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JNIVERSITY OF NOTRE DAME
LIBRARY

JUL 2 6 1974

PRIVACY; |

AN |

INALIENABLE
|

RIGHT?
|

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UHlVCr-EITY OF
NOTFEOWE

MFMORIAl. library

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COLLEGE LIBRARY

VERTICAL. FILE

by

BISHOP MARK J. HURLEY

SECRETARIAT FOR

HUMAN VALUES



BISHOP HURLEY IS THE MODERATOR OF

THE SECRETARIAT FOR HUMAN VALUES,

BISHOPS' COMMITTEE FOR ECUMENICAL

AND INTERRELIGIOUS AFFAIRS, NATION-

AL CONFERENCE OF CATHOLIC BISHOPS



Privacy:

An Inalienable Right?

I

The citizens of California awoke on Nov. 8, 1972,

to read in the daily papers that they had amended

their State Constitution by the passage of Proposition

XI. Proposition XI? What in heaven was that?

There had been practically no campaign of any

appreciable magnitude pro or con. The press, sur-

prisingly, by-and-large did not show enthuiastic

support or intense opposition, but generally took the

view that the proposition was unnecessary, redun-

dant, already a matter of law. Opponents labeled it

a scheme to protect welfare fraud on the part of the

poor and tax evasion on the part of the rich. Even

the guardians of the law, judges and lawyers, took

little or no notice. Proposition XI by all odds was a

"sleeper," and the people passed it by a large

majority. It involved only three words: "people" and

"and privacy."

The first article of the State Constitution now

reads: "Inalienable Rights: All people are by nature

free and independent and have certain inalienable

rights, among which are those of enjoying and de-

fending life and liberty; acquiring, possessing, and

protecting property; and pursuing and obtaining

safety, happiness, and privacy."

The substitution of the word "people" for "men"

may well be claimed as a victory for women's libera-

tion; and the addition of "privacy" to the inalienable

rights an earnest and harbinger of things to come

involving the executive, legislative, judicial branches

of government, not to mention the political, philo-

sophical, and theological implications.

With the astonishing growth and amazing develop-

ment of technology—and specifically the computer,
magnetic tapes and microfilms—there has been born
concomitantly an insatiable appetite for information-



gathering by government and by private enterprise, a

gourmand hunger and endless craving to gather,

store and retrieve data of all kinds. Moreover,

"throughout the public and private sectors, the

amount of information collected and stored about

individuals is increasing at exponential rates." This

appetite for information is at once desultory, capri-

cious, and dangerous.

Thanks to the Watergate "caper," the Pentagon

papers trial, and similar escapades, electronic sur-

veillance has captured the attention of the nation.

Reports of Army intelligence agents spying on civil-

ians during civilian riots and protest marches; the

"prophecies" to foretell potential rioters, the bugging

of offices, public and private; wiretaps and video-

tapes and all the rest make chilling reading.

But even more ominous and portentous is the

potential inherent in the technology which has given

birth to databanks and methods of systems analysis

which technology encourages. With speed akin to

light, gifted with a prodigious memory, databanks

are becoming the repository of a vast amount of in-

formation about people, data that can be kept in

storage indefinitely.

The Constitutional Rights Subcommittee of the

Senate sponsored a study (1969) which noted, inter

alia, that the more economical computer technology

has become, the more "an army of specialists in

the information-processing field . . . and battalions

of investigators and analysts specializing in seeking

out and reporting derogatory information on individ-

uals" grow and wax strong. Zeal to know the "total

man" has kept government and private computers

filling dossiers "to overflowing with the daily lives of

people."

Computers have come of age, and databanks have

achieved a sophistication suggestive of Orwell's 1984.

The Federal Government has at least 27 agencies

and bureaus gathering information, much of it quite

private and personal. The Department of Health,

Education and Welfare "owns" the Social Security

numbers. It used to be that a youth would receive

his Social Security number when he got his first job.

Today that number may be assigned on entrance to

first grade or even earlier. Can the newborn babe

escape?

The Internal Revenue Service, now computerized,

gathers tax return data; similarly the Passport Bureau,

welfare departments, civilian personnel departments



in government, the Department of Commerce with

its file on seafarers, the Census Bureau, the Center

of Narcotics, the Naturalization Service, the Depart-

ment of State with its 'lookout file", the Customs

Bureau, Secret Service, and the F.B.I., the C.I.A., etc.,

all seek data, much of it private and personal, not

to mention confidential and compromising in some

instances.

Employers in the private sector are wont to gather

personal information on prospective employes, seek-

ing even security clearances, at times without the

subjects themselves having any access to these same

records. In an economy heavily dependent on credit,

bankers make extensive use of computers; credit-card

companies build credit dossiers on millions of cus-

tomers. A fairly accurate profile of a person's actions

can be constructed from the transactions of a steady

credit-card user. Doctors, too, build up files—often
of a very personal and intimate nature. Seven hun-

dred insurance companies rely upon the Medical

Information Bureau of Boston to check prospective

insurees. Student records are a major source of in-

formation for dozens of purposes, from granting

scholarships to employment.

Even the driver's license has become a source of

special attention; many states have sold drivers' lists

commercially.

Finally, not merely the criminal records of all law

enforcement agencies, but their general files as

well—the police files—contain vast quantities of in-
formation, much of it confidential and, at times,

compromising to individuals and groups.

The potential for dossier-building staggers the

imagination; the womb-to-tomb history of each per-

son retrievable on demand becomes a possibility, at

the very least.

But what if all these files and dossiers could be

centralized, cross-referenced, and, in one place, made

available? Is it possible to evolve the "total identi-

fier" in a master file, perhaps under the Social

Security number?

Pressures to introduce a single identifying number

for each citizen, known as S.I.N., are obvious for

hospitals, credit card companies, schools, banks,

police and others. All chartered banks in the U.S.A.,

for example, have recently been required to record

the Social Security numbers of depositors to facilitate

the retrieval of information for tax purposes, a breach

in the initral law on Social Security. Contrariwise,



Congress refused to allow the Social Security number

cross-reference on the 1970 census forms.

Sweden introduced identification numbers for all

citizens in 1947; Israel in 1948, Norway, 1974; and

other countries expected to follow suit include the

Benelux countries, West Germany, Spain, Japan and

Switzerland.

The single identification number and the con-

comitant "total identifier" pose both a temptation

and a threat. The enormous value in time saved, in

costs, in accuracy, whether to employers, police, the

I.R.S., banks, life insurance companies, doctors and

educators can scarcely be exaggerated and constitutes

a real temptation. At the same time, in terms of in-

dividual—and even corporate and institutional

—

liberties, they pose a threat of no mean proportions.

A master-file under a single Social Security number

does not now exist; the U.S. Health, Education and

Welfare Department (HEW) study of this matter

states, however, that "automated personal data sys-

tems present a serious potential for harmful con-

sequences, including infringement of basic liberties."

ii

In his Data Banks in a Free Society, Alan F. Westin

labels as "mostly fantasy" the image of computers
,

storing up data, talking among themselves, and link-

ing up tapes and discs to form a surveillance net

from which no fact about an individual's life can

escape. Vast centralized computer databanks simply
J

do not exist, despite a widespread conviction to the I

contrary in the mass media and the public.

Experts affirm that it is scarcely feasible economi-

cally to store data of vast magnitude directly in the
j

"on line" memory of the computer. But they also

point out that the computer can be programmed

to key in on the "off-line" memory with data stored

on discs, magnetic tapes, and on microfilm, as well

as cards.

The Taxation Division of Canada, for example,

stores on 125 reels of magnetic tape the records of

10.5 million taxpayers, consisting of 500 characters ;

each. At the same time, all experts agree that com-

puters will become smaller in size, more versatile

in operation, and much less expensive to purchase
|

and operate.

While the "total identifier" does not as yet exist, >

it cannot so easily be dismissed as not feasible



simply on economic grounds. Rather, Westin's study

recommends a social and legal policy be effected

"with built-in safeguards hammered out before the

inevitable development of centralized computer

record-keeping."

A Canadian government task force in its study,

Privacy and Computers (1972), which enjoyed "close

liaison" with Prof. Westin's study group, stated in

its opening words the dimensions of its work: "The

widespread development of highly computerized

databanks has given rise to increasing concern about

their potential use for invasions of personal privacy."

This study rejected the proposition that, in mid-1972,

"a social crisis" exists and that invasions of privacy

are so widespread as to cause alarm. Yet "continuing

worries exist" because few databanks have been de-

signed and installed with a concern for privacy built

into the planning process, except for institutional

self-interest."

"The privacy crisis," the study concludes, "unlike

the ecology crisis, which was predicted but largely

ignored until severe damage had been done to the

environment, need never happen. Appropriate pre-

ventive measures can make certain it never will."

While there is no doomsday syndrome forming in

this matter, no need for prophets of doom, yet the

Canadian task force warns that "insensitive or wilful

use of the computer could lead us closer to 1984."

The city of Huntington Beach, Calif., is reported in

the press to be the first American community to have

entered each one of its citizens—man, woman and
child, guilty or innocent, accused or unindicted—on
its police department's computer. On the basis of

home address, the data includes medical informa-

tion, abandoned cars, water bills, credit history, and

even the name of the family dog. Financial support

comes from the Law Enforcement Assistance Ad-

ministration of the Federal government.

The question can reasonably be asked if the

citizens of Huntington Beach or anywhere else in the

U.S.A. realize the extent and range of information-

gathering going on without their knowledge in many,

if not most, cases.

Do they realize that dossiers are being built up

without the knowledge of the persons involved;

without the possibility of review and correction of

"raw files" and "raw data"; without the knowledge

of who—in or out of government—has access to
these files?



This same Law Enforcement Assistance Administra-

tion is pumping millions of dollars into state and

local police departments to promote computeriza-

tion, "108 computer projects in 1971" alone. Simi-

larly the FBI-managed National Crime Information

Center is creating a network which ultimately will

join over 6,000 law-enforcing agencies, a single

source of data.

"All of these trends must be looked at as a unit

because their confluence represents a terrifying

spectre," writes law professor Arthur Miller.

One need only reflect on the Watergate hearings

to note that "informal" interchanges of FBI files took

place between the Attorney General's office and the

Committee to Re-elect the President. The computer

hasn't much changed the methods of political cam-

paigns, but it has made such exchanges easier, more

efficient, and most tempting. Moreover, under the

old manual files, it was possible to get away from

one's past and begin again a new life free of damag-

ing information.

Technology, however, promises to create a "dos-

sier prison" wherein every entry will remain for life,

a possible "hearsay narrative" without literal or con-

textual accuracy. The prospective employe may be

asked if he were ever "arrested." Even though sub-

sequently acquitted, his "yes" answer may well fore-

doom his chance for employment.

The computer will keep that "fact" indefinitely. In

his official inquiry for the House of Representatives,

Congressman Cornelius Gallagher contrasted the

Judeo-Christian concept "to forgive and forget, to

make amends and begin again" with the "computer

that cannot forget and that is incapable of forgiving."

Assemblyman Kenneth Cory, who introduced the

"privacy" amendment in California, summed up the

matter in these words:

"The frightening thing about many of these files

is the individual may never know he is in them or

who has seen the information recorded. If this in-

formation were centralized and augmented (by cross-

reference files), government could truly know more

about many of us than we know ourselves."

The June 25, 1973, US. News and World Report

reported, "A Fight Over Who Can Look at Your Tax

Return," in which a presidential order to open the

income-tax returns of 3 million farmers to the U.S.



Department of Agriculture has engendered a reaction

in Congress described as "explosive." The depart-

ment sought the requested data "on tapes" directly

from the I.R.S. computers at Martinsburg, W. Va.

Sen. Sam Ervin has recited a litany of offenses

against personal privacy: the selling or lending of

lists of names on government files; the sharing of

"blacklists" among agencies; the sharing of credit

lists; check on the finances, sex life, personal beliefs

and associations of famous and unknown people

alike; and even the questioning of women by the

Federal Housing Administration on birth control prac-

tices, the private advice of doctors, in reference to

loans on homes. "Unchecked, we will have the

trappings of a police state," he concluded.

One technical expert said simply: "Considering

what I know about micro-electronics, I must con-

clude that the worst is yet to come. We must manage
the keepers of the machines!"

Computer technology and databanks serve men

and are controlled by humans. They are not au-

tonomous. But who controls the human factor? Who
protects not only the individual citizen, but as well

groups, associations, corporate entities, racial and

ethnic and religious assemblies from the misuse and

abuse of technological data gathering? How control
the insatiable appetite and inordinate zeal of some

of those in power, whether in the public or private

sector? Quis custodit custodem? Who will watch
the watcher?

The computer is a many-splendored animal; con-

sequently, there is much potential protection right in

the technology itself, sophisticated means whereby

safeguards can be part and parcel of the databanks

themselves. Most observers call for new laws. Others,

while conceding the role of law, would add the need

for a public morality and moral consensus on the

protection of privacy.

But no databank system can ever be fully secure

and "security measures can be broken if the pay-

off warrants the trouble." Thus, physical security and

control of access as well as steps taken to insure

honest personnel are at least as important as some of

the sophisticated protection measures programmed in

the computer system itself.

Computer systems use such devices as "passwords"

stored in two places, i.e., with the user and the sys-

tem, for the retrieval of data; various codes for



scrambling and unscrambling data; limited access

control not only as to "who" but as to access to

"what"; audit trails to detect unauthorized usage.

IBM, for example, has announced an investment of

$40 million in the next few years to develop security

protective hardware for its computer systems.

With its wondrous capacity to accept, store and

retrieve information, the computer in its very sophis-

tication can as easily be programmed to destroy data.

Medical facts, for example, can be processed for

research and statistical purposes and then "for-

gotten." Similarly the facts may be stored but the

identity of the human subject erased. Furthermore,

the computers can be taught to require the identity

of the person who takes information.

The salient point is, however, that security up to

this date has been geared toward the protection of

industrial and political security against espionage,

and not in the context of individual privacy.

Data banks that contain sensitive information re-

quire technical programming that protects the human

right to privacy insofar as is reasonable. Much can

be done, then, to build in certain safeguards. But

this is but a first step; the law of the land must

reckon the new technology and its ramifications even

beyond the invasion of privacy.

This legal approach to the protection of privacy

is not so simple. To leave it to the courts and

judiciary will not solve the problem of proper pro-

tection; nor will legislatures solve the questions

alone.

There is a necessary interplay between the judici-

ary and legislative branches of government; but

equally there is similar relationship between them

and the administrative and regulatory agencies of

government.

Courts can be slow; litigation costly and time-

consuming. Principles are developed over a long

period, case by case; the redress of wrongs is past

history. More is needed, yet the court's role is

crucial. Similarly, the need for new laws that will

undoubtedly emerge as challenges, particularly to the
j

regulatory agencies, is raised.

Yet the key question seems to be: Is there a

superior public interest to which individuals must

yield their privacy?



While the courts have long been active in the

area of "privacy/' and even the U.S. Supreme Court

based its decision in the Connecticut contraception

case (Griswold v. Connecticut) on the right to privacy,

the legal experts, judging from the law school re-

views, labeled the decision as "none-too-clear" yet

"the clearest to date" on the "elusive nature of

privacy," "a broad, abstract, ambiguous concept."

Nor have the legislatures fared much better. Their

work on the protection of privacy has been judged

"spotty and non-comprehensive." The administra-

tive branches of government have patently failed in

serious ways as the recitations of the invasions of

privacy grow longer and sadder, to wit, the record

of wiretaps, electronic surveillance right in the Presi-

dent's own offices; the sterilization of young girls with

or without parental consent (as if it mattered morally)

under the aegis of governmental agencies and at tax-

payers' expense; the experimentation on human

beings with venereal disease, etc.

Patently there are new dimensions to the problems

of privacy in society today, problems exacerbated by

technology itself.

The regulatory agency in the Federal government

most deeply concerned with the information

gathered on individuals, HEW, has been working on

a study for over a year toward the protection of the

right of privacy. As "owner" of the Social Security

numbers (and who does not, among us, have a Social

Security number?) HEW is particularly the target of
information seekers, computer-experts, and all those

devoted to S.I.N., the single identifying number.

The agency, at the request of the President of the

United States, has drafted proposals for safeguarding

personal information. Its faith in its project may be

summed up in its draft report: "The application of

automated data processing technology to the man-

agement of records containing personal data can be

subjected to appropriate and effective social con-

straint without diminishing its usefulness."

"We share strongly the belief," it goes on to say

".
. . that protective action should be taken and that

the department (HEW) has a unique opportunity

and responsibility to help safeguard against and over-

come the potentially harmful consequences of au-

tomated personal data systems."



To such ends the Committee has proposed rules

and regulations by way of safeguards to privacy:

One person should be responsible for the proper

security and safeguards. Data must be eliminated

after no longer truly useful, a sort of statute of

limitations. Public notices must be posted when, for

example, an agency has an automated personal data

system. The agency must not only say it has such

a system, but as well the categories of persons on

whom data is kept; kinds, sources, and uses of data
kept. Who has access to data, and how individuals
may get redress, and what is legally required of per-

sons, must be made a matter of public record.

But while HEW struggles with the problems, what
of the private sector? Who has more sensitive and
all-embracing information of a personal nature in

one place than the central databank in Boston, the

resource center for 700 insurance companies? What

of the huge credit card operations of Mastercharge,

Bank of America, and American Express? Such ques-

tions have prompted Prof. Miller to call upon "credit

agencies and insurance companies to achieve a

minimal level of ethical activity in the gathering of

information."

Miller has advocated, in answer to the total prob-

lem, the formation of "an independent, non-operat-

ing agency specifically concerned with the task of

monitoring information systems and preventing

abuse," a National Data Center as first proposed by

Richard Ruggles.

But when all is said and done, there still remains

the moral climate in which the judicial, legislative

and administrative branches of government, as well

as private enterprise, live and breathe and have their

being. A moral climate is fundamental to the solving

of the problem of the threatened invasion of privacy.

If Watergate has said anything, it has called for an

ethical refurbishing of the climate of our society.

Theologians raised in the "natural law" tradition

see the right of privacy, like the right to think, as

deriving from the human personality "with no direct

connection with the mission of the state." The nat-

ural law and the jus gentium demand privacy; peo-

ple must be secure in consulting professional people

in their personal problems; in the use of the mails;

in the sanctuary of their homes.

Much like its legal history, the concept of "privacy"

in moral theology has not been met head-on. Treat-

ment of privacy centers mostly in the subject of

"secrecy." Secrets must be kept inviolate to avoid



pain, offense, loss to the "owner" of a secret. Such

a right is, of course, not absolute, except in the

sacrament of confession. Secrets must be kept in

order to insure free and confident access to the

various levels of professional advice, and a viola-

tion of such secrets is an offense against social jus-

tice. A breach of secrecy demands a delicate assess-

ment of all relevant factors, such as serious injury to

an innocent third party, or national security, etc.

On a related matter of the "invasion" of the

human mind and possible invasion of privacy, Pope

Pius XII in 1958 warned psychoanalysts that "just

as it is illicit to appropriate another's goods or to

make an attempt on his bodily integrity without his

consent, so it is not permissible to enter his inner

domain against his will."

Thus there is a natural secrecy from the nature

of the human person and of society itself protecting

individuals and groups from harm or reasonable dis-

pleasure.

It can be fairly concluded that while the bases

for the protection of privacy does exist in law and

moral theology, yet the right to privacy has not been

sufficiently enunciated in either, particularly in view

of the advent of modern tools of information gather-

ing and the temptations thereunto attached.

Some experts are calling for "a total and complete

re-vamping of our legislative approach to informa-

tional privacy, including the regulation of computer

transmissions and the movement of information in

interstate commerce" (Miller). Most will admit that

an "ethical refurbishing" is necessary, a change in

the moral climate in the U.S.A. to protect the in-

dividual and groups against the threatened invasion

of privacy, a value among those few values so funda-

mental and yet so undefined.

As was well stated in Stanley vs. Georgia (394 US,

564), the right to privacy is an aspect of the spiritual

nature of man: "The makers of our Constitution un-

dertook to secure conditions favorable to the pursuit

of happiness. They recognized the significance of

man's spiritual nature, of his feelings, and of his

intellect. They knew that only a part of the pain,

pleasure and satisfactions of life are to be found in

material things. They sought to protect Americans in

their beliefs, their thoughts, their emotions, and their

sensations. They conferred, as against the govern-

ment, the right to be let alone—the most compre-
hensive of rights and the right most valued by



civilized man."

That "many-splendored animal/' the computer,

promises great benefits and poses equally serious

threats. New safeguards are in order and are impera-

tive.

The people of California were walking much in

advance of their legislators, judges, administrators

and theologians when they voted affirmatively that

the right to privacy should be singled out, under-

scored and emphasized in this our day and times.

Implicitly, they agreed with the judgment that "The

privacy crisis, unlike the ecology crisis which was

predicted but largely ignored until severe damage

had been done to the environment, need never

happen!"





1974

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