The Commission's study of government access to records about individuals held by third parties was not limited to the activities of traditional investigative or law enforcement agencies. The Commission examined, in addition, the reporting requirements government has levied on keepers of records about individuals and also the requirements imposed on record keepers to maintain records open to government inspection. Finally, the Commission reviewed the power given a wide variety of agencies not ordinarily equated with law enforcement to compel the production of records for the purpose of assuring compliance with law or maximum efficiency in the delivery of services. This breadth of inquiry reflected the initial understanding of the Commission, confirmed by its findings, that information about individuals in the control of one agency tends to become a shared resource, available with little, if any, restriction, to other agencies.
Even with the deliberately wide focus of this study, however, much of the time and resources allocated to the project were spent tracing the practices of investigative agencies. In part, attention to investigative agencies grew out of the traditional concern for abuse in the government's exercise of police powers. The Commission recognized not only that the investigative agencies of government often seem to have an indiscriminate appetite for information about individuals, but also that they tend to be primary exploiters of information held by other agencies for other purposes.
In considering the question of government's exercise of its police powers, one must bear in mind that the ordinary information needs of most agencies of government can be met by seeking information directly from the individual and by inquiries to third parties which the individual authorizes. If a government agency satisfies its appetite for information by these means, its appetite can be controlled. Should the government agency act in an improper or unduly intrusive manner, the openness of the process would expose it to remedial action.
Such direct collection occurs where the intent of government is more or less benign; where the concern is supplying a benefit or monitoring compliance with law solely for the purpose of helping people to comply. When government seeks information for the purposes of enforcing compliance with law, however, the agents of government often collect information on their own initiative, through means other than submissions by individuals themselves. Ordinarily, such inquiries are carried out by traditional investigative agencies or by designated investigative or enforcement units of other administrative agencies. These agencies and units can seek the voluntary assistance of third parties who may hold information; or they can employ more powerful tools. The various forms of compulsory legal process, from administrative summons to judicial search warrant, enable agents of government to compel a record keeper to hand over information. On the Federal level, this power is theoretically circumscribed; such inquiries are proper only in response to a statutory command or in the course of investigating violations of statute. In State jurisdictions, investigations of violations of common law also justify the use of compulsory legal process to gather information.27
The right of government to mount independent inquiries and employ legal compulsion to secure necessary information is undoubted. The Constitution clearly recognizes the right of government to force the disclosure of information in the Fourth Amendment, but the right recognized is a limited one. The concept of "ordered liberty" which underlies our system of government circumscribes government's right to use its almost unlimited power to compel the production of information.28 Perplexing and complex problems inherent in this limitation on government information collection powers emerge most clearly in connection with the operation of investigative agencies.
The independent collection capabilities that government traditionally possesses gave rise to the constitutional and legal standards that are the foundations of our ideas about privacy. Such standards limit the process through which government investigators may exercise their collection powers and, to a more limited extent, prohibit government from collecting and using certain sorts of information. In large part, these restrictions on governmental activity grew out of the notion that the state monopoly on violence inherent in the police power has to be controlled-the individual citizen must not be without protection from the unique coercive powers of the state.29
Equally important, the voracious appetite of investigators for information causes them to collect and retain virtually any personal data uncovered unless the collection or retention is clearly illegitimate. This attention to avoiding what is improper, rather than accomplishing only what is necessary and proper, leads investigative agencies into abuses of citizens' rights.30 More often than not, such rights are not clearly protected by the Constitution and have not been secured by statute. As explored earlier, for example, an individual's interest in his bank records is virtually unrecognized, nor does an individual have a right not to have records kept about him except where he is being investigated for violations of law or where he participates in the creation of the record.31 The basic protections for citizens' rights were fashioned before the emergence of modern investigative agencies with their massive record-keeping systems. The actions of such agencies and their information management practices lend themselves to abuses not apparent when the present protections against government intrusion were developed. Nor was the ability of government to compel the reporting of personal information on a routine basis, and the subsequent capacity of investigators to employ such information for inquiries into an individual's activities, a question to which the nation addressed itself when first considering the protection of personal privacy and autonomy.
In this chapter and in the preceding chapters on record keeping in the private sector, the Commission outlines a policy framework for readjusting the mechanisms necessary to preserve the balance between individual liberty and social order in the light of present conditions. While the focus of the Commission's attention in this area has been the Federal government, the broad public policy and specific recommendations presented in this chapter are, in the estimation of the Commission, equally applicable to State and local government.