computer rights vs first and forth amentment right.txt

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found that her newly rented apartment was infested with cockroaches.

When she gave her landlord a thirty day notice, he countered with an

eviction notice.  When the landlord didn't show up in court, the judge

threw the case out.  But Ward was entered in the U.D. Registry as having

an eviction notice, and when she wanted to rent an apartment later she

was unable to (Burnham, pp. 34-35).

        In both cases, errors caused a major personal difficulty and

breach of privacy.  Also, in both cases the victim did not know of the

U.D. Registry's existence.  Therefore, neither could possibly confront

the unfavorable, electronically-stored data, analogous to a "false

witness," that led to their blacklisting.

        Perhaps the grandest scale of gathering information about people

by a non-governmental agency was undertaken by the Lotus Development

Corp. in conjunction with Equifax Inc.  Lotus and Equifax developed

"Marketplace: Households," a database of the names, addresses, and

marketing information on 120 million residents of the United States

(Fisher, p. C3).  The purchaser of this information would probably be

large consumer goods companies specializing in mail order.  Databases

like this are currently used by organizations to send unsolicited (junk)

mail to potential buyers. Imagine the volume of junk mail if the entire

business world had the names and addresses of almost half of the

country's population on-line!

        Fortunately, on January 23, 1991, Lotus and Equifax announced

that they had cancelled plans to release "Marketplace: Households" due

to  30,000 letter and phone calls from individuals who wanted their

files deleted from the product.  Apparently, the companies decided that

the privacy issues involved would make the product unviable.  (Fisher,

p.  C3.) Ironically, a similar product, "Marketplace: Business", which

contained database  information on seven million U.S. businesses, was

discontinued the same day.  "Marketplace: Business" has been shipping

since October 1990, but was not profitable without the revenues from

"Marketplace: Households" (Fisher, p. C3).

        A similar example of the same type of database belongs to the

Phone Disc USA Corporation.  This small, Massachusetts based company

has manually copied the names, addresses and numbers of 90 million

people out of the white pages of telephone books from across the nation.

They put this information on CD-ROM storage devices, and sell it to

mass-marketers.  In a recent ruling, the Supreme Court decided that it

is legal to copy white pages listings because they are not copyrighted.

For the next version of the product, co-founder James Bryant plans to

copy every name from over 4000 sets of regional whites pages.

(Kleinfield) Unlike the Lotus/Equifax undertaking, Phone Disc USA shows

no signs of halting their product.

        How many of these computer databases and networks exist that the

average American doesn't know about?  Just about every government or

private agency that interacts with the public has its own computerized

index of names, addresses, social security numbers, etc.  Every time you

open a bank account, apply for a credit card, attend a learning

institution, register at a hotel, get medical aid, or obtain a loan, a

new file is opened for you, without your explicit knowledge!  And these

are the easy ones to track; there are many databases you get into

without anyone telling you. In fact, these "secret" records, not unlike

the U.D. Registry's, are more effective if the "victims" don't know

about them.

        Now that we are aware of the problem, we can ask the question,

"What do we do?"  First we must clarify one point - does the mere

existence of these databases and computerized records intrude upon the

individual's privacy, or does the use of them constitute privacy

invasion? The best way to do this is to find out if similar privacy

violations occurred before the advent of computerized files.

        The Census Bureau's charter contains the provision, "in no case

shall information furnished under the authority of this act be used to

the detriment of the person or persons to which this information

relates."  But, during World War I, the Justice Department was looking

for the names and addresses of young men who were trying to evade the

draft so they could track these dissenters down and prosecute them.

Under pressure from the military, the Census Bureau disclosed this

information (Burnham, pg. 24).  Computers did were not used to record

information until the mid-forties.  One of the first organizations to

use primitive databases (stacks and stacks of punch cards) for the

purpose of information gathering on a large number of people was the

Census Bureau.

        The violation of privacy did take place before computerized

databases.  The largest differences between a stack of papers and a

computer file are that the computer file is easier to use, faster to

find, able to be disseminated and/or transmitted quickly.  An example of

how efficient computer files are at finding people is the case of the

California Locator Service.  This database is used to track parents who

refuse to pay child support.  The names of the wayward parents are filed

in the database.  The database is compared to that of the Franchise Tax

Board. In the case of a match, the parent's tax refund is intercepted

and sent to the parent with custody (Burnham, pp. 30-33).  The Locator

Service also has direct links to the Department of Motor Vehicles, the

Employment Development Board, criminal databases, and several other

computer networks to help locate the delinquent parent.  According to

manager Richard Beall, the service is able to provide at least some sort

of information 62% of the time (Burnham, pp. 30-33).  Imagine the

difference if the California Locator Service were run by pen, pencil, or

typewriter instead.  The proper information on the wayward parent would

have to be sent to all the associate agencies, processed, and answers

given.  The time to do this would be prohibitive enough to make the

service slow and negligibly effective.  The computer facilitates this

sort of information sharing and retrieval.

        We conclude that computers aren't the inherent evil, but they

help the government and other organizations to procreate the evil of

privacy infringement more easily than if computer databases weren't

used.  So we can't necessarily eliminate the problem by eliminating the

databases. Often the computer database used for the questionable

activity is one that exists for a different purpose.  Cases of this are

the Census Bureau's information, and the NCIC.  Both of these databases

exist to serve beneficial purposes - population surveys and law

enforcement, respectively.  Eliminating all computer databases

containing personal information would to too radical a step. Our society

would grind to a standstill as bank records, medical files, legal

reports, etc. (the list goes on indefinitely) would have to be hand

copied and disseminated.

        Think of the examples of given at the beginning of this section

of a library and a bank.  We saw how these organizations used databases

to improve their service to the public.  These same databases can be

used to invade the privacy of the public.  For example if library

databases are available to the public, they can be used to list the

books or type of books that an individual reads.  A magazine or book

club might find library databases useful in deciding who to send

unsolicited subscription or membership information to.  Bank records can

be used similarly to determine the financial status of an individual.

        What is comes down to is that any database containing personal

information that is used for any other purpose than the one it exists

for is a potential violation of privacy.  As a case in point, under

current law, our video rental histories have more protection than our

medical or insurance records. Under a 1988 law, video rental records may

only be released under court order. That law, often referred to as the

"Bork bill," was inacted after video rental information about a Supreme

Court nominee was made public in the press (Consumer Reports).  Must we

wait for similar abuses related to the medical, library, or bank records

of persons in the public eye to similarly secure the privacy of these

records?

        Is there a solution?  Is there a middle ground where we can have

the databases, but control how they are used?  In the January 1988 issue

of Omni magazine, experts from various legal and scientific fields were

asked to comment upon the Terry Dean Rogan case (see above).  Some

responses were: (Science Court Opinions, p.  100).

Sheldon L. Glashow, Nobel laureate and professor of physics at Harvard
University: "A centralized computerized crime file is absolutely
necessary for crime control, but it does jeopardize the rights of
citizens...Under no circumstance but one should the NCIC files be made
available for non-crime related purposes: The exception is the right of
each citizen to examine his or her own file."

Melvin Konner, M.D.,  professor of anthropology at Emory University:
"Centralized data banks pose a new, probably serious threat to
privacy, yet such data banks are too valuable to be forsworn.
...challenges should result in the emergence of a system of check
and balances that will prevent the abuse of data."

John Money, professor emeritus of medical psychology and pediatrics at
Johns Hopkins University and Hospital: "...it becomes imperative
to have strictly enforced safeguards on the usage of such
[computerized] lists.  One such safeguard would be a legally
guaranteed principle of freedom of information, so that an
individual could access his or her name on the list and correct
information falsely entered against it."

George B. Schaller, director of science for Wildlife Conservation
International: "...as a potential victim, I am pleased that the file
might help insure my privacy - that is my property and person.
The file should, however, be accessible for criminal matters only,
or it will be misused."


        Furthermore, an interesting precedent may be set for privacy

rights in the United States by the new European Community. The European

Community is proposing a set of laws that would strictly limit how

database information is used and who has access to it.  Basically, the

laws would instruct owners of databases to notify individuals of their

inclusion, and these individuals would be able to obtain copies of the

database information on them.  Also, owners of databases would not be

allowed to sell the personal information of an individual without the

permission of that individual.  "The proposals would prohibit...a

publisher from selling a list of subscribers to a real estate developer

- unless the subscribers agreed to be included.  Banks would be required

to notify credit card holders before selling their names to mail-order

houses." (Markoff, p. D1). Interestingly enough, these proposed

regulations have the U.S. based companies complaining the loudest.  IBM,

GTE, and AT&T claim that the proposed laws would strictly limit their

business abroad (Markoff, p. D1).

        Privacy experts maintain that the companies are overreacting.

Some of the restriction that are under consideration include: (Markoff,

p. D1).


        --Companies must register all databases containing personal
          information with the countries...in which they are
          operating...

        --Corporations using personal data must tell the subjects of
          their use...

        --Private companies can only collect or process personal data
          with the consent of the subjects.

         --Companies would not be able to transfer data to another
           country unless that country also offered adequate protection
           of records.

        Taking these experts' opinions and the precedents under

consideration by the European Community, we have a basis for legislation

concerning computer databases and the privacy of individuals.  The

following guidelines are suggested:

        1) All individuals who have personal information stored in a
           computer database must be informed of this fact. They also
           must be given a chance to review their file(s) and to
           petition for changes if they find that the information held
           within is incorrect.

        2) When a person is arrested and/or brought to trial because of
           the information in one of these databases, attention must be
           given to the question of the file's accuracy and
           completeness.

        3) Files that exist for purposes of law enforcement (e.g., the
           NCIC) should not be used for anything other than law
           enforcement.  A system of checks and balances should be
           maintained to guarantee this.

       4) Files that exist for marketing or statistical purposes should
          inform all individuals who are included in the database of
          their inclusion, and give them an opportunity to request that
          their file be deleted.

        The constitution was written as anticipatory democracy, but its

framers did not (and could not) anticipate the advent nor the power of

the computer.  Although the ideals of individual privacy have not

changed over the last 200 years, the reality has.  In the next section

other outdated legal concepts that are in danger of violating the First

and Fourth Amendment rights of every citizen are exposed.


III: The Printed Word vs. The Electronic Word

            "The right of the people to be secure in their persons,
        houses, papers, and effects, against unreasonable searches
        and seizures, shall not be violated and no warrants shall
        issue but upon probable cause, supported by oath or
        affirmation, and particularly describing the place to be
        searched, and the persons or things to be seized."

                - The Fourth Amendment to the Constitution of the
                  United States

        On March 1st, 1990, Secret Service agents raided the offices of

Steve Jackson Games, a small role-playing game company.  The agents

seized three computers, including one being used to run a bulletin

board, all company software in the proximity of these computers, and all

business records contained in the computers' storage.

        Why would the government want to virtually shut down a game

company? Because Steve Jackson Games was just weeks away from

publishing a science-fiction role-playing game called Gurps Cyberpunk.

The game is set in a high-tech future society where the players use

human/computer interfaces to "enter" computer networks and infiltrate

(or hack) through defenses to valuable data.  Playing the game does not

require the use of (or even the knowledge of how to use) a computer.  A

Secret Service agent told Steve Jackson that the Gurps Cyberpunk playing

manual was a "handbook on computer crime." (Barlow).

        As a result of losing their computing capabilities and data,

Steve Jackson Games temporarily shut down and had to lay off half of its

employees.  For three months, the Secret Service retained the equipment

and data even though they had no evidence that the game or any other

Steve Jackson game violated any law.  When some of the equipment was

finally returned in June, 1990, the Service kept the drafts of Gurps

Cyberpunk.  The rest of the equipment was "lost." (Barlow).

        According to the Fourth Amendment, the Secret Service agents

needed "probable cause" that criminal evidence will be at the scene of

the search to get a search warrant issued.  The Fourth Amendment also

specifies that the search should be as narrow as possible (in other