and the
Citizens Economic Research Foundation


High Tech and the Age of Intrusion

By Chip Ford, Co-director


Permission is granted by the author for free distribution as long as fully attributed.

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fourth Amendment in the Bill of Rights
of the Constitution of the United States

"Each time we give up a bit of information about ourselves to the Government, we give up some of our freedom."

"Privacy, like many of the other attributes of freedom, can be easiest appreciated when it no longer exists. A complacent citizenry only becomes outraged about its loss of integrity and individuality when the aggrandizement of power in the Government becomes excessive. By then it may be too late."

"It is ironic but true that what has thus far saved much of our privacy and our liberty has been the complacency, inefficiency, and intra-agency jealousies of the Government and its personnel."

U.S. Senator Sam J. Ervin, Jr.
Introducing The Criminal Justice Information Control and Protection of Privacy Act
on February 5, 1974

"Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters."

Daniel Webster
US diplomat, lawyer, orator, & politician (1782-1852)

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.

Return to CLT Privacy Project page

Return to CLT Home Page