Options for Promoting Privacy on the National Information Infrastructure. 2. The Computer Matching and Privacy Protection Act of 1988


Congress passed the Computer Matching and Privacy Protection Act of 1988 (Matching Act)54 to address concerns that agencies were using the routine use exception to justify widespread electronic comparison of federal databases.55 The Matching Act, which amends the Privacy Act, regulates federal agency use and exchange of information contained in existing agency databases. Under the Matching Act, agencies must follow specific procedures when engaging in the automated comparison of Privacy Act databases on the basis of certain data elements.56 Agencies must, for example, perform a cost/benefit analysis of proposed matching activity.57 The Matching Act also protects individuals who suffer adverse consequences as a result of a computer match. Before denying or terminating a government benefit on the basis of computer matching, agencies must notify the data subjects and provide an opportunity to refute adverse information.58 The Matching Act requires agencies engaged in matching activities to establish Data Protection Integrity Boards to oversee these activities.59

The General Accounting Office has criticized both the substance of the Matching Act and its implementation.60 The Act provides procedural safeguards, but does not provide substantive guidance as to the circumstances under which a match is or is not acceptable.61

54. Pub. L. No. 100-503, 102 Stat. 2507, 5 U.S.C. §§ 552a(a)(8)-(13), (e)(12), (o)-(r), (u).

55. Schwartz & Reidenberg, supra note 9, at 101.

56. This automated comparison is called a "matching program." 5 U.S.C. § 552a(a)(8).

57. 5 U.S.C. § 552a(u)(4).

58. 5 U.S.C. § 552a(p). Following adoption of the Matching Act, Congress passed the Computer Matching and Privacy Protection Amendments of 1990, which further clarified the due process provisions of subsection (p). Pub. L. No. 101-508, tit. VII, subtit. C, 104 Stat. 1388-334 (1990).

59. 5 U.S.C. § 552a(u).

60. See General Accounting Office, Computer Matching: Quality of Decisions and Supporting analyses little affected by 1988 Act (1993).

61. Schwartz & Reidenberg, supra note 9, at 101.