The Fourth Amendment in the Bill of Rights protects individuals from unwarranted
and "unreasonable" searches and seizures by agents of government, but provides
few safeguards against private intrusions into an individual's privacy. In the 1967 U.S.
Supreme Court ruling of Katz v. United States, Justice Potter Stewart wrote for
the majority:
"What a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection...But what he seeks to preserve as
private, even in an area accessible to the public, may be constitutionally
protected."
A problem develops when government and private information intersect and overlap
-- where the ability to breach assumed confidentiality is so pervasive and accessible as
to make any differentiation of source or expectation of little if any value. Such are the
circumstances today in which we find ourselves.
The genesis and continued growth of the intrusion of privacy throughout its recent
history has been innocuous and well-intentioned, though not without its share of critics
whose foresight today has been demonstrated to have had a sound, reasonable, and accurate
basis.
Intense congressional debate occurred over the proposed
Social Security Act
out of a fear that mandatory enumeration of individual Americans would lead to a national
identification program, internal identification papers, and abuses such as those then
arising in totalitarian states such as Hitler's Nazi Germany and Stalin's USSR. Proponents
and legislators allayed those fears by promising that Social Security Numbers (SSNs) would
never be used except for the sole purpose of providing a national record-keeping system
for the retirement, survivors, and disability income insurance program then under
consideration.
That was the first promise.
The Social Security Act was passed in 1935, and became effective on
January 1, 1937. With the stroke of his pen, President Franklin D. Roosevelt established a
precedent which set the United States on a road of diminishing privacy on a subtle,
pervasive scale never before experienced in the history of mankind. Sixty years later its
impact and, more importantly, its potential remains beyond our full appreciation or
comprehension.
The 1935 assurance of confidentiality and single-purpose necessary for
congressional acceptance was breached a little at a time, and always with expressed good
intentions. This system of enumeration nurtured a steady expansion in use of SSNs as
individual identifiers for purposes both governmental and private. The cumulative result
has been an ever-widening and readily available volume of confidential personal
documentation -- often of questionable accuracy -- on virtually every citizen in the
country.
Since 1970, Congress has incrementally expanded the use of and requirement for
SSNs, such as the replacement of military service serial numbers by SSNs. Today's
increasing public acceptance of SSNs as a de-facto national identification number is
evident, and excesses brought on by a broken congressional promise are manifest.
For decades following adoption of the Social Security Act, SSNs were required only
of those earning an income and mandated by the Federal Insurance Contributions Act
to pay into the FICA fund, and were required to be provided only to employers and banks.
The Family Support Act of 1988 changed that by requiring young children and
new-borns to be registered with the Social Security Administration and assigned a SSN if
they are to be claimed by parents as a tax-deductible dependent.
The promise
again was broken and a SSN is
now assigned at birth and carried until death and beyond.
Today a SSN is increasingly required for countless purposes and transactions never
intended or imagined when this program was conceived and implemented. Credit cards,
private health care and insurance, public utilities and services, college entry, library
cards, driver's licenses and auto insurance, and even video rentals, require divulging a
SSN if one is to obtain the desired service. This myriad of personal history, accurate or
otherwise, in turn is made available for any and all to purchase and scrutinize in
deciding an applicants' potential or to later track him down.
Most states for some time have required a SSN before issuing a driver's license.
It is then openly displayed as an identifying number, and the record is made publicly
available for a small fee. These lists of personal information on individuals -- driving
records and motor vehicle registrations, addresses, ages, physical characteristics, and
other required information -- are routinely purchased by private-sector
information-gathering services, added to their databases, and marketed to end-users and
abusers alike.
Numerous database businesses across the nation keep millions of records on renters
who have been the subjects of eviction proceedings or simply have had disputes with
landlords. Landlord Credit Data Service, of Rhode Island, provides names which have
appeared in newspapers reporting a connection with alleged violent crimes.
Information database enterprises such as National Credit Information, Inc., of
Cincinnati, Ohio, and Super Bureau, of California, offer subscribers instant computer
access to more than 200 million SSNs, credit reports, listed and unlisted telephone
numbers and number tracing, address verification and change-of-address records, driver's
license and motor vehicle registration records, court judgements, property records, names
of neighbors, returned-check registration, and voter registration.
Due to this expanded and widespread use of SSNs as common identifiers, today no
more is required than an individual's name and address to arrive at a SSN, and all the
informational baggage it brings along with it.
The Fair Credit Reporting Act of 1970 provides consumers with certain
specific rights concerning their credit-history data and its use, but this data is often
utilized for purposes other than credit reference -- purposes which have not been
addressed or restricted by Congress. Database marketing today is a $50 billion-a-year
industry with over 20,000 participating businesses in the field.
Readily available access to a profusion of confidential information on individuals
is with us. It's usually conceded as impossible to put a genie back into its bottle, and
this genie is out and has been picking up momentum for decades. What should now be of
concern is the continued proposals for further intrusive information that will expand this
pervasive data pool.
Concern for civil liberties has proved to be justified by experience. What begins
as a well-intentioned government program with initial concerns and promises for protecting
civil liberties, over time always expands, leaving behind, a step at a time, those
concerns and promises until they are difficult to recognize and become virtually
meaningless. The unanticipated and burgeoning use of SSNs is but one familiar example.
A majority of Americans historically have opposed the concept of a national
identification card. In a 1990 survey taken by Louis Harris, 56 percent of those polled
strongly opposed a national work identification card, even if targeted to identifying
illegal aliens unlawfully seeking employment, a proposal then especially favored by the
U.S. Immigration and Naturalization Service.
A 1994 poll alleged that -- for the first time -- a majority of Americans now
favor the concept of a national ID card to help stem the flow of illegal aliens.
The Massachusetts Registry of Motor Vehicles in 1993 began modernizing its
driver's license, replacing the Polaroid photograph with a computer-image that is stored
in its computers. The high-pressure laminate resembles a credit card, complete with a
magnetic tape strip on the back which can be read by a magnetic reader. Registry officials
envision the new license becoming the ultimate form of identification, and are working
with other state agencies to promote its use in reducing fraud. They also anticipate that
banks, liquor stores, and other businesses will use this system as a more reliable means
of verifying identification.
"We have gone beyond recording and requesting information for any purpose consistent
with motor vehicle law and are doing it because we are going to make a buck out of it at
the cost of the public's privacy," asserted John Reinstein, an attorney with the
Massachusetts Civil Liberties Union in 1993, when the plan was first announced.
Registrar of Motor Vehicles Jerold Gnazzo responded, "The benefits of the
license and the security and peace of mind will more than overcome some of the criticisms
on the privacy issue."
Although under the state's public records law, copies of computer-image photos
will be publicly available, he promised that any privacy concerns can be worked out.
More promises made . . . and broken.
But recently the Social Security Administration offered to scour state motor
vehicle records for drivers with phony SSNs, to help states catch illegal aliens,
fugitives from justice and child-support scofflaws.
Critics say the SSA plan is fraught with privacy risks, since states could give
the lists to police or other agencies, or sell them to credit bureaus. They also charge it
violates the promise not to use Social Security numbers as national ID cards.
As part of the U.S. Commercial Motor Vehicle Act of 1987, the California
Department of Motor Vehicles experimented with an eye-scanning technique which can be used
by the highway patrol on a stopped driver. This data -- the unique physical
characteristics of the stopped driver's eyes -- can then be transmitted to a central
database at a proposed national registry of motor vehicles. It is expected that this
biometric system could replace standard forms of identification used by consumers to
perform other transactions.
DNA "fingerprints" have become an integral tool in state-of-the-art
identification. Many states, at the behest of the FBI, have begun compiling data banks of
these individual genetic codes, reportedly more accurate than common fingerprints. The
subjects of this program were initially restricted to only those convicted of violent
crimes.
The FBI promised that collection and use of DNA information would go no further.
But the U.S. military now has adopted DNA "fingerprinting."
The New
York Times on January 12, 1992 reported that the Defense Department said it would
establish a repository of genetic information on all American service members as a new way
of identifying future casualities of war.
Army Major Victor Weedn, chief of the Armed Forces Institute of Pathology's Armed
Forces DNA Identification Laboratory, has promised that each DNA specimen would be treated
"as a medical specimen with confidentiality and respect." The samples, we are
assured, will be authorized only for identification of human remains resulting from
military conflict or a mass disaster, not for other purposes, like identifying suspects of
criminal activity or in paternity cases -- unless subpoenaed by court order -- and will be
destroyed upon an individual's separation from the service.
Specimen from the entire active-duty military, the Times reported, would be
completed over a five-year period. Major Weedn said, "This really has a very
humanitarian goal -- returning remains to families."
In FBI; An Uncensored Look Behind The Walls, Sanford J. Ungar explored
the history of the Federal Bureau of Investigation, and this pattern again and again
presents itself.
In 1924 the FBI established its Identification Division, and began maintaining manual
fingerprint files, "rap sheets," and arrest records. In 1930 Congress formally
authorized the practice and permitted the Bureau to maintain fingerprints of law-abiding
citizens as well. It was thought to be of exceptional value in identification of victims
of amnesia or those injured beyond recognition.
The FBI launched the National Crime Information Center (NCIC) in 1967, initially
linking by computer fifteen law enforcement agencies and one Bureau field office to its
Washington headquarters, and operating for a mere two hours a day.
Bureaucratic concerns over centralized computer record-keeping and the privacy
issue were expressed in an August 3, 1970 letter to Attorney General John N. Mitchell.
Clarence M. Coster and Richard W. Velde, associate administrators of the recently
established Law Enforcement Assistance Administration, objected to federal control over a
proposed national computerized criminal history (CCH) system, and wrote:
"The existance or even hint of such a data bank could arouse certain
members of Congress and the public. Although manual records are presently maintained by
the FBI and have been for years, detailed arrest information available centrally in
computerized form does present questions of privacy."
The attorney general on December 10, 1970, nonetheless granted authorization to
the FBI to operate CCH and the Bureau enthusiastically incorporated it into NCIC. By 1974
it contained 4.5 million records, averaged 147,220 daily transactions, had in its files a
combined 159,000,000 fingerprint records, and was growing at the rate of 3,000 sets of
prints a day. In 1975 the total number or records had increased to 5.7 million.
Ungar reported that in 1975 the U.S. Senate Constitutional Rights Subcommittee
found evidence "that NCIC had been used to 'flag' people of interest to the Bureau,
possibly including prominent politicians; thus if ever they were stopped on a routine
traffic violation, the FBI would learn where they were."
Some files and records maintained by NCIC are closed to public scrutiny or review.
Its files consist not only of verified facts, but suspicions and conjecture as well. The
American Civil Liberties Union and Computer Professionals for Social Responsibility (CPSR)
have expressed concern over the integrity of both the current and proposed systems, the
security of the systems, and the absense of public input into unsubstantiated and possibly
inaccurate data. The FBI insists that new and increased data integrity, an algorithm-based
detection system, and its sophisticated auditing system will counter these concerns, but
the civil liberties issue remains unanswered.
Digital telephone communications and fiber-optics technology extend further than
traditional telephone use, and are expected to eventually provide a number of
revolutionary services to every household in the country. The advent of the Advanced
Intelligent Network will soon open bold new horizons in personal and computer
communications -- from the video-telephone to viewer-interactive television. The potential
for further intrusion also will accompany these advances.
The FBI has proposed legislation to amend the
Communications Act of 1934.
It hopes to insure that rapidly developing telecommunications technology does not outstrip
its capability to "secretly record conversations." (To add injury to insult, the
FBI also proposes that the cost for updating current wire-tapping equipment -- "tens
of millions of dollars" over at least a two-year period, William A. Bayse, assistant
FBI director for technical services, estimates -- be passed on to telephone customers
through increased interstate phone rates.)
This has drawn a sharp response from Marc Rotenburg, director of the CPSR project
on Computers and Civil Liberties, that the "far-reaching FBI proposal is troubling
because it suggests future phone service will have to be designed with wire surveillance
in mind." He labeled the plan "unacceptable, because we're trying to build and
strengthen a communications infrastructure -- not establish a system of
surveillance."
The Internal Revenue Service's Information Returns Program (IRP), initiated in
1974 and expanded in 1982, is its most extensive and effective effort to date. Along with
ascertaining wages, dividends, interest and capital gains, IRP compares tax returns with
independent documentation in twenty-five other categories.
IRP has been so effective that in the latest year in which documentation is
available, 1985, the IRS collected an additional $1.9 billion in unpaid taxes and
penalties from 3.8 million taxpayers -- an average of an additional $500 from each tax
scofflaw.
Henry H. Philcox, Chief Information Officer for the IRS, in
Modernizing the
IRS (The CPA Journal, Nov. '90), wrote, "For us, modernization definitely has
moved beyond the planning state. It is here and now." [his italics] He
points to a February, 1990 General Accounting Office report which revealed that more than
53,000 government computer and telecommunications systems affect the lives of the American
people, with a price tag of $20 billion-per-year for modernization alone.
"While our modernization effort will not roll out completely until the end of
this decade," Philcox wrote, "already, more than 40 major modernization projects
have been identified."
As Philcox acknowledged, it is here and now -- and it is being rapidly upgraded
and expanded by the federal government at a rate of $80 each year in taxes from every man,
woman and child in the nation.
Consider the potential for further intrusion of privacy inherent in the push for
"National Health Care." We've seen President Clinton's "National Health
Security Card," complete with SSN.
Should national health care come to pass, is it inconceivable that further demands
on privacy -- accompanied by the standard promise of confidentiality -- would result?
Precedents for increased government intrusion in personal health care and risk matters
already have been established.
In 1989 a U.S. Senate subcommittee heard testimony on a bill to pressure states into
adopting mandatory seat belt and motorcycle helmet legislation. Its sponsor, Sen. John H.
Chafee (R-RI), asserted:
"We have many demands on medical funds in this Nation. We don't want to
spend them where they can be saved, where they can be avoided. Where so often the case is
that there is no insurance carried by the victim, it is the Federal Treasury, through
Medicaid, that must pay a major portion of this bill."
The Intramodal Surface Transportation and Efficiency Act of 1991 was
passed by Congress and signed into law by President George Bush. It quietly included Sen.
Chafee's proposal. 48 states have now adopted mandatory seat belt laws.
Medical records soon may become another area of privacy opened to
government scrutiny. With a vested interest in health care costs, how long will it be
until such records are used in well-intentioned endeavors to reduce those costs by
monitoring and attempting to manage risk?
Mandatory seat belt and motorcycle helmet laws today, mandatory diets and
lifestyles tomorrow?
In the 1928 landmark privacy case,
Olmstead v. United States, the U.S.
Supreme Court upheld the constitutionality of government wire-tapping of private telephone
conversations. In his dissenting opinion, Justice Louis D. Brandeis observed:
"Subtler and more far-reaching means of invading privacy have become
available to the government ... The progress of science in furnishing the government with
means of espionage is not likely to stop with wire-tapping ... "Discovery and
invention have made it possible for the government, by means far more effective than
stretching upon the rack, to obtain disclosure in court of what is whispered in the closet
...
"Ways may some day be developed by which the government, without removing
papers from secret drawers, can reproduce them in court, and by which it will be enabled
to expose to a jury the most intimate occurrences of the home..."
Justice Brandeis's prophetic words remain to haunt us today; one needs only think
about the "Clipper Chip" and dual-key data encryption.
There is certainly no turning back the clock -- even if such a goal was desirable
-- and it is indisputable that advancements in data collection, information retrieval, and
communications technology have contributed profound benefits to mankind. These
advancements, the evolving challenges and untapped possibilities of tomorrow, assure that
greater strides will be taken and new discoveries will be achieved.
But has this rapid pace of technology advanced faster than our ability to perceive
and harness the undesirable side-effects, to control its far-reaching and unpredictable
unintended consequences?
Beyond his prophecies, Justice Brandeis left us with this warning:
"Experience should teach us to be most on our guard to protect
liberty when the government's purposes are beneficent. Men born to freedom are naturally
alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to
liberty lurk in insidious encroachment by men of zeal, well-meaning, but without
understanding."
NOTE: This was originally written in 1992 and revised in 1995. Already
some of the predictions have come to pass
and more are on their way.
Read the new
National I.D. Card law, passed by the 104th Congress and
which
takes effect in October of 2000.
FOLLOWED BY:
The REAL ID Act of 2005.
