Federal privacy law needs immediate update
URBANA, ILL. — Even though we're well past the filing-cabinet era and into the Information Revolution, our privacy laws have not kept pace with the change. New laws and guidelines are needed to preserve privacy rights and oversee record-keeping practices in the public and private sectors.
There is a template for new privacy laws that has existed since Congress enacted the first - and still the only - specific federal privacy legislation on the books, the Privacy Act of 1974. Passed in the wake of the Watergate scandal, the law created the US Privacy Protection Commission to determine the standards and procedures for protecting personal information.
The report of the commission's two-year study remains, even today, our most detailed analysis of privacy protection in public and private sector record-keeping. Its principles could well be the basis for new privacy laws.
The report's guiding philosophy was to minimize intrusiveness, maximize fairness, and require enforceable accountability by record keepers in government and business. The commission suggested: outlawing any secret records; mandating an individuals' rights to see and copy files of information about them anywhere; and providing the legal right to correct inaccuracies.
Commissioners believed government and business could be self-regulating in protecting personal information.
Unfortunately, this hasn't been the case. Indeed, 35 percent of Fortune 500 companies responding to a recent University of Illinois survey said medical records are used in making employment-related decisions, and in 9 out of 10 cases the employees are not informed.
In the past, bureaucracy and physical limitations were the unintended protectors of privacy. Most personal records accumulated by government agencies, corporations, and institutions stayed within those organizations simply because of the bulk of paper. Retrieving one file out of a million was awkward and could take months. Because storage of accumulated data was costly, much of it was destroyed over time.
But now the transfer of vast amounts of information is nearly instantaneous. Storage units are so tiny that it may cost less to store data than to consume valuable computer time to destroy it.
Individuals must take the initiative to uncover their own records and verify their accuracy. Even when an individual spots errors, finding their origin is difficult because sources of information aren't usually clearly noted. It's also impossible for an individual to know whether organizations honor any assumed confidentiality. When individuals do know that a record is being abused or suspect an error in it, they rarely know how to exercise what limited rights they have.
The Privacy Act set up certain constraints on federal agencies. Unfortunately, the law lacks specific protection for consumers and only generally implies privacy rights in dealings with businesses and nongovernmental agencies.
The act gives citizens the right to see and correct all records about them held by the federal government. But no system was established to inform people of this right, and few take advantage of it to check their records.
The main source of consumer protection at the federal level is the Fair Credit Reporting Act, which gives consumers the right to access their credit-bureau records.
These laws need to be strengthened.
George Orwell's book "1984" offers a vivid impression of the power of records and technology when used for surveillance and control purposes. Big Brother's dominance is based on the ability to collect information. Orwell's imagery is less fiction today than when he wrote it in 1949.
Because we enjoy procedural guarantees of freedom, we often become insensitive to the forces that covertly mold our attitudes and influence personal actions.
We frequently hear of what some argue are constitutional violations by public officials. How frequently those in public and private office - even in the White House - abuse trust.
Privacy rights aren't specifically identified in the Constitution, but the implication is clearly there. Supreme Court Justice William O. Douglas suggested privacy is the penumbra of the Bill of Rights. A core value - in both the Third Amendment prohibition against lodging soldiers in private homes without owners' consent and the Fourth Amendment protection against arbitrary government search - is the right of a person to retreat into his own home and there be free from unreasonable government intrusion.
Despite this constitutional protection, we witness a gradual, but ever-increasing loss of control over our daily lives.
James Madison in 1788 warned: "There are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."
The loss of personal privacy is a perfect example. Privacy legislation is needed at the federal level.
As long as America believes in the worth of the individual, it must reaffirm and reinforce personal privacy-protection guarantees.
Congress should act to implement the data-protection measures envisioned by the members of the privacy commission a quarter of a century ago.
*Ray C. Spencer is coordinator of research programs in political economy and public policy at the University of Illinois at Urbana-Champaign.
(c) Copyright 2000. The Christian Science Publishing Society