The first step in securing such an expectation was examined earlier in this chapter-the record keeper maintaining a confidential record must be placed under a duty not to disclose the record without the consent of the individual, except in certain limited circumstances. The specific limitations placed on record keepers in such areas as financial services,58 medical care and insurance are set out elsewhere in this report.59 Coupled with these obligations on third-party record keepers must be certain limitations on government action and certain rights which the individual can assert. Thus, as the second step in securing the expectation of confidentiality, the Commission recommends:
That Congress provide an individual by statute with an expectation of confidentiality in a record identifiable to him maintained by a private-sector record keeper in its provision of financial services, medical care, insurance, or telecommunications services, which statute should specifically require that the individual, in defense against compelled production of such a record pursuant to any administrative, judicial, or legislative summons, subpoena, or similar order be permitted-
(a) to challenge the relevance and scope of the summons, subpoena, or order and to require from the government clear proof of the reasonable relationship of the record sought to the investigation, prosecution, or civil action in furtherance of which the summons, subpoena, or order was issued before a court may order disclosure of the record; and
(b) to assert in protection of the record the protections for private papers and effects articulated in the Fourth Amendment, and the due process protections articulated in the Fifth Amendment, to the Constitution of the United States.
The Commission recognizes that the recommended measure does not reach fully the level of protection afforded an individual under California law. Section (b) of the recommendation creates a standard that may amount to somewhat less than probable cause; what the Commission recommends may not raise all requests for bank, credit, insurance, or health records to the level of a search warrant.60 At the very least, however, it will force government to establish reasonable cause to believe that the record is relevant to prosecution of a violation of law before the legitimate expectation of the individual can be overridden .61
Turning from the definition of the legal substance of an individual's expectation of confidentiality, the question of search warrants can now be reviewed briefly. The protections against abuse of the search warrant by government officials are articulated in the Fourth Amendment to the Constitution.62 For a magistrate to issue a warrant, the government must establish probable cause and describe with specificity the place to be searched and the materials to be seized. Although, in the search warrant situation, the individual has no opportunity to contest seizure of the records beforehand, he may be able to suppress the use of the information afterward, since government must meet the requirements of the Fourth Amendment in order to employ the fruits of the warrant as well as to procure it.63 Should the government act in violation of the constitutional strictures, clear channels for redress exist.64 To the extent that requiring government to present a compelling need for a particular record helps secure an individual's expectation of confidentiality, the search warrant provides adequate protections.
Given probable cause, however, the government may employ a search warrant today to seize virtually any record about an individual, whether held by the individual or by a third party. No longer do there seem to be any personal documents inaccessible to government because they reveal "intimate areas of personal affairs."65 The notion has vanished that some documents are as deserving of absolute protections as are the utterances protected absolutely through the combined strictures of the Fourth and Fifth Amendments.66 Today, whatever a person may write down, to prepare his taxes or settle his mind, meant for only a few others or for no one else's eyes, government can have if government acts through the proper procedures. While this element of contemporary constitutional interpretation does not unduly disturb the Commission in regard to the records about individuals ordinarily kept by third parties in the course of a confidential relationship with an individual, such as bank records, the idea that papers in the hands of the individual have no sanctity is troubling. The Commission focused on more or less formalized record keeping in its study; it is unsure of how to go about defining the sort of papers that should be inviolate in the hands of the individual but urges the Congress, the courts, and legal scholars to continue working to resolve this issue and to mark out a clearer zone of impenetrable personal privacy.
Having proposed that the individual's interest in certain records be legally recognized, and having suggested that certain records which are personally held may need absolute protections, the Commission turned its attention to the procedures, legal and practical, by which government exercises its power to compel access to records.
PROHIBITION ON INFORMAL ACCESS
Returning for a moment to the question of informal access to personal records by government, the Commission's study showed that a wide variety of records about individuals are revealed to government without leaving a record that the disclosure was made and without the individual ever being aware of the disclosure. 67 While documentation of such disclosures will not directly help the individual protect his records, it will help in discovering improper or excessive acquisition of information by government. Access by Federal investigators to the records of private associations, retailers, employers, or local government agencies, for example, where government need not use compulsory process because there is no expectation of confidentiality, could be monitored. Such public documentation and consequent ability to monitor investigative collection activities may help to avert the dangers of clandestine compilation of unnecessary records such as those discovered in 1976 by the Senate Select Committee on Intelligence Activities. 68 To effect such documentation of government requests for personal records, the Commission, therefore, recommends:
That any request for an individually identifiable record made to a private-sector record keeper or agency of another government jurisdiction by a government agency or its agents be made only through recognized legal process, such as an administrative summons or judicial subpoena, unless the request is made with the consent of the individual to whom the record pertains.
The Commission does not intend through this recommendation to cut off an investigator's ability to seek the testimony of parties with whom an individual under investigation may have had contact; nor does it want to eliminate the ability of the retailer, for example, to refresh his memory of contact with an individual from his own records. When government seeks a copy of a record, such as the charge record from a gas station or the hotel's copy of a guest's bill, it would have to use legal process. The Commission sees no reason why government should not leave a paper trail of its investigation just as the individual in our society leaves a trail of his activities. The value of personal records to agencies investigating the legitimacy of an individual's conduct suggests that similar documentation of government information collection activities will be equally valuable for investigating and assessing the legitimacy of governmental conduct. Finally, it should be recognized that requiring government to use legal process to obtain individually identifiable records does not mean that the individual can halt such access or create delays where he has no legitimate expectation of confidentiality in the record.
What are those forms of process which government must employ to obtain records, however; and, what limits does the Commission recommend placing on them? As outlined at the beginning of this section, government moves to obtain documentary evidence through three basic forms of process: administrative summons, judicial subpoena in the course of litigation, and Grand Jury subpoena. There are common elements in the way the three are issued.
THE SUBPOENA AND SUMMONS
A subpoena or summons is simply a form which a government agent or attorney fills in to show who is commanded to appear, with what document or testimony, when, and where. For an administrative summons, the form is prepared by the agency for which the official filling it out works. For a judicial or Grand Jury subpoena, the form is obtained simply by asking the clerk of a district court for a blank. U.S. Attorney's offices, for example, often have boxes of blank Grand Jury subpoenas on hand. After it is filled in, the subpoena or summons is delivered to the person to whom it is directed, or the "addressee," who may comply with it, and, if he wishes, hand over the records requested immediately or as soon as he can get them together. The addressee, however, may decide not to comply with the request. If he refuses, the government must then take the matter before a magistrate if it wants to compel the addressee to disclose the specified information. At that point the addressee can challenge the propriety of the subpoena, either on the grounds of procedural deformity or on the basis of some protected legal interest he has in the information. The magistrate then determines the validity of the subpoena or summons and, if valid, orders the addressee to produce the information or be punished by fine or imprisonment. As this synopsis illustrates, the executive agency or investigator issues and delivers a summons or subpoena without prior judicial supervision or even knowledge; supervision comes into play only if the subpoena is challenged and there is a legally recognized basis for that challenge.69
If personal records are in the possession of the individual, as they usually were when the subpoena process developed,70 a subpoena does not threaten the confidentiality of those records unduly. The individual could go into court and seek to stop unwarranted government seizure of his records. With so many personal records not within the individual's possession, and with the courts generally refusing to recognize the interest of the individual in records he does not possess, the subpoena and summons allow government to seize personal records without the possible intervention or even knowledge of the individual. Nor does the process allow the record keeper to assert a privacy interest for the individual or to raise questions which go much beyond whether the subpoena was filled out properly.71 In effect, the subpoena has become a tool that government agents can use to seize the records of an individual without being required either to give him an opportunity to dispute this action before his privacy is invaded or to establish a reasonable basis for the seizure (i.e., probable cause) before an impartial magistrate.72 The protections of the Fourth Amendment against unreasonable search and seizure, meant to give individuals the assurance that the executive could not act in a high-handed and unchecked manner, seem to have been superseded. The procedures by which the various forms of subpoena and summons are issued tend to exacerbate this problem of unreviewed executive action. Government investigators today may decide what information they need and seize it without prior outside supervision.
THE ADMINISTRATIVE SUMMONS
The Commission reviewed more than 160 separate statutes which empower Federal authorities to compel the production of documents or records.73 Though this sample represented a large proportion of the statutes granting some sort of summons power at the Federal level, it was by no means exhaustive.
The procedures by which administrative summons power is exercised ordinarily parallel those for issuing, serving, and adjudicating challenges to a judicial subpoena, whether the summons power is provided by statute to conduct investigations or to assist in adjudication of claims before an administrative tribunal. The term "administrative summons" as employed in this report, however, also encompasses broad record inspection powers under which an agency need employ no document to gain access to a record, at least so far as the statutory grant of power is concerned.74
Whatever the nature of the summons power in a particular case, however, the Commission found that it is uniformly given to administrative bodies who have enforcement or oversight responsibilities-in other words, to virtually every agency of government. The reach of such summons power is restricted to the compulsion of information which is arguably relevant to carrying out an agency's responsibilities.75 The restriction, however, need not mean much. An IRS summons issued in a tax investigation, for example, may reach to any conceivable record about an individual. As U.S. Supreme Court Justice Stewart noted in reviewing IRS summons power in 1975,
virtually all persons or objects in this country may, of course, have Federal tax problems. Everyday the economy generates thousands of sales, loans, gifts, purchases, leases, deposits, mergers, wills, and the like which suggest the possibility of tax problems for somebody.Our economy is tax relevant in almost every detail.76
The sources which may authorize the issuance of the summons run the gamut from the majority of the members of a governmental agency to any person designated by the highest official of the agency. Statutes grant the right to issue a summons to the following: agency, committee, subcommittee; chairman, president; vice-chairman, nondesignated committee member, designated committee member; designated department head, designated officer, designated representative, designated employee; examiner, claims agent, collections agent, appraiser, proper United States attorney, attorney representing the government, any agent of the FBI, any designated employee of any State, territory, or political subdivision; or, any designated person.77
Few of the statutes specify who must sign a summons in order for it to issue. The laws which do specify most often delegate the power to the chairman (or other head official) or individuals he may designate. Some statutes also go so far as to mention who may deliver the summons, but most of those simply permit delivery by any individual whom the issuer designates.78 There is no statutory attempt to keep the power to issue a summons in the hands of those with supervisory responsibilities.
The range of records which may be compelled by an administrative summons is also broad. Many statutes simply grant the power of subpoena or of subpoena duces tecum without elaboration.79 Others add such brief, general descriptions as "information," "records," or "documentary evidence." Others enumerate lengthy lists of compellable evidence, e.g., "books, papers, schedule of charges, contracts, agreements, or documents." The most common combination of words used in statutes is the phrase "books, papers and documents."80
A few statutes, but only a few, establish express limitations on summons power by excluding certain records from the reach of the summons. For example, the enabling legislation of the Food and Drug Administration gives broad powers to inspect records which are required to be kept by law and related documents, but specifically excludes financial data, sales data other than shipment data, or pricing data.81 Ordinarily when statutes specify direct limitations on the summons power, they only reiterate common law or constitutional principles which would be applicable anyway, reaffirming preexisting limitations. In contrast, a few statutes establish additional procedural rights and set forth requirements of nondisclosure.82
The rare statute that prohibits disclosure does so to protect confidential subject matter or trade secrets. In addition, the Freedom of Information Act articulates several reasons which justify a refusal to disclose specifically requested information. These statutes limit the conditions under which disclosure may be made. At least one permits disclosure to anyone if dissemination will aid the individual who gave the information.83 Under most of the statutes granting summons power, however, the executive agency has virtually unlimited discretion to determine what information is sufficiently confidential or private to trigger nondisclosure requirements.84
In a majority of cases where statutory language limits the summons power, a broad "reasonableness" standard is employed. The statutes mandate that a summons be reasonable with respect to particularity, timeliness, and relevance (e.g., location, identity of custodian, good faith belief that the individual possesses the records). Fair housing legislation provides one example:
The Secretary (of HUD) shall grant the petition (of the witness) if he finds that the subpoena requires appearance or attendance at an unreasonable time or place, that it requires production of evidence which does not relate to any matter under investigation, that it does not describe with sufficient particularity the evidence to be produced, that compliance would be onerous, or for other good reason.85
Some five percent of the statues reviewed contained this kind of limitation.
Rather than limiting administrative summons power, many statutes expand its reach even beyond the range permitted through judicial subpoena power. They increase government's ability to obtain information by restricting the scope of privileges, broadening inspection powers, increasing protection of informants, and offering preferential treatment for the agency seeking the information.86 As discussed later in connection with government information reporting and record-keeping requirements, the statutory expansion of administrative ability to compel disclosure of information includes the power to enter and inspect records without even the formality of an official piece of paper.87
In effect, the scope and use of administrative summons power is left largely to administrative discretion. While most administrative summons do not appear to have been misused, only the goodwill and restraint of the innumerable officials empowered to issue and administer summons protect an individual from abuse. Unfortunately, some abuses of power have occurred.
The agents of the Internal Revenue Service, for example, have exercised their power to issue summons in questionable and improper ways.88 Former Commissioner Alexander attempted to prevent further abuses by restructuring the internal procedures for the issuance of a summons. At the same time, similar misuse of process by other agencies has not led to internal reform.89 Even were administrative reform comprehensive, however, the individual cannot be sure of protection unless the Congress acts. Dependence on the restraint of executive officers alone is perilous.90
In addition to the dangers cited, the possibility of information flowing indiscriminately from the agency acquiring it to others leads to abuses of the administrative summons power. It is not only the information produced through reporting requirements which circulates widely within government; information obtained by agencies through their summons power for a specific purpose also flows to other agencies for unrelated use. As former Deputy Attorney General Tyler indicated to the Commission, information in the hands of the IRS, whether compelled through a reporting requirement or the summons power, is viewed as a general governmental resource.91
The courts have not acted to restrain the scope of administrative summons power, although some judges have expressed discomfort with the notion that "unreviewed executive discretion" may result in disclosure of records of "intimate areas of personal affairs" which could violate an individual's legitimate expectation of privacy.92 However uncomfortable they may be, though, judges, especially the Supreme Court, have endorsed the expanding reach of administrative summons power.93Virtually no individually identifiable record in the control of a third-party record keeper is immune from an administrative summons; and, the individual is without a legally recognized interest which he may assert to protect a record about himself, even if it is a bank, credit, employment, insurance, or medical record. Furthermore, the present ability of government to compel disclosure of records administratively is so broad and ill-defined in scope that it permits what the Tenth Circuit characterized as "fishing expeditions" and what Justice Stewart has suggested is compulsory process based on "sheer speculation."94
In order to minimize the dangers created by the current unrestricted and ill-defined administrative summons power of Federal agencies, and to return to the individual some measure of control over records about him held by third parties, the Commission recommends:
That Congress provide by statute that an administrative summons (or other form of compulsory legal process) issued by an administrative or executive authority of government to a private-sector record keeper in order to inspect or obtain an individually identifiable record shall be issued only
(a) for the inspection of a record required to be maintained pursuant to a statute or regulation, or
(b) for the investigation of violations of law where the evidence obtained by such administrative summons (or other form of compulsory process) will be used only for administrative action, civil enforcement, or criminal prosecution directly related to the statutory purposes for which such summons power was granted, except, where evidence of unrelated criminal activity is uncov-ered, the existence of such activity may be reported to a proper investigating authority who may then proceed to obtain such information from the record keeper pursuant to whatever legal processes are at its command; and
(c) where a copy of the administrative summons is served by the administrative or executive authority of government upon an individual who (i) is, or is likely to become, the subject of investigation or enforcement proceedings, and (ii) is the subject of the record to be produced,
(d) where the issuance of such a summons may only be made by officials of the issuing agency who are not field agents and who exercise supervisory authority and responsibility over the agents who will serve the summons, and
(e) where an individual identified in the record and subject to notification under (c) above has standing to assert protections for those records in which he has an expectation of confidentiality as defined in Recommendation (1) above or any other defense provided by common law or statute;
(f) an administrative summons may be issued without service upon the individual where the government shows to a court that service would:
(i) pose a reasonable possibility that the record sought will be destroyed, or an attempt to destroy it will be made, by the record subject upon whom service of the summons is required; or
(ii) pose a reasonable possibility that other evidence would be destroyed or become unavailable to government, jeopardizing the investigation; or
(iii) cause flight from prosecution by the individual upon whom service of the summons is required; or
(iv) endanger the life or physical safety of any person;
provided that, before issuance of such a summons, the government must show the reasonable relationship of the record sought to the investigation in furtherance of which the summons is to be issued. Within a reasonable period of time after issuance of a summons without notice, the government must notify the subject of the record of the seizure. This provision ((f)) would not, however, apply to a record in which an individual has a legitimate expectation of confidentiality recognized by statute or common law.
The Commission believes that this recommendation would curtail the potential for invasion of personal privacy through unreviewed executive action. It would limit the unmonitored expansion of administrative summons power and return the decision to compel disclosure of documents to the supervisory level, where it belongs. In addition, the recommended measure would interfere little with the proper activities of law enforcement. While some inefficiency inevitably occurs when one seeks to safeguard personal privacy, the provisions of subparagraph (f) will minimize any additional burden on government. Finally, the Commission appreciates the arguments of law enforcement officials who suggest that motions to quash summons will result in delays, largely because of protracted appeals.95 To avoid a potential bottleneck, the Commission suggests that a district court decision regarding enforcement of a summons should not be a final judgment from which an individual could take an interlocutory appeal, but should be appealable only as an evidentiary question after prosecution. Or, if no prosecution is brought, then an individual would be entitled to appeal the decision on the summons within 90 days after the close of the investigation, if he was notified while the investigation was continuing, or one year after being notified of the issuance of the summons, whichever comes first.
The Commission has tried to fashion protections for personal privacy without jeopardizing investigations in which the records of individuals are needed to establish the criminal conduct of a record keeper. If the individual is not the subject of investigation or is unlikely to be implicated publicly in any proceeding, government is not under a duty to serve such individuals when it subpoenas records. Cases of embezzlement or stock manipulation, for example, may require extensive analysis of individual account information to establish the illegal acts of the embezzler or manipulator.96 Because such government access is not intended to produce action against the individual record subject, nor does it ordinarily disclose information in identifiable form, and because government does not usually retain account information obtained for this purpose in its files, the Commission does not consider such access an unwarranted invasion of personal privacy.
THE JUDICIAL SUBPOENA IN THE COURSE OF LITIGATION
There is considerably more supervision of subpoenas and discovery orders issued in the course of a law suit than of those employed in furtherance of an administrative investigation. The common law strictures on relevance and scope have retained their currency 97 As with any government request for records, however, the individual about whom records are maintained by a third party has limited ability to intervene in any attempt to force disclosure. His interest may be somewhat better represented in the context of litigation than it is in the context of an administrative summons or Grand Jury subpoena, since the record keeper is often a party to the litigation and thus more likely to protect the record vigorously. Nonetheless, it is still a long way from control over records about himself. In this circumstance, there can be little argument that giving the individual notice and standing when records about him are sought will cause undue delay or other burdens. For these reasons, the Commission recommends:
That Congress provide by statute that a subpoena or other method of judicial summons, issued after indictment or information or after the filing of a complaint or other initital pleading, issued to a private-sector record keeper
(a) in order to obtain an individually identifiable record and
(b) where the record subject is, or is likely to become, a target of the investigation, a named party to the litigation, or otherwise publicly implicated in the proceedings, may be issued only where
(i) service of the summons or subpoena is made upon both the individual identified in the record and the record keeper,
(ii) the individual has standing to contest the summons or subpoena and to halt production of the record until his claims are litigated, and
(iii) the individual is able to assert in protection of the record the defense provided by any legal expectation of confidentiality or other defense provided by common law or statute.
THE GRAND JURY SUBPOENA
Having dealt with the broad problems of summons and subpoena in the administrative and litigation contexts, the Commission turned to the most powerful and perhaps most problem-ridden mechanism by which government can compel the disclosure of records.
. . . The law vests the Grand Jury with substantial powers, because the Grand Jury's investigative powers must be broad if its public responsibility is to be adequately discharged. Indispensable to the exercise of its power is the authority to compel the attendance and the testimony of witnesses and to require the production of evidence.98
The flavor of the passage above suggests the great deference, often shading to veneration, paid to the Grand Jury. Included as a protection for the individual in the Bill of Rights, it is an institution whose unique powers the Supreme Court frequently reaffirms and protects. The first clause of the Fifth Amendment guarantees the Grand Jury process because it is viewed as "a basic guarantee of individual liberty," as "a barrier to reckless or unfounded charges," and, in crisis times, as a critical protection against abuse of the legitimate coercive power of the state.99 In protecting the Grand Jury, the courts have rejected attempts to limit its traditional power of investigation on constitutional grounds.100 Indeed, as Justice Powell noted in 1974, "the Grand Jury . . . has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial."101
All of which is not to suggest that the power of the Grand Jury to compel testimony and the production of evidence is without limits. The requirement that each person give what evidence he possesses is conditioned on that person's ability to assert a recognized privilege. But even constitutional privileges are not as absolute in the Grand Jury situation as they might otherwise be.102 To return to Justice Powell's analysis, for instance: "Of course, a witness has no right of privacy before the Grand Jury."103
To balance these broad powers, the deliberations of the Grand Jury are theoretically protected by a strict standard of secrecy. The requirements of secrecy are designed to protect individuals into whose activities the Grand Jury may inquire. While the Grand Jury can acquire a great deal of personal and potentially embarrassing or damaging information, ordinarily it cannot release that information to the world unless it is prepared to indict an individual, to charge him with a particular violation of criminal law. If the Grand Jury is unwilling to accuse a person of criminal conduct, then it may not reveal the information it gathered.104 Equally important, the Grand Jury has no adjudicative function of its own; its capabilities end with indictment or presentment, with an accusation that a crime has been committed. The Grand Jury gathers information, but can use that information only to determine whether the force of the criminal law should be brought to bear against an individual, whether there is "probable cause to believe a violation of law has been committed"; the Grand Jury does not determine final guilt or innocence, whether a man should lose his liberty or otherwise be punished.105
While there has been a great deal of recent criticism of the Grand Jury and its use by prosecutors, both at the Federal and State levels, the Commission accepted the constitutional existence and recognized powers of the Grand Jury in pursuing its inquiry. The Commission's concern is to protect privacy, to balance the preservation of that interest against the legitimate demands of society, not to reform the institutional structure of our legal system. It can not ignore, however, the threats to individual privacy in what it views as improper use of Grand Jury powers by prosecutors and government agents. The improper uses of power which concern the Commission are not so much deliberate attempts to violate rights or circumvent the law as abuses that stem from the "ordinary" operations of the Grand Jury-operations which are, in fact, quite extraordinary, as the following brief survey of the historical and theoretical foundation of the Grand Jury's powers shows.106
In medieval England, the Sheriff of each county empanelled bodies of twenty-three men, called "le grande inquest," to inquire into and present to the King's Justices the names of those believed to have committed criminal offenses. By the Fourteenth Century the function of the inquest was clearly limited to accusation; a separate jury and judge tried the accused to establish guilt or innocence. To secure the broadest range of inquiry for the Grand Jury and to assure that reputations would not be damaged simply because of inquiry or deliberation by the Jury, the jurors were pledged to secrecy. Indeed, that pledge of secrecy made no exceptions, even in favor of government.
The English migration to America brought with it the institution of the Grand Jury. In the first centuries of its existence in the new world i*. flourished. The Revolutionary generation especially revered the Grand Jury, using it to reject the initiation of prosecutions which the Royal government desired. As judges are fond of pointing out, the Grand Jury functioned as a bulwark of individual liberty. Its ability to protect subjects of investigation who were subsequently not accused was maintained; the duty of secrecy was jealously guarded. For these reasons, the Grand Jury was incorporated into the fundamental structure of the government of the United States in the Fifth Amendment to the Constitution.
As the Grand Jury emerged into the industrial age, particularly the Twentieth Century, its institutional structure began to change. Investigations of official misconduct, violations of anti-trust laws, and white-collar crime created a need for collectors and analysts of information to assist the Grand Jury in determining who ought to be accused of crime. Those who provided such assistance were government investigative agents and government attorneys. While they assisted the Grand Jury, they were not jurors and thus not clearly covered by the duty of secrecy, except with respect to testimony actually given before the Grand Jury. In addition to this new class of persons privy to some, or all, of the information before the Grand Jury, the Jury began to request frequently not only testimony but records as well. Documentary evidence was often essential if the jurors were to judge reasonably whether or not to accuse someone of a crime.
Out of these circumstances came the current operational structure of the Grand Jury. Its broad power to compel testimony makes the Grand Jury an unusually powerful means of conducting investigations and gathering evidence, particularly at the Federal level. Except for the search warrant, with its stringent requirements of probable cause based upon oath or affirmation, the Grand Jury subpoena provides the only form of compulsory legal process that can be employed for general inquiries into violations of law. The administrative summons cannot. Even without the measure the Commission recommends for constraining administrative summons power, an administrative summons can be used only to compel production of evidence germane to the purpose of the particular statute which granted the summons power-though, as explored earlier, the reach of such a summons can be overly broad.
In the Federal setting the United States Attorney (or his Justice Department counterpart) ordinarily makes all decisions as to what witnesses will be heard by the Grand Jury. Prompted by government investigators, he also determines what documentary evidence will be subpoenaed. As representatives of Federal investigative agencies indicated to the Commission, agents often seek Grand Jury subpoenas for documents on their own initiative from a U.S. Attorney to assist in investigations not yet brought to a Grand Jury's attention.107
It is the attorney for the government who decides when a Grand Jury subpoena will be issued and who issues it. The evidence gathered by the subpoena is then organized by government attorneys and Federal agents before being presented to the Grand Jury. Indeed, documents obtained by Grand Jury subpoena ordinarily pass through the hands of investigative agents who prepare reports for the government attorneys describing the contents of the subpoenaed documents. In most cases, a copy of such a report also goes into the files of the investigative agency. FBI agents, for example, prepare an "Agent's Report 92" describing the contents of documents obtained by Grand Jury subpoena in certain organized crime investigations. A copy usually, though not always, goes to the strike force attorney, as well as to the investigative files of the Bureau.108
When documents obtained pursuant to a Grand Jury subpoena are presented to the Grand Jury, they, and presumably the information in them, come under the seal of secrecy. When documents are not presented, as often happens, however, they become part of an investigative record which some argue is not under the requirements of secrecy and thus is open to less restricted use by the government. In any case, the reports which are made part of an investigative file are not considered information maintained under the Grand Jury seal.109 Even information presented and sealed is generally available to government attorneys and any Federal agents assisting them, though they may not disclose the information except by court order or in the course of criminal prosecution based on an indictment issued by the Grand Jury. 110
In essence, the Grand Jury subpoena duces tecum has become little more than an administrative tool, its connection with the traditional functions of the Grand Jury attenuated at best. One might characterize its current use as a device employed by investigators to circumvent the stringent requirements which must be met to obtain a search warrant. Documents are subpoenaed without the knowledge, not to mention approval, of the Grand Jury. Documents summoned in the Grand Jury's name may never be presented to it. Indeed, the evidence obtained may not even reach an attorney for the government; it may simply be examined and retained by investigative agents for unspecified future uses. The unique powers of inquiry and compulsion, theoretically justified by the secrecy and limited effect of Grand Jury deliberations, have become a generalized resource for Federal investigative activities. Its broad use is underscored by a recent Justice Department internal memorandum which cautioned United States Attorneys and Strike Forces "not to appear to abuse the Grand Jury subpoena power .. . so as to furnish an excuse for adverse legislative action."111
The Miller decision provides a further example of how far the use of the subpoena has been separated from the actual functioning of the Grand Jury. In that case, the government attorney issuing the subpoena ostensibly on "behalf' of the Grand Jury, did not even pay courtesy to form; he stated as the return date of the subpoena a day on which the Jury would not be sitting. In addition, the subpoena was served and the specified records obtained and analyzed by Treasury agents, not the U.S. Attorney or his assistants. Finally, as the Supreme Court pointed out, "the record does not indicate whether any of the bank records were in fact presented to the Grand Jury." 112
The erosion of the protections built into the Grand Jury process to insure against improper and indiscriminate use of the information which comes before it disturbs the Commission. The broad powers of the Grand Jury can be justified only by the traditional protections in which its process was cloaked. The Grand Jury should not be a tool for collecting information which may be used for whatever purpose the government chooses; it should be a vehicle for specific criminal investigations. In order to assure against future abuse of the powers of the Grand Jury, the Commission recommends:
That Congress provide by statute that a record obtained pursuant to a Grand Jury subpoena:
(a) shall be returned and actually presented to the Grand Jury under whose authority the subpoena was issued;
(b) shall be employed only for the purposes of prosecuting a crime for which an indictment or presentment was issued by the Grand Jury sitting at the time the record was obtained;
(c) shall be destroyed or returned to the record keeper if it was not used in the prosecution of a crime for which the Grand Jury issued an indictment or presentment or if it has not been made part of the official records of the Grand Jury maintained under the seal;
(d) shall not be maintained, or its contents described in any record maintained, apart from the sealed records of the Grand Jury by any agency or officer, employee, or agent of such agency of government; and,
(e) the information contained in such record shall be protected by stringent penalties for improper disclosure or maintenance, including penalties to be enforced by criminal prosecution (or the exercise of judicial contempt power).
In fashioning this recommendation, the Commission sought to avoid jeopardizing on-going investigations in which a Grand Jury about to expire has not issued an indictment. In such a case, the Grand Jury would be free to make a presentment to the judge, under seal or not, as it wished. The presentment would enable a second Grand Jury to continue the investigation. The Commission believes, however, that the recommended measure would effectively prevent government from using information obtained in a Grand Jury investigation for unrelated purposes. Indeed, to the extent the recommendation suggests the destruction and return of documents, the Commission feels it will be particularly successful; information which is not available cannot be misused.
Having suggested the means for reestablishing and securing the traditional protections for an individual's privacy which should be part of the Grand Jury structure, the Commission does not believe it essential to extend the standards of notice and challenge it recommended for administrative summons and subpoenas in the course of litigation to every Grand Jury subpoena for records. In the administrative and litigation situations, to subpoena the record is tantamount to making it public. In the Grand Jury context, given the changes the Commission recommends, the fact of a subpoena does not necessarily mean the record will become public.
Even though the Grand Jury situation can be distinguished from the other forms of compulsory process, however, the Commission believes that the individual should be able to protect those records in which he has a legitimate expectation of confidentiality. The individual has rights even in the context of the Grand Jury; he may protect himself against self-incrimination, improper process, or the seizure of his private records. Since the records in which the Commission believes there is an expectation of confidentiality are ones which, were it not for the unprecedented changes in social and economic organization of this century, would be recognized as the private and protectible papers of the individual, the Commission feels that he ought to be able to protect those records from Grand Jury seizure just as he would from other government inquiries. For those reasons, the Commission recommends:
That Congress provide by statute that a Grand Jury subpoena duces tecum (or other Grand Jury subpoena to acquire the contents of documentary evidence, whether by testimony or otherwise) issued
(a) to obtain an individually identifiable record,
(b) where a legally protectible expectation of confidentiality exists, such as the expectation recommended by the Commission for records of a credit grantor, depository institution, insurance institution, or health-care provider, and
(c) where the record subject is, or is likely to become, a target of the investigation, named in an indictment or presentment, or otherwise publicly implicated in the proceedings, may be issued only where
(i) service of the subpoena is made upon both the individual identified in the record and the record keeper,
(ii) the individual has standing to contest the subpoena and to halt the production of the record until his claims are litigated, and
(iii) the individual is able to assert in protection of the record the defenses provided by any legal expectation of confidentiality or other defense provided by common law or statute.
RESTRICTING COMPULSORY REPORTING REQUIREMENTS
Government requirements that record keepers, private and public, maintain additional records about individuals and report information from their records to government are increasing. More often than not, these requirements are designed to get information government legitimately needs-to provide health services, to assure against racial or sexual discrimination, to administer the tax laws, and the like.113 Yet, this method of collecting information about individuals is fraught with greater potential for abuse, and threatens individual liberties and privacy more, than any other legitimate way government goes about gathering information.
The net of information reporting and record-keeping requirements is frequently spread wider than necessary; government finds itself with more information than it needs to carry out its responsibilities, and in a position to inspect or seize information which is not necessarily within its purview.114 In addition, more record maintenance and reporting requirements inevitably mean greater government control of private-sector record keeping and, ultimately, more government control of information flow. Further, because much of the reporting and maintenance is mandated by the Federal government, but carried out by the States through federally funded activities, control of the information in government hands is centralized at the Federal level.
Progressive centralization makes access by government, particularly the Federal government, even less amenable to control. Traditionally, legal tools for protecting against government intrusion have checked neither the widening of the government's information net through reporting and record maintenance requirements nor the centralized control of record-keeping at the Federal level and the increasing ease of access by government to recorded information about individuals. The programmatic, piecemeal approach used to determine government information needs has not provided an effective forum in which to raise questions of whether government should seek as much information as it does or, indeed, whether there is some information it simply should not collect.
Perhaps the danger inherent in extensive information reporting and maintenance requirements levied by government is unheeded because its specific elements have not been fitted together. The problem is not simply that government collects more information on individuals than it perhaps ought to; nor that the program-by-program method of granting power to collect information and then to judge the propriety of the collection is inadequate. Though these two elements must be understood to appreciate the dimensions of the danger, the problem is equally that the expanding reservoir of information government controls may be used for virtually any purpose once it gets into government custody. Information about individuals may be inadvertently or improvidently disclosed with consequent embarrassment or damage to the reputation of innocent persons. Perhaps worse, in a democratic society, is the ever present danger that someone in power may be tempted to use the information about individuals available to them for harassment or intimidation. In particular, government investigative agencies enjoy a unique ability to employ government's store of information about individuals with little restriction-most often for legitimate purposes but, as recent history reminds us, not always. The misuse of tax-return information by Federal investigators, for example, is well documented in all of the recent Administrations. The example, moreover, indicates that the pressure to engage in such activities comes as often as not from those charged with the oversight and management of investigative agencies.115 Failure to appreciate that information frequently becomes a general governmental resource once it is in the hands of one agency, coupled with the failure to understand the dangers raised by the potential abuse of information in such an environment, is effectively illustrated by a recent decision of the United States Supreme Court.
The Flow of Information Into Government
On February 22, 1977, the Supreme Court upheld the constitutionality of a New York statute which required the reporting of every prescription for certain drugs and the inclusion of the reported information in a computerized central registry.116 The specific purpose of the reporting and registry was to facilitate the investigation and enforcement of laws against the illegitimate use of narcotics. Patients, doctors, and two professional associations had challenged the portion of the statute which required that the identities of those receiving drugs be reported to the central registry. They argued that such reporting invaded the patient's privacy because the State had no need to maintain a record of the identities centrally. Indeed, during the first 20 months of operation under the statute with hundreds of thousands of identities registered, only once was the identification information relevant to an investigation of illegal activity. The challengers contended that the danger of improper disclosure and consequent damage to reputation, and the "chilling" effect of that danger on an individual's (or doctor's) willingness to undertake drug therapy, was not balanced by sufficient public interest in the information to justify the central registry. The three judge panel which heard the case at the trial level agreed with the plaintiffs and found that "the diminution of a constitutionally guaranteed freedom is too great a price to pay for such a small government yield."117
Reviewing the lower court's ruling, the Supreme Court chose not to reevaluate the general issue of the constitutional propriety of requiring reporting of information about individuals for "legitimate" regulatory purposes.118 Relying on past reasoning, the Court indicated that compelled reporting was to be distinguished from impermissible intrusions in violation of the Fourth and Fifth Amendments. The opinion noted that cases where intrusions were found illegitimate "involved affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations" or circumstances where "there was an uncontroverted showing of past harm through disclosure."' 119 The crux of the Court's opinion focused on the distinction it saw between the New York scheme and past schemes-the central computerized registry.120 In assessing the threat to privacy created by the registry, the Court suggested that the considerations to be weighed were the dangers of "unwarranted disclosure of accumulated private data" and of inadequate "security provisions." In effect, the Court did not seem concerned with the intrusion created by collection but only with the potential for improper dissemination; even that concern seemed limited. Justice Stewart, in his concurrence, went so far as to suggest that the Constitution, to the extent it protects privacy, "does not recognize a general interest in freedom from disclosure of private information." 121
Though litigants have long argued that reporting requirements imposed by government raise the same sorts of questions that would be raised by government searching your house or seizing your papers, their argument has carried little weight at the Federal level.122 The Supreme Court consistently rejects it and restricts the reach of constitutional protections against government collection of information to certain limited aspects of reporting requirements.
Where the government requires an individual to report information about himself, the Court has found the Fifth Amendment protection against selfincrimination to provide some limitation on government power. In Marchetti v. United States,123 the majority declared the wagering tax reporting system a violation of the Fifth Amendment privilege. As Justice Harlan reasoned for the Court, "The terms of the wagering tax system make quite plain that Congress intended information obtained as a consequence of registration and payment of the occupational tax to be provided to interested state prosecuting authorities." Since wagering was illegal in most jurisdictions, continued the argument, such an intention amounted to a deliberate compulsion on a gambler to incriminate himself or be liable for failing to confess to illegitimate activity. Only a year later, however, virtually the same Court (with Justices Douglas and Black dissenting) refused to extend the rationale of Marchetti to the order form requirements of the marijuana and narcotic drug laws in Minor v. United States. 124 As Justice Douglas noted in his dissent, the issue was the same; the government had required an individual to report his own illegal activities or be liable for failing to incriminate himself. Indeed, the reporting forms which one needed to complete in the circumstances of Minor were never even prepared by the government-the statute was used solely as a prosecutorial "catch-22."
Though the standards of Marchetti and Minor may be difficult to reconcile, the broader protection given the individual under Marchetti is still quite limited. The Marchetti decision precludes compulsory reporting, and the use of information collected thereby, only when the mere fact of reporting amounts to incrimination. In other words, reporting requirements are improper only to the extent that they leave an individual no choice but to incriminate himself In contexts where the reporting would not necessarily indicate illegal activity, reporting is proper even though compelled.
Where information about an individual must be reported by a third party, as in the case of the New York statute, the Supreme Court recognizes only the most nebulous constitutional protection. The Court's only limitation on the scope of the reporting has been that the information be arguably relevant to the mission of the agency of government collecting it.125 This was the position the court took with respect to the New York drug reporting statute. Thus, even in the arena of medical or financial information (which most individuals consider peculiarly sensitive), the ability of government to compel reporting is restrained only by the requirement that information sought be "intimately related to ... and obviously supportable as in aid of' an otherwise legitimate government activity.126
In the constitutional context, then, compelled reporting by government has been limited only to the extent that the reporting violates a narrow interpretation of Fifth Amendment protections against self-incrimination, or that the information sought is patently irrelevant to the proper activities of government.
The real danger to personal privacy from the vast store of personal information being accumulated by government is, in the eyes of the Supreme Court, the danger of improper dissemination. Preoccupation of the Court with questions of dissemination reflects its unwillingness to recognize the legal interest of an individual in records about himself held by third parties and its inaccurate understanding of how reported information may be used by government. The Court's approach, however, is understandable. By focusing on what government may do with information it has already collected, the courts have only to assess subsequent conduct on the basis of the actual harm caused by improper use or dissemination. Such an approach is judicially more comfortable than trying to assess possibilities and probabilities in advance, as they would have to do if they tried to judge the propriety of collecting the information in the first place and to balance the government's need for information against the individual's right to privacy.127
Unfortunately, individuals no longer possess all the records and information about themselves which they have a right to consider private. While the Supreme Court may be reluctant to recognize that bank account records, for example, are personal papers in which an individual has a legitimate expectation of privacy, society must give such recognition to those records if it is to preserve the delicate balance between the state and the individual. At least to the extent that an individual has a recognized and legitimate expectation of confidentiality, the Commission feels that third-party record keepers should not be required to report such information routinely. The same standard should prevail, in the Commission's view, even where the use of reported information is clearly limited and the dangers of abuse minimized.
The Flow of Information Within Government
To appreciate the relatively unrestricted flow of information within government and the dangers of that flow, the Supreme Court's consideration of the New York prescription reporting statute provides a useful starting point. In the course of its opinion, the Court assumed that the availability of reported information for purposes unrelated to the securing of "public health" would be restricted because the avenues for disclosure were restricted.128 Restricted though the avenues for disclosure may appear to be on the surface of a reporting scheme, however, the availability of the information for specific investigative purposes generally opens up that record to law enforcement. The Court discusses "restrictions" on disclosure of drug users' identities by the State of New York; but, when an investigative agency legitimately obtains information for its investigation of a specific violation, such information goes into its files where the information is avaiI able when the same investigative unit inquires into other kinds of violations; and, the agents investigating possible violations of the New York drug laws were part of an agency which also investigates other violations of law. Further, the Court's reasoning does not take into account the routine cooperation and sharing of information by investigative units at all levels of government. Finally, the opinion fails to recognize that individuals have little, if any, power to protect themselves from improper use or disclosure within government.129 In practice, then, government may require the reporting of information for one purpose and use it for a second purpose- notably, criminal prosecution.
Equally important, the courts have found no constitutional limitation on the manner or extent of government disclosure of information about an individual, whether the disclosure is to the public, or to private entities, or within the confines of government. In the 1976 term, for instance, the Supreme Court ruled that there was no constitutional protection for an individual when a government official distributed copies of a leaflet which charged that the persons identified in it were "known" criminals, even though one of the individuals so identified had never been arrested or convicted of any crime.130 Where the disclosure occurs between one agency of government and another, lower courts have held that there is no common law or constitutional restraint on such exchanges.131
While the implications of the free flow of information within government, particularly to or between investigative agencies, are described in Chapter 13, two aspects of that information flow must be considered here to determine how best to cope with the problems raised by government reporting and record-keeping requirements. The relatively unrestricted flow of information about individuals is endemic to both Federal and State government; the sharing of resources and the diffusion of authority and responsibility often require extensive exchange of information both within and between governments. The Commission recognizes the value of our existing architecture of government and understands that the very interde-pendence of agencies within the Executive Branch of the Federal government militates against unacceptable concentrations of power. The problem of intragovernmental information flow and public disclosure cannot be eliminated; but, the Commission believes that its dangers can be minimized.132 Given the continuing danger of improper disclosure and use of information in government hands, the Commission believes it essential to limit requirements for the reporting of information about individuals maintained by third-party record keepers. Since the courts have made it clear that they do not feel it within their power to effect such limitation, any protection for personal privacy must be established by statute. Indeed, to the extent that protections against misuse of reported information or limitations on the scope of reporting currently exist, they are the product of legislation.133
That existing protections are the product of legislation is appropriate, since the problem of compulsory information reporting is the creature of legislation. In the past two decades, Congress has enacted hundreds of statutes which require, or permit, an administrative agency to require third parties to report information about individuals. As the Commission has found, it is futile to examine this problem as though each reporting requirement were an independent and unrelated scheme. Government is compelling record keepers to report information about individuals in unprecedented volume. In addition, the information reported covers a wider spectrum of individual activity than ever before, from health records to employment to financial activity. Most of that information becomes available for uses unrelated to the purpose for which it was reported. Even when government does not require reporting, it frequently mandates that records about individuals be kept and requires that they be open to inspection by government agents.
Record-keeping requirements for information about individuals are the statutory twin of compulsory reporting; ordinarily, when a record keeper reports information it must also retain that information. Further, statutes often require the retention of information which is not reported, but kept for possible inspection by government. Such record-keeping requirements raise many of the same questions as the reporting requirements. Government's access to the retained records is broad and virtually unassailable, particularly by the subject of the record. Even when legal process is ostensibly required for government to gain access to the records, such requirements provide little protection for an individual. Under the Bank Secrecy Act, for example, government agents may examine or seize account records without the account holder being able to object, even if the process by which the government proceeded was improper.134 In other cases, Federal investigators have been permitted access to all the personnel and employment records of an organization, although they had no complaint justifying the examination nor any cause to believe that the records evidenced a violation of law.135 Finally, access to records which are required to be kept by law may be predicated on statutory inspection provisions which exempt the investigator from obtaining legal process. Drug abuse control legislation, for example, states that government agents do not need a warrant to inspect books and records which the Attorney General (or his delegate) deems relevant or material to an investigation. This exemption from the need for legal process is provided even though the warrant in question is an administrative one which, under the statute, can be issued without probable cause. Such a warrant may be issued simply upon showing that there is "a valid public interest in the enforcement of this subchapter or regulations thereunder, sufficient to justify administrative inspections . . .."136
The virtually unchallangeable power of government to gain access to records about individuals that a third party has been required to keep results, as do the reporting requirements, in information coming into government hands and becoming available for disclosure or reuse largely at the discretion of government. Under most of the relevant statutes, a government agency has wide discretion to determine whether it will hold the information it acquires in confidence,137 increasing still further the possibility of disclosure and future misuse.
Moreover, the Federal government does not limit the avenues through which it compels reporting of information or maintenance of records to direct requirements placed on third-party record keepers. Through a variety of programs, particularly those involving medical services and public assistance, the Federal government makes the States its collectors and record keepers by predicating Federal funding for State programs on fulfillment of such duties. Many of these funding schemes encourage, even obligate, State governments to collect more information about individuals than they otherwise would. The Medicaid program, for example, provides extra funding if the State agency administering the program agrees to adopt the Medicaid Management Information System (MMIS) information collection criteria.138 Under them, medical-care providers must report detailed information on patients and their claims to the State authority. The extensive set of records then becomes available to Federal auditors or investigators, such as the newly created Fraud and Abuse Office in the Medicaid program, at their request. Predictably, given the financial incentives, most States have adopted the MMIS criteria.139
During the course of the Commission hearings on Medical Records, however, several witnesses testified that they do not consider the extensive collection of identifiable information mandated by programs such as MMIS necessary.140 In particular, representatives of the Commission on Professional and Hospital Activities testified that there are viable alternatives to such massive reporting of information about individuals which would guard equally well against fraud and other abuses.141 They advocated an auditing system by which the original records of the medical-care provider would be minimally abstracted and only that abstraction sent on to the Medicaid payer; the original record would continue to exist and be available for audit at any time; yet far less information would flow to government or any private insurer acting as a government intermediary.
Any reduction in the amount of information reported to government, such as the alternative to current practices suggested at the Commission's Medical Record Hearings, will correspondingly reduce the danger of abuse which inevitably accompanies the accumulation of information in government hands. The Commission suggests to the Congress, and to State legislatures, that they forego any future personal information reporting or record-keeping requirements unless a clear need for government to have the information exists, the need outweighs any privacy interest of the record subject, and there are no less intrusive alternatives for achieving the desired goal. In effect, the Commission believes that such an approach would result in statutes of greater utility and much less potential for harm than statutes like the drug reporting statute of New York State.
Not only are there extensive reporting and record-keeping requirements that make information about individuals available for government use, but few Americans are aware of the extent or nature of the identifiable information about themselves reported to government or kept at government's command. Some may know about one piece or another of the vast information requirements; but, those who begin to realize the breadth of information about them open to unimpeded government scrutiny are few. An individual has lost most of his control of what government can know about him. If the Bank Secrecy Act indicates the direction of future legislation, an individual may soon lose all control. The Commission hopes that legislators will recognize the impotence of the Constitution as currently interpreted to limit the reach of overbroad statutory commands to report personal information or to keep it on record. If they do, they will exercise extreme caution, particularly by limiting delegations of authority to executive officers to determine the scope of information reporting and the propriety of record inspection.
When reporting of individually identifiable information or the keeping of personal information are determined to be essential, the Commission recommends, in order to minimize dangers to personal privacy:
(a) That where a private-sector record keeper is required to report information about an individual to an agency or authority of government, the scope of such reporting should be limited by Congress such that:
(i) each reporting requirement is expressly authorized in statute;
(ii) each statutory provision clearly identifies the policies and purposes which justify the reporting it authorizes;
(iii) each statutory provision details standards of relevance which must be met before the information must be reported;
(iv) no information is reported in individually identifiable form unless such reporting is essential to accomplish the statutory policies and purposes which justify the reporting; and
(v) where individual identity is not reported by the record keeper, yet at some point such identification may be necessary to ensure compliance with law, identifiable records be maintained by the record keeper only for inspection by authorized agents of the government upon presentation of a lawful summons or subpoena;
(b) that inspection by a government agency of records maintained pursuant to statute or regulation in individually identifiable form by a private-sector record keeper be permitted to occur
(i) only upon presentation and delivery of a copy of an administrative summons, provided that
(ii) the summons identifies the particular records and items of information to be made available for inspection by the agency;
(c) that a private-sector record keeper be required to notify an individual when he enters into a relationship with the record keeper that information concerning the relationship
(i) will be reported to agencies and authorities of government pursuant to statute or regulation, or
(ii) may be open to inspection by agencies and authorities of government;
(d) that individually identifiable information obtained by government through reporting or inspection required by statute or regulation should be unavailable for civil or criminal prosecution of violations of law not directly related to the statutorily identified purposes which justify the reporting or inspection;
(e) that an individually identifiable record required to be maintained by a private-sector record keeper pursuant to statute or regulation may be destroyed by the record keeper at any time after the statute of limitations expires for the specific violation justifying the reporting or maintenance of such record; and
(f) that an individually identifiable record collected by a government agency from information reported or maintained by a private-sector record keeper pursuant to statute or regulation be destroyed by the government agency at the time the statute of limitations expires for the specific violation justifying the reporting or maintenance of such record.
While directed explicitly at the personal information reporting and record-keeping requirements of the Federal government, this recommendation is equally applicable to the actions of State governments. At the State level, however, the Commission recognizes that Federal requirements generate a large part of the demand for personal information. In consequence of that recognition, the Commission intends that the recommendation apply equally to Federal requirements levied on State agencies which result in private record keepers reporting to State authorities as well as to requirements placed directly on private record keepers.
Equally important, except for sections (c) and (e), the recommended measures seek to limit the reach of government power and assure the legitimacy of government activity, placing the primary burden for securing the protection of personal privacy on the potential invader, government, rather than the record keeper. Section (a) recommends clear statutory authority for reporting or record-keeping requirements, eliminating potentially abusive executive discretion and providing in subsections (ii) and (iii) some standards through which the provisions of section (d) may be applied. Section (d) would permit government to take actions against fraud and other sorts of abuse within a program but would eliminate the use of records for unrelated purposes, unless Congress specifically provides in the authorizing legislation that the records ought to be available for other designated purposes. An example of such a provision can be found in the Tax Reform Act of 1976, which permits disclosure of tax-return information about a taxpayer provided to the IRS by a private-sector record keeper to Federal investigative agencies for use in non-tax investigations upon written request of the agency head. The Commission urges, however, that such deviation from the general rule be permitted rarely, if at all.
Finally, the requirements of sections (e) and (f) would eliminate records no longer needed for their original purpose but which in the future might cause the harassment or embarrassment of an individual. Records which do not exist cannot be abused.