of
their information activities. They may cite
the Freedom of Information Act 14 as author-
ity for keeping files secret from the individ-
ual as well as from the Congress. They then
turnaround and cite "inherent power"'s or
"housekeeping authority"10 as a reason for
maintaining data banks and computerized
files on certain individuals; or they may cite
the conclusions of independent Presidential
factflnding commissions 17
So far the survey results show a very wide-
ranging use of such technology to process
and store the information and to exchange it
with other federal agencies, with state and
local governments and, sometimes, with pri-
vate agencies.
Most of this is done in connection with ad-
ministration of Government's service pro-
Footnotes at end of article.
grams. However, a number of these data
banks and information programs may par-
take of the nature of largescale blacklists.
This is so because they may encompass
masses of irrelevant, outdated or even in-
correct investigative information based on
personalities, behavior and beliefs. Unwisely
applied or loosely supervised, they can oper-
ate to deprive a person of some basic right.
For instance, a Federal Communications
Commission response v shows that the FCC
uses computers to aid it in keeping track of
political broadcast time, in monitoring and
assigning spectrums, and in helping it make
prompt checks on people who apply for
licenses. The Commission reported that it
also maintains a Check List, which now has
about 10,900 names. This Check List, in the
form of a computer print-out, is circulated
to the various Bureaus within the Commis-
sion. It contains the names and addresses
of organizations and individuals whose qual-
ifications,are believed to require close ex-
amination in the event they apply for a
license. A name may be put on the list by
Commission personnel for a variety of rea-
sons, such as a refusal to pay an outstand-
ing forfeiture, unlicensed operation, license
suspension, the -issuance of a bad check to
the Commission or stopping payment on a
fee check after failing a Commission exam-
ination.
In addition, this list incorporates the
names and addresses of individuals and or-
ganizations appearing in several lists pre-
pared by the Department of Justice, other
Government agencies, and Congressional
committees. For example, the list contains
information from the "FBI Withhold List,"
which contains the names of individuals or
organizations which are allegedly subver-
sive, and from the Department of Justice's
"Organized Crime and Racketeering List,"
Which contains the names of individuals
who are or have been subjects of investiga-
tion in connection with activities Identified
with organized crime. Also included in the
list are names obtained from other Govern-
ment sources, such as the Internal Revenue
Service, the Central Intelligence Agency, and
the House Committee on Internal Security.
According to the Commission, the use of the
data arose in 1964 because during the course
of Senate Hearings chaired by Senator Mc-
Clellan, it was discovered that a reputed
racketeering boss In New Orleans, Louisiana,
held a Commission license. In order that such
licensing not take place in the future, the
Commission established liaison with the re-
sponsible divisions within the Department
of Justice to be kept current on persons who
might have such affiliations.
The Civil Service Commission maintains
a "security file" in electrically powered rotary
cabinets containing 2,120,000 index cards 18
According to the Commission, these bear lead
information relating to possible questions of
suitability involving loyalty and subversive
activity. The lead information contained in
these files has been developed from published
hearings of Congressional committees, State
legislative committees, public investigative
bodies, reports of investigation, publications
of subversive organizations, and various
other newspapers and periodicals. This file
is not new, but has been growing since World
War II.
The Commission chairman reported:
"Investigative and intelligence officials of
the various departments ancj agencies of the
Federal Government make extensive official
use of the file through their requests for
searches relating to investigations they are
conducting." -
In another "security investigations index"
the Commission maintains 10,250,000 index
cards filed alphabetically covering personnel
investigations made by the Civil Service
Commission and other agencies since 1939.
Records in this index relate to incumbents of
Federal positions, former employees, and
If they wear artificial dentures;
"Taking things all together, would you
say you're very happy, pretty happy, or not
too happy these days?"
S 10255
applicants on whom investigations were
made or are in process of being made.
Then, the Commission keeps an "inves-
tigative file" of approximately 625,000 file
folders containing reports of Investigation
on cases investigated by the Commission. In
addition, about 2,100,000 earlier investiga-
tive files are maintained at the Washington
National Records Center in security storage.
These are kept to avoid duplication of in-
vestigations or for updating previous in-
vestigations.
The Housing and Urban Development De-
partment in considering automation of a de-
partmental system which would integrate
records now included in FHA's Sponsor
Identification File, Department of Justice's
Organized Crime and Rackets File, and
HUD's Adverse Information File" A data bank
consisting of approximately 325,000 3 x 5 in-
dex cards has been prepared covering any in-
dividual or firm which was subject of or
mentioned prominently in, any investigations
dating from 1954 to the present. This in-
cludes all FBI investigations of housing mat-
ters as well.
In the area of law enforcement, the Bureau
of Customs has installed a central automated
data processing intelligence network which is
a comprehensive data bank of suspect in-
formatiop available on a 24-hour-a-day basis
to Customs terminals throughout the coun-
try 21
According to. the Secretary of the Treasury:
"These records include current information
from our informer, fugitive and suspect lists
that have been maintained throughout the
Bureau's history as an enforcement tool and
which have been available at all major ports
of entry, though in much less accessible and
unable form. With the coordinated efforts of
the Agency Service's intelligence activities,
steady growth of the suspect files is ex-
pected."
There is the "Lookout File" of the Passport
Office and the Bureau of Security and Con-
sular Affairs?2 This computerized file il-
lustrates the "good neighbor" policy agencies
observe by exchanging information in order
to keep individuals under surveillance for in-
telligence and law enforcement purposes.
Maintained apart from the twenty million
other passport files, its basic purpose is to
assist in screening passport applicants to
make certain they are citizens of the United
States and that they are eligible to receive
passports. Requests for entry into this sys-
tem are received from component agencies
of the Department, from other government
agencies, or in the limited category of child s
custory, from an interested parent or guard-
ian.
The Department assured the Subcommit-
tee that data recorded in this "Lookout File"
is not disseminated. Rather, it serves as a
"flag" which, if a "hit" or suspect is recorded,
is furnished to the original source of the
lookout and consists of the name of the in-
dividual and the fact that he has applied
for a passport. The individual is not told
that he is in the file until the information
is used adversely against him. Then, accord-
ing to the report, "he is fully informed and
given an opportunity to explain or rebut the
information on which the adverse action is
based."
Among some of the reasons listed for peo-
ple being in the Lookout File are the follow-
ing:
If the individual's actions do not reflect to
the credit of U.S. abroad;
If he is wanted by a law enforcement
agency in connection with criminal activity;
If a court order restricting travel is out-
standing or the individual is involved in a
custody or desertion case;
"If he is a known or suspected Communist
or subversive;
"If he is on the Organized Crime and
Rackets List or is a suspected delinquent in
military obligations."
ances which some may consider imaginary;
and on occasion, I may also have "embar-
rassed" high government officials.
One man wrote me his concern about this
program and commented;
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CONGRESSIONAL RECORD -SENATE June 11, 1974
T-ie Defense Industrial Security Clearance highest security clearances. After gaining the pressures for conformity win be irresisti-
Office is preparing to computerize its card employment with a city government, he tits- ble. Initiative and individuality can be suffo-
flies on over one and a half million private coverrd that tt,A ronnt1.fni -nrlAn.....e. ,K ..-a--. -} - ~__.~.--- - - -
S I0258 CON GRESSIONAL RECORD - SENATE June 11, 1974
"The Secret Service ought to go after my formation system of data banks and com- cases and under circumstances expressly au-
mother-in-law, too. On her last visit she said puter programs which threatened to erode tborized by the Constitution or Act of
that the Vice President doesn't seem to these restrictions on governmental power"' Congress."
have too many brains. She also said that Allegedly, for the purpose of predicting The legislative history of this statute is
Senator - has a face like a carbuncle. and preventing civil disturbances which fully revealed in the opinion of United States
Should I report this to the Secret Service? u might develop beyond the control of state District Judge Dooling in Wrynn v. United
There is no doubt that the physical pro- and local officials, Army agents were sent States, 200 F. Supp. 457 (E.D.N.Y. 1961). words
of this
statute teci;ion of the President and high govern- throughout the country to keep surveillance thee nghteof its legislative h stem, it is in
meal, officials is a legitimate government over the way the civilian population
purpose and all reasonable means must be pressed their sentiments about government vious that the statute is not limited by the
taken in pursuit of it. Nevertheless, such policies. In churches, on campuses, in class- expression "as a posse comitatus or other-
broad and vaguely worded standards for in- rooms, in public meetings, they took notes, wise," but operates as a prohibition against
vestigating and adversely reporting Ameri- tape-recorded, and photographed people who the use of the Army to execute the laws
cans to their government on the basis of dissented in thought, word or deed. This in- without reference to whether it is employed
their utterances could, at one time or an- .eluded clergymen, aeditors, witblic the officials, and Aas a rmy. Isle com to statute ema port bodiesntof the
could anyone
Congress
cod ather, most include most
politically members aware ti ofzens. It could
very f w, if any, directives 51 to guide herited antipathy of the American to the citizens. troo cover heated words exchanged in political their activitiesie8 they pease?uaorthe ganizati~ns Supp.fat 4661s for civil purposes." [200 F.
the tr licies
on's
use
debate and discussion anywhere in the ship and po
civil and military officials e who Asia rt?h e draft, racialhandai bo pSouth- rob- spyron civilians, a to bui d data banks and
some local the Federal government and in
some cal law enforcement agencies were isms, and community welfare. Out of this ? create computerized information systems,
requested to report people coming to their surveillance the Army created blacklists of discloses that relevance of this statute to our which
ince
sadl
clear.
were
neither the Co criteria. who were thought to fit these circulated to many federal, state and local tuition nor yny Act of Congress expressly, or
criteria. agencies, who were all requested to supple- impliedly, authorized such use, the Presi-Section
1 The Subcommittee has not rnaire reed on cothe me ment the data provided. Not only descrip- dee t was United forbidden by Code to use385 the Title
1 of the States
piste answers to our questionnai tions of the contents of speeches and politi-
repcrti of this computer and the national cal comments were included, but irrelevant to spy on civilians.
subject
indications it serves. broad However, o have entries about personal finances, such as the The Army's spying violated First Amend-
m . and zealous my fact that a militant leader's credit card was ment freedoms -of the civilians who became
indications programs, other
cormation programs, including sha Army withdrawn. In some cases, a psychiatric diag- aware that they or the groups to which they
civil disturbance system,45 are hcareg or nosis taken from Army or other medical rec- belonged had been placed under surveillance.
feeding on entries which, if not carefully hiss was included.
for the rights an This is so because it undoubtedly stifled
privileges serious of citizens. Il- consequences This information on individuals was pro- their willingness to exercise their freedom of
evaluated, rights and may,produce
grammed into at least four computers Sc- speech, association and assembly 54
interpret the misunderstandings and mil- cording to their political beliefs, or their If any proof were needed of the logic and ations ,nary do tors have expressed s doe fact that mill- memberships, or their geographic residence 62 truth of this statement, it can be drawn
tarp doctors have egedeyed to me their fonThe Army did not just collect and share from such testimony as the Subcommittee
fen el "secret" agreement the this information. Analysts were assigned the received from Dr. Jerome Wiesner who com-
tern about an allegedly
Secween the Defense Department told of evaluating and labeling these people mented:
recent on See rvice and which which required they were epld reporting was a on the basis of reports on their attitudes, "Many, many students are afraid to par-
them of various kinds
all ate in n political atc activities
receiving ch rges One ychiatriadmindxnns' of his dis- for remarks entry i and in-to activities. computers They or were microfilm then coded data which sthe cbecause of their
having
such ac daises consequences
a central file.
charges. fs. One confidentiality rites' of his con- banks 53 'record about
tern for the confidenalof medical rec- The Army attempts to justify its surveil- They fear that such
some future dace, t might
of ds in such action: lance of civilians by asserting that it was col-
", see very little reason for this. My im- letting information to enable the President possibly cost them a job or at least make
pression of the individuals whom I recom_ to predict when and where civilians might their clearance for a job more difficult to
mended for such a discharge was that these engage in domestic violence, and that the obtain." s;
were immature individuals who were not President was empowered to assign this task The Subcommittee has heard no testimony
able to adapt to the service for one reason to it by the statutes conferring upon him yet that the Army's information program
or another. Not by any stretch of the im- the power to use the armed forces to sup- was useful to anyone. The only result of the
agination were these individuals unpatriotic press domestic violence. testimony by the Defense Department was to
or a threat to the security of the nation." c I challenge the validity of this assertion, confirm my belief that under the Constitu-
informed tion and under the laws, the Army had no
our system, the power to f data-gathering
ohhen I asked the Secretary of the Nav3 Under
about this, the Subcommittee was informed to determine whether civilians are e about t to to and business that the engaging scope in and such dbreadth of the sur-
that e v -person is not reported the ad... violate federal laws is committed to federal veillance was so broad as to be irrelevant to
5
service merely because he received an n ad? civil agencies, such as the FBI; and the the purpose.
roinistrative discharge from the Navy or Ma.- power to investigate to determine whether Congress has still to discover the complete
rive Corps" However, we were informed the .' civilians are about to violate state laws is truth about these Army computers. Appar-
Pursuant to Naval regulations issued under reposed in state law enforcement officers. mils, even officials responsible for intelii-
annually, report; If President Johnson believed he ought to gene did not know of the existence of the
a secret ge of 400 persons the
1966 ,48 Navy lop average ex e, persons among the n:T have had information to enable him to pre- computers for implementing the program.
learned, for example, that among the man? diet when and where civilians might engage The Subcommittee has repeatedly requested
not tegnlys r people but civilian employee3 e3 in future domestic violence, he ought to have the testimony of the Army Generals who
of tonly he servicemen but cvilian em called upon the FBI or appropriate state law would be most knowledgeable about the com-
charged c the on Defense D security or :Department who suitability were dins enforcement officers for the information. puters and what they contained. We have
a suir:d who showed "evidence of emotional in- He had no power to convert the Army into just as-repeatedly been denied their testf-
stability or irrational or suicidal behavior, a detective force and require it to spy on mony as well as delivery and declassification
of pertinent documents demonstrating the
This conclusion is made plain by the Con- scope and purpose of the program.? The
atainst expressed the strong United or States," or violent who se had "pr ad "pre- This e- civilians.
would cut back on the data-
vious arrests, convictions, conduct or state- stitution and every act of Congress relating Army said
;vents indicating a propensity for violence to the subject. Sections 331, 332, 333 and 334 gathering on lawabiding citizens and would the nited States
rtment I
the
defer
cer-
and antipathy for good order in Govern- tai Title not c nferany such power on the asked the JusticeaD partmentJofficialsSh w
n.en t." '"
MILITARY SPYING President. These statutes merely authorized many computers that Department had con-
Another example of First Amendment in - him to use the armed forces to suppress taming information on people who lawfully
fC'rmation programs is the Army program domestic violence of the high degree specified exercised their First Amendment free-
in them, and conditioned their use for that dims." 5'
these then ur ose upon his issuing a proclamation im- I had seen newspaper articles quoting the
Fir s Amp do Americans who exercised
anstmen the lions i u tionalivi rights, mediately ordering the offenders "to disperse director of the Justice Department's Inter-
federal of and retire peaceably to their abodes within divisional Information Unit. He said there
pod despite the constitutional
power between the al and d state se govern- a limited time." that the computer's list of thousands of definir. ten le, l roles laws and decisions m , U e The only other statute relevant to the names is not a register of "good guys" or
the legal role and duties of the Army, n- subject Is section 1385 of Title 18 of the "bad guys." "It is simply a list of who par-
?.xmy was given the power to create an in- Code, which prohibits the use of any part of ticipated in demonstrations, rallies and the te Army or Air Force as a ['oatnotes at end of article.
or otherwise to execute` the laws&. c except in pleas well as violent, he said se Onlthe basis
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June 11, 1974 CONGRESSIONAL RECORD -SENATE
of these reports, I asked for the testimony of
this official, but for some strange reason,
he could not be located.
Despite questioning during the hearings
and correspondence with the Justice De-
partment, we have been unable to obtain
an accurate description of the use of Justice
Department computers for collecting, proc-
essing and analyzing information on lawful
First Amendment activities of citizens. Nor
have we been able to ascertain or obtain the
standards followed by the Department In de-
ciding what individuals should be the sub-
jects in such files, or how they should be
excluded from such files.
LEGISLATIVE REMEDIES
There has been much discussion of the
need for new laws granting access to indi-
vidual records. I believe a person should have
the chance to expunge, update and correct
his records. With the advent of systematic
record-keeping, a man needs the chance
which a businessman has to go into economic
bankruptcy and obtain a discharge from his
past.
I believe, however, that we must go beyond
that relationship between the individual and
his records. We must act to restore a healthy
balance to the relationship between the citi-
zen and his government, and necessarily be-
tween Congress and the Executive Branch.
Mere access to and knowledge of his Individ-
ual file is not enough. Remedial action must
be addressed to the curbing of the power of
government over the individual and to re-
stricting. its power to deny information about
government programs. The claim to an in-
herent power to monitor, investigate and
compile dossiers on law-abiding citizens on
the off-chance that they might need to be
investigated for a legitimate governmental
purpose at some time in the future must also
be opposed.
As a result of the Subcommittee's experi-
ence in playing hide-and-go-seek with the
Federal Government's computers and with
the people who plan and supervise them, I
am convinced these computers have too much
privacy today. The Congress, the press and
the public should have available an habeas
corpus action for entire computer systems
and programs themselves. No department
should be able to hide such broad-based data
programs and information systems. If they
are lawful, the American people then have a
right to full knowledge about the operation
of their government. If they are not lawful
and relevant for some purpose, they should
be exposed for what they are-attempts to
intimidate citizens into silence and con-
formity.
First, we need to devise some judicial
remedy for confronting and testing the
nature, purpose, legality and constitution-
ality of governmental data banks and large-
scale Intelligence information systems which
by their very existence may threaten the
quality of our First Amendment freedoms or
whose contents may affect economic pros-
pects, reputations or rights. Now pending
before the United States Supreme Court is
just such a challenge to the Army surveil-
lance program and the military data banks,
including at least four computer systems for
storing and processing information on Amer-
ican across the land. ]Tatum v. Laird, no. 71-
288 (1971) (argued March 27, 1972) ] The
lower court has denied standing to sue to
plaintiffs who were subjects of surveillance
and computer dossiers on grounds that they
have not shown injury. 144 F.2d 947 (D.C.
Cir. 1971) ].
Congress must strengthen and enforce re-
porting requirements for computer systems.
Not even in the audit of computers which
the present law requires the General Services
Administration to conduct each year is it
possible for Congress, the press, and the pub-
lic to get minimum information about all of
the management uses of computers in
government.
Secondly, r believe we must devise legal
means of assuring the reporting of large
government data banks to a central office
established independently of the executive
branch. This would require the filing of
policy statements describing exactly what
agencies feed a particular information sys-
tem and who would receive or access data
routinely from a particular data bank. These
policy statements should be public records.
In this way, people would have due notice
of possible sharing of information by other
agencies or state or local governments.
Thirdly, out of these directives, a graphic
national information-flow chart would be
designed and made available for public in-
spection. An individual concerned about his
record could then go to the respective agen-
cies and exercise his rights under the Free-
dom of Information Law to inspect his files.
Fourth, there is a need to fully implement
the principle of open government implicit in
the Freedom of Information Law by reducing
the number of exemptions In it which the
Executive Branch may use to deny or with-
hold information. This would make the ju-
dicial remedies it "contains more meaningful.
Fifth, I believe there must be established
a new independent agency for setting and
enforcing strict standards in software and
hardware for the assurance of security, con-
fidentiality and privacy of records. These
would be applied to all phases of gathering,
processing and transmitting information
about people by government computer sys-
tems. This would include such problems as
Interception of electronic transmissions and
tapping of systems.
Sixth, Congress must enact specific prohi-
bitions on unconstitutional or unwise prac-
tices which unfairly augment government's
power to invade individual privacy. Examples
of such legislation would be: (1) a ban on
use of military resources to conduct unwar-
ranted surveillance over civilians and to cre-
ate and share data banks on them, and (2) a
ban on unconstitutional means of coercing
citizens into revealing personal information
about themselves sD Such a bill is S. 2156
which would prohibit requirements on ap-
plicants and employees to submit to lie de-
tectors' in order to work?^ Another bill is
S. - 1438, designed to protect federal em-
ployees and applicants from unwarranted de-
mands for information about such matters
as their race, national origin, religious be-
liefs and practices, sexual attitudes and con-
duct, and personal family relatlonahips c1
Another necessary protection would be a pro-
hibition on distribution of arrest records to
private companies and severe restrictions on
their availability within government.-
Seventh, is the need for America to take a
stand on whether or not every person is to
be numbered from cradle to grave, and if so
whether or not that number is to be the
social security number. Until now, the idea
of a universal standard identifier has been
merely discussed in philosophical terms, but
the need to reduce people to digits for the
computer age has prompted wide govern-
ment use of the number for identifying in-
dividuals in government files. Private indus-
tries, businesses and organizations have fol-
lowed suit to the dismay of many people who
have registered strong complaints against
this practice with the Subcommittee. They
were supported by the findings of a Social
Security Task Force which reported in 1971
that :
"The Increasing universality of the Social
Security Number in computer data collec-
tion and exchange presents both substantial
benefits and potential dangers to society;
and that in order to maximize the benefits
and minimize the dangers, there needs to be
developed a national policy on cQmputer
data exchange and personal identification in
America, including a consideration of what
S 10259
safeguards are needed to protect individuals'
rights of privacy and due process." "
In outlining the areas In which state legis-
latures and the Congress must make impor-
tant judgments, this Task Force stated:
"Defining the proper role of the Social Se-
curity Number in society requires that broad
social judgments ? be made first about the
desirability of large-scale computer record-
keeping in various settings; second, about
the kinds of data necessary and appropriate
to record about individuals within a given
setting; third, about the safeguards needed
to insure that the computer is being used
within a given setting in ways that protect
fundamental human rights; and fourth,
about the desirability of any kind of uni-
versal Identification system in terms of its
psychological impact on the individual citi-
zen." 0 4
SUMMARY
From the Subcommittee study of privacy
and government data banks one conclusion
is undeniable. This is that the extensive use
of computerized systems to classify and ana-
lyze men's thoughts, speech, attitudes, and
lawful First Amendment behavior raises seri-
ous questions of denial of substantive' due
process to our entire society. To try to con-
dense the truth about what men believe and
why they believe is a futile exercise which
can lead to. that tyranny over the mind
against which Thomas Jefferson swore eter-
nal hostility. Without grave dangers to our
constitutional system, we cannot permit
government to reduce the realities of our po-
litical life and the healthy traffic in our
marketplace of ideas to,marks on magnetic
tapes and data on a microfilm.
Professor Robert Boguslaw ^ 6 eloquently de-
scribed the dangers posed by this "technol-
ogy-screened power" when he wrote that
"the specification of future and current sys-
tem'states' within this orientation charac-
teristically requires an Insistence upon a uni-
formity of perspective, a standardization of
language, and a consensus of values that is
characteristic of highly authoritarian social
structures. Nonconforming perspectives, lan-
guage, and values can be and, Indeed, must
be excluded as system elements."
He further points out certain engineering
truths and certain human truths which face
every politician, administrator, analyst and
programmer who tries to use computers to
convey either more or less than the straight
facts about people. First is the truth that
the strength of high-speed computers is pre-
cisely in their capacity to process binary
choice data rapidly. But to process these
data, the world of reality must at some point
in time be reduced to binary form. Second
is the truth "that the range of possibilities
is ultimately set by the circuitry of the com-
puter, which places finite limits on alterna-
tives for data storage and processing." Third
is the truth "that the structure of the lan-
guage used to communicate with the com-
puter restricts alternatives." Then there is
the truth "that the programmer himself,
through the specific sets of data he uses in
his solution to a programming problem and
the specific techniques he uses for his solu-
tion, places a final set of restrictions on ac-
tion alternatives available within a com-
puter-based system."
It is in this sense that computer pro-
grammers, the designers of computer equip-
ment, and the developers of computer lan-
guages possess power in our society.
These limitations of men as well as ma-
chines are what I remembered as I listened
to the young Army analyst describing his
assignment to condense truth for the Army
data systems by assigning numbers to peo-
ple on the basis of their speech and
thoughts "
On the shoulders of technology' experts
who are aware citizens rests the responsibil-
ity for guiding those politicians who seek
computer-based solutions to political prob-
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CONGRESSIONAL RECORD - SENATE June 11, 197'4
lenis. At this point Inour history, they, more
thin anyone, realize that computers have
only those values which are designed and
programmed into them.
li the attitude of the present Administra-
tion is any indication, Government will make
increasing use of computer technology in
pursuit of its current claim to an inherent
power to investigate lawful activities and to
label people on the basis of their thoughts.
Municipal, state and federal agencies con-
tinue to plan, devise and build intelligence
systems for many purposes. It devolves on
those people involved in computer technol-
ogyto make known the restrictions and the
limitations of the machines as well as the
alternatives for what is proposed. When the
political managers ignore or abdicate their
responsibility to assure the application of
due process of law, they may have the final
say over the constitutional uses of power.
What they say may not be popular with
those who use their services, especially gov-
ernment departments. But I would suggest
that when they advise on extending the
power of government, they serve a higher
law--the Constitution.
The technologicalforces which affect the
quality of our freedoms come in many guises
and under strange terminology. They are
dreamers who would decry the advent of
the computer as casting some sorcerer's
shn.dow across an idyllic land. In their phil-
osophical rejection or fear of this most in-
tricate of machines, they would deny the
spark of divinity which is the genius of
man's mind; they would reject the progress
of civilization itself. So there is no reason
to condemn out of hand every governmental
application of computers to the field of in-
formation processing or to systems study.
Our society has much to gain from com-
puter technology. To assure against its po-
litical misuse, however, we need new laws
restricting the power of government and
implementing constitutional guarantees. We
need increased political awareness of an in-
dependent nature by information specialists
who understand the machines and the sys-
tems they constitute.
We do not, as some suggest, need new con-
stitutional amendments to deal with these
problems. The words of the original amend-
ments will do, because they envelop our na-
tional concepts of personal freedom and I
believe they can encompass anything which
jeopardizes that freedom.
As Justice Oliver Wendell Holmes said:
"A word is not a crystal, transparent and
unchanged; it is the skin of a living thought
and may vary greatly in color and content
according to the circumstances and the time
In which it Is used." 6 r
1 believe that Americans will have to work
harder than ever before in our history so
that the First Amendment remains a living
thought in this computer age. -
Otherwise, we may find the individual in
our society represented not by a binary form,
but by one digit.
And that will be "zero."
Otherwise, America may lose its cherished
reputation as "the land of the Second
Chance." -
FOOTNOTES
? C' S. Senator, North Carolina.
1 Based on an address before the Spring
Joint Computer Conference of the Federa-
tion of Information Processing Societies, At-
lantic City, N.J., May 20, 1971.
INVENTORY of AUTOMATED DATA PROCESS-
ING EQUIPMENT IN THE UNITED STATES FISCAL
YEAR 1971, GENERAL SERVICES ADMINISTRATION,
at 1.5. A report providing information on the
digi,al electronic computers installed
throughout the U.S. Government, which
de-Junes "computer', as a configuration of
ELPE components which includes one cen-
tra.l processing system concept which recog-
nizes the growing importance of configura-
tions with more than one central processi,,g
unit. This report responds to requiremei.*,s
of P.L. No. 89-306, Stat. (Oct. 30, 1965) and
S. Doc. No. 15 (1965), REPORT TO THE PRE:;I-
DENT ON THE MANAGEMENT or AUTOMA"'iC
DATA PROCESSING IN THE FEDERAL GOVERN-
MENT.
91970 NASIS REPORT, INFORMATION Svs-
TEMS TECHNOLOGY IN STATE GOVERNMENT
at 18, developed by the State of Illinois and,
the National Association for State Informa-
tion Systems, Council of State Govern-
ments.
4 See generally COMPUTERWORLD (a weel_iy
periodical servicing the computer commu-
nity) : DATAMATION: DATA MANAGEMENT; - and
BUSINESS AUTOMATION.
6 See, e.g., Brzezinksi, Between Two Ages,
America's Role In the Technotronie Era, al-
though all authors do not engage in such
distinctions with the same judgments or
purposes.
9 Hearings on Federal Data Banks, Compu-
ters and the Bill of Rights Before the Sub-
comm. on Constitutional Rights of the Sen-
ate Comm. on the Judiciary, 92d Cong, 1st
Bess. [Feb. 23-25 and Mar. 2-4, 9-11, 15 and
17 (1971)] [hereinafter cited as as 1971
Hearings.] Testimony of Robert Bigelow, at-
torney, describing concern of professional
computer organizations and press, id. at 680;
Bibliography, lists of public discussions on
privacy and computers in the United States
and abroad, id. at 692 et seq.; Testimony of
professor Caxton Foster, University of Mass.,
Department of Computer and Information
Sciences, id. at 707.
C For a sample of questionnaire sent to 1,1l
of accurate information, both before and
during disorder, has created special control
problems for police," and the recommenda-
tion that "Federal-State planning should en-
sure that Federal troops are prepared to pro-
vide aid to cities.. , ."
The Department also cited a report filed
by Cyrus Vance following the Detroit 1967
disturbances. 1971 Hearings, at 378.
For law enforcement reliance on the Ker-
ner Commission and similar commissions,
see e.g., testimony of Richard Verde for the
Law Enforcement Assistance Administration.
1971, Hearings. at 608:
Several States also developing with LEAA
funds information systems related to civil
disorders. Most of these systems have as their
objective either tension detection and fore-
casting or providing support to tactical units.
It should be noted that the Kerner Commis-
sion studied this problem carefully and ree-
oinmended that the police develop adequate
intelligence for tension-detecting as well as
on-the-scene information for tactical units.
Many of the systems LEAA supports in the
civil disorders area arose out of the recom-
mendations of the Kerner Commission and
similar commissions established by the
States.
For reliance on Warren Commission find-
ing of information gaps, see response to Sub-
committee questionnaires by the Secret
Service, Nov. 21, 1969, reprinted at 115 Cox-TG.
Rea. 39,114 (1969), and by the State Depart-
ment Jan. 4 and Mar. 10, 1970; both responses
in Subcommittee file.
i8 Response to questionnaire, in Subcom-
mittee files, Mar. 25, 1971.
agencies and departments with slight alter-
19 Id. Aug. 18,
1970.
ations, see Letter to Secretary of
Defense
$9 Id. June 22,
1970.
Melvin Laird, July 20, 1970 1971
Hearings
Id. May 28,
1970.
at 1182, and to Attorney General Mitchell,
June 9, 1970. Id. at 1212.
6 See, eg., State Department response to
questionnaire, concerning its "Lookout File."
See Letter of Sept. 9, 1970 to Subcommittee
Chairman from Assistant Secretary of De-
fense Robert Moot, and list of classified en-
closures, 1971 Hearings at 1186.
9 Navy Department response, Aug. 13, 1970,
citing a Roosevelt Executive memorandum
assigning responsibilities for intelligence ac-
tivities. Id. at 1201.
SO Department of Transportation response.
Testimony of Secretary Volpe. Id. at 720.
Many other agencies will inform the individ-
ual of the general contents of his file, if he
is denied some right, benefit or privilege and
regulations permit a hearing or right of con-
frontation or cross-examination-but not
before.
u Department of Health, Education, and
Welfare, series of letters over a two year
period on file with Subcommittee, and as of
March, 1972, no response has been received
containing substantive answers.`
>a Directive, ICGP-G-S3, Jan. 9, 1971, Re-
lease of Official Information to Legislative
Branch of Government. 1971 Hearings, at
1179.
13 Ervin, Secrecy in a Free Society, 213 NA-
TION 454 (1971). See generally Hearings on
Executive Privilege Before the Subcomm. on
Separation of Powers of the Senate Comm.
on the Judiciary, 92d Cong., 1st Bess. (1971).
Testimony by Senator Tunney at 381 and
William Rehnquist at 420.
14 5 U.S.C. ? 552 (1970).
15 See, e.g., 1971 Hearings, at 375, 431, 385.
Testimony of Assistant Secretary of Defense
Froehike. Id. at 602, 599; testimony of As-
sistant Attorney General Rehnquist, note 13,
supra.
-See, e.g., Justice Department response to
Subcommittee questionnaire.
17 For Defense Department reliance on the
findings of the National Advisory Commis-
Sion-on Civil Disorders (Kerner Commission),
see testimony of Assistant Secretary of De-
fenseFroehlke, 1971 Hearings, at 379; noting
the Commission's finding that the "absence
22 Id. Jan. 4, 1970.
23 Id. Aug. 1970. See also 1971? Hearings, at
375, Froehlke testimony on this and other
Defense Department records systems.
u Response to questionnaire, Feb. 22, 1972.
See also 12 U.S.C. ? 1811 et seq. (1964).
Amendments to Federal Deposit Insurance
Act, requiring bank recording and reporting
to Internal Revenue Service transactions, S.
REP. 91-1139 and H.R. REP. 91-975.
26 See note 23 supra.
26 Response to Subcommittee question-
naire, Aug. 1970. Also described in Froehlke
testimony, note 23, supra and in Army Un-
dersecretary Beal letter of Mar. 20, 1970, re-
printed in 1971 Hearings, Part II at 1051, and
SID 116 CONG. REc. 26327-51 (1970).
01 For descriptions and citations to sup-
porting statutes and regulations, see re-
sponse to Subcommittee questionnaires,
1971 Hearings, Part II at 1312-68. See also
d+scussion in testimony of Justice Depart-
ment officials. Id. Part I at 597, 849.
28 For descriptions and summaries of
some of these complaints and concerns. Re-
marks of Senator Ervin, 116 CoNG. REc. 30,-
797, 41,751, 43,944 and 117 CoNG. REc. S. 985
(daily ed. Feb. 8, 1971). In particular, note
opening statements by Subcommittee Chair-
man each day of 1971 Hearings outlining is-
sues of concern for the day. Of interest here
is a Dec. 1971 report, A National Survey of
the Public's Attitude Toward Computers,
sponsored by the American Federation of
Information Processing Societies and TIME
MAGAZINE noting that:
There is major concern about the use of
large computerized information files. Thirty-
eight percent of those surveyed believe com-
puters represent a real threat to people's
privacy as opposed to fifty-four percent who
disagreed. Sixty-two percent are concerned
that some large organizations keep informa-
tion about millions of pepole. In addition,
fifty-three percent believe computerized in-
formation files might be used to destroy in-
d;vidual freedoms; fifty-eight percent feel
computers will be used in the future to keep
people under surveillance; and forty-two
percent believe there is no way to find out if
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CONGRESSIONAL RECORD - SENATE
information about you stored in a computer
is accurate. In general, the public believes
government should make increased usage of
computers In a number of areas, that such
usage will make government more effective,
and, that there will, and should be, Increas-
ing governmental involvement in the way
computers are used.
29 Letter, identity withheld, in Subcommit-
tee files with comment by the Director of the
Federal Bureau of Investigation.
00 28 C.F.R. ? 0.85 (b); codifying rulings
by the Attorney General pursuant to 28
U.S.C. ? 534 which provides:
(a) The Attorney General shall-
(1) acquire, collect, classify, and preserve
identification, crime and other records; and
exchange these records with, and for the
official use of, authorized officials of the Fed-
eral Government, the States cities, and penal
and other institutions.
(b) The exchange of records authorized by
subsection (a) (2) of this section is subject
to cancellation if dissemination is made out-
side the receiving departments or related
agencies.
(c) The Attorney General may appoint
officials to perform the functions authorized
by this section.
"Morrow v. District of Columbia, 417 F.
2d 728 (D.C. Cir. 1969). For a summary of
case law on this subject, see Longton,.
Maintenance and Dissemination of Records
of Arrest Versus the Right to Privacy, 17
WAYNE L. REv. 995 (1971).
ffi Menard v. Mitchell, 430 P.2d 486 (D.C.
Cir. 1970), decision upon remand, 328 F.
Supp. 718 (D.D.C. 1971). The Court con-
strued 28 U.S.C. ? 534 narrowly to avoid the
constitutional issues raised by Menard and
found that:
It is abundantly clear that Congress never
intended to, or in fact did, authorize dis-
semination of arrest records to any state or
local agency for purposes of employment or
licensing checks.
It found certain faults with the present
system: (1) State and local agencies receive
criminal record data for employment pur-
poses whenever authorized by local enact-
ment, and these vary state by state and local-
ity by locality. (2) The Bureau cannot pre-
vent improper dissemination and use of the
material It supplies to hundreds of local agen-
cies. These are no criminal or civil sanctions.
Control of the data will be made more difficult
and opportunities for improper use will in-
crease with the development of centralized
state information centers to be linked by
computer to the Bureau. (3) The arrest rec-
ord material is Incomplete and hence often
inaccurate, yet no procedure exists to enable
individuals to obtain, correct or supplant the
criminal record information used against
them, nor indeed is there any assurance that
the individual even knows his employment
application is affected by an FBI fingerprint
check.
The Court Invited Congressional action,
noting that: with the increasing availability
of fingerprints, technological developments,
and the enormous increase in population,
the system is out of effective control. The
Bureau needs legislative guidance and there
must be a national policy developed in this
area which will have built into it adequate
sanctions and administrative safeguards.
90 Congressional response to the District
Court's invitation has taken several forms,
among them, a bill, S. 2545, introduced, but
not acted on, to authorize the Attorney Gen-
eral to exchange criminal record information
with certain state and local agencies. Re-
marks by Senator Bible, S. 14558, 117 CONG.
REc. (daily ed. Sept. 20,1971); and an amend-
ment to the Department of Justice Appro-
priation Act of 1972 temporarily restoring
the power over arrest records limited by the
Menard decision. 117 CoNC. REc, S. 20461
(daily ed. Dec. 3, 1971). House Judiciary Sub-
committee No. 4 on Mar 18 began hearings
on H.R. 13315, a bill introduced by Rep. Ed-
wards, "to provide for the dissemination and
use of criminal arrest records in a manner
that insures security and privacy."
A related, but more comprehensive bill,
S. 2546, was introduced by Senator Hruska
on Sept. 20, 1971, 117 CONC. REc. (daily ed.)
to insure the security and privacy of crim-
inal justice information systems. This is
termed the Attorney General's response to
an amendment to the Omnibus Crime Con-
trol Act of 1970, 18 U.S.C. J? 351, 1752, 2516,
3731 (1964), requiring the Law Enforcement
Assistance Administration to submit legis-
lative recommendations to promote the in-
tegrity and accuracy of criminal justice data
collection. LEAA demonstrated a prototype
computerized system for exchange of crim-
inal history information with the states, a
project known as SEARCH-System for
Electronic Analysis and Retrieval of Crim-
inal Histories. In Dec. 1970, Project SEARCH
was turned over to the FBI for the develop-
ment of an operation system to be part of
the National Crime Information System. The
bill deals with criminal offender record in-
formation as well as criminal intelligence
information.
A discussion of the philosophical, consti-
tutional and legal issues and problems re-
lated to such a computerized system is found,
with bibliographies, in Security and Privacy
Consideration in Criminal History Informa-
tion Systems, Technical Rept. No. 2, July,
1970, by Project SEARCH, California Crime
Technological Research Foundation, funded
by the Law Enforcement Assistance Admin-
istration, Department of Justice. Also per-
tinent is the testimony of LEAA officials on
the use of information and intelligence sys-
tems by criminal justice agencies. 1971 Hear-
ings, on the National Crime Information
Center. Id. at 914.
For a model state act proposed for crim-
inal offender record information, See gen-
erally Technical Memorandum No. 3, May,
1971 by Project SEARCH.
As we have a highly mobile population, so
we have a highly mobile criminal population,
which requires that governments be able to
share rapidly the information in their data
banks in the interest of law enforcement.
The problem is determining what agencies
and what officials should control what in-
formation.
14 See 1971 Hearings at 493-530. Testimony
of Joseph Alioto, Mayor of San Francisco,
and exhibits submitted. For response of Jus-
tice Department officials, see testimony of
William Rehnquist, id. at 604, 878-88, and a
series of memoranda from the Federal Bu-
reau of Investigation, the Bureau of Narcotics
and Dangerous Drugs, which memoranda
were submitted by Assistant General Rehn-
quist with the caveat that.
Under the traditional notions of separa-
tion of powers, it seems to me probable that
the Department could justifiably decline to
furnish portions of this information ... Id, at
1371,
sr 1971 Hearings, Part II at 1375. In his
memorandum of Mar. 5, 1971, the Director of
the Bureau of Narcotics and Dangerous Drugs
noted" . . . it is possible that the documents
or information in these four exhibits could
have been passed to the LOOK reporters by a
BNDD employee." He cites BNDD Order 0-98,
May 27, 1970 as the Bureau's current public
information policy and as essentially a re-
statement of 28 C.F.R. Pt. 50, ? 50.2, which
covers the dissemination of most types of in-
formation for the Department. However, he
states that the strongest applicable regula-
tions in this matter are found in 28 C.F.R. Pt.
45, ? 45.735: "No employee shall use for finan-
cial gain for himself or for another person, or
make any other improper use of, whether by
direct action on his part or by counsel, rec-
ommendation, or suggestion to another per-
S 10261
son, information which comes to the em-
ployee by reason of his status as a Depart-
ment of Justice employee and which has not
become part of the body of public informa-
tion."
Obviously, the disclosure of documents
stamped "For official use only" would be con-
trary to this regulation if, in fact, the dis-
closures were made by Department of Justice
employees.
as For statement submitted by a Special
Agent of Military Intelligence and related
correspondence, see 1971 Hearings, Part II at
1451-1457.
aI See generally Hearings on Psychological
Tests and Constitutional Rights Before the
Subcomm. on Constitutional Rights of the
State Comm. on the Judiciary, 89th Cong.
1st Bess. (1965) and Hearings on S. 3779 on
Privacy and the Rights of Government Em-
ployees, 89th Cong., 2d Bess. (1969).
08 See 1966 Hearings, supra note 37. In con-
nection with a proposal introduced to pro-
tect the consttiutional rights of employees
of the executive branch and to prevent un-
warranted governmental invasion of their
privacy, see Senate remarks of Senator Ervin
including discussion of need for law pro-
hibiting requirements to reveal Information
on race, religion, national origin, personal
family relationships, sexual attitudes and
conduct and religious beliefs and practices
in 112 CONC. REc. 16081, 18634 (1966), 113
CONC. REc. 4039, 10663, 27994 (1967), 114
CONG. REc. 11235, 17161, 19613 (1968),
115 CONE. REC. 2343, 117 CONG. REC.
(daily ed. Apr. 1 and May 11, 1971). By such
legislation, government may be prevented
from intruding into protected First Amend-
ment areas on subjects which should have
nothing to do with the operation of a civil
service merit system. By exclusion of such
sensitive, subjective Information from the
computer systems, initially, government will
be precluded from basing individual or gen-
eral social judgments on outdated standards,
changing mores, variants In ethnic, cultural
or geographical backgrounds, or previous
conditions of the individual's mind, heart,
and personality. It will necessarily be con-
fined to a consideration of current informa-
tion relevant and pertinent to the problem
at hand.
00 See generally Hearings on S. 1791 and
Privacy, the Census and Federal Question-
naires Before the Subcomm. on Constitu-
tional Rights of the Senate Judiciary Com-
mittee, 91st Cong., 1st Sess. (1969) and hun-
dreds of letters and complains about coer-
cive statistical questionnaires. Appendix also
contains judicial, legal and constitutional re-
search materials as well as examples of many
social and economic questionnaires. See also
Pipe and Russell, Privacy: Establishing Re-
strictions on Government Inquiry, 18 AMER.
UNrv. L. REV. 516 (1969). For a summary of
the hearings, see Senate remarks of Senator
Ervin, 115 CONC. REc. 17718 (1969). For pos-
sible political uses of such information ac-
quired as economic and social indicators, see
Report by House Government Operations
Committee, Subcommittee on Government
Information, on Department of Labor brief-
ings on economic statistics; and 23 WESTERN
POL, Q. 235 (1970). See also the finding and
recommendations on privacy and confiden-
tiality of the PRESIDENT'S COMMISSION ON
FEDERAL STATISTICS (1971).
40 See 1969 Hearings, supra note 39, testi-
mony on behalf of the National Federation
of Independent Business at 199, of attorney
and farm owner William Van Tillburg at 74,
W. Schliestett, businessman at 66, J. Can-
non, attorney at 7,263.
61 id. at 830. Table of Census surveys of
population and households, conducted for
other government agencies, with indication
of penalties and compliance techniques. In
many of these, the data Is kept on tape or
film by both the Census Bureau and the
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CONGRESSIONAL RECORD - SENATE June 11, 1974
sponsoring agency, and the confidentiality
rules of the sponsoring agency apply.
42 Id., at 251. Assistant Secretary of Com-
merce Chartener:
Assistant Secretary of Commerce Ca,ta-
vErvs a. The wording deliberately has been
rather subtle in its form. We never use the
word "mandatory" on a questionnaire. In-
stead, people will be told that "your answer
is required by law." In other cases, they may
be told that a survey is authorized by law or
it Is important to your government or some-
thing of that sort. Now, the followup pro-
cedure is used not for purposes of coercion
but rather in order to verify the correctness
of an address.
Senator ERVIN. Do you not agree with me
that such a procedure Is designed to Implant
In the mind of the recipient of these ques-
tionnaires the impression that he is re-
quiredby law to answer them?
Mr. CHARTENER. If it is a mandatory ques-
tionnaire that would bethe case. In other in-
stances, the repeated mailings which may go
up to five or may involve telephone calls or
even a personal call are simply a means of
emphasizing the importance that the Gov-
ernment feels in getting this response . .
The Department of Commerce opposed en-
actnient of a simply-worded statute advising
people that their responses to these statis-
tica.; questionnaire were voluntary. Id. at 282.
Senator ERVIN. Would the Department of
Commerce and its Bureau of the Census be
opposed to enactment of Federal statutes
which would require that the Bureau of the
Census advise every citizen on a question-
naire sent out by the Bureau that where it
Is not required by law, not mandatory, this
is an effort to elicit information desired by
the Government on a voluntary basis?
Mr. CHARTENER. Senator, I think we would
oppose that. This Is a matter of rather subtle
psychology. I do not think, personally, and
this is the position of the Department, that
we ought to go out of our way to ten people-
they do not need to bother filling out this
questionnaire. .
Serrator Exvne. You think the statutes gov-
erning those questionnaires, which are man-
datcrrv and which are subject to the criminal
penalty if not answered readily, are under-
standable by the average layman?
Mr. CHARTENER. I do not think any law 19
written to be readily understandable by the
average layman. That is why we have lawyers,
That compare the testimony of the Secre-
tary of the Department of Health, Education,
and Welfare in the 1971 Hearings at 788, op-
posing legislation, but favoring administra-
tive notice of voluntariness for that Depart-
mert's forms.
53 1.15 CoNG. REC. 3356 (1969) and guidelines
printed there. See also note 17, supra, corre-
spondence and guidelines printed at 1541,
1971 Hearings, Part II. See remarks of Rep.
Stanton, 118 CoNG. REc. at H208 (daily act
Jan.. 24, 1972) [Complaints Against Secret
Service].
!* le=tter in Subcommittee files.
.vF-e Department of the Army Civil Dis-
turbance Information Collection Plan, May 2,
196, collection priorities and requirements
and distribution list for government agen-
cies. Printed in 1971 Hearings at 1126, 1138.
Tht; ?clan also appears with remarksof Sena-
tor Payh, 117 CoNG. REC. 2290 (dally ed,
Mar. 2, 1971).
K" Letters in Subcommittee files (identities
withhold).
' Utter of Inquiry from Subcommittee
Chairman, July 6, -1971, citing the large num-
ber of reasons for which a person can receive
an administrative discharge, ranging from
family hardship to national security grounds,
the inadequate procedures and safeguards
surrounding such discharges, and the threat
to individual freedom from unrestricted re-
porting of law-abiding citizens, who may be-
come subjects of official surveillance through
no fault of their own or of the Secret Service.
dAThis December 14, 1965 agreement be-
' ween the Defense Department and theSe-
r;ret Service was Implemented within the
:)Tavy Department by SECKAV Instruction
5500.27, 18 March 1966, which contains 5
copy of the agreement. Administrative au-
f2iority for this regulation is cited as Defense
:9ept. Directive 5030.34, dated 30 Dec. 196:?;
+rtatutory authority for assistance to the SE.-
oret Service is cited as P.L. No. 90-331 (June
+3, 1W) which provides for assistance to the
iaecret Service on request.
'P Appendix B of Agreement. Under Appen-
1lix A, identification data, photograph, physi-
oal description, date and place of birth, em,.
:$Loyment, marital status and identifying
]lumbers are to be furnished, together witls
nmmmarles or excerpts from DOD files as ap-
plicable to an individual or group reported.
In a related exchange of correspondence,
'he Subcommittee Chairman, in response tD
complaints, directed an Inquiry to the Secre-
szry of the Navy, on April 22, 1970 about a
:Qavy directive which required that In any
,we where enlisted personnel were to be sap-
irated, under other than honorable conditior,:r
Within the continental United States, local
civil police authorities were to be notified i_
advance of the name, race, sex and place and
-late of birth of the person, and of the time
and place such separation Is to be effected..
This regulation seemed to serve no useful
:'unction since the Army and the Air Force
:'unctioned without one. On may 7, 1970, the
:'.Navy Department notified the Subcommittee
!drat they concurred in this view and woul?U
delete the reporting requirement, (Corre-
upondence in Subcommittee files.)
r For legal and constitutional implications,
is well as a comprehensive historical sccoun+;,
++ee testimony of Christopher Pyle, an attor-
:ley and former Captain in Army Intelligence.
See 1971 Hearings at 147, and exhibits provid-
ng examples of nation-wide military sur-
'Feiilarrcec
See E7roin, Privacp and Governmental In-
uuestigations, 1971 Urivv. ILL. L. FoxuM 137
11971) for an account of the various plans
card their lack of relevance to the problem of
Putting down civil disturbances, and for
analysis of the Defense and Justice Depart.
rent's claims to constitutionality for the
actions of the military. Texts of four "plans,"
.971 Hearings at 1123 1119, 1154, 1781.
Memorandum at 1129. 1141, 1278-98, showing
attempts by civilians to cut back on the pro-
as The bulk of investigative activity by the
Army's own personnel occurred at the field
level. Agents collected Information and filed
"spot reports,- -agents reports." and "sunt-
rnartes of investigation." Most of this data
was forwarded up the chain of command but
record copies were kept in data centers at
every level of command. Manual files .were
maintained at every leveL At least four and
possibly more computer systems were em-
ployed to store, analyse and retrieve the in-
formation collected. Many files on lawful
ritizen:s were microfilmed and integrated
with other flies on persons who were suspect-
ed of violations of security and espionage
laws. These computer systems were located
in the headquarters of the Intelligence Com-
mand (Fort Holabird), the Continental
Army (Fort Monroe), the Third Army Corps
Fort Hood), and in the Pentagon. More than
one computer data bank was maintained in
come of these locations. (Subcommittee in-
? restigation. )
sr Testimony of Ralph Stein on the difficulty
of labeling young people on the basis c f
their speech, when a difference of one digi';,
was the difference between a communist and
ai non-communist. 1971 Hearings at 248, 260.
See Brief for Respondents filed in Ta-
'um v. Laird in the Supreme Court of the
United States, No. 71-288, challenging the
Army's surveillance program, and arguing
that plaintiffs' claims are justifiable and ripe
for adjudication; that the present inhibiting
effect on the exercise of First Amendment
rights creates a justiciable controversy; that
the justiciability of their claims is enhanced
because the military exceeded its constitu-
tional and statutory authority and Intruded
into civilian affairs; that they have standing
to adjudicate these claims for themselves
and the claims of others similarly situated;
and finally, that they argue that their case
cannot be mooted by the Army's assertion
that its domestic surveillance activity has
been reduced. The appendix contains an in-
teresting and landmark study of the chilling
effect of overbroad governmental programs on
First Amendment activity from the social
science view.
All of the plaintiffs named have been sub-
jects of political surveillance, and an are be-
lieved to be subjects of reports, files, or dos-
siers maintained by the Army.
In an amid brief filed by Senator Ervin
on behalf of the Unitarian Universaijat Asso-
ciation, the Council for Christian Social Ac
tion, United Church of Christ, the American
Friends Service Committee and the National
Council of Churches of Christ, the question
posed for review is framed as follows:
Do individuals and organizations not af-
filiated with the armed services present a
Justiciable issue under the First, Fourth,
Fifth and Ninth Amendments when they ai-
lege that their rights of free expression, pri-
vacy and association have been infringed by
unauthorized, unnecessary and Indiscrimi-
nate military investigations of their political
'activities and personal lives? Brief for Re-
spondents as amicus curiae at 7, Laird v.
Tatum, No. 71-288 (1971).
F,ssenitial though the freedoms are,_they are
not easily exercised in a climate of fear, dis-
cord, and dissension, especially when the
ideas being expressed are those which are
displeasing to government and unsettling to
the majority of citizens.... It is as such a
time that the First Amendment is most
necessary, most in danger, and most difficult
to exercise.... The First Amendment how-
ever, was made for the timid as well as for
the brave. While government cannot instill
courage in the meek, It may not take ad-
vAntage of a climate of fear to undertake
a program which has the effect of restricting
the First Amendment only to the very cour-
ageous. Government action, such as military
surveillance, seemingly innocuous In the ab-
stract, has the very real effect of suppres-
sing the exercise of the First Amendment.
The coercive power of this government ac-
tion lies in the national climate of fear and
doubt, and in the very real, tangible appre-
hension of some unknown form of retribu-
tion by government on those who it fears
and therefore watches. That such apprehen-
sion exists in America today is manifest. Id,
at 15.
&' 1971 Hearings at 765.
6" See exchange of correspondence on this
subject. Id. Part II at 1046 A, 1180 Indices to
letters.
5 Id. at 597, 849.
s" Id. at 616-92.
aS. 1791, 91st Cong., 1st Bess. (1969).
5' Senate remarks of Senator Ervin, 117
COND. REC. (daily ed. June 24, 1971.)
81 See S. Rep. 92-554 for legislative history
(Now pending before the House Post Office
and Civil Service Committee with House ver-
sions).
1971 Hearings at 782 (complaints read
into the hearing record by the Chairman).
ex SOCIAL SECURrrY NuMHES TASK FORCE RE-
roar to the Commissioner 17 (May, 1971).
ea Id. at 15.
It is clear that If the SSN became the sin-
gle number around which all or most of an
individual's interactions with society were
structured, and if practices of the sort we
have been discussing were to continue, the
individual's opportunity to control the cir-
curnstances under which information about
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himself is collected and disclosed would be
greatly circumscribed.
cr, See BOGUSLAw, THE NEW UTOPIANS (1965),
especially the chapter entitled The Power of
Systems and Systems of Power at 181, 186,
190. I would dispute his observation of some
years ago that people in the information-
processing profession "are scientists and en-
gineers-objective experts whose only con-
cern is technical efficiency and scientific de-
tachment." Id. at 198. It is indeed true, how-
ever, that: to the extent that customers (and
this may include government agencies or pri-
vate industry) abdicate their power preroga-
tives because of ignorance of the details of
system operation, de facto system decisions
are made by equipment manufacturers or
information-processing specialists. Id. at 198.
Implicit in the various issues raised during
the Subcommittee Hearings is the wise ob-
servation of Professor Boguslaw that:
The paramount issues to be raised in con-
nection with the design of our new comput-
erized utopias are not technological-they
are issues of values and the power through
which these values become translated into
action. Id. at 200.
In this case, I believe it is the constitu-
tional value protected by the First Amend-
ment.
8e See note 53 supra.
?' Towne v, Eisner, 245 U.S. 418, 425 (1918).
COMPUTERS AND PRIVACY: A PROPOSAL FOR
SELF-REGULATION
(By Edward J. Grenier, Jr.*)
In framing the issues in its landmark
Computer Inquiry, the Federal Communica-
tions Commission cited the critical impor-
tance of the preservation of Information
privacy:
"Privacy, particularly in the area of com-
munications, is a well established policy and
objective of the Communications Act. Thus,
any threatened or potential invasion of pri-
vacy is cause for concern by the Commission
and the industry. In the past, the invasion
of information privacy was rendered difficult
by the scattered and random nature of in-
dividual data. Now the fragmentary nature
of Information is becoming a relic of the
past. Data centers and common memory
drums housing competitive sales, inventory
and credit information and untold amounts
of personal information, are becoming com-
mon. This personal and proprietary informa-
tion must remain free from unauthorized
invasion or disclosure, whether at the com-
puter,, the terminal station, or the inter-
connecting communication link." 1
Congress, too, has demonstrated an in-
creasing concern with the possible threats
to individual privacy which might result
from the establishment, by the. federal gov-
ernment or by private industry, of a national
data bank? In fact Paul Baran of Rand
Corporation, testifying several years ago be-
fore a congressional subcommittee, stated
that the United States Is unconsciously mov-
ing toward an integrated, nationwide, auto-
mated information system:
"My thesis Is this: Today we are already
building the bits and pieces of separate au-
tomated information systems in both the
private and government sectors that so
closely follow the pattern to the present in-
tegrated communications structure that a de
facto version of the system you are now pon-
dering is already into the construction phase.
It is in many ways more dangerous than
the single data bank now being considered." 8
Although the threat posed by automated
information systems to the privacy of indi-
viduals is perhaps the most dramatic aspect
of the "computer revolution," another very
important aspect Is the possibility of unau-
thorized disclosure of proprietary data. The
"privacy problem" in both of these contexts
is most acute where the separate proprietary
data of a large number of businesses or sen-
sitive personal information about thousands
of individuals is stored or processed In multi-
programmed, time-sharing data processing
systems and transmitted to and from the
processing and storage units over common
communications lines. In such systems, there
exists at numerous points a high potential
for "information leakage," including leakage
due to hardware and software failures and
wire taps 4
In addition to examining both of these
aspects of the privacy problem from the point
of view of the computer system operator,
this article proposes the establishment of a
logical legal framework which would serve
the public interest by assuring, first, that
computer systems which handle sensitive in-
dividual or proprietary data will meet certain
minimum standards established for the pro-
tection of privacy, and, second, that computer
system operators will be able to continue to
operate in a competitive economy unhindered
by either overly restrictive governmental
regulation or the fear of private legal lia-
bility. The analysis and suggestions herein
set forth are relevant to all types of com-
puter systems which store information or
use computer porgrams belonging to persons
or entities other than the computer system
operator or which collect and store informa-
tion about private individuals .5
The computer industry, which when viewed
in its broadest significance extends from
manufacturers of main frame hardware to
computer service bureaus and computerized
information services, should now cooperate
with the communications industry to adopt
and implement, under the auspices of the
federal government, a comprehensive sys-
tem of self-regulation to ensure the privacy
and security of data. As a corollary of such
a scheme, computer systems complying with
the established standards 9 should be freed
from certain types of civil legal liability for
the unauthorized or accidental divulgence of
individual or proprietary information?
THE PRESENT LEGAL SITUATION: A STUDY
IN UNCERTAINTY
For the purpose of analyzing the present
S 10263
Although the number of possible varia-
tions is almost without limit, these four ex-
amples are sufficient to illustrate some of
the difficulties which computer service com-
panies may face.
From the point of view of the computer
service company, the first two examples pre-
sent issues of contractual or, possibly, tort
liability.9 The customer whose proprietary
data has been obtained without authority by
some third party might well have a claim
for breach of contract against the computer
service company. However, the results in
such a situation can be quite diverse. If the
computer service company is dealing with
large, sophisticated customers, service con-
tacts are likely to be thorough and well-
defined, specifying with detail the degree of
privacy and security of data promised by the
company and expected by its customer. On
'the other hand, if the computer service com-
pany's customers are small and perhaps less
sophisticated, the contract between them
may tend to be of the boiler plate variety
and may not contain provisions adequate to
protect the privacy and security of data. But
uncertainty, rather than a complete absence
of protection, is more likely to be the case.to
Unfortunately, the outcome in any specific
situation will depend upon the prevailing
business practices and governing standards
in the state involved.
Examples 3 and 4 squarely raise the issue
of the extent to which an individual's "right
of privacy" will be afforded legal protec-
tion?1 Although most privacy cases Involv-
ing the disclosure of individual information
are likely to arise as tort actions, situations
could arise in which an individual might
have a claim based upon the law of contract.
For example, assume that a computer service
company enters Into a contract with com-
pany X to store personal data concerning
some one thousand employees of X and to
furnish the data to X upon request. Assume
further that the contract includes specific
provisions for protecting the privacy of the
individuals involved. If the computer com-
pany breaches the contract by allowing In-
formation to fall into the hands of a third
person who uses it to the injury of the em-
computer, it will be helpful to consider a few
illustrative situations:
"1. Computer service company A operates a
multi-programmed, time-sharing, remote-
access data processing system. It services 25
customers scattered over a wide area, each
with at least one remote terminal device.
Each of A's customers stores at least one
proprietary program and a good deal of data
in A's system. Companies X and Y are com-
petitors and are both customers of A. Let us
suppose that company X has been able to
obtain confidential data belonging to Y at
X's remote terminal.
"2. Assume the same basic set of facts with
the exception that A has 500 customers, most
of which are very small.
"3. Company A runs a computerized in-
formation service containing personal data
about thousands of individuals, including
credit data, medical data, employment data,
and educational data. A offers this service to
carefully selected classes of subscribers, each
of whom promises to use the Information
for only circumscribed and legitimate pur-
poses.8 Company A's subscribers are linked
to its computer system by remote terminal.
Mr. X, a nonsubscriber, manages to "tap Into
company A's system and connect an unau-
thorized remote terminal, thereby gathering
information about a number of individuals.
The information so obtained is used in an
article which he publishes in a national
magazine.
"4. Assume the same facts as in example 3,
except that a programmer-employee of com-
pany A, without authority, extracts infor-
mation about some individual from the sys-
tem and sells such information to Mr. X."
covery against the computer service com-
pany as a third party beneficiary of the com-
puter service contract,
In most situations, however, an individ-
ual's claim that his privacy had been vio-
lated would have to be founded upon the
tort of invasion of or interference with pri-
viacy. Although of relatively recent judicial
recognition, 13 this tort has developed to the
point where one noted commentator has
been able to discern the existence of four
separate torts under the rubric "invasion of
privacy": 14 (1) unreasonable Intrusion upon
the seclusion of another or into his private
affairs;" (2) appropriation of an individual's
name or likeness;19 (3) unreasonable public-
ity given to another's private life, or public
disclosure of a private fact about an in-
dividual;17 and (4) publicity which places
another in a false light in the public eye.18
The tort doctrine regarding the protection
of privacy, in its present state of develop-
ment, quite possibly would not provide a
basis for a finding of liability against the
computer service company in either example
3 or 4, where we have assumed that the
computer company took no deliberate ac-
tion to injure the plaintiff. However, the law
of privacy has developed in response to the
changing conditions of society, and the ad-
vent of the computer age is almost certain to
result in a further judicial expansion of the
doctrine-perhaps with legislative help?9 Al-
though four states apparently still reject the
right of privacy in its entirety,20 judicial ex-
pansion of the doctrine continues. In Gris-
wold v. Connecticut,21 for example, the Su-
preme Court seemed to find, in a context
quite far removed from the fourth amend-
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CONGRESSIONAL RECORD - SENATE June 11, 1974
men, prohibition . against unreasonable
searches and seizures, a constitutionally pro-
tected right of privacy inherent in several
amendments"
of special significance is the recent New
York decision in Nader v. General Motors
Cart." which extended the Griswold ra-
tionale prohibiting the violation of a con-
stl rational right to privacy to invasions by a
private corporations, not the state. The court
implicitly found that state inaction-the re-
fusal by the state court to entertain a law-
suit alleging a violation by the corporation
of ',he plaintiff's constitutional right to
privacy-constituted sufficient "state ac-
tion' to invoke the protection of the four-
teenth amendment' If the holding in Nader
survives, the implications for the computer
industry could be far-reaching.-
There can be no doubt that the computer
seiv:ce industry, dealing as it does with
personal data on hundreds or thousands of
individuals, strongly affects the public in-
tereit. I Indeed, against the background of
ex-sanding computer services the need for a
farther extension of the doctrine of right of
privacy has been vigorously asserted?r Thus,
one commentator has recently noted that
"[]he concept of privacy held by most
courts, considered revolutionary during the
Warren-Brandeis era, seems more fitted for
the 19th century rather than the 20th; a
'new privacy' must be formulated to protect
the individual from the technological ad-
vances of the computer age."'" Another com-
mon tator recently advanced the thesis that
the fifth amendment prohibition against the
taking of private property by the government
without just compensation, applicable to the
states through the fourteenth amendment,
should be extended to a similar destruction
or diminution of the right of individual
privacy.'"' Furthermore, actions by large pub-
lie corporations which result in -a diminution
of an individual's privacy should be regarded
as equivalent to state action and therefore
subject to the payment of "just compensa-
tion." '? The growing tendency to extend the
bounds of privacy protection Is thus mani-
fest. "a If, because of their vast informational
storage and ready access capabilities, com-
puters and computer systems become gent
erally regarded as great potential threats
to the individual's right of privacy, it would
not be surprising to find courts holding
computer service companies liable for the
unauthorized disclosureof information about
an individual " Moreover, the court might
go beyond the traditional concept that the
defendant must be guilty of an intentional
or deliberate wrongdoing in order to be held
liable under an invasion of privacy theory
and hold computer companies liable for neg-
ligently permitting an unauthorized release
of information. Indeed, if the information Is
sennitive enough and the damage from re-
lease is devastating enough, a court might
be tempted to dispense even with the require-
ment of negligence and simply hold the com-
puter company absolutely liable for the un-
authorized release?" Whether the computer
company's failure is technological H or hu-
tv an, a' should make no difference.
'the law usually has evolved to keep pace
with changing social, political, moral, and
economic circumstances. For those who might
d'smiss as "mere speculations" the above
thoughts about the possible evolution of
the law of privacy in response to the com-
r, zter revolution, it would be instructive
to consider a statement by Professor Arthur
huller during a recent symposium on the
computer and privacy:
"The computer is a many-splendored ani-
mai. It is myopic to think of it as little more
than a high speed calculator with a gland
condition. It's much more than that. Modern
information transfer technology in time will
prove to be the heart of a new communica-
tions network, a communications network
that ciiliers from many of the communication
networks that we are familiar with, such as
telephones, telegraph, radio, television and
news,rapers, only in technological and media
terms Accordingly, the computer must be
dealt with as a communications network
"In short, I am suggesting that we .re
dealing with a problem of immense impo-t-
ance .... [ G ] iven the large stakes, we should
not think simply in terms of the ethical or
moral implications of-a National Data Center,
or any other type of a data center. We must
recognize that we are dealing with a new
technology, whose applications are just be-
ginning to be perceived and whose capacity
to deprive us of our privacy simply cannot
be measured in terms of existing systems or
assumptions about the immutability of the
technology.""
It is apparent that the legal protection
given to the right ofprivacy is far from staffic
and may, within the reasonably foresee', :le
future, undergo marked changes. However,
except insofar as the changes may be founded
noon federal constitutional doctrines, the
developing principles may vary markelly
from state to state because the basic law
involved will be state, not federal, law" Far
the computer service company, this could
mean facing different standards of liability
in fifty different jurisdictions for the un-
authorized disclosure of information-an rm-
happy prospect for companies who do a na-
tional or regional business.
At present, there Is no body of federal law
governing privacy which might "preemit"
state law as applied to computer systems.
After receiving the mart' detailed and
thoughtful comments in its Computer In-
quiry- and the analysis of the responses prep-
ared by the Stanford Rosearch Institute, as
well ,Ls the institute's own recommendations,
the FCC has decided that It must. await -'he
collection of additional Information before
decking whether to exercise its regulatory
authority in the area of privacy and security
of data during transmission and storage."
Although it did take a significant step in
the privacy area in Title III of the Omnibus
Crime Control and Safe Streets Act of 1968,"?
Congress has not acted decisively in this
area. In Title III, Congress (1) outlawed ,he
interception and disclosure of wire or oral
communications, except as specifically au-
thorl:eed in the statute pursuant to cor.rt
order: 4" (2) amended section 605 of the Corn-
munlcations Act of 19341 to take into -
-to-count the foregoing addition to the federal
criminal code; e and (3) established a "Na-
tional Commission for the Review of Federal
and State Laws Relating to Wire Tapping
and Electronic Surveillance," which is to
stud,, the entire wiretapping and electronic
surveillance situation and make a final report
within seven years .41 One interesting feature
of this act is that It gives a civil cause of
attic, a for damages to "any person whose wire
or oral communication is intercepted, dis-
closed, or used in violation of this chap-
ter...." 44 Although this provision for civil
dam:.ges in Title III will provide a new, and
perhaps potent, remedy to the individual
citizen in protecting his privacy, the remedy
reaches only one aspect of the privacy prob-
lem in data processing, and it certainly does
not in any way preempt the various provi-
sions of state law dealing with invasions of
privacy. First, the remedy Is limited only to
persons whose wire or oral communications 46
are intercepted, disclosed, sr otherwise used
in violation of the act. Thus, this rem,dy
on its face does not reach the problem of the
unauthorized disclosure of stored informa-
tion. about- an individual, which is not "cc,tn-
mur. icated" by the individual himself to
someone else?" Secondly, it is not entirely
clear whether the act's sanctions will even
reach the problem of interception of data
bein; transmitted to or from a data bank,
or the disclosure of such data after in;er-
ception. The term "intercept," as used in the
act, means the "aural acquisition of the con-
tents of any wire or oral communication
through the use of any electronic, mechan-
ical, or other device." w Query whether trans-
mitted data is subject to such "aural acquisi-
tion," at least In the case of data sent over
a special digital communications network
using time division multiplexing techniques;
query whether courts would reach different
conclusions depending upon the technical
nature of the communications network over
which the data traveled"
A RATIONAL SocurroN: SELF-REGULATION BY
THE COMPUTER INDUSTRY UNDER GOVERN-
MENTAL AUSPICES
It is estimated that by the late 1970s, the
traffic volume over the nation's telephone
network will be about equally divided be-
tween voice and data transmission" rep-
resenting a far greater use of the telephone
network for data transmission than at pre-
sent. By 1975 more than 60 percent of the
computer hardware used in the United States
will be tied into the public communications
system, and estimates for 1984 have run as
high as 90 percent! Thus, we are on the
verge of an explosion In remote access data
processing, including a great number of
time-sharing, real-time systems. The trends
in the law discussed above "t may well be ac-
celerated by the quickening pace of tech-
nological progress.
The choice Iles with the computer indus-
try. It can go along and let events unfold in
an unstructed, haphazard manner and there-
by permit others to fashion for it the basic
standards and rules governing the conduct
of its business, or it can itself initiate ra-
tional means to control its own destiny and
at the same time serve the public interest
by assuring privacy and security of data, in
both transmission and storage. In an indus-
try whose whole thrust is to bring rational
order out of the potential chaos unleashed
by the information explosion, the choice
seems clear. Working from the foundations
already laid, the computer industry should
pull together, develop, and then enforce
standards of construction and operation for
computer systems which process data of such
a nature that privacy or security are neces-
sitated.
Before detailing the mechanics of this pro-
posal it would be well to point out what is
not being proposed. The regulation contem-
plated would not deal with such matters as
the rates or prices to be charged by com-
puter service companies; the rate of return
they should earn, the terms and conditions
of their sales to their customers, or other
matters relating to traditional economic or
rate regulation H Rather, the industry, under
federal governmental auspices, would de-
velop standards to assure that computer sys-
tems will incorporate a reasonable degree of
privacy protection and Vill be operated to
achieve the desired degree of privacy and
security of data necessary in any given cir-
cumstances r"
Any program of self-regulation should in-
clude at least the following features:
1. The program should be specifically au-
thorized and established by federal statute,
a prerequisite which would avoid the anti-
trust problems that Inevitably arise where
competitors or potential competitors associ-
ate to formulate industry standards 64 Indeed,
the statute should grant a specific antitrust
exemption for activities within its scope.
2. Because the program is one of self-
Iegulation, some statutory mechanism
should be established to permit govern-
mental administrative review of regulatory
standards, upon the complaint of interested
persons, before they become effective. Such
a mechanism would provide customers and
potential customers of the computer service
industry, as well as private individuals, with
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an opportunity to express their views on pro-
posed standards.
3. An organization composed of representa-
tives of the computer industry should be
established to promulgate and enforce the
desired standards. Such an agency should be
specifically recognized and granted authori-
tative powers by federal statute, and its de-
cisions in promulgating standards and in
supervising the operations of the computer
service industry should be final, though sub-
ject to specific types of review by an appro-
priate ,government administrative agency m
and, ultimately, limited judicial review.'
4. The industry agency charged with prom-
ulgation and enforcement should have the
power of periodic inspection to assure com-
pliance with standards regarding the privacy
and security of data.
5. The agency should have specific power
at least to conciliate disputes between us-
tomers and computer service companies and
between Individual 'citizens and computer
service companies, arising from, or related
to, the standards formulated by the industry
agency' Perhaps such conciliation can be
made a 'condition precedent to the bringing
of any lawsuit involving the standards or
application of the standards
6. The -industry agency should, under
guidelines set forth in the federal statute,
establish a licensing or certification system
for computer systems which will handle In-
formation about Individual citizens or pro-
prietary data :belonging to persons or com-
panies other than the computer system op-
erator. Before any such computer system is
permitted to commence operation, It should
be required to obtain a license certifying
that the Industry standards for the protec-
tion of privacy and security of data have
been met. Such standards should cover not
only the technical aspects of the computer
system, but also the -qualifications of key
personnel having access to the system. In
connection with the licensing procedure, the
applicant should be required to show that
it has developed, and will use, appropriate
procedures to comply with the standards
and to assure that its key employees comply
with the industry's code of conduct. As noted
above, after initial licensing the industry's
agency should have continuing Inspection
powers to assure that the licensee complies
with industry standards. Again, both in con-
nection with initial licensing and any sub-
sequent industry proceeding brought to en-
force compliance with standards, there
should be review by the concerned govern-
mental agency and, ultimately, limited ju-
dicial review. In the event of proposed major
alterations in the system, a system licensee
should be required to go through a new li-
censing procedure.
7. The Industry agency should have power
to promulgate and enforce a code of conduct
for programmers and other key personnel
working with computer system to which in-
dustry standards apply. Sanctions would be
Imposed upon individuals violating the code
of conduct, subject, of course, to adminis-
trative review by a government agency and,
ultimately, limited judicial review. Such
sanctions might include the Imposition of
fines, with the maximum fixed by, statute,
suspension from -employment, and, in the
case of the most flagrant violations, even
complete expulsion from the computer serv-
ice industry's
8. The federal authorizing statute should
specifically provide that industry standards
will be recognized and given full force and
effect in all judicial proceedings, both state
and federal. In fact, the statute should pro-
vide that, in the absence of an express
agreement to the contrary between a com-
puter service company and its customer,
the company will not be liable for any loss
or destruction of data, or "leakage" of data
to unauthorized persons, if the company's
computer system has been - duly licensed
and certified to be in compliance with the in-
dustry association's standards, and if in fact
the system was in compliance with such
standards at the time of the loss, destruc-
tion, or unauthorized disclosure. This same
exemption from liability should apply, in
the case of a claim against the computer
service company by an individual on ac-
count of unauthorized disclosure of data
about such individual61
The preceding framework is necessarily a
very broad-brush treatment of a highy com-
plex subject. However, If the Idea of self-
regulation is accepted and adopted by the
computer industry, the foregoing guidelines
can be a point of departure in constructing
the system. What is needed Is s broad con-
sensus within the industry as to the route to
be followed, which can then be translated
into concrete legislation and a detailed plan
of operation.
On the technical side, 'considerable effort
over the past few years has been devoted
to developing and improving hardware and
software techniques for assuring privacy
and security of data during both transmis-
lion and storag02 [In addition, many of the
comments filed in the FCC's Computer In-
quiry described various techniques used to
assure privacy in remote access data proc-
essing applications'" Thus there is a readily
available body of -recorded experience and
thoughtful comment upon which the stand-
ards makers could draw in beginning their
complex task.
One aspect of the foregoing proposal for
self-regulation must be given special atten-
tion. In the case of remote access data pro-
cessing the communications links between
the remote terminals and the 'computers
must be considered a part of the computer
"system" to be licensed or certified if there
is to be really effective privacy protection.
Yet, in virtually all instances, the -communi-
cations links will be furnished by common
carriers not related to the computer service
company seeking the license or certification''
Thus neither the computer company nor the
industry agency proposed above will have
control over the degree of privacy protection
afforded by a very important link in the com-
puter "system" to be licensed or certified.
The solution to this problem does not rest
in making the communications common car-
riers subject to regulation by the industry
agency proposed in this article. Any - reg-
ulatory scheme which'subjects.a company to
regulation directly by its customers must be
viewed with at least a healthy skepticism.
Thus the communications 'common carriers
should not be subject to regulation by the
computer industry agency insofar as these
carriers provide communications service in
connection with remote access data process-
ing'" Moreover, any such attempted reg-
ulation of the communications activities of
the communications common carriers by the
computer industry agency might well conflict
with existing regulation by the FCC on the
national level and by public service com-
missions on the state level.
Rather, the solution to the problem would
appear to lie in a well-organized system of
cooperation between the communications
carriers and the computer industry agency,
with regulatory assistance from the FCC as
required. There should be a continuing for-
malized liaison between the communications
carriers and the computer industry agency,
perhaps in the form of one or more repre-
sentatives of the communications industry
working full time in the liaison activity.
Such liaison could function effectively in at
least two types of situations: (1) when the
industry association is formulating privacy
protection standards, it should consult close-
ly with the communications industry to
assure that tariffed offerings affording. the
desired degrees of privacy protection in vari-
ous situations will be available to the com-
puter service industry; (2) if communica-
S 10255
tions problems arise In connection with any -
particular licensing proceeding under the
above proposal, the suggested liaison could
help to resolve the problem possibly. through
inducing the carrier involved to make a new
tariff offering or to amend an existing tariff
offering.
Of course, if the liaison activity should fail
to resolve any really significant problem,
recourse could be had to the FCC or the
appropriate state public service commission.
To ensure that the FCC will be able to act
effectively and expeditiously, the federal
statute authorizing the system of industry
self-regulation should expressly give the FCC.
whatever additional power that may be nec-
essary'"
There is presently one highly successful
example of industry self-regulation under
federal governmental supervision. For some
thirty years, the National Association of
Security Dealers [NASD] has created and
enforced a thorough program of self-regula-
tion for the securities Industry, including
member broker-dealer firms and Individual
registered representatives. Its principal ac-
tivities Include the administration _of exam-
inations to ensure the qualifications of em-
ployees in the securities industry, the
promulgation and enforcement of rules of
conduct and fair practice for the securities
industry, and the adjustment 'of grievances
between members and between Members
and the public a One of the most effective
tools in NASD's program of self-regulation
is its power to examine the books and rec-
ords of member firms to ensure 'compliance
with NASD rules as well as certain federal
regulations. This is equivalent to the in-
spection program proposed above for the
computer industry. In addition, NASD oper-
ates a program of voluntary arbitration,
both for disputes among Its members and for
disputes between the public and its mem-
bers. In the case of disputes of the latter
variety, the arbitration panel consists of
three members of the public and two rep-
resentatives from the securities business. In
a member versus member contest, the panel
consists of from three to five representatives
from securities industry. -
Although there are obvious differences be-
tween the securities industry and its prob-
lems and the computer industry and its
problems, NASD constitutes -a valid prece-
dent for the type of self-regulatory indus-
try agency proposed herein. By adopting a
NASD-type approach, the computer indus-
try can assure the creation of a rational and
orderly legal framework for resolving the
increasingly pressing problem of privacy in
the context of the computer revolution and,
at the same time, assure that regulation will
be in the hands of persons thoroughly cog-
nizant of the complexities of the situation
and the need for protection of individual
rights and proprietary Interests In data and
programs-all to the benefit of the public
interest.
FOOTNOTES
? Member, District of Columbia Bar, B.A.
1954, Manhattan College; LL.B. 1959, Harvard
Law School.
FCC Notice of Inquiry, Docket, No. 16979,
7 F.C.C.2d 11, 16-17, 8 P & F RADIO REG. 2d
1567, 1572 (Nov. 9, 1966) [hereinafter cited as
Computer Inquiry]. -
Y See generally Hearings on the Computer
and Invasion of Privacy Before a Subcomm.
of the House Comm. on Gov't Operations,
89th Cong., 2d Sess. (1966) [hereinafter cited
as Gallagher Hearings]; Note, Privacy and
Efficient Government: Proposals for a Na-
tional Data Center, 82 HAnv. L. REv. 400
(1968); Research Project--Computerization -
of Government Files, What Impact on the
Individual?, 15 U.C.L.A.L. REv. 1571 (1968).
-Gallagher "Hearings 122.
4See Ware, Security and Privacy in Com-
puter Systems, PROCEEDINGS, 1967 SPRING
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JO:[NT COMPUTER CONFERENCE 279, 280 figure 1.
Effective protection of both individual pri-
vacy and proprietary data also demands con-
trol over the amount and character of the
data input entering the system. See Miller,
Personal Privacy in the Computer Age: The
Challenge of a New Technology in an Infor-
mation-Oriented Society, 67 MICH. L. REV.
1091. 1214-17, 1229-30 (1989) [hereinafter
cited as Miller]. Regulation of data input is
beyond the scope of this article which is di-
rected solely to controls in the storage and
utilization of the data previously collected.
An obvious example of the latter is the
automated credit bureau. Credit Data Cor-
poration maintains a large scale, on-line com-
puterized credit information system with
data centers located in Los Angeles and New
York City. Response of Credit Data Corp. to
FCC Computer Inquiry, March 5, 1968. See
generally Miller 1140-54.
,, See notes 54-61 infra and accompanying
text.
This paper does not deal with the prob-
lems presented by the voluntary disclosure
by the system operators of private informs.-
ticn about individuals stored in computer
systems or questions relating to the accuracy
of information about individuals contained
in such systems. For discussions of some of
the problems involved in the storage of in-
accurate information about individuals and
the voluntary disclosure of information
about individuals, whether accurate or inac-
curate, by the custodians of such informa-
tion, see Karst, "The Files": Legal Controls
Over the Accuracy and Accessibility of Stored
Personnel Data, 31 LAW & CONTEMP. PROS.
342 (1966); Sills, Automated Data Processing
and the Issue of Privacy, 1 SETON HALL L.
REV_ 7 (1970); Note, Credit Investigations
and the Right to Privacy: Quest for a Rem-
edy, 57 GEo. L.J. 509 (1969).
-1 What constitutes "legitimate" voluntary
disclosure of information by the informa-
tion service company is beyond the scope of
this paper.- See not 7 supra.
1 See generally Miller 1156-73.
LO See Lickson, Protection of the Privacy of
Data Communications by Contract: Another
Case Study on the Impact of Computer Tech-
nology on the Law, Bus. LAW, July 1968, at
979-80.
11Under certain variations of these ex-
aDlples, the contractual rights of the com-
puter service company's customer may also
be, involved.
12 See generally RESTATEMENT OF CON-
TRACTS ?? 133-47 (1932).
12 The Supreme Court of Georgia is con-
sidered to have laid the foundation for recog-
nition of a right to privacy as a fundamental,
legally protectible interest in Pavesich v. New
England Life Ins. Co., 122 Ga. 190, 50 S.E. 68,
69-70 (1905). Of course, the intellectual
foundation for recognition of invasion of
privacy as a separate tort had been laid in
Warren &Brandeis, The Right to Privacy, 4
ILisv. L. REV. 193 (1890).
"Prosser, Privacy, 48 CALIF. L. Law. 383, 389
(1960).
1s See e.g., Le Crone v. Ohio Bell Tel. Co.,
120 Ohio App. 129, 201 N.E. 2d 533 (1963)
(wiretapping of an individual's telephone).
15 See, e.g., Flake v. Greensboro News Co.,
212 N.C. 780, 195 S.E. 55 (1938) (photograph
of an actress used in a bread advertisement).
1c See, e.g., Brents v. Morgan, 221 Ky. 765,
299 S.W. 967 (1927) (sign in garage window
stating that the plaintiff's account with the
garage has been unpaid for a long time).
11 See, e.g., Peay v. Curtis Publishing Co.,
78 F. Supp. 305 (D.D.C. 1948) (newspaper
article on the alleged practices of Washing-
ton cab drivers in cheating the public on
fares, making use of the ? plaintiff's photo-
graph to illustrate the article).
11 For example. Congress is now consider-
ing legislation which would regulate the ac-
ti?,ities of credit bureaus and credit investi-
gating agencies, a field In which the com-
puter has been playing an ever-increasing
role. S. 823, 91st Cong., 1st Sees. (1969);
H.R. 7874, 91st Cong.,let Sess. (1969); H.R.
9150. 91st Cong., 1st Sees. (1969); H.R. 9888,
91st Cong., 1st Sess. (1969). The Senite
passed S. 823 on Nov. 6, 1969, 115 CoNG. REC.
13,905-11 (daily ed. Nov. 6, 1969) and re-
ported it to the House Committee on Bank-
ing and Currency on Nov. 12, 1989. Hearings
have been held this spring before the Hb,.ise
Committee.
"These states are Nebraska, Rhode Island,
Texas, and Wisconsin. RESTATEMENT (SEC-
oND) of TORTS, ch. 28A, at 100 (Tent. Draft
No. 13, 1967) .
381 U.S. 479 (1965).
21 See also Tehan v. Shott, 382 U.S. 406
(1966), where the Court pointed out that the
fifth amendment guarantee against sclf-
incrimination is really in part an extension of
an individual's right to privacy and "our
respect for the inviolability of the human
personality and of the right of each indi-
vidual 'to a private enclave where he may
lead a private life.' " Id. at 414 n. 12.
= 57 Misc. 2d 301, 292 N.Y.S. 2d 514 (Sup.
Ct. 1968), aff'd 298 N.Y.S. 2d 137 (App. Div.
1969).
Id, at 305, 292 N.Y.S. 2d at 518.
ffi The Appellate Division, in affirming the
trial court's refusal to discuss the case, held
that it need not pass upon the constitutional
grounds advanced by the trial court, 298
N.Y.S. 2d at 141. We shall have to await fur-
ther litigation to test the implications of
Nader.
26 See generally A. WESTIN, PRIVACY AND
FREEDOM (1967); Gallagher Hearings, supra
note 2; Pipe, Privacy; Establishing Restric-
tions on Government Inquiry, 18 AM. U.L.
REV. 516 (1969); Note, Credit Investigations
and the Right to Privacy; Quest for a
Remedy, 57 GEo. L.J. 509 (1969); Research
Project-Computerization of Government
Files, What Impact on the Individual? 15
U.C.L.A.L. REV. 1371, 1375 (1968) (foreword
by Mr. Justice Douglas).
m Note, Credit Investigations and the Right
to Privacy: Quest for a Remedy, 57 CEO. L.J.
509 11969).
29 Id. at 532.
2D Comment, Privacy, Property, Public Use,
and Just Compensation, 41 S. CAL. L. REV.
902, 909 (1968).
N Id. at 913. The author's main point is
made in the following statements:
"It can be argued that all large public
corporations, such as Timo, Inc., whose ac-
tivity has as great a societal impact as does
most governmental action, should be subject
to the same constitutional limitations as is
the government. Their activity should be
labelled 'public,' rather than 'private,' in
contradistinction to an individual's ac tiv-
ity. . In short, most corporations are at
least in part, fulfilling interests of the state,
and no longer fulfilling the traditional justi-
fications of private property. In these in-
stances they ought to be subject to the same
constitutional limitations as are imposed
that private property cannot be taken for a
public use without payment of just compen-
sation." Id. at 913-14.
And, as noted, the author would egl-ate
the "right of privacy" to "private property"
and would require the payment of just com-
pensation for any action which results in a
destruction or diminution of an individual's
right of privacy.
31 The American Law Institute, in a tenta-
tive draft of a portion of a new Restatement
of Torts, commented that new forms of the
tort of invasion of privacy in addition to the
four basic types already generally recognized
by the courts may emerge, especially in light
of recent decisions by the United States Su-
preme Court. RESTATEMENT (SECOND) OF
TORTS ? 652A, comment c (Tent. Draft No. 13,
1967). See also Westin, Science, Privacy, and
Freedom: Issues and Proposals for the 1970's,
Pt. 11: Balancing the Conflicting Demand, of
Privacy, Disclosure, and Surveillance, 66
COLUM. L. REV. 1205, 1232 (1966).
a, This might prove true whether the com-
panies are service bureaus, information serv-
ices, or some other type of computer service
company.
w Early manifestations of the theory of
strict liability are shown in Huthringer v.
Moore, 31 Cal. 2d 489, 190 P.2d 1 (1948) ; Ball
v. Nye, 99 Mass. 582 (1863) (percolation of
filthy water) ; Cahill v. Eastman, 18 Minn.
324 (1872) (underground water tunnel). For
an example of statutory extension of this
principle, see the relevant portions of the
Federal Safety Appliance Act, 45 U.S.C.
?? 1-60 (1964).
PA See, for example, situations 1, 2, and 3,
text at 497.
35 See, for example, situation 4, text at 497-
98.
3a Symposium: Computers, Data Banks,
and Individual Privacy, 53 MINN. L. REV. 211,
225--27 (1967). The growing concern over pro-
tecting privacy in our era of technological
explosion is evidenced by the fact that most
of the May-June 1969 issue of THINK, the
very informative magazine published by IBM,
is devoted to a special report on privacy. The
articles include Miller, Psychological Test-
ing: Can We Minimize the Perils?, THINK,
May-June 1969, at 24; Ruggles, How a Data
Bank Might Operate, id. at 22; Westin, Life,
Liberty, and the Pursuit. of Privacy, id. at 12;
Westin, New Lines Will Protect Your Privacy,
id. at 27. Professor Westin's concluding re-
marks in his first article are especially il-
luminating: "American Society now seems
ready to face the impact of science on pri-
vacy. Failure to do so would be to leave the
foundations of our free society in peril."
Westin, Life, Liberty, and the Pursuit of Pri-
vacy, id. at 21. In his second article, Pro-
fessor Westin points out that many orga-
nizers of private data banks, in growing rec-
ognition of the privacy problem presented
by the computer revolution, are establishing
administrative controls to assure the protec-
tion of privacy. Westin, New Laws Will Pro-
tect Your Privacy, id. at 31.
27 See Erie R.R. v. Tompkins, 304 U.S. 64
(1938), which laid to rest the notion that
there is any generally applicable federal
common law to be applied by the federal
courts in considering "general" issues in di-
versity cases. For a more thorough discus-
sion of the Erie line of cases, see 1 A. J.
MOORE, FEDERAL PRACTICE ? 0.318 (2d ed.
1965); Friendly, in Praise of Erie-And of
the New Federal Common Law, 39 N.Y.U.L.
REV. 383 (1964).
Computer Inquiry, Report and Further
Notice of Inquiry, 17 F.C.C. 2d 587, 592, 16
P & F RADIO REG. 2d 1505, 1510 (1969); Com-
puter Inquiry, Noticeof Proposed Rule Mak-
ing and Tentative Decision, 18 P & F RADIO
REG. 2d 1713, 1718 (1970). The regulatory au-
thority of the FCC in this area may, of course,
be limited in the absence of additional legis-
lation.
89 18 U.S.C. ?? 2510-20 (Supp. IV, 1969).
Id. ? ? 2511, 2515-19.
4147 U.S.C. ? 605 (Supp. IV, 1969).
u ? 803, 82 Stat. 212, 223 (1968) (reprinted
in full following 18 U.S.C. ? 2510 (Supp. IV,
1969)).
43 ? 804, Stat. 212 223-25 (1968) - (reprinted
in full following 18 U.S.C. ? 2510 (Supp. IV,
1969)).
41 18 U.S.C. ? 2520 (Supp.IV, 1969).
"As used in the statute, "wire communi-
cation" means:
any communication made in whole or in part
through the use of facilities for the trans-
mission of communications by the aid of
wire, cable, or other like connection between
the point of origin and the point of reception
furnished or operated by any person engaged
as a common carrier in providing or operat-
ing such facilities - for the transmission of
interstate or foreign communications. Id. ?
2510(1).
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June 11, 1974 CONGRESSIONAL RECORD - SENATE
An "oral communication" means: "any
oral communication uttered by a person ex-
hibiting an expectation that such communi-
cation is not subject to interception under
circumstances justifying such expectation."
Id. ? 2510(2).
i0 See Miller 1201.
47 18 U.S.C. ? 2510(4) (Supp. IV, 1969) (em-
phasis added). It remains to be seen how the
definition will be interpreted. The legislative
history of the Act shows clearly that Congress
was preoccupied with the interception of
voice communications, whether by wiretap-
ping or other electronic devices. See S. REP.
No. 1097, 90th Cong., 2d Sess. 217-218 (1968).
The few cases that have cited Title III of the
Act have all been criminal cases or civil anti-
trust cases closely related to criminal cases
and have all dealt with voice communica-
tions. See, e.g., Alderman v. United States,
394 U.S. 165, 175 & nn. 8-9 (1969) ; United
States v. McCarthy, 292 F. Supp. 937, 943
(S.D.N.Y. 1968); Philadelphia Housing Au-
thority v. American Radiator & Standard
Sanitary Corp., 291 F. Supp. 247, 249-50 (E.D.
Pa. 1968); United States v. Schipani, 289 F.
Supp. 43, 60 (E.D.N.Y. 1968); United States v.
American Radiator & Standard Sanitary
Corp., 288 F. Supp. 701, 706--07 (W.D. Pa.
1968).
48 For example, the courts might arguably
distinguished between interception of data
transmitted by the regular analog telephone
network and that carried over a special dig-
ital network. See generally Miller 1206.
i9 See Chaney, Data Transmission Basics,
COMMUNICATIONS, Mar. 1969, at 27; of. Irwin,
Computers and Communications: The Eco-
nomics of Interdependence, 34 LAW & CoN-
TEMP. PROs. 360, 361 (1969).
70 Note, Computer Services and the Fed-
eral Regulation of Communications, 116 U.
PA. L. REV. 328 (1967).
61 See notes 13-17 supra and accompanying
text.
69 The respondents to the FCC's Computer
Inquiry, Including the Department of Jus-
tice, generally agreed that the computer serv-
ice industry should be permitted to develop
in the free competitive economy, and not as
a regulated utility. See L. KRAUSE, Analysis
of Policy Issues in the Responses to the FCC
Computer Inquiry, STANFORD RESEARCH IN-
STITUTE, REPORT No. 7379B-2, at 22-26 (1969).
The author agrees. For a thorough discus-
sion of the issues involved, see S. MATHISON
& P. WALKER, COMPUTERS AND TELECOMMUNI-
CATIONS: ISSUES IN PUBLIC POLICY 16-19
(1970). The FCC as of this time, agrees. See
Computer Inquiry, Tentative Decision, 1718-
22.
54 These standards should be defined to the
greatest extent possible.
54 For a discussion of the limitation im-
posed by the federal antitrust laws on
schemes of self-regulation within an indus-
try, see Silver v. New York Stock Exchange,
373 U.S. 341 (1963), where the Court cau-
tioned that such schemes will be closely
scrutinized because of their potential effect
on competition within the industry. See gen-
erally G. LAMB & S. IKITTELLE, TRADE ASSOCIA-
TION LAW AND PRACTICE ?? 11.1-.9 (1956);
Baum, Self-Regulation and Antitrust: Sup-
pression of Deceptive Advertising by the
Publishing Media, 12 SYRACUSE L. REV. 289
(1961); Rockefeller, Industry, Efforts at Self-
regulation, 10 ANTITRUST BULL. 555 (1965) ;
Developments in the Law-Deceptive Ad-
vertising, 80 HARV. L. REV. 1005, 1159-63
(1967).
5; Such a procedure would afford roughly
the same right to comment as is now granted
by section 4 of the Administrative Procedure
Act, 5 U.S.C. ? 553 (Supp. IV, 1969), which
provides for the filing of written comments,
after appropriate notice, in the case of ad-
ministrative agency rule making.
68 The author has deliberately refrained at
this time from suggesting what government
agency should undertake this function. The
FCC, with its broad expertise in the com-
munications field, might be the most logical
candidate. Perhaps a new agency under the
Department of Commerce might best do the
job. In any event, the Congress,, in selecting
or creating the agency to do the job, should
take meticulous care to assure that the
agency and the whole regulatory scheme will
work in tandem with a well defined national
communications policy, as well as in further-
ance of national policy in the privacy area.
See generally Miller 1236-39.
57 Cf. Silver v. New York Stock Exchange,
373 U.S. 341 (1963), where the Court utilized
the federal antitrust laws as a, basis for its
review of the procedural integrity of a system
of industrial self-regulation.
5e It may be appropriate to provide for
binding arbitration of such disputes instead
of merely conciliation. This would be feasible,
however, only if the industry agency were a
truly independent authority and had such
status and reputation for objectivity that
nonmembers of the computer service indus-
try would regard it as a fair tribunal.
19 See generally W. GELLHORN & C. BYSE,
ADMINISTRATIVE LAW 649-51 (4th ed. 1960).
For a discussion of the utility of the concilia-
tion process in an analogous context, see
1968 DUKE L.J. 1000 (conciliation procedure
in an Equal Employment Opportunity Com-
mission proceeding).
m Theft of a computer program might be
ground for such expulsion. In at least one
case, a court has held that computer pro-
grams are "property" subject to "theft"
under state law, and an employee of a com-
puter company who stole such programs was
guilty of felony theft. Hancock v. State, 402
W.2d 906 (Tex. Crim. App. 1966).
0 To reiterate, there should be no statutory
exemption from liability in the case of vol-
untary and deliberate acts by the computer
service company including companies offer-
ing computerized information services. At
least as this author now envisions the pro-
posed industry association, it would not deal
with criteria for the voluntary release of in-
formation to "interested persons," govern-
ment agencies, or other individuals, groups,
or organizations. It may well be that, as the
system develops and considerable experience
is gained with the arrangement proposed in
this article, it will eventually be appropriate
for the industry association to promulgate
standards governing the voluntary disclosure
of information. Of course, to be really ef-
fective, especially against the federal govern-
ment itself, the association should have spe-
cific federal statutory authority to promul-
gate and enforce such standards, and the
statute should expressly make them appli-
cable to government agencies.
69 For example, three excellent papers sum-
marizing some of the problems involved in
achieving privacy and security of data in
multi-programmed computer systems were
presented at the 1967 Spring Joint Computer
Conference. PROCEEDINGS, SPRING JOINT COM-
PUTER CONFERENCE 279-90 (1967). The indi-
vidual articles were Peters, Security Consid-
erations in a Multi-Programmed Computer
System, id. at 283; Ware, Security and Pri-
vacy in Computer Systems, id. at 279; Ware,
Security and Privacy: Similarities and Differ-
ences, id. at 287. The terms "security" and
"privacy" are used in special senses in those
papers, as summarized by Willis Ware in the
last=cited paper: "For the purposes of this
paper we will use the term 'security' when
speaking about computer systems which
handle classified defense information which
nonetheless must be protected because it is
in some respect sensitive." Id. The term "se-
curity" has been used in a broader sense
throughout this article.
69 See, e.g., Response of United States De-
partment of Justice (Mar. 5, 1988), filed in
Computer Inquiry, FCC Docket No. 18,979,
64 See Irwin, supra note 49, at 360-61
(1969) ; Miller 1099-1103.
S 10267
55 However, if the carriers utilize separate
subsidiaries to engageIn computer service op-
erations which would be subject to regula-
tion by the industry association if performed
by computer companies not related to com-
munications common carriers, such carriers
or their computer service subsidiaries should
be subject to industry regulation in the pri-
vacy area.
m Even if the FCC might be able to act pur-
suant to its existing general powers under the
Communications Act of 1934, 47 U.S.C. ? ? 151-
609 (1964), there may be considerable ad-
vantage in spelling out the FCC's jurisdiction
in this situation and perhaps providing for
special streamlined procedures.
If the FCC is to become involved in a signif-
icant way in this situation, perhaps it should
be the agency to review actions of the com-
puter industry agency although Congress
might wish to consider other alternatives be-
fore determining whether to give such juris-
diction to the FCC. See note 56 supra and ac-
companying text.
67 This description of the NASD and its ac-
tivities is taken from the 1968 NASD Presi-
dent's Report. 1968 NASD ANN. PRESIDENT'S
REP. Of interest to the computer industry in
formulating its system of self-regulation
might be the NASD's statement of purposes:
(1) To promote ... the investment . . . and
securities business, to standardize its princi.
ples and practices, to promote ... high stand-
ards of commercial honor, and to . pro-
mote among members observance of Federal
and State securities laws;
(2) To provide a medium through which
its membership may . consult, and co-
operate with governmental and other agen-
cies in the solution of problems affecting in-
vestors, the public, and [this business] ...;
(3) To adopt ... and enforce rules of fair
practice [in the Securities business] ... and
in general to promote just and equitable
principles of trade for the protection of in-
vestors; -
(4) TO promote self-discipline among mem-
bers, and to investigate and adjust griev-
ances between the public and members
CCH NASD MANUAL ff 1003.
With some slight change in terminology,
many of these statements might be substan-
tially adopted by the computer industry.
ANNOUNCEMENT OF HEARINGS ON
S. 6, EDUCATION FOR ALL HANDI-
CAPPED CHILDREN
Mr. RANDOLPH. Mr. President, as
chairman of the Senate Subcommittee
on the Handicapped, I announce that our
subcommittee will conduct hearings on
S. 6, a bill for the education of all handi-
capped children. The hearing will be held
on Monday, June 17, 1974, at 9 a.m. in
room 4232, Dirksen Senate Office Build-
ing. Persons wishing to present state-
ments should contact Mrs. Patria For-
sythe, professional staff member, or Miss
Anne Hocutt, research assistant, Sub-
committee on the Handicapped, at 202-
225-9075. -
NOTICE OF HEARING ON RURAL EN-
VIRONMENTAL ASSISTANCE PRO-
GRAM AND RURAL ENVIRONMEN-
TAL CONSERVATION PROGRAM
Mr. HUDDLESTON. Mr. President, the
Subcommittee on Agricultural Produc-
tion, Marketing, and Stabilization of
Prices of the Committee on Agriculture
and Forestry will hold a hearing Thurs-
day, June 20, on implementation of the
rural environmental assistance pro-
gram-REAP, and the rural environnien-
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CONGRESSIONAL RECORD - SENATE June 11, 1974
Nebraska (Mr. CURTIS) addressed a meet-
ing in Washington of the National Citi-
zens' Committee for Fairness to the
Presidency. -
In his customary forthright fashion,
Senator CURTIS gave his analysis of the
existing situation concerning charges
leveled at the President of the United
States by the major news media, various
committees of the Congress, and others.
Senator CURTIS calls for fairness, Mr.
President, and I think all Senators, re-
gardless of political affiliation, will be
interested in the eloquent remarks by
our distinguished colleague.
Therefore, Mr. President, I ask unani-
mous consent that the text of Senator
CURTIS' address be printed in the
RECORD.
There being no objection, the addr..ss
was ordered to be printed in the RECORD,
as follows:
SPEECH OF SENATOR CARL T. CURTIS
Mr. Chairman, distinguished guests: My
heart swells with gratitude for the dedicated
work of the Committee created to defend
the Presidency of the United States. I am
grateful for their work and the like work of
.all others. I believe that they are fighting the
cause not only of our country but of free
men everywhere. To you, Rabbi Korff, I say
thank you very much. Americans will always
be grateful for what you are doing.
We have a tough fight on our hands but
in my opinion, the "get Nixon crowd" in-
cluding those who continue to conduct a
trial by press are in for a big surprise. They
are losing their case. As I travel up and down
this country, I am convinced that the vast
majority of the people who do the work of
the country, who pay its taxes and who fight
its wars, are with the President of the United
States, Richard M. Nixon.
We are, however, in an all-out fight. We
are opposing a loud and determined group.
They are a powerful group and they have
at their command tremendous propaganda
weapons. We must take our message to the
people.
The American people need to be reminded
that they have a President who wants to get
on with the business of strengthening the
country. He wants to restore financial sanity
to the Federal Government. He wants to curb
inflation. And these things, I submit, are
vital to the very survival of our nation. We
will fail to do them at our peril.
The people of the entire free world look
upon President Nixon as their leader. They
do so with good cause. President Nixon is
the world's foremost and most successful
peacemaker.
I cannot forget that when Mr. Nixon was
sworn in as President our casualties in Viet-
nam were running as high as 300 a week.
They were gradually reduced and Anally
brought to zero. Our combat troops have
been removed from Vietnam, prisoners of
war have been brought home, and young
men are no longer drafted into the Army.
Neither can I forget the cruel criticism,
the unfounded charges, the shameful accu-
sations that were heaped on President Nixon
throughout the months that he was doing
so much for our country to end the war
which he didn't start. There were marches
upon Washington and his critics missed no
opportunity to hinder and thwart his ac-
tions.
Let us consider the Middle East. This is an
area of the world which has been torn. by
war and strife for a long time now. The feel-
ings and bitterness run very deep, yet it is all
changing now. The fighting has stopped.
There has been a withdrawal of troops. The
killing has ended. There has been all ex-
change of prisoners of war and the parties
are proceeding to negotiate a peace.
Oh, yes, we will forever be grateful for the
skill, the dedication and the tenacity of our
Secretary of State, Dr. Henry Kissinger. A
Secretary of State can only accomplish those
things which are in the plan of the President
who appoints him and directs him. The
power and the might of a country are es-
sential weapons in all diplomatic dealings.
In the United States there is only one person
who speaks in matters of foreign affairs and
who is Commander in Chief of our armed
forces. That man is the President of the
United States. Because we have a strong and
wise President, and a President who has
dedicated his life toward a generation of
peace, it has been possible for this country
of ours to benefit from the skill and talents
of a great Secretary of State.
Most of us know of the joy that has come
to the mothers, wives, fathers and children of
the American servicemen when wars have
ended for us. No doubt greater joy has come
to the peoples on all sides in the Middle East
now that they are experiencing peace and a
justified hope that it will become permanent.
I have served in Congress throughout
World War II, the Korean War, and the
Vietnam War, and I am not going to turn
my back on Richard Nixon, the peacemaker.
Few people can appreciate the burdens
on the President of the United States. Every
Congressman and every Senator must dele-
gate matters to his staff that he would like
to do himself. Our responsibilities and the
sLze of our constituencies are such a small
fraction of those of the President. There are
always tremendous burdens falling on the
President in reference to domestic matters.
1972 was a momentous year in President
Nixon's accomplishments in world affairs.
The Vietnam War was being wound down,
leading to its total halt. This called for
courageous and soul-searching decisions as
to bombing and other actions. The Presi-
dent's visits to Mainland China and to the
Soviet Union were handled by him with
great expertise.
His 1972 campaign had to be managed
by others. I am convinced that President
Nixon not only was not involved but never
condoned any wrongdoing and that the real
facts were withheld from him far too long.
Most citizens are aware that the President
of the United States has been ruthlessly sub-
jected to a trial by press, that the American
principle of presumption of innocence and
that testimony should be taken under oath
and subject to rigid cross-examination, have
not been followed. What about the principle
that an accused person must be found guilty
beyond a reasonable doubt?
Congressional committees have been used
to advance the publicity of aspiring politi-
cians. These committees have provided
forums for the spreading of hearsay and
unsubstantiated charges.
A grand jury in Washington has been at
work, the makeup of which can hardly be
described as-a cross-section of our country.
The very atmosphere in Washington is not
conducive to a fair trial.
A special prosecutor has worked with a
staff selected by his predecessor. I think I
am quite charitable when I say that Archi-
bald Cox is not noted for being non-partisan
:nor for being objective.
During the 1980 Presidential campaign. Mr.
Cox was described as the "informal dean of
the Kennedy Brain Trust." In 1973 he pro-
ededed to assemble a prosecutor's staff with-
out any political balance whatever. His Dep-
nty was Henry S. Ruth, who served under
Robert Kennedy when he was Attorney Gen-
eral. One of his ,assistants, James Vorenberg,
served on the McGovern staff when McGovern
was running for President. He was a frequent
critic of President Nixon's law and order pro-
nouncements and had served under Attorney
General Robert Kennedy.
Philip B. Heymann, who was on Cox's staff,
was an assistant to the solicitor general
during the Kennedy and Johnson Adminis-
tat conservation program-RECP, begin-
ning at 10 a.m. in room 324, Russell Office
Building. The subcommittee will review
the operations of the Soil Conservation
Service to determine the reasons for re-
ports of inadequate technical assistance
being given our farmers. Anyone wishing
to testify should contact the committee
clerk as soon as possible.
NOTICE OF HEARING ON
NOMINATIONS
Mr. ROBERT C. BYRD. Mr. President,
on behalf of the Committee on the Judi-
ciary, I desire to give notice that a public
hearing has been scheduled for Wednes-
day, June 19,,1974, at 9:30 a.m., in room
2228, Dirksen Senate Office Building, on
the following nominations:
William H. Orrick, Jr., of California, to be
U.S. district judge, northern district of Cali-
fornia, vice William T. Sweigert, retired
Henry F. Werker, of New York, to be U.S.
district judge, southern district of New York,
vice Sylvester J. Ryan, retired
At the indicated time and place per-
sons interested in the hearing may make
such representations as may be pertinent.
The subcommittee consists of the Sen-
ator from Mississippi (Mr. EASTLAND)
chairman; the Senator from Arkansas
(Mr. MCCLELLAN), and the Senator from
Nebraska (Mr. HRUSKA).
NOTICE OF HEARING ON PRESI-
DENT'S NOMINATION OF DR. JOHN
C. SAWHILL TO BE ADMINISTRA-
TOR OF FEA
Mr. JACKSON. Mr. President, a second
day of hearings on the President's nomi-
nation of Dr. John C. Sawhill to be the
Administrator of the Federal Energy Ad-
ministration has been scheduled for
Wednesday, June 12, at 2 p.m.
The purpose of this second day of hear-
ings on this important position is to per-
mit Members who were unable to be
present at the hearings on Friday, June
7, to appear and propound questions to
Mr. Sawhill. -
l urther information concerning the
location of the hearings will be available
tomorrow morning at the office of the
Senate Committee on Interior and In-
sular Affairs.
NOTICE OF HEARINGS ON RADIA-
TION HEALTH AND SAFETY ACT
OF 1973
VIr. KENNEDY. Mr. President, I want
of take this opportunity to announce
Senate Health Subcommittee hearings
on S. 667, the Radiation Health and
Safety Act of 1973, which will be chaired
by my good friend and colleague, Senator
JENNINGSRANDOLPH. These hearings will
be conducted on June 19, 1974, and will
begin at 10 a.m. Persons interested in
testifying should contact Mr. Richard
Grundy at 225-9894.
ADDITIONAL STATEMENTS
SENATOR CURTIS CALLS FOR FAIR-
NESS IN THE CONSIDERATION OF
CHARGES AGAINST PRESIDENT
Mr. HELMS. Mr. President, this past
Sunday the distinguished Senator from.
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