November 21, 1974
Page 36896
Mr. MUSKIE. Mr. President, as a cosponsor of S. 3418 and one who has followed the progress of Federal privacy legislation with great interest for several years, I wish to express my support for this most important bill which is before the Senate today.
Many observers have characterized the 93d Congress as the "Privacy Congress." That appellation has been earned in large part by the effort and dedication of the foremost leader on this issue of individual rights – the distinguished Senator from North Carolina (Senator ERVIN).
His concern, his persistence and his great knowledge built on years of judicial and legislative experience in this field, have brought us to the consideration of what could become a hallmark of his career – the Federal Privacy Act of 1974.
The privacy of cur citizens has been a fundamental concern since the founding of our Republic. Two hundred years ago, William Pitt expressed this with regard to the rights of citizens in the colonies still under English rule:
The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter – but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.
While the concern for the rights of American citizens to be secure from government invasion has run from the adoption of the Bill of Rights to present day times, it has not found widespread recognition in the courts outside of the area of criminal law. In applying the provisions of the fourth amendment to the Constitution to this issue, Mr. Justice Frankfurter observed in Wolf v. Colorado (338 U.S. 25, 27-28 1949)–
The security of one's privacy against arbitrary intrusion by the police – which is at the core of the Fourth Amendment – is basic to a free society ... The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent, with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.
In a famous dissenting opinion in Olmstead v. United States (217 U.S. 438, 478 1938), Mr. Justice Brandeis characterized the "right to be let alone" by the Government as "the most comprehensive of rights and the right most valued by civilized men."
In his book, "The Assault on Privacy," Prof. Arthur Miller observed that while the fourth amendment was probably conceived to protect tangible objects, it has since been extended in Katz v. United States (389 U.S. 347, 353 1967) to restrict the Government's right to seize personal information.
While the courts have begin to recognize the capacity of Government to invade individual privacy by the gathering or misuse of information, it is the responsibility of the Congress to develop specific legislative guidelines in this area.
The Federal Privacy Act draws upon the constitutional and judicial recognition accorded to the right of privacy and translates it into a system of procedural and substantive safeguards against obtrusive Government information gathering practices.
Up until now we have allowed technological advances in Federal record keeping to outpace our efforts to control and safeguard the use of the information we have collected. This act would balance those advances with specific safeguards and add a new dimension of rights to the citizen. In effect it would bring the law in line with a concept endorsed by then Secretary of Health, Education and Welfare, Elliot Richardson, that "Government is not the owner of information on individuals, but only the trustee."
Almost a year ago, the Subcommittee on Intergovernmental Relations, of which I am chairman, released a survey of individual attitudes toward their Government prepared by Louis Harris and Associates. That survey revealed that the American people's loss of confidence in their Government had reached severe proportions. Forty-five percent of the public described themselves as alienated and disenchanted, feeling profoundly impotent to influence the actions of their leaders. The relationship between this feeling and the Government's invasion of individual privacy is underscored by a report by the Committee on Security and Privacy, of the Project Search task force authorized by the Department of Justice to examine the handling of criminal records. Calling for citizen right of access and challenge to certain law enforcement records, the
search report stated:
An important case of fear and distrust of computerized data systems has been the feelings of powerlessness they provoke in many citizens. The computer has come to symbolize the unresponsiveness and insensitivity of modern life. Whatever may be thought of these reactions, it is at least clear that genuine rights of access and challenge would do much to disarm this hostility.
S. 3418 is addressed to that very point. Under title II of this bill we have inserted the individual citizen into an active role regarding the collection, use and dissemination of his personal data by Federal agencies.
If an agency asks a citizen for information he would have the right to know if he is required to divulge it and to know what use the agency will make of it.
He would be entitled to know what information systems or files a Federal agency operates and whether those systems or files contain information about him.
He would be entitled to see what is in those files and if necessary to challenge the accuracy, the completeness, the timeliness and the relevancy to the needs of the agency of their contents.
He would be entitled to know who has seen information about him; and if the agency makes changes at his request, to inform past recipients of that data about those changes.
Finally, each citizen would be entitled to enforce this right of access and challenge in a Federal district court and to seek an award of damages for injuries resulting from the misuse of personal information.
These are fundamental rights to be included in any privacy legislation, and they should help begin to restore public faith in our Government's information practices.
The remarks which follow relate specifically to my amendments.
In considering this legislation it was understood that privacy considerations do not stop at the Federal Government. Our concern for the handling of information about individuals extends beyond Federal agencies to State and local government and to the private sector.
State government witnesses at the Government Operations Committee hearings in S. 3418 indicated the need to incorporate privacy safeguards in their information systems. Andre Atkinson, representing State and local government information system managers said:
Effective solutions will come only from administrative and statutory regulations which can interact in concert at all levels of government – Federal, State and local.
While there have been extensive studies of information gathering systems operated by the Federal Government and the need for safeguards and regulation of those systems, the record still is incomplete about the information practices of State and local governments.
We have asked the Privacy Protection Commission established by this bill to examine those systems and recommend what legislation might be necessary in that area.
In the interim we can help those States and local governments which are attempting to deal with this issue now. I am offering an amendment to S. 3418 along with the distinguished Senator from Illinois, which would authorize the Commission to draft model privacy legislation for State and local governments and to make available to State and local officials the technical services of the Commission to aid in the preparation of privacy legislation to meet their needs.
I recognize that the establishment of the Privacy Commission has been the focus of some objection by the administration.
The need for an independent authority to examine Federal, State, and local and private information practices has received substantial support from the many witnesses who have testified in behalf of this bill.
It is not only essential to help the Congress and the executive branch to examine Federal practices, it can help bridge the gap between the standards we are setting for the Federal agencies and those we want to see adopted by other information systems outside the Government.
The assistance to State and local governments which would be provided by our amendment is but one example.
Mr. President, this is an important piece of legislation. I hope that this Congress will meet its responsibility and earn the label which it has already received as the Privacy Congress by passing S. 3418.
This, I think, Mr. President, is a very modest response to considerable pressures to expand this legislation to cover State and local governments as well as the private sector. It is for that reason that I submit the amendment to the Senate and urge its adoption.
I have discussed this proposal with Senator ERVIN and with Senator PERCY, who is a cosponsor of the amendment, and I believe they are in a position to accept it.