Home' Technology Review : July August 2009 Contents ESSAY 67
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today suggests that even though technology is a driving factor
in these privacy invasions, it's not the root source. The source
is what sits in front of the computer's screen, not behind it.
For another example, consider electronic surveillance.
Although e-mail and telephones give the appearance of pri-
vacy, sensitive electronic communications have always been an
attractive target. Wiretapping was employed by both sides dur-
ing the Civil War, prompting some states to pass laws against it.
But it was the invention of the microphone and the telephone
that brought the possibility of electronic surveillance into the
homes of ordinary Americans. This shifted the action in U.S.
privacy law from information to communication.
In 1928, in a case called Olmstead v. United States, the
Supreme Court heard the appeal of a Seattle bootlegger whose
phones had been tapped by federal agents. The agents had
not trespassed or broken any laws to install the wiretaps, but
they didn't have a search warrant either, as would have been
required for a physical search of Roy Olmstead's property.
Brandeis, who had been appointed to the court by Wood-
row Wilson in 1916, was appalled. "Whenever a telephone line
is tapped, the privacy of the persons at both ends of the line is
invaded, and all conversations between them upon any subject,
and although proper, confidential and privileged, may be over-
heard," he wrote in his opinion. Alas, it was a dissent. By a 5--4
majority, the court found in favor of the government: search
warrants were not required for eavesdropping on electronic
communications, because "there was no searching." Olmstead
went to prison, federal agents got the right to wiretap without
a warrant, and that's how the law stood for another 39 years,
until the case was overturned by a more liberal court in 1967.
It's comforting to know that U.S. law eventually gets things
right with respect to privacy---that is the power of our republic,
after all. But it's also troubling how long it sometimes takes. A
lot of injustice can happen while we wait for the law to accom-
modate advances in technology.
Consumer data banks as we know them today---big reposi-
tories of personal information, indexed by name and spe-
cifically constructed for the purpose of sharing information
once regarded as "private"---didn't start with computers. But
computers certainly helped.
One of today's largest consumer reporting firms was started
in 1899, when two brothers created the Retail Credit Com-
pany---now known as Equifax---to track the creditworthiness of
Atlanta grocery and retail customers. Businesses were encour-
aged to report which of their customers reliably paid their bills
and which did not. Retail Credit collected the information,
published it in a book, and sold copies.
Retail Credit and other consumer reporting firms main-
tained paper files until the 1960s. When they finally started to
computerize, they came head to head with a Columbia Uni-
versity political-science professor named Alan Westin.
Westin had uncovered countless cases in which people had
been denied credit, insurance, housing, even jobs, because of
errors in consumer files---records that many victims didn't
even know existed. He feared that computerization would
make credit data banks much more widely used, with omi-
nous consequences unless they were properly regulated. In
the computer age, he said, privacy is no longer just the right to
be left alone; it involves people's right "to determine for them-
selves when, how, and to what extent information about them
is communicated to others." Possession of personal informa-
tion, Westin said, should not give corporations unlimited rights
to use that information.
Westin's research sparked numerous congressional investi-
gations and got him invited to testify before Congress. People
were entitled to view their own records, he said. And they
needed a way to dispute the records and force an investiga-
tion if they thought there was an error.
Retail Credit and others protested that they would be sty-
mied and bankrupted by a flood of requests. And Westin's
definition of privacy could put di erent parties' rights in clear
conflict---taken to its extreme today, it would mean that an ex-
lover could order you to remove his or her name from your
address book and delete all those old e-mails. But Westin and
the other privacy advocates won the day, and Congress passed
the Fair Credit Reporting Act of 1970. A Nixon administration
advisory committee then developed the Code of Fair Infor-
mation Practice, a guiding set of principles that underlies the
majority of U.S. privacy laws passed since.
This code is surprisingly straightforward. There should be
no secret data banks; individuals must be able to view their
records; there must be a way to correct errors; organizations
maintaining data banks must make sure they're reliable and
protect them from unauthorized access; and information col-
lected for one purpose must not be used for other purposes.
For example, the Video Privacy Protection Act was passed
after Judge Robert Bork's video rental records were obtained by
the Washington, DC, weekly City Paper in an attempt to dig up
embarrassing information while the U.S. Senate was debating
his 1987 nomination to the Supreme Court. The Driver's Pri-
vacy Protection Act of 1994 was passed after actress Rebecca
Schae er was murdered in 1989 by a crazed fan, who had hired
a private investigator to track down her address. The investi-
gator was able to get the information through the California
Department of Motor Vehicles, which had required Schae er
to provide her home address when she applied for a license.
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