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Mr. SPEISER. I quite agree, Mr. Chairman.

Senator ERVIN. I wish to thank you again for making your appearance here. You have been of great assistance to the subcommittee on many legislative proposals, some of which have been made law and are on the statute books, and some of which have passed the Senate or have passed the House and I hope will also become law.

I can't express the depth of my appreciation for assistance you have given us on so many occasions.

Mr. SPEISER. Thank you very much, Mr. Chairman.

Senator ERVIN. The subcommittee stands in recess until 10 o'clock tomorrow.

(Whereupon, at 5:30 p.m., the subcommittee adjourned to reconvene at 10 a.m., Tuesday, October 4, 1966.)

(Subsequently, the following letter was received by the subcommittee:)


Washii on, D.C., October 5, 1966. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary,

U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN : During my testimony on S. 3779, I said I would send you a copy of a letter which the American Civil Liberties Union had sent regarding the proposed federal data centers. I would appreciate having the enclosed letter of August 5, 1966, which was sent to the members of the House Special Subcommittee on the Invasion of Privacy included in the Record of your hearings. Sincerely yours,

LAWRENCE SPEISER, Director, Washington Office.


New York, N.Y., August 5, 1966. Re proposed Federal data center. HONORABLE MEMBERS OF THE SPECIAL SUBCOMMITTEE ON INVASION OF PRIVACY, Rayburn House Office Building, Washington, D.C.

GENTLEMEN : The American Civil Liberties Union is grateful for the opportunity to present its views regarding proposals for a federal data center or centers which the Special Subcommittee on Invasion of Privacy is now considering. We applaud the Subcommittee's concern over values threatened by these proposals and the observation by Congressman Gallagher that they raise "serious questions about individual rights."

The implications of such proposals shock the sensibilities of thinking Amerifans. In our modern age, with all of its intrusive impact on the individual, traditional concepts of a man's right to privacy are already being increasingly undermined. These proposals would alarmingly accelerate this trend.

The privacy of which we speak has been defined in these terms :

"The essense of privacy is ... the freedom of the individual to choose for himself the time and circumstances under which, and most importantly, the extent to which, his attitudes, beliefs, behavior and opinions are to be shared with or withheld from others” (Ruebhausen and Brim, Privacy and Bcharioral Research, 65 Colum. L. REV. 1184, 1189 (1965)). It is our concern that this privacy, which is an essential source of civil liberties and therefore lies at the heart of our free society, will seriously be jeopardized bs proposals presently being made for the collecting and centralizing of all data possessed by the government regarding each citizen.

We concentrate our comments on two proposals, the FBI National Crime Information Center and the National Data Center,

Under the first proposal, a network of computers would store all information on criminal conduct. Certain valid law-enforcement purposes will be served by the creation of such a data center. Police work and crime detection can be more efficiently pursued if information concerning major crimes is readily and quickly available to law enforcement officials. In addition, such a center can serve as a source of vital statistical research on crime and police practices in the United States,

However, two dangers to civil liberties are inherent in the existence of such an Information Center. The first of these, the widespread use of incomplete and unexplained arrest records, has long concerned the American Civil Liberties Union. We have been deeply troubled by the adverse consequences to an individual flowing from the recording of an arrest not followed by indictment or conviction, as well as from the making of a record of certain arrests, and even convictions, where the true nature of the conduct leading to arrest (such as peaceful participation in civil rights or peace marches) is not disclosed. In our correspondence over the past few years with the FBI about the arrest record problem it has been clearly established that too frequently local law enforcement officials report arrests to the FBI but fail to report later disposition of the case. Countless persons against whom charges have been dropped or wbo have been acquitted must still suffer the harsh consequences of a wrongful taint of criminality when seeking employment or other privileges. These problems are even more grievious in the all-too-common case today of those arrested for the valid exercise of constitutionally protected rights. No reliable procedure exists for differentiating such arrests in present FBI records from arrests made for the normal incidents of criminal conduct.

The Union has frequently suggested methods to eliminate employment discrimination based upon the bare record of an arrest, urged better reporting of arrests and ultimate disposition in each case, and pressed for avenues of legal redress for improper use of arrest records. Yet the problem remains, and will be accentuated by the creation of a central pool of information. Such a pool will serve only to multiply the deprivation of the civil liberties of those who are wrongfully arrested or arrested and even convicted for merely exercising their rights. Inaccurate and prejudicial data will be made available to a greater number of police officials and through them to still greater numbers of unauthorized persons.

Our second concern regarding the proposed FBI Crime Information Center is that it will be the repository not just for crime information, which is a valid function, but for other types of information not at all relevant to the prevention and detection of crime. It is said that other federal investigative agencies will be invited to feed whatever information they choose into the huge reservoir that the national network of computers will store and retriere. Data concerning a person's political beliefs and associations, gathered by various federal security agencies, thus will become part of the crime data bank. The implications are obvious: every local police official will be able to learn with facility not only whether a suspect has a criminal record, a proper disclosure, but also whether he has at all deviated from his community's political or social norms, a highly improper disclosure which threatens the enjoyment of First Amendment protections. We know from the history of our own McCarthy era how such information can be improperly used when placed in the wrong hands, to hound people out of their jobs and subject them to other reprisals for their dissenting or unpopular opinions.

We therefore urge that, should such an FBI Center be created, strong safeguards be instituted to insure that only proper or relevant information be stored and that it be used only for proper crime prevention or crime detection ends. Such safeguards should at a minimum,

1. Prohibit the receipt and storing of information other than that formally recorded in connection with the report of a crime and the commencement and disposition of a criminal proceeding.

2. Prohibit the disclosure of such information to any but an authorized officer of a law enforcement agency.

3. Effectively penalize the disclosure by the direct or ultimate recipients of information so obtained to anyone not authorized to receive it in the first instance, and

4. Prohibit the disclosure of any information concerning arrests made more than sixty days preceeding disclosure.

5. Provide procedures for the subject individual to learn the whole of the record kept about him, and to compel correction of inaccuracies and prejudicial omissions and the striking of stale records of arrests that have not lead to conviction,


Threatening as the proposed National Crime Information Center is, by far the more serious threat to civil liberties stems from proposals to establish a National Data Center whose ultimate design is to centralize in a single place all information possessed by any arm of the government on each individual. We agree with the statement of the chief personnel investigator for the Civil Service Commission that, “Whenever a bureaucracy amasses files about its citizens an inherent threat to liberty exists.” In recent years as our society has incredibly increased and proliferated information gathering about individuals, no person can embark on any of the activities which comprise the essence of modern life, from opening a charge account to seeking a change of jobs, without some investigator prying into his past and present life. In many instances these investigations serve a vital function. But far too often the quest for information expands out of proportion to the actual need. Worse, inforination relevant for one purpose may be disclosed in the course of a wholly different inquiry as to which it is both irrelevant and prejudicial.

There are two distinct threats to civil liberties posed by the creation of such a data bank. The first lies in the methods by which the information is gathered. Unfortunately, the great bulk of information about an individual is not gathered as the result of inquiries by skilled government security investigators. Rather, it is often acquired by government employees of poor judgment, by private agencies, credit unions, insurance companies and busi

Government agencies often farm out investigative work to private firms, and there is a considerable interchanging of data among government and private sources. Once an unreliable bit of information makes its way into a file it forms an indelible mark on a person's record. The individual who is denied the chance for employment or some other opportunity on the basis of such information is given no chance to rebut or disprove it. Dossiers are compiled, the accuracy of which increasingly becomes more questionable. The computerization of such information in the data bank only compounds the basic abuse. Such procedures, taken as a whole, promote a society unresponsive to the necessities of human dignity and privacy, and in the particular case, deny the individual the elements of basic fairness.

The second threat posed by the existence of such a data bank is that information will be used in harmful ways irrelevant to the specific purpose in each case and not intended when the information was gathered. At present each of the numerous federal agencies that gather information on citizens maintain their own records for their own particular use. Under the proposed plan, all this information will be centralized. Ultimately, at the push of the proverbial button, an official from any agency will have access to every bit of data ever accumulated on a person, including information completely unrelated to his concern. For example, information gathered from a passport application will be available to the official processing a request for an FHA loan. Medical and psychiatric histories of applicants for veterans benefits may become available for political misuse. In our view, others simply have no business seeing data gathered for such special purposes. That such access can be abused, and that improper determinations based on legally irrelevant information can be made, is a proved experience with government. During the 1950's we learned the tragic lesson that the confidentiality of government files is already too difficult to maintain and that there are unscrupulous persons who will utilize their access to file information for ulterior purposes.

There is danger that data gathered by the government will find its way into the hands of private firms where it will be improperly used against an individual. Moreover, the reverse will also occur; thus, for example, a government agency, itself unauthorized to administer a polygraph test to job applicants, will have available the results of such a test administered to the individual when he applied for employment with a private company. Prohibited results will be achieved in an indirect fashion. When any official determination is made on the basis of irrelevant information which that official has no right to consider, the end result is a deprivation of the individual's civil liberties.

In recent years the Supreme Court has erected constitutional barriers against the improper use of surreptitious surveillance devices (Silverman v. United States, 365 U.S. 505, 1961), has prohibited the attempted elicitation by government agencies of information about an individual's associational ties (Shelton v. Tucker, 361 U.S. 479, 1960) and has taken the first step toward defining an area of protected privacy and sanctity into which the government may not intrude (Griswold v. Connecticut, 381 U.S. 479, 1965). The proposed data bank threatens to vitiate these protections so vital to our free society. The content of conversations, monitored by eavesdropping devices, may well be codified and put on tape. The individual's associational ties will become part of his dossier avail. able to the lowest personnel official. The private lives of our citizens, as "documented” by the basest form of gossip, will be fed into the machine. All this in the name of efficiency. This is government surveillance which brings 1984 to our doorstep.

Confirming our apprehension over the alarming implications of this proposal is the absence, in descriptive statements we have so far seen, of emphasis upon any such vital safeguards as those that have been suggested to the Subcommittee by Professor Charles A. Reich-and the concomitant likelihood that such safeguards will be overlooked in its implemetation. Such safeguards would include:

1. Prohibitions on the eleciting, storing or retrieving by any officer of government of certain types of information for any purpose.

2. Provision to each citizen of an effective right to inspect the contents of information collected about him and to compel corrections of its inaccuracies and prejudicial omissions, and

3. Limitations on the access to stored information to the original recipient

of that information. The seeming insensitivity of proponents of the National Data Center to the needs for such safeguards underscores the reasons for our opposition.

The principles which protect liberty and human dignity from the insistent demands of order and efficiency are the very stuff of which our democratic society is made. They demand that the collection, storing and retrieving of essential information, such as that concerning crimes and criminal proceedings, be surrounded with safeguards of the kinds we have proposed. And they demand that all larger conceptions, looking to such essentially unlimited federal surveillance as that of the proposed National Data Center, be rejected and discarded outright. We commend the Subcommittee for its vigilant attention to these hazards. Very respectfully yours,


Doecutive Director.




Washington, D.O. The subcommittee met, pursuant to notice, at 10 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr., presiding: .

Present: Senators Ervin (presiding) and Javits. Also present: George B. Autry, chief counsel and staff director. Senator Ervin. The subcommittee will come to order. Counsel will call the first witness. Mr. AUTRY. Mr. Chairman, the first witness today is Prof. Alan F. Westin, research director, Special Committee on Science and Law, the Association of the Bar of the City of New York.

Senator Ervin. I wish to welcome you to the subcommittee and express to you our appreciation for your willingness to come here and give us the benefit of your observations and those of your committee.


Mr. WESTIN. Thank you, Senator.

This is the third time I have had the honor of being invited as an expert witness before this Senate subcommittee; twice before in 1958 and 1961 I came to share some ideas about the wiretapping and eavesdropping problem. It is a mark of how the issue of privacy has expanded in our society since 1961 that the subcommittee is now having hearings on another aspect of this problem—the question of Federal employer surveillance over Federal employees' rights.

Senator Ervin. I would say that your observations remind me of the phrase "eternal vigilance is the price of liberty:" I might add that eternal vigilance is certainly the right that Justice Brandeis said is the right to be let alone.

Mr. WESTIN. I thought I might start by describing the work of the Special Committee on Science and Law of the Bar of New York, to indicate what we are bringing to this hearing in terms of an approach. The special committee was organized in 1962 to conduct this particular project under a grant from the Carnegie Corp.

The committee consisted primarily of lawyers. But as the project unfolded scientists and political scientists, sociologists, businessmen,

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