object to the amendment and what we are trying to do is remove as much of that ambiguity as possible.'

99 12

The Subcommittee concluded that the "umbrella" to be raised is the same as intended in section 9(a) of title 13-i.e., the original of the copy to be protected by confidentiality must have been furnished to the Census Bureau and thereby received official protection under the Census Act. No worksheet, breakdown tabulation or other supplementary data in company files would be protected under this legislation from subpoena by the Federal Trade Commission or other enforcement agency authorized to do so. Annotations, corrections, and explanatory data supplied on the Census form (and the company-retained file copy thereof) would be protected, however. Once these points were agreed upon, the substitution of the words "census reports" as a compromise was accepted by Chairman Henderson of the Subcommittee, author of the bill. It was realized in the Subcommittee that if the bill were reported out without amendment, there would be little hope for any legislation in the closing days of the 87th Congress. (See below.)

The "Secrecy" of Governmental Reports

In testimony before the Subcommittee, Chairman Emanuel Celler, of the House Judiciary Committee, stated:

"As a general rule, information in the files of one agency should be available to other agencies of the executive branch in the enforcement of the laws. The administration of justice should not be reduced to the level of a game of blind man's bluff, played between different departments of the same government.

"If the Bureau of the Census has in its files information relevant to a violation of antitrust laws, it seems to me as a general proposition that such information should be available to the Department of Justice and the Federal Trade Commission-the agencies charged with antitrust enforcement.

"It would be more appropriate, therefore, to repeal the secrecy presently accorded the original census returns in the possession of the Bureau of the Census than to extend the shroud of secrecy to file copies of census returns retained by reporting companies.'

Although understanding of the motivation behind Representative Celler's remarks, the Subcommittee could not agree that the confidence accorded census information should be repealed, especially in view of the protection given to other Federal agencies in section 132 of the Census Act. As stated earlier, the confidential safeguarding of census data has been the concern of Congress for almost 100 years. The high degree of confidence now held by the general public for the Census has been earned over the years--few other Government agencies have such high repute in the business community. The statements presented at the Subcommittee hearings by trade associations, businessmen, economists, statisticians, and many others attest to this fact.

But, more important, is the Government's own dependence upon the completeness and accuracy of census data which concern all aspects of American life-economic, social, demographic, educational, and the rest. As stated by one witness before the Subcommitte, the census is the heart of our statisical system for "appraising the level of our social and economic health." We should take no action which might jeopardize it:

"The high reliability and worldwide reputation of the United States censuses were not gained overnight. It took decades to improve our methods and to build up confidence and willingness to cooperate among businessmen, I am not suggesting that these would be lost overnight. But, I am persuaded that when businessmen become convinced that their copies of census reports may be seized for regulatory purposes, the completeness and accuracy of our census data will begin to deteriorate."

99 14

Our future as a Nation depends fundamentally on accurate measures of population, production, distribution, transportation, income, employment, unemployment, industrial growth and concentration, economic expansion, and a host of other measures which gage our internal economy and our relative position in

12 See Hearings before the Committee on Post Office and Civil Service, House of Representatives, 1962, Confidentiality of Census Reports, p. 27.

18 See Hearings before the Committee on Post Office and Civil Service, House of Representatives, 1962, Confidentiality of Census Reports, p. 34.

14 See Hearings before the Committee on Post Office and Civil Service, House of Representatives, 1962, Confidentiality of Census Reports, p. 17.

77-577-67-12

the world. Certainly, as the Committee report stated, we cannot afford to place this highly developed system in jeopardy to accommodate the "convenience" of one Federal agency or because a handful of recalcitrants in the business community refuse to cooperate with the enforcement agencies. Government statistics are and must be based on confidence-remove the protection of confidentiality and you open a Pandora's box of doubts, suspicions and ultimately, chaos, as other nations have discovered. This point was made by Richard M. Scammon, Director of the Census Bureau, in testimony before the Subcommittee:

"Once you start saying that material is not confidential, that material may be used to your disadvantage, that this material may be used to your disinterest, then you are going to get just as dubious a set of reports as the imagination of man can devise and I would suggest that that imagination is a pretty far-reaching thing. Because when a man knows, on the evidence before him, that the material he is asked to submit for a statistical purpose may be used to harass him, drive him out of business, operate against his interest financially, he is going to adjust those figures. Now he may do it deliberately, callously, or he may do it simply in the same way some Federal forms 57 are made out-by shinning the light of truth on certain of his activities and overlooking the rest. ***

"If I may add to that: An instance has come up in which a European firm acquired the property of an American firm. When that European firm first had contact with the Census Bureau it was their intent not to report anything to anyone. They were following a practice which Mr. Clague commented upon in which nobody trusts anybody, because they have very good reason not to trust anybody. They are afraid if they submitted material it is going to be used to harass them, to knock them out of business, to arbitrarily increase their taxes or to subject them to regulation. And their experience as businessmen was that the keeping of dual or triple or quadruple sets of books and reports was normal. This was the way you worked with the Government." 15

Statistics in a democracy

All branches of Government became deeply involved in the St. Regis caseexecutive, legislative, and judiciary. The Supreme Court has been charged with doing "great mischief" in its decision in this case. It is important to note that remedial legislation orginated in the House of Representatives, not in the Executive Branch, where, as the Wall Street Journal pointed out on August 1, 1962, a "split developed within the Administration," the fact-finding agencies on one side generally opposing the regulatory agencies on the other. In the middle, both literally and figuratively, was the Bureau of the Budget which, under the Federal Reports Act of 1942 and Executive Order 10253, has overall responsibility for giving leadership to Federal statistical programs and legislation. But, in spite of the critical importance of census benchmark data to the Federal statistical system and the urgent need for the legislation in the forthcoming 1963 Economic Censuses, the matter remained unresolved for several months (from March 9 to July 11, 1962, to be exact). Finally, in July, the Assistant Director for Legislative Reference of the Bureau of the Budget wrote to the Chairman of the House Post Office and Civil Service Committee that to be "consistent with Administration objectives," it would be necessary to amend the bill, as discussed above, and "any extension of confidentiality beyond the census copy would be strongly opposed by the Administration." 16

It need hardly be said that the closing 87th Congress was concerned with matters of greater national importance than the confidentiality of copies of census reports. Moreover, with a threat of a Presidential veto unless the proposed bill were amended and strong Congressional opposition to the bill led by the Chairman of the House Judiciary Committee, there was little hope that H.R. 10569 with or without amendment would ever become law. To complicate matters, about a week after the House Subcommittee hearings were held on H.R. 10569, an Administration bill (S. 3631) was introduced in the Senate on August 10, 1962. The Senate bill incorporated the Administration's proposed amendments to H.R. 10569, thus adding one more roadblock, that of a possible Senate-House conference if the pending House and Senate bills were to pass. Such conferences on relatively unimportant legislation are difficult to schedule in a closing Congress and often the bills "die in Committee."

15 See Hearings before the Committee on Post Office and Civil Service, House of Representatives, 1962, Confidentiality of Census Reports, p. 23.

10 See Hearings before the Committee on Post Office and Civil Service, House of Repre sentatives, 1962, Confidentiality of Census Reports, p. 5.

In the above impasse, in a closing Congress already past its scheduled adjournment date, there was only one solution if the 87th Congress were to pass any remedial legislation at all. On September 19, the House Post Office and Civil Service Committee approved H.R. 10569, amending the bill by "specifically identifying 'census reports' as the types of material and data which are covered by this legislation." On October 1, the Senate Post Office and Civil Service Committee reported out S. 3631 (identical with the amended H.R. 10569) and issued its report, Senate Report 2218 (identical with House Report 2437). No Senate hearings were needed since the legislation had been thoroughly studied in the House hearings held on July 31 and August 1, 1962. The Senate bill, S. 3631, was passed on October 3 in the Senate, and October 4 in the House. There was no expressed opposition to the bill. It was signed into Public Law 87-813 by President Kennedy on October 15, 1962.

Only time and experience will tell if the "Henderson amendment" will fully accomplish the purposes for which it was proposed. Especially interesting will be the effect of the Administration's compromise language "census reports" which may require clarification by the Courts since the words "information,” “reports,” and "data" appear elsewhere in section 9 of title 13. But, once again Congress has legislated on the matter of census confidentiality, and there can be little doubt now that Congress intends that census data be kept inviolate. Faced with an adverse decision of the Supreme Court, a split of views within the Administration and strong opposition within its own ranks, not to mention other pending legislation of much greater importance to Members, Congress moved firmly to insure the effective continuance of the Federal statistical system, as we now know it.

"THE FILES": LEGAL CONTROLS OVER THE ACCURACY AND ACCESSIBILITY OF STORED PERSONAL DATA

(By Kenneth L. Karst*)

In our record-keeping civilization,1 the man whose name is not inscribed on the tab of someone's manila folder simply does not exist. Each of us, from the day he is born, begins to deposit information about himself in various public and private files. By the time he emerges from school and the armed forces, the ordinary young adult cannot have escaped becoming the subject of at least a dozen personal information files. Our increasing social interdependence assures an acceleration of the rate at which personal data are accumulated and stored.

An impressively detailed profile of any individual can be drawn from files that are open to public inspection. But the investigator need not stop there; if he is talented, he will have access to a number of sensitive-information files that are normally thought of as confidential. The result is that anyone with money to spend on the project can secure a remarkably comprehensive personal history for any "subject" 3 he chooses to investigate.

*A.B. 1950, University of California, Los Angeles; LL.B. 1953, Harvard University. Professor of Law, University of California, Los Angeles.

I would like to thank all those who have been generous with their time and counsel during the preparation of this article, including some who prefer not to be mentioned. In particular, I am grateful to the Honorable Jerome R. Waldie, former Majority Floor Leader of the California Assembly and now Congressman-elect; the Special Committee on Science and Law of the Association of the Bar of the City of New York, Oscar M. Ruebhausen, Esquire, Chairman; Mr. Eldridge Adams, of the UCLA Law-Science Center; Dr. Paul Baran, of the RAND Corporation; Earl Osadchey, Esquire, Special Assistant to the District Attorney, County of Los Angeles, California; and my colleagues, Professors William D. Warren and Robert L. Jordan.

1 The characterization is no exaggeration. It is comforting to know that the First National Bank of Boston has built a bomb shelter for its own bank records and those of other members of the Boston Clearing House Association. The previously established storage center was too close to Westover Air Force Base, "a prime target in the event of an enemy attack." and so the new shelter was built in Pepperell, "to specifications estimated to protect the vault if a twenty megaton bomb struck anywhere outside a three-mile radius." Boston Bank Builds Big Foxhole, N.Y. Times, Dec. 2, 1960, p. 41, col. 5.

2 The following is a minimum list: birth record, hospital record, doctor's file, school files (at least three), Social Security records, tax records (probably more than one). driver's license records, employers' files, military records (several), fingerprints in the FBI's civil (non-criminal) files.

3 This impersonal term is used throughout the article to indicate the person who is listed or described in a personal data file. With respect to the ease of access suggested in the text, see VANCE PACKARD, THE NAKED SOCIETY, ch. II ("The Lively Traffic in Facts About Us") (1964) and particularly Mr. Packard's price list for "confidential" personal data: arrest record, $10; credit report to nonsubscriber, $5 or $10. Id. at 192.

Almost all this information has been supplied by the subject himself, willingly enough, as he has sought a job, or a loan, or an insurance policy. What he may not have understood is that each of these files generates information for other files. Not only is there no assurance that personal information will be used only for the purpose for which the subject submitted it; there is the opposite probability that it will be passed on and on. Investigators cooperate with each other, to their mutual advantage and to the advantage of the whole investigative system, from the Diners Club to the rogues' gallery.

This easy exchange of information is common even now, before the various investigative agencies have gone very far in adapting to recent advances in the technology of data processing. What the computer now makes possible is a substantial reduction of the time and the marginal cost required for the investigation of any one subject. At this midway point between 1984 and 1984, a new image has been coupled to that of Orwell's closed-circuit television camera: it is the image of the electronic data bank, where a complete dossier for every one of us is literally at the fingertips of the console operator.5

Other contributions to this symposium have examined a number of reasons why that image is a disturbing one. Although there is only partial agreement as to the purposes and ultimate importance of various kinds of privacy," it is possible to identify two broad classes of objectionable disclosure which legal institutions might seek to minimize. First, information out of a personal data file may be disclosed to an improper person. Second, such informtion may be false, or incomplete, or disclosed in a misleading way, so that its recipient receives a mistaken impression of the subject of the file. While the two problems of access and accuracy may overlap in a single factual context, they raise divergent questions for the legal system, and they deserve separate treatment.

Reversing the usual common law order of analysis, this article moves from the general to the particular. After considering some recurrent issues inherent in any system that attempts to restrict access to sensitive information in storage, or to police the accuracy of the information which is stored, the article examines in greater detail the manner in which those issues are raised in the contexts of law enforcement records and credit information files.

I. THE ANALYTICAL FRAMEWORK

A. Limitations on access

Hardly anyone in our society can keep altogether secret very many facts about himself. Almost every such fact, however personal or sensitive, is known to someone else. Meaningful discussion of privacy, therefore, requires the recognition that ordinarily we deal not with an interest in total nondisclosure but with an interest in selective disclosure.' Our concern is with unauthorized access to the files, and so we begin with an assumption, built into our definition of privacy: consent by the subject of the file excuses the disclosure of information about him. The assumption finds support in the growing case law of privacy. Not only is consent uniformly considered an effective defense to an action for damages for invasion of privacy; it is also implicit in the very definition of unreasonable publicity if the plaintiff has left the information "open to the public eye," he cannot complain when it is publicized.

4 George Orwell's book was published in 1949.

5 One comprehensive list of types of personal data which will soon be stored on computer tapes takes six pages to list, with only the briefest description of some of the items. EDWARD F. R. HEARLE & R. J. MASON, A DATA PROCESSING SYSTEM FOR STATE & LOCAL GOVERNMENTS 118 (1963).

See Ruebhausen & Brim, Privacy and Behavioral Research, 65 COLUM. L. REV. 1184, 1189 (1965): "to protect ourselves, or our process of creativity, or our minority views, or our self-respect"; VANCE PACKARD, THE NAKED SOCIETY 12 (1964): "The right to be different to hope for tolerant forgiveness to make a fresh start." An exceptionally thoughtful_recent analysis of the functions of privacy is in Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's-Part I, 66 COLUM. L. REV. 1003, 1017-40 (1966), published as this article went to press.

7 See Ruebhausen & Brim, supra note 6, at 1188-90. The interest in selective disclosure may be the one important feature shared by the common law right of privacy and the proprietary interest in publicly exploiting one's own personality. See Nimmer, The Right of Publicity, 19 LAW & CONTEMP. PROB. 203 (1954).

8 Dean Prosser has collected the cases. Prosser, Privacy, 48 CALIF. L. REV. 383, 419-21 (1960), reprinted in WILLIAM L. PROSSER, TORTS 850-51 (3d ed. 1964). The rule follows à fortiori from the same defense to defamation. See 3 RESTATEMENT, TORTS § 583 (1938). • Prosser, Privacy, 48 CALIF. L. REV. 383, 394 (1960).

Such a definitional technique, reading consented-to disclosures out of the law's concern, has ancient precedent in the maxim volenti non fit injuria. But it carries with it the danger that serious issues of policy may be resolved by question begging. One such issue relates to the reality of the freedom of choice exercised by the subject who makes his own disclosure of personal data. One who needs a job may choose to fill out the employer's questionnaire in preference to continued unemployment; during a housing shortage, a prospective tenant may choose to respond to the landlord's questions. While such disclosures may fit within a legal conclusion labeled "consent," the circumstances under which they are initially made may cause us to lean toward a strict limitation on their transmission to other investigators with other purposes.10

A second danger in basing analysis on consent lies in the seductiveness of notions about "implied consent." A recent article on the implications for privacy of research in the behavioral sciences draws an analogy to the "public figure" cases in the following terms:

"Certainly, public figures, particularly those who appeal to the public for elective office, have impliedly consented to the yielding up of some areas of private personality. The comings and goings of a Mayor or Governor, or Hollywood starlet, and a public evaluation and discussion of their strengths and weaknesses in their public roles are proper subjects of news reports, analysis and research.” “1

Two different ideas are expressed in this passage. Its first assumption, that the decisions denying public figures damages for invasion of privacy are based on a consent theory, is surely mistaken. If the mayor or the starlet were expressly to withhold consent to publication, the result would not be changed. The second part of the quoted passage would still be valid: their doings as public figures would still be "proper subjects" for treatment in the press. The reason is not that they have consented to the publicity but that publicity is justified in the public interest, whether or not they consent.12

One reason why analysis on the basis of a consent principle may be attractive is that it seems to relieve courts and other policy makers from making the difficult determination of the kinds of information that ought to be kept confidential In theory, a principle of consent leaves such choices to the subject of the file. That analytical advantage, however, is illusory; the result of describing these issues of justification for disclosure as if they were issues of consent is that it obscures the real basis for decision. The utility of such a fiction has not been demonstrated.

To say that the consent principle disposes of little more than the easy cases relating to access to sensitive personal data is not to deny the principle's importance. A great many, perhaps a majority, of such disclosures are made under circumstances that can be described as easy cases. The more challenging questions for the legal system, however, are raised by claims of access to such information in the absence of the subject's consent, or even over his protest. Here the task is to give legal content to the expression, "None of your business."

In a variety of contexts, our courts and legislatures have already struck a series of legislative balances between individual interests in privacy and countervailing interests in the free exchange of information. In seeking a clearer understanding of those interests, we may find guidance in the law of defamation, in the more recently developed common law of invasion of privacy, and in legislation and judicial decisions defining those government records which are "public." The diverse issues raised in all these cases can be tied together artificially under

10 The case for restricted access is strongest when the information has been coerced from the subject of the file. Yet in St. Regis Paper Co. v. United States, 368 U.S. 208 (1961), the Supreme Court affirmed a decree ordering the paper company to furnish to the FTC its file copies of certain reports which it had been required to make to the Census Bureau, despite the statutory provision, 13 U.S.C. § 9(a) (1958), forbidding the Commerce Department to use the material for other than statistical purposes or to permit others outside the Department to examine individual reports. At its next session, Congress amended § 9(a) to forbid other federal agencies to require census reports or file copies. 76 Stat. 922 (1962), 13 U.S.C. § 9(a) (1964). See Hearings on Confidentiality of Census Reports Before the House Committee on Post Office and Civil Service, 87th Cong., 2d Sess. (1962). There is no doubt that the information must be given to the Census Bureau. See United States v. Rickenbacker, 309 F.2d 462 (2d Cir. 1962), cert. denied, 371 U.S. 962 (1963).

11 Ruebhausen & Brim, supra note 6, at 1199.

13 Messrs. Ruebhausen and Brim recognize that consent is not the only operative principle in this context. See id. at 1201-04.