Personal Privacy in an Information Society. Law Enforcement and Privacy


The third competing interest the Commission identified is the interest in preventing and prosecuting crime. Organizations do and should have the means of protecting themselves from suspected fraud in insurance claims, fraudulent use of credit cards, multiple welfare applications, and the like. Organizations, both private and public, exchange information among themselves and with law enforcement authorities to protect against such losses and to assist in the prosecution of crime. The Commission has not suggested that this organizational interest be curtailed. Rather, it recommends that individuals be apprised, at the time they establish a relationship involving confidential records that information about them may be disclosed for investigative or enforcement purposes if the record keeper develops evidence that points to criminal behavior on their part. Government requests or demands for recorded information about individuals for law enforcement purposes pose a special problem. As a result of the Miller decision discussed earlier, an individual has no constitutional protections against government demands for access to records third parties maintain about him. There are some statutory protections, such as those for census records, Federal . income-tax returns, and records developed in connection with federally funded drug abuse research and treatment programs. The Commission believes, however, that the individual should have an assertable interest in other types of records about him, such as those maintained by financial institutions, insurance companies, medical-care providers, and providers of long-distance telephone service, as a matter of general policy.

Government agencies have testified that to enforce the law, they need full and complete access to records kept about individuals by third parties. They argue that to restrict their access, or more specifically to subject it to the assertion of an individual's interest, would unduly handicap their legitimate law enforcement activities. The Commission seriously considered these arguments and has developed a set of recommendations that allow for continued law enforcement access, but under stricter rules. These rules are in two parts. First, they require law enforcement agencies to use legal process of some form whenever they seek information about an individual from a third- party record keeper. Second, when they seek access to records in which the individual has a legitimate expectation of confidentiality, the Commission recommends that the individual involved be given notice and the legal capacity to contest the action. The Commission has not recommended prohibiting government access, but rather giving the individual an assertable interest in the process of government information gathering about him. The requirement for legal process in all instances has the further advantage that it creates the basis for meaningful accountability mechanisms.