By PHILIP KOLTUN
Assistant professor of mathematical systems
at Sangamon State University, he has
degrees in computer science from the
University of Illinois and Carnegie-Mellon
University, and has lectured on computers
and privacy, and legal issues in the
computing field.
Can centralized record systems be both efficient and confidential?
Computers and privacy
The Illinois General Assembly has yet to pass any major proposed bills concerning privacy of individuals for reasons including complexity of the issue and the lack of a hearty push by the public. Despite these odds proponents feel the prospects for passing major privacy legislation are good
PRIVACY, the average person assumes, is guaranteed to all citizens by
the U.S. Constitution. But, on April 21,
1976, the U.S. Supreme Court alarmed
civil libertarians everywhere when it decided United States v. Miller, a case involving government subpoena of bank
records pursuant to a criminal investigation. In so doing, the court stated that
an individual has no legitimate expectation of privacy in dealings with his bank.
In times when automated record
keeping systems collect and disseminate
so much information about individual
citizens, how far does the right to
privacy extend? Does it apply to the
computerized reservation systems of
airlines and motels, where standard
business information might be used to
prove an individual's whereabouts at
some given point in time? What rights to
privacy does the individual have when
using a telephone or a credit card, where
routine accounting information could
reveal much about someone's spending
habits and associations? Or when
seeking treatment at a hospital or
mental health facility, or applying for welfare benefits?
Legislatures across the country have responded to the public's growing
sensitivity to the sheer volume of
accessible personal information by
proposing privacy legislation, but states
have jurisdiction only within the individual state. In Illinois, bills introduced
in the 79th General Assembly included
Senate Bill 1, the "Illinois Fair Information Practice Act," S.B. 960, the "Personal Records Privacy Act," and House
Bill 125, the "Automated Personal Data
Systems Safeguards Act." None passed.
With post-Watergate revelations of
secret and improper surveillance activities by the Central Intelligence Agency,
Federal Bureau of Investigation, Internal Revenue Service and Chicago Police
Department "Red Squad," and a presidential campaign in which voters responded favorably to criticisms of
burgeoning government bureaucracies,
one would expect that privacy legislation would have a good chance for
passage. Why, then, did none of the
above bills get anywhere in the present
General Assembly?
One reason, unquestionably, was the
desire of concerned legislators to move
cautiously on a problem of enormous
complexity. According to Rep. Bruce R.
Waddell (R., Dundee), chairman of the
Data Information Systems Commission
which is empowered to review and
formulate policy for state data processing activities, "It's easy to make a
statement like 'Everybody's privacy
should be protected,' but then, getting
down into specifics is more difficult."
The General Assembly, says Waddell,
will not respond as a matter of politically motivated expediency. Sen. Robert W. Mitchler(R., Aurora), sponsor of
S.B. 1, agreed. "You have to go slow. Hasty legislation is bad."
Sen. Dawn dark Netsch (D., Chicago), sponsor of S.B. 960, the privacy bill
drafted by the Governor's Commission
on Individual Liberty and Personal
Privacy, indicated that the bill was
"bottled up in the bureaucracy" and was
introduced too late to get a good
hearing. "There's no point in trying to
move a major piece of legislation in such
a restricted agenda session." The bill will
be introduced again next year, however.
A second major reason for failing to
pass major privacy legislation was a
perception by legislators that the public
was not insistent on the question.
Rep. John E. Porter (R., Evanston),
sponsor of H.B. 125, feels that the
House committees were not ready to
spend the time or make the commitment
to deal with the privacy bills this year,
Privacy just wasn't a priority issue. "The
public didn't push for it enough," he
November 1976 / Illinois Issues / 3
said. Mitchler echoed Porter's comment, "Do people really want it?"
David Hamlin, executive director of
the Illinois chapter of the American
Civil Liberties Union, agrees and
disagrees with that perception. He feels
that the public demand for privacy
legislation is not sufficient to force
legislative action. "But that day is not
terribly far off," he says. "When the
public perceives the need. they will
demand legislation of more wide-reaching scope than is currently proposed. But for now, economic issues
take priority."
Sen. Netsch feels that the prospects
for passing major privacy legislation in
the future are reasonably good. "This is
the public's right to find out what
government is doing to them." The
interest she talks of cuts across political
affiliations; conservatives and liberals
could easily find themselves of one mind
on the question. Hamlin agrees. "There
is a demonstrated need in several areas.
But it [the right to privacy] is the most
elusive kind of issue, an intangible right.
Finding the right kind of handle to
persuade legislators is what's needed."
A third reason for the sluggishness in
acting on privacy legislation is the desire
of states to see what the Privacy Protection Study Commission, established by
the federal Privacy Act of 1974, comes
up with in the way of legislative recommendations. The commission has been
actively holding hearings and is due to
report its findings in March 1977. While
some officials adopt a cautious stance in
pushing privacy legislation, others,
skeptical of the Study Commission's
ability to influence constructive action,
would like to see Illinois take a leadership role in protecting privacy. This has
not yet occurred. A recent survey by the
National Association of State Information Systems showed that only four
states (Arkansas, Massachusetts, Minnesota, and Utah) had passed general
privacy legislation by the end of 1975.
One way to gain a perspective on the
privacy question is to consider the
extent of the state's computerized
record keeping systems. These systems
are fundamental to planning, monitoring and evaluating state programs.
While figures are hard to come by, the
Data Information Systems Commission's annual report for 1975 reported
that estimates of statewide data processing costs range from $60 million to
$300 million annually. More than 30 different state agencies maintain data
processing operations. The 1973 Annual Report of the Data Information Systems Commission and the Illinois Master Plan Applying Computer Technology in the 1970's (IMPACT - 70's)
provide an overview of record keeping
activities in the state. Computer systems
monitor air pollution, maintain criminal justice records, compile and collect
health resource and medical statistics.
log medical benefits payments, register
resource and medical statistics, log
medical benefits payments, register
drivers' licenses and automobiles, match
jobs an d workers and process tax
returns, to name just a few functions.
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In the social services area alone the
Departments of Vocational Rehabilitation, Public Health, Public Aid. Children and Family Services, and Mental
Health operate record keeping systems.
In response to concerns that the proliferation of individual systems was
inefficient, plans were developed for a
Total Health Information System to
serve as "a central repository and supplier of information for comprehensive
health planning, health research, health
program operation and management,
and health statistics."
In point of fact, the concerns of
efficiency and privacy are often at odds.
Pooling health records in a central
repository may cut system overhead,
but it also makes it hard to restrict
access and dissemination of records to
the purposes for which they were
collected. However, when the federal
Law Enforcement Assistance Administration (LEAA) issued security guidelines requiring the state criminal justice information systems it funded to operate on "dedicated" computers, the uproar over the expense and inefficiency
these guidelines would create caused
LEAA to withdraw them. The lesson
learned from that experience was that
security standards could be mandated but no specific operating procedures. |
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One of the most serious record
keeping abuses, and one which reveals
the difficulty of drafting comprehensive
privacy legislation, involves dissemination of arrest data without followup
disposition data, or dissemination
before that disposition data is available.
The usefulness of disseminated arrest
data to law enforcement agencies must
be balanced against a presumption of
innocence and she right to due process
for the individual.
As Supreme Court Justice William O.
Douglas noted in another context, "[I]n
many cases the ultimate absolution
never catches up with she accusation."
Illinois participates in the FBI's National Crime Information Center (NCIC)
network, and is one of eight states that
fully participates in the Computerized
Criminal History .system as well. Illinois
Saw (Ill.. Rev. Stat., ch. 38. sec. 206-5
(1973)) provides that unconvicted
arrestees may petition a local court to
have their arrest records expunged by
the arresting authorities after acquittal
The catch is that there is no method
for retrieving, records which have been
distributed to other law enforcement
agencies, employers, or private individuals, Some authorities have acted to
deal with the situation. In late 1973, then
Gov. Francis W. Sargent of Massachusetts, believing NCIC safeguards to
be inadequate to protect the privacy of
his state's citizens, refused to let Massachusetts participate in the network.
Under threat of Justice Department
lawsuit to compel Massachusetts' participation, the state continued to refuse
participation.
Likewise, the District of Columbia's
"Duncan Ordinance" prohibits the
metropolitan police department's practice of "routinely disseminating to
FBI, whether before conviction or after
exoneration or both, arrest records
which included not only arrestee's
fingerprints but also data identifying
persons arrested and information concerning details and surrounding circumstances of arrests, at least as long as
4 / November 1976 / Illinois Issues
Privacy legislation may have to deal with medical, insurance, law enforcement and financial records and government data banks one sector at a time
FBI continued to redisseminate that
data for other than law enforcement
purposes and particularly for purposes
of employment and licensing" (Utz v.
Cullinane, 520 F. 2d 467 (1975), emphasis in original).
Another privacy policy question, as difficult to resolve as the dissemination
question, is that of expungement of
criminal justice data. It" a convicted
criminal serves his sentence and "pays
his debt to society," should the record of
his conviction and sentence remain a
public record, or should the slate be
wiped clean, particularly when the
stigma attached to conviction and the
inevitable consequences of the evidence
of a criminal record prevent the individual's return to full and useful membership in society? Law enforcement
officials argue, justifiably, that records
of an individual's criminal history are
invaluable to the criminal justice system. They may be used, for instance, in
investigating a crime involving a particular modus operandi, or in sentencing a
repeat offender. How then are society's
interests and the individual's balanced?
One compromise that has been proposed involves "sealing" certain criminal justice records which are to be
opened only under special conditions.
A variety of other very complex
problems exist which privacy legislation
needs to resolve. For instance, how long
is the useful life of information? Legislation might require that "procedures be
developed to insure the accuracy and
timeliness of information." But how
long is "timely" when the data involves
mental illness, credit ratings, or a
criminal history, and at what point
should data be declared obsolete and
expunged?
Other aspects of privacy proposals
requiring considerable thought include
Proposed restrictions on use of universal
identifiers such as the social security number, the cost of implementing
privacy protection procedures, and the
merits of a Privacy Board or ombudsman to review record keeping abuses.
Already, provisions of the federal
Privacy Act of 1974 (P. L. 93-579)
forbidding any federal, state or local
government agency to deny benefits
provided by law to individuals refusing
to disclose their social security numbers
are having an effect on the design of new
record keeping systems.
Of major concern to private industry,
particularly companies engaged in
interstate commerce, is the fear that
compliance with the welter of privacy
provisions of different states would be
prohibitively expensive. The Association of Data Processing Service Organizations (ADAPSO) has indicated that it
supports a policy of federal preemption
of the entire area of privacy and security
to insure uniformity of requirements.
ADAPSO further indicated that its
members could not tolerate restrictions
on the interstate transfer of data because
of the prohibitive expense in establishing data centers in each state.
Realistically, if important privacy
legislation is to come, it may have to
come one sector at a time. Specific legislation to deal with medical records,
with insurance records, law enforcement records, financial institution
records, and government data banks
appears more feasible than one omnibus
bill The problems with designing a
single set of standards appropriate for
each sector seem too complex to conquer However, the general principles
embodied in most proposed legislation include the following:
• There should be no data bank whose
very existence is secret.
•An individual requested to provide information should do so with his informed consent, knowledgeable of the
authority used to collect the data, the use to which it will be put, and the penalties for refusing to comply.
•To the maximum extent possible,
data on an individual should be collected from the individual himself.
•An individual should have the
opportunity, with few exceptions, to see
his own record, challenge the accuracy
of statements about himself, and if
necessary provide his own version of
the facts to be fully disseminated whenever the original version is.
•An organization creating and using a data bank must take steps to insure the confidentiality, accuracy, and timeliness
of the information contained therein.
To an extent, Illinois' Constitution
and statutes already reflect sensitivity to
the issue of privacy. Article I, Section 6
of the state Constitution guarantees the
people the right to be free from invasions of privacy. Article I, Section 12
states that "Every person shall find a
certain remedy in the laws for all injuries
and wrongs which he receives to his
person, privacy, property or reputation."
State law says that the director of the
Department of Finance shall manage
the operation of all data processing
equipment used by state agencies "in a
manner that provides for adequate
security protection and back-up facilities for such equipment, the establishment of bonding requirements and a
code of conduct for all electronic data
processing personnel to insure the
privacy of electronic data processing
information as provided by law." (Ill.
Rev. Stat., ch. 127, sec. 35.3.)
Proponents of privacy legislation
hope the procedures and principles of
conduct they prescribe will guarantee
the citizen's right to privacy. As Supreme Court Justice Felix Frankfurter
stated, "The history of liberty has
largely been the history of observance of
procedural safeguards."
Vetoes for privacy
GOV. DAN WALKER vetoed one bill and
recommended changes in two others in order
to protect the confidentiality of records. He
vetoed House Bill 3138 which would have
required state and private hospitals to
disclose whether a person seeking a Firearm Owner's Identification Card had been a
mental patient within the preceding five years.
Walker used his amendatory veto on
Senate Bills 2010 and 2011 which deal with the confidentiality of financial records in
banks and savings and loan associations. The governor recommended changes to define circumstances when courts could waive serving a subpoena on the customer, thus getting records directly from the financial institution. He recommended other provisions to protect the privacy of the customer's records.
The bills as passed do not define the circumstances of permissible disclosure with sufficient precision or narrowness, according to Walker, and may expand the areas of permissible disclosure beyond those
customarily followed today.
November 1976 / Illinois Issues / 5