1 2 reputation, personal characteristics, or mode of living, the user of such information shall disclose in writing the adverse action and the 3 nature of the information to the consumer. 4 NEW SECTION. Sec. 13. PRIVATE REMEDIES. (1) Pailure to 6 consumer reporting 7 8 5 comply with any of the provisions of this chapter on the part of any agency or user of corsuner reports shall constitute an unfair and deceptive trade practice under chapter 19.86 RCH and shall be subject to the provisions of that chapter: PROVIDED, That any person who is injured in his business or property by ад act of the consumer reporting agency or user of consumer reports way bring civil action in superior court to enjoin further violations and shall recover: 9 10 11 12 13 (a) Actual damages, but not less than liquidated damages 14 computed at the rate of five hunderd dollars for each violation, and (b) Punitive damages, but not less than five thousand dollars, (c) A reasonable attorney's fee and other litigation costs reasonably incurred. 17 18 19 20 21 22 23 24 report. 25 (2) Any consumer reporting agency or user of consumer who violates the provisions of particular consumer report may not absolute ΟΣ conditional, in any dissemination or distribution of the information reports this chapter with respect to a assert a defensive privilege, cause of action arising from the contained in such NEW SECTION. Sec. 14. SECTION HEADINGS. Sections headings 26 contained in this 1974 act shall constitute no part of the law. 27 NEW SECTION. Sec. 15. Sections 1 through 13 of this 1974 act 28 shall constitute a new chapter in Title 19 RCN. SB 3095 PROPOSED DRAFT LEGISLATION ON PERSONALITY TESTING An Act relating to personality testing; adding new sections to S -0 chapter 9.73 RCW; and prescribing penalties. Be It Enacted by the Legislature of the State of Washington: NEW SECTION. Section 1. There is added to chapter 9.73 RCW a new section to read as follows: It shall be unlawful for any person, corporation, partnership, organization, governmental department, board, agency, official, or other governmental entity, or any other entity to require or request as a condition of employment or as a condition to continued employment that any person or employee submit to any personality test. "Personality tests" as used in this section means any oral or written test that goes beyond measurement of intelligence, skills, or aptitudes and seeks to measure or to discover emotional states, traits of character, socio-political beliefs or values, sexual adjustment and general propensities. NEW SECTION. Sec. 2. There is aded to chapter 9.73 RCW a new section to read as follows: Any person who, directly or by means of any agent, violates the provisions of section 1 of this 1974 act shall be subject to civil action in superior court for damages, to be brought by any person claiming that a violation of this chapter has injured his person or reputation. A person so injured shall recover: (1) Actual damages, but not less than liquidated damages computed at the rate of five hundred dollars a day for each day of violation, or portion thereof, or one thousand dollars, whichever is higher; and (2) Punitive damages, but not less than five thousand dollars; and (3) Reasonable attorney fees and other litigation costs reasonably incurred. STATE OF WYOMING OFFICE OF THE ATTORNEY GENERAL, Hon. SAM ERVIN, Jr., Committee on Government Operations, DEAR SENATOR ERVIN: Your request for comments from this office on S. 3418 has been referred to me for answer. You should first know, however, that the State of Wyoming is in the process of establishing a comprehensive Criminal Justice Information System and I have, therefore, taken the liberty of soliciting comments from the Director of that Project, Mr. Edward Coffey, as well as the Advisory Committee on the Office of the Attorney General before responding to your request. S. 3418 is described as ". . . A bill to establish a Federal Privacy Board to oversee the gathering and disclosure of information concerning individuals, to provide management systems in Federal agencies, state and local governments, and other organizations regarding such information, and for other purposes." It appears that this bill seeks to establish a Board to compliment and carry out some of the provisions of your earlier Bill S. 2963 (Criminal Justice Information Control and Protection of Privacy Act of 1974). While S. 2963 deals solely with Criminal Justice Information Systems, ". the purposes of this legislation are to impose certain restrictions upon the type of information which can be collected and disseminated by law enforcement agencies on the Federal, State, and local levels: to place limitations upon the interchange of such information both among such agencies and outside the criminal justice community and otherwise to protect the privacy and reputations of persons about whom the agencies have collected information.", S. 3418 deals with all information systems, both public and private. There, therefore, appears to be some duplication which centers around the establishment of separate Boards to oversee each of the separate Acts. While the number and composition of Board members is different, the functions are similar. It would seem that the Federal Privacy Board (S. 3418) could handle, and even supercede, the functions of the Federal Information Systems Board (S. 2963). Apparently the intent is to separate the Criminal Justice Information System functions from other systems; this may have value but also it may cause problems, i.e., which Board takes precedence? Based upon your request, I will proceed to go through the provisions of S. 3418 and list the comments which I think to be most important on the separate items. 1. Creation of the Federal Privacy Board. I am inclined to agree with Clarence Meyer, Attorney General of Nebraska in his prepared statement of March 5, 1974 to the United States Senate Judiciary Subcommittee on Constitutional Right. I think creation of this Board will free law enforcement officers from the necessity of making policy decisions which they are not equipped to make, in that Federal standards will determine who is allowed to get what information. As General Meyer notes, law enforcement really does not care if anyone outside of law enforcement ever sees a criminal history, the pressure for release of information comes from without the system. I would personally welcome a definitive statement on which agencies (non-law enforcement) have the right-and need-to-know prerequisites. Along these lines, however, I also feel that S. 3633 (Government Data Bank Right to Privacy Act) would strike a balance between the need for this determination and what should be the State's right to provide input for this determination. Of the two, S. 3418 and S. 3633, and from a Criminal Justice standpoint, S. 3633 would seem to provide more user participation while still providing the same security and privacy protections to those individuals whose files are contained in the data bank. Again, my only reservation is in the area of the relationship between the Federal Privacy Board and the Federal Information Systems Board, specifically, whether or not there will be a duplication of effort and which one would take precedence. 2. Collection of Information from the individual to greatest extent possible. This requirement does not lend itself to a Criminal Justice application as well as it would in some other type of system. Criminal Justice files, for the most part, come from public documents with very little input from the subject himself. Most of the data maintained is recorded historical information on arrests and dispositions and the subject may not always be willing to provide such information. I would recommend that law enforcement be exempted from this requirement as it is not applicable. Much of the motivation for this legislation, I believe, comes from the "bleeding hearts" who are seemingly much more concerned with the civil rights of criminals than with effective law enforcement. This is not to say that criminals do not have civil rights and that law enforcement should know no bounds, but simply to say that somewhere there should be a balance struck which will be for the long-range benefit of society as a whole. The inclusion of the requirements that information come from the individual subject within the scope of a Criminal Information System would effectively kill the System. 3. Releasing information only to agencies with security and privacy requirements and limitations. My only comment here would be to emphasize the position taken by Project SEARCH that the responsibility for maintaining security and privacy of information rests with the receiving agency. In the same way that the State agency must assure the Federal system of our ability to control information received by the State from it and our resultant responsibility from having the information, so, too, should we have an agreement between the State and the county and local agencies information is forwarded to. It should be and must be the responsibility of the agency ultimately receiving the information to adequately establish and meet security and privacy considerations. A breach on their part would result in an action against the local agency and not the State agency supplying the information. In this respect, we would generally agree with your requirements and limitations on privacy and security. 4. Transfer of information beyond jurisdiction of the United States. Such transfer would occur most likely in the area of organized crime and would effect resulting intelligence information such as LEIU information transfers. I feel this requirement impedes the information flow and could effectively destroy the functions of LEIU. 5. Maintaining a list of persons with regular access. This provision will create an unnecessary bookkeeping effort on the part of all law enforcement. With the advent of switching hardware which allows direct access from the field to a data base in one state by a terminal in another state, the number of potential users is greatly increased. To maintain a list of all individuals in every agency which has the capability of accessing our files would be a monumental task. Even with a small turnover in every agency in the United States, it would require a huge additional staff to keep track of "who is allowed access today." I believe the same effect could be had by programming our computer to accept inquiries from law enforcement terminals only, maintaining a record of which terminal accessed information, and requiring the individual agencies to worry about maintaining lists of their own terminal operators. 6. Individual's right to inspect. This provision, of course, should be an absolute necessity in any information system where data flows relatively unrestricted between people (see No. 8 below). It would, however, limit the effectiveness of intelligence systems such as LEIU if they are not exempted. You have introduced legislation (S. 2963), which prohibits computerized intelligence files, and if that bill passes, this will be a moot subject. If that portion of the bill is deleted, however, intelligence files must be exempted from examination. If this is not done, intelligence systems will become worthless; subject individuals would know that law enforcement has recognized them; persons would not readily supply information knowing that the subject has the right to know who supplied the information; and subject individuals would know specifically which agencies were interested in them. If LEIU is any example of an organization maintaining intelligence files, and I believe it is, such systems are superconscious of an individual's right to security and privacy, and disclosure of information to unauthorized persons is virtually impossible. We believe that the approach LEIU has taken is valid, and Wyoming plans to follow that example closely. 7. Right to inspect by mail. It seems that this provision would relax some of the safeguards that the bill itself is trying to impose. I would suggest that if the individual desires to examine his file, and he does not live within commuting distances to the record repository, that he be required to go to a local law enforcement agency and be fingerprinted and that the request for examination be issued through that agency accompanied by the fingerprint card for comparison purposes and then the information being sent to the individual. The right to inspect by mail without this security requirement defeats the entire concept of privacy and security, since anyone could make a written request for confidential information on not only himself but others. 8. Notification of file maintained on an individual. I have already expressed my opinion on the need of this type of provision for other than intelligence files. The introductions to various Bills, are peppered with stories of how an arrest, followed by a warning and dismissal, has come back years later to haunt the individual. We need not go so far from home. The Division of Criminal Identification has records sent in by law enforcement agencies within the State, which record a minor arrest and dismissal and yet carry an FBI number. A nineteenyear-old who is picked up and printed for disturbing the peace, for example, and who is given a warning and released would probably believe that this is the end of his difficulties, he may be very wrong. His fingerprints may have been sent to the FBI and the Division of Criminal Investigation for the State of Wyoming. Years later, in applying for employment, he may reply that he has never been arrested. A check through the FBI or the Division of Criminal Identification will prove him wrong. Although the requirement to inform individuals of a file being maintained on them will increase the agency's workload, I feel that it is well worth it in preventing such situations as that described above. 9. "Investingatory files"-definition-exempted from the provisions of this Bill are "Investigatory files". At the present time, some phrases are used interchangeably but refer to entirely different entities and agencies. I would like to see this phrase defined specifically. Basically, this office is in favor of the concept of privacy and security as it applies not only to the Criminal Justice Information System, but other public and private systems as well. The above comments are intended to be constructive so as to request that Congress strike a balance between the rights of the citizen and the rights and needs of law enforcement to have access to information. I would like to thank you for your letter, and I do hope that you and your Committee will recognize the very definite needs of law enforcement in this area in a time when crime is on the rise and not in decline. Sincerely yours, FRED C. REED, Deputy Attorney General-Criminal Division. Criminal Justice Analyst Division of Criminal Investigation. LETTERS AND COMMUNICATIONS L. S. AYRES AND CO., Indianapolis, Ind., July 17, 1974. Hon. BIRCH E. BAYH, Jr., U.S. Senate, Russell Building, Washington, D.C. DEAR BIRCH: Thank you for your July 3 letter in which you ask for a statement on how the elimination of social security numbers from our credit application has worked for L. S. Ayres and Company. We appreciate the opportunity to provide such a statement and offer the following information. We requested the social security number for many, many years because we did not feel we could live without this information if we were to properly identify our customers. It has been our experience that individuals may change their names, use variations of their names, change their addresses and marital status, but they seldom, if ever, change their social security numbers. It is a reliable form of identification. The social security number was used by our Credit Department as an aid to identifying customers that had identical names at the credit bureau. It was important from the standpoint that many times the address that we had on our new application was more current than the one at the credit bureau. Therefore, the social security number was helpful in assuring that we obtained a correct credit bureau report on our customer. The social security number was also used as an aid in identification when attempting to locate a customer's new address or as an aid to verify the identity of a customer attempting to purchase merchandise without his credit card and very little identification on his person. Our company has a sincere appreciation and respect for each individual's right to privacy; and, accordingly, this is one of the factors we consider when designing our procedures. In 1971, you and Senator Ervin issued public statements against the abuse and overuse of the social security number. These statements prompted me to check our procedures, as I also felt that the social security number was being overworked as a form of identity and possibly could lead toward the establishment of a central data bank of information on each and every individual. In March 1971, we investigated our need for the social security number on our applications and determined that it was not absolutely necessary to have this information to properly process and service a charge account. We found that the number of times that we actually needed the social security number to identify an individual was minimal. We decided to delete the social security number from our credit application We have not used the social security number for three years, and the problems resulting from this change have been virtually zero. Once in a great while, we may select an incorrect credit bureau report on an individual because of similar names and some confusion relative to the addresses, but generally, the error is discovered before the customer is inconvenienced. In summary, the elimination of the social security number from our credit application has not adversely affected our ability to properly service our customers, while on the other hand, we feel that in some small way, we have been helpful in reducing the abuse of the social security number and helping our customers protect their right to privacy. Cordially, DANIEL F. EVANS. |