Personal Privacy in an Information Society. Endnotes

07/12/1997

1The Use of Polygraphs and Similar Devices by Federal Agencies, Report of the Government Operations Committee, U.S. House of Representatives, 94th Congress, 2d Session, 1976, p. 61; Rights to Privacy of Federal Employees, Hearings before the Subcommittee on Retirement and Employee Benefits of the Committee on Pos1 Office and Civil Service, U.S. House of Representatives, 93d Congress, 1st and 2d Session, 1974, p. 378; and Government Dossiers: Survey of Information Contained in Government Files, Repor1 of 1he Subcommittee on Administrative Practice and Procedure of 1he Committee on the Judiciary, U.S. Senate, 90th Congress, 1st Session, 1967, p. 605.

2 U.S. Department of Commerce, 1967 Enterprise Statistics, (Part I, General Repor1 on Industrial Organization), 1967.

3 According to the Bureau of Labor Statistics, in 1974 employees who were members of unions or employee associations represented 29.1 percent of employees in non-agricultural establishments, and 24.5 percent of the total labor force. U.S. Department of Labor, Bureau of Labor Statistics, Directory of National Unions and Employee Associations, 1976.

4 Kenneth Walters, "Employee Freedom of Speech," Industrial Relations, Vol. 15, No. I (February, 1976), pp. 26-43.

5 Clyde W. Summers, "Individual Protection Against Unjust Dismissal, Time for a Statute," Virginia Law Review, Vol. 62, No. 3 (April, 1976), pp. 481-532.

6 Michael Baker, "The Use of Organization Records in Decisions About Job Applicants and Employees," Unpublished memorandum to the National Bureau of Standards' Project on Personnel Practices, Computers, and Citizens Rights, July 11, 1976.

7 See, for example, Testimony of the Manufacturers Hanover Trust Company, Employment and Personnel Records, Hearings before the privacy Protection Study Commission, December 16, 1976, pp. 693-695. (hereinafter cited as "Employment Records Hearings").

8 See, for example, Testimony of the Equal Employment Opportunity Commission, Employment Records Hearings, December 17, 1976, p. 972.

9 Letter from the Ford Motor Company to the Privacy Protection Study Comimssion, January 14, 1977.

10 Donald R. Beld, "Prevalence of Private Retiremen1 Plans," Monthly Labor Review, Vol. 98, No. 10 (October 1975), pp. 17-20.

11 Seymour Lusterman, Industry Roles in Health Care, (New York: The Conference Board, 1973).

12 Department of Defense Industrial Security Manual for Safeguarding Classified Information, (DOD 5220.22-M), par. 6b(1).

13 George Strauss, R. E. Miles, and C. C. Snow, "Implications for Industrial Relations," Organizational Behavior: Research and Issues, (Madison, Wisc: Industrial Relations Research Association, 1974), p. 198.

14 Alan F. Westin and Michael A. Baker, Databanks in a Free Society, (New York: Quadrangle/The New York Times Book Company, 1972).

15 See, for example, Submission of the Cummins Engine" Company, "Employee Profile," Employment Records Hearings, December 9, 1976, p. 7; Submission of the Equitable Life Assurance Society of the U.S., "Privacy Principles, General Operating Policy No. 29," March 19, 1976; and Submission of International Business Machines, "Four Principles of Privacy," Employment Records Hearings, December 10, 1976.

16 See, for example, Submission of the Proctor and Gamble Company, "Release of Information About Present or Former Employees," Employment Records Hearings, December 9, 10, 16, 17, 1976; and Submission of the Manufacturers Hanover Corporation, "The Standards We Live By," Employment Records Hearings, December 16, 1976.

17 See, for example, Testimony of the Inland Steel Company, Employment Records Hearings, December 10, 1976, p. 369; and Testimony of the Cummins Engine Company, Employment Records Hearings, December 9, 1976, p. 2.

18 See, for example, Testimony of the Cummins Engine Company, Employment Records Hearings, December 9, 1976, p. 13.

19 See, for example, Testimony of the Equitable Life Assurance Society, Employment Records Hearings, December 9, 1976, p. 107; Testimony of the General Electric Company, Employment Records Hearings, December 9, 1976, pp. 226, 227; Testimony of the Cummins Engine Company, Employment Records Hearings, December 9, 1976, p. 10; and Submission of the International Business Machines Corporation, "The Managing of Employee Personal Information and Employee Privacy," Employment Records Hearings, December 10, 1976, pp. 8-9.

20 See, for example, Testimony of the Inland Steel Company, Employment Records Hearings, December 10, 1976, pp. 332, 373.

21 Testimony of the Ford Motor Company, Employment Records Hearings, December 16, 1976, p. 517.

22 Alan Westin, "Trends in Computerization of Personnel Data," Part II, 1955-1976, Unpublished Report for the National Bureau of Standards' Project on Personnel Practices, Computers and Citizens Rights, p. 4; Testimony of the General Electric Company, Employ-ment Records Hearings, December 9, 1976, pp. 267-268; Testimony of the Equitable Life Assurance Society, Employment Records Hearings, December 9, 1976, p. 133; and Testimony of Rockwell International, Employment Records Hearings, December 17, 1976, pp. 922-924.

23 See, for example, Submission of General Electric, "Safeguarding Confidential Data," Unpublished memorandum to Major Appliance Group, June 21, 1976; and Testimony of the Inland Steel Company, Employment Records Hearings, December 10, 1976, p. 366.

24 Submission of International Business Machines, "Preliminary Health Questionnaire," Employment Records Hearings, December 10, 1976.

25 Submission of Cummins Engine Company, "Employee Profile," Employment Records Hearings, December 9, 1976.

26 See, for example, Submission of J. C. Penney, "Drug Screen Report," Employment Records Hearings, December 10, 1976; and Submission of General Electric Company, "Medical History," Employment Records Hearse s, December 9, 1976.

27 See, for example, Testimony of the Ford Motor Company, Employment Records Hearings, December 16, 1976, pp. 559, 560. " addition, every corporate witness testified that some of its employment records were unavailable to employees.

28 Submission of J. C. Penny, "Application Form," Employment Records Hearings, December 10, 1976.

29Privacy, Polygraph, and Employment, Report of the Subcommittee on Constitutional Rights of the Committee on the Judiciary, U.S. Senate, 93d Congress, 2d Session, November 1974, p. 3.

30Ibid, pp. 9-14.

31 Op. cit., House Committee on Government Operations, p. 46.

32Ibid., p. 38.

33 Testimony of the Retail Clerks International Association, Employment Records Hearings, December 17, 1976, p. 1009.

34 Joseph F. Kubis, "Comparison of Voice Analysis and Polygraph as Lie Detection Procedures," (Report for U.S. Army Land Warfare Laboratory, August 1973) p. 6.

35 See, for example, Testimony of Pinkerton's Incorporated, Private Investigative Firms, Hearings before the Privacy Protection Study Commission, January 26. 1977, p. 156 (hereinafter cited as "Private Investigative Hearings"); and Testimony of Wackenhut Corporation, Private Investigative Hearings, January 26, 1977, pp. 53-54.

36 See, e.g., Milton v. Missouri Pacific Ry. Co., 193 Mo. 46, 91 S.W. 949 (1906); Inscoe Y. Globe Jewelry Co., 200 N.C. 580, 157 S.E. 794 (1931). However, recent decisions in a few jurisdictions indicate that under certain circumstances, one who employs a private investigator may not thereby insulate himself from liability for torts committed by the investigator by merely arguing that they were committed outside the scope of the employment. Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972); Noble v. Sears, Roebuck and Co., 33 Cal. App. 3d 654, 109 Cal. Rptr. 269, 73 A.L.R. 3d 1164 (1973).

37 Written statement of American Civil Liberties Union, Employment Records Hearings, December 9, 1976, p. 5; and testimony of Sorrell Wildhorn, Rand Corporation, Private Investigative Hearings, January 26, 1977, p. 237. See also the testimony of Charles S. Allen, Jr.., President, Armored Car Division, Contract Carrier Conference, American Trucking Association and Donald J. Jarvis, Vice President -Secretary and General Counsel, Bums International Security Service. Criminal History Records, Hearings before the Law Enforcement Assistance Administration, U.S. Department of Justice, December 11, 1975 (transcript on file at LEAA).

38 See, for example, California Labor Code Sec. 432.7(e)(1) and (2).

39 See, for example, Purdon's Pennsylvania Statutes Annotated: Professions and Occupations, Title 63, and Code of Laws of South Carolina 56-1305 ("Licensing of Pharmacists"), 1952.

40 Cummins Engine Company, interview with staff, November 4, 1976.

41 Submission of J. C. Penney Company, "Application Form," Employment Records Hearings, December 10, 1976.

42 See, for example, Submission of International Business Machines, "Application Form," Employment Records Hearings, December 10, 1976.

43 See, for example, Submission of International Business Machines, "Application Form," Employment Records Hearings, December 10, 1976; and Submission of General Electric Company, "Application Form," Employment Records Hearings, December 9, 1976.

44 Need for and Uses of Data Recorded on DD Form 214 Report of Separation from Active Duty, Report of the Subcommittee on Drug Abuse in Military Services of the Committee on Armed Services, U.S. Senate, January 23, 1975.

45 Letter from Walter W. Stender, Assistant Archivist for Federal Records Centers, General Services Administration National Archives and Records Service, to the Privacy Protection Study Commission, March 3, 1977; see also, General Services Administration "Release and Access Guide for Military and Personnel Records at the National Personnel Records Center," December 30, 1976.

46 See, for example, Testimony of the Ford Motor Company, Employment Records Hearings, December 16, 1976, p. 585.

47 Letter from D. 0. Cooke, Deputy Assistant Secretary of Defense, to the Privacy Protection Study Commission, January 18, 1977.

48 See, for example, Testimony of the Ford Motor Company, Employment Records Hearings, December 16, 1976, p. 531; and Testimony of Rockwell International, Employment Records Hearings, December 17, 1976, pp. 953, 955,957.

49 See, for example, Testimony of International Business Machines, Employment Records Hearings, December 10, 1976, p. 315; Testimony of Manufacturers Hanover Trust Company, Employment Records Hearings, December 16, 1976, pp. 678-679; and Testimony of Civil Service Commission, Employment Records Hearings, December 10, 1976, p. 414. Exception to this general practice may occur when an employee is terminated for cause, in which case this fact may be released. Testimony of Ford Motor Company, Employment Records Hearings, December 16, 1976, pp. 517-518, 599.

50 See, for example, Testimony of General Electric Company, Employment Records Hearings, December 9, 1976, p. 252.

51 Letter from the Association of Washington Business to the Privacy Protection Study Commission, November 22, 1976; and Letter from The Standard Oil Company to the Privacy Protection Study Commission, October 18, 1976.

52 Maine Rev. Stat. Ann. Tit. 5, Sec 638; Tit. 30, Sec. 64 and 2257.

53 California Labor Code, Sec. 1198.5.

54 See, for example, Testimony of General Electric Company, Employment Records Hearings, December 9, 1976, p. 235; Testimony of Cummins Engine Company, Employment Records Hearings, December 9, 1976, pp. 58-59; and Testimony of Inland Steel Company, Employment Records Hearings, December 10, 1976, pp. 370-373.

55 See, for example, Testimony of General Electric Company, Employment Records Hearings, December 9, 1976, pp. 279-280; and Testimony of Cummins Engine Company, Employment Records Hearings, December 9, 1976, p. 68.

56 See, for example, Testimony of Harvard University, Employment Records Hearings, December 17, 1976, pp. 864-902; Letter from Jean Mayer, President, Tufts University, to Roger W. Heyns, President, American Council on Education, August 9, 1976; and Sheldon Elliot Steinbach, "Employee Privacy, 1975: Concerns of College and University Administrators," Educational Record, Vol. 57, No. 1, 1976.

57 Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. 141 et seq. (1947). For case citations, see Clyde W. Summers, op. cit.

58 See, for example, Testimony of Cummins Engine Company, Employment Records Hearings, December 9, 1976, pp. 46-47; Testimony of Equitable Life Assurance Society of the U.S., Employment Records Hearings, December 9, 1976, pp. 131-132; and Testimony of J. C. Penney Company, Employment Records Hearings, December 10, 1976, p. 464-465.

59 Testimony of Manufacturers Hanover Trust Company, Employment Records Hearings, December 16, 1976, p. 653.

60 See Chapter 8 of this report; See also, for example, Testimony of Equifax Services, Inc., Credit Reporting and Payment Authorization Services, Hearings before the Privacy Protection Study Commission, August 3, 1976, pp. 162-163; Testimony of Wackenhut Corporation, Private Investigative Hearings, January 26, 1977, p. 29; and Testimony of Inland Steel Company, Employment Records Hearings, December 10, 1976, p. 349.

61 The term "medical-care provider" includes both "medical-care professionals" and "medical-care institutions." A "medical-care professional" is defined as "any person licensed or certified to provide medical services to individuals, including, but not limited to, a physician, dentist, nurse, optometrist, physical or occupational therapist, psychiatric social worker, clinical dietitian or clinical psychologist." A "medical-care institution" is defined as "any facility or institution that is licensed to provide medical-care services to individuals, including, but not limited to, hospitals, skilled nursing facilities, home-health agencies, clinics, rehabilitation agencies, and public-health agencies or health-maintenance organizations (HMOs)."

62 See, for example, Testimony of Inland Steel Company, Employment Records Hearings, December 10, 1976, p. 388; Testimony of Ford Motor Company, Employment Records Hearings, December 16, 1976, p. 576; and Testimony of International Business Machines, Employment Records Hearings, December 10, 1976, p. 309.

63 See, for example, Testimony of Cummins Engine Company, Employment Records Hearings, December 9, 1976, p. 19; and Testimony of Ford Motor Company, Employment Records Hearings, December 16, 1976, p. 556.

64 See, for example, Testimony of Inland Steel Company, Employment Records Hearings, December 10, 1976, p. 388; and Testimony of Ford Motor Company, Employment Records Hearings, December 16, 1976, p. 576.

65 See, for example, Testimony of Dr. Bruce Karrh, Assistant Medical Director, du Pont de Nemours and Company, Employment Records Hearings, December 17, 1976, pp. 782-783; and Testimony of Dr. Norbert Roberts, Medical Director, Exxon Corporation, Employment Records Hearings, December 17, 1976, p. 785. This is also the policy of the Ford Motor Company and the Atlantic Richfield Company. See "Employee Records & Personal Privacy: Corporate Policies & Procedures," McCaffery, Seligman & von Simpson, Inc., November, 1976, pp. 105, 139.

66 See, for example, Testimony of Ford Motor Company, Employment Records Hearings, December 16, 1976, p. 587; and Testimony of Dr. Bruce Karrh, Assistant Medical Director, du Pont de Nemours and Company, Employment Records Hearings, December 17, 1976, pp. 781-783.

67 See, for example, Testimony of Inland Steel Company, Employment Records Hearings, December 10, 1976, p. 334; and Testimony of General Electric Company, Employment Records Hearings, December 9, 1976, pp. 248-250.

68 "Confidentiality and Third Parties," The American Psychiatric Association Task Force of June 1975, Appendix Vol. H, p. 53.

69 Ibid, p. 55.

70 All employers who testified to the Commission have policies limiting the disclosure of information about employees, although there is some variation from employer to employer regarding what information is disclosed.

71 See, for example, Testimony of the Equitable Life Assurance Society of the United States, Employment Records Hearings, December 9, 1976, p. 125; Testimony of Inland Steel Company, Employment Records Hearings, December 10, 1976, p. 390; and Testimony of Ford Motor Company, Employment Records Hearings, December 16, 1976, pp. 540-541.

72 See, for example, Testimony of Ford Motor Company, Employment Records Hearings, December 16, 1976, pp. 539, 592.

73 Letter from C. Hoyt Anderson, Director Personnel Relations and Research Office, Ford Motor Company, to the Privacy Protection Study Commission, January 14, 1977.

74 Employment Records Hearings, December 16, 1976, p. 528.

75 A more complete discussion of the topics of this chapter will be forthcoming in a separately published appendix volume.