Personal Privacy in an Information Society. Striking a Reasonable Balance


In August, 1973, Commissioner Donald Alexander of the Internal Revenue Service abolished the so-called Special Service Staff (SSS) within that agency and impounded its records. The SSS, established in 1969, accumulated information about American citizens whom the executive branch considered politically unwelcome, initiated IRS investigations and audits of them, forwarded information about them to other Federal law enforcement and intelligence agencies, and received information about them from other agencies that sometimes had been collected through illegal or improper means.

Testifying before the Senate Select Committee on Intelligence Activities in October 1975, Commissioner Alexander told the Committee that he had kept the SSS files so that the Committee "could review . . . them, and see what sort of information was supplied to us on this [sic] more than 11,000 individuals and organizations," adding that "at the end of all these inquiries, I would like to take those files to the Ellipse and have the biggest bonfire since 1814." Seconding Mr. Alexander's sentiments, the Chairman of the Committee suggested that "it might be a more important bonfire than the Boston Tea Party when it comes to protecting individual rights of American citizens." 142

Commissioner Alexander's bonfire, and the abolition of SSS, highlight a basic element of the practices of government agencies that led the Commission to recommend the measures explained in this chapter. Alexander's suggestion that the SSS files be burned implicitly expressed concern about the vulnerability of information in government hands to abuse, while also acknowledging that government can, and does, collect information about individuals it does not need for any legitimate purpose, and thus should not have.

The recommendations in this chapter provide a means of curbing indiscriminate government collection of information about individuals, whether through informal requests, compulsory legal process or compulsory reporting. Allowing the individual a voice in government access to records about him and requiring outside supervision of government collection activities should create accountability for those activities, helping to assure that the acquisition of information by government is proper.

The Commission recognizes that its recommendations do not reach all recorded information about individuals, nor do they allow an individual to participate in all decisions as to whether government should have access to records about him. The Commission has concentrated on providing protections for the most revealing records of individual activity, the kind of records that government traditionally has been required to justify its interest in before they may be opened to it. Even where a legitimate expectation of confidentiality is recommended, government may still use a search warrant to acquire a record without the individual's prior knowledge. The recommendations, however, would no longer allow the executive branch of government to acquire records about individuals without supervision; no longer, for example, would unreviewed executive discretion enable government agents to seize an individual's bank records.

While appreciating the efficiency arguments of law enforcement agencies, the Commission does not believe that convenience alone should control policy judgments when individual rights are at issue. The burden argument, moreover, is not totally convincing. The IRS already, as a matter of policy, employs some form of summons or subpoena to obtain access to records.143 In addition, the United States Department of Justice acknowledges that an individual should at least be notified when his bank records are summoned,144 though the Department does not believe that a citizen should be given a protectible legal interest with which to challenge a subpoena or summons. In large part, the Department's position assumes the goodwill and good intentions of investigative agencies and their executive branch overseers. Such an argument, always unacceptable in theory, seems less tenable in practice in the aftermath of the Vietnam era and Watergate.

The law enforcement and investigative community has already indicated that it feels that some of the recommendations go too far; civil libertarians will undoubtedly be concerned that the recommended restrictions are not strong enough. The Commission, however, has sought to strike a reasonable balance between protecting personal privacy and assuring that the goverment can do its job. Just as the Constitution does not prohibit all searches and seizures, the Commission does not suggest that government agents be absolutely prohibited from obtaining records about individuals. Government, however, will have to make its case before it can do so.