ing rate of speed, and without prompt action to assess and establish privacy constraints it may soon be too late for action to be effective in protecting privacy. I hope that you, Mr. Chairman, will provide leadership in bringing about a national re-examination of information practices and in supporting the establishment of a federal institution that has repsonsibility to guard informational privacy. Thank you. Mr. KASTENMEIER. Thank you, Professor Trubow, for that excellent statement. I am primarily interested in your recommendations, but because of the fact that there is a vote on and the hour is late, I am not going to detain you or those others present. I was interested in your recommendations for a study or other congressional action consistent with your view that time is of the essence; that this is a pervasive problem; and that the administration and the courts cannot be relied upon to respond to the problem. I think we might consider trying to develop that aspect of your recommendations. I would appreciate any information that you might submit to the committee to help us determine whether we should make changes to present statutes to make them more effective, or whether we should proceed with a study precedent to that. Mr. TRUBOW. I would be pleased to do that, Mr. Chairman. I think that Ken Laudon was absolutely correct in pointing to the routine use clause in the Privacy Act of 1974 as having been misused. I believe that the discretion that administrative agencies have now to get around it should be curtailed. Mr. KASTENMEIER. Thank you very much, Mr. Trubow. Mr. TRUBOW. Thank you very much. Mr. KASTENMEIER. That concludes this morning's hearing on 1984. Until next week when the committee will again be in session, the committee stands adjourned. [Whereupon, at 12:45 p.m., the subcommittee adjourned.] 1984: CIVIL LIBERTIES AND THE NATIONAL SECURITY STATE WEDNESDAY, SEPTEMBER 26, 1984 HOUSE OF REPRESENTATIVES, AND THE ADMINISTRATION OF JUSTICE OF THE COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to call, at 10:10 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier and Schroeder. Staff present: Deborah Leavy, David W. Beier, counsel; Joseph V. Wolfe, association counsel; and Audrey K. Marcus, clerk. Mr. KASTENMEIER. The committee will come to order. This morning marks the conclusion of a series of subcommittee hearings entitled: "1984: Civil Liberties and the National Security State." These hearings began almost a year ago on the eve of the Orwellian year of 1984 with the purpose of taking stock of the state of civil liberties in the very year Orwell used to warn us of the dangers of letting our precious freedom slip away. At the onset of these hearings, I expressed concern over a number of acts which I viewed as threats to civil liberties: an Executive order demanding lifetime prepublication clearance for public speeches and writings of hundreds of thousands of Federal employees; barring the press from covering the invasion of Grenada; classification and labeling of certain foreign-made films; denial of visas to foreign speakers on thinly veiled political grounds; and restrictions on academic and scientific research. Our hearings this past year have explored these issues and more, including electronic surveillance and other threats to privacy imposed by emerging technologies. We began these hearings on an optimistic note; after all, Orwell's vision is still mere fantasy. But as I noted at the outset, he never really meant "1984" to be a prediction; it was intended as a warning. The testimony we have heard over the past year will, I hope, serve the same purpose. For what we have learned is that our civil liberties are, indeed, in danger. The parade of horribles that prompted my initial concern may be only the tip of the iceberg. Technology has outstripped existing law on electronic surveillance, leaving loopholes for wiretappers, public and private; the Securities Exchange Commission has asserted that it can license fi(331) nancial publications; the Commerce Department has demanded that a travel agency turn over a list of travelers to Cuba; the IRS wants to buy lists of high-lifestyle individuals from direct mail companies; and the Treasury Department has asked that banks report in detail all foreign transactions over $10,000. We have heard testimony that computers, rather than the telescreens of Orwell's fantasy, may be the most efficient means of electronic surveillance in the future. Bank records, credit card records, telephone records, insurance records all leave a computerized trail that can reveal almost as much about an individual as constant physical surveillance. But even telescreens may be on the horizon. During the course of these hearings, I received an update of the Manual for U.S. Attorneys and I note with alarm that the Justice Department apparently considers video surveillance permissible with few safeguards. The subcommittee's hearings have revealed an almost invisible drift toward the Orwellian nightmare. It is now our responsibility to respond. Therefore, I am today introducing the Electronic Surveillance Act of 1984, a comprehensive bill that addresses many of the problems with respect to electronic surveillance which have been identified in these hearings. I hope that the bill will serve as a study document in the 98th Congress and that it will get serious attention in the 99th Congress. I also hope our witnesses this morning will help us develop solutions to other civil liberties problems as well. We are very pleased to have with us this morning three very knowledgeable witnesses. Our first witness, John Shattuck, is vice president for government, community and public affairs for Harvard University. He recently assumed that position after 13 years with the American Civil Liberties Union, 8 of those years as director of the Washington legislative office. In that capacity, he appeared before this subcommittee and others on many occasions. We, of course, are very pleased to welcome you today in your debut in your new role. Our second witness, Ronald Plesser, is well known as an expert on privacy issues. He served as general counsel to the U.S. Privacy Protection Study Commission and has considerable experience with the Freedom of Information Act and as an attorney at the Center for Responsive Law. Mr. Plesser is now a partner with the Washington, DC, law firm of Blum, Nash & Railsback. Our final witness will be Ms. Mary C. Lawton, director of the Office of Intelligence Policy and Review at the Department of Justice. Ms. Lawton testified before us on the Foreign Intelligence Surveillance Act not so long ago and she has had a long and distinguished career of service in the Department through several administrations. We are indeed very pleased to have you all here today. Without objection, your written statements will be made a part of the record and you may proceed as you wish. First, I will call on Mr. Shattuck. TESTIMONY OF JOHN SHATTUCK, ESQ., VICE PRESIDENT FOR GOVERNMENT, COMMUNITY AND PUBLIC AFFAIRS FOR HARVARD UNIVERSITY; RONALD L. PLESSER, ESQ., BLUM, NASH & RAILSBACK, WASHINGTON, DC; AND MARY C. LAWTON, ESQ., DIRECTOR, OFFICE OF INTELLIGENCE POLICY AND REVIEW, DEPARTMENT OF JUSTICE Mr. SHATTUCK. Thank you very much, Mr. Chairman. I am delighted, as always, to appear before your subcommittee. I am often asked in my new capacity at Harvard to give my instant opinion on subjects that I know not anywhere near enough about and I should say that I feel from time to time like Yogi Berra when he was asked what time it is. He answered: "You mean right now?" I am pleased that in this particular case, I have had a great deal of experience in the subject before you and commend you for addressing it in such detail. I have submitted a number of documents for the record, including-I would like to mention-most prominently, a draft report on the subject of "Federal Restrictions on the Free Flow of Academic Information and Ideas."1 I should stress that I am appearing here today in my individual capacity, but I did want to bring to the subcommittee's attention what is very much the academic perspective on many of the secrecy subjects that you have been investigating, as set out in the draft report that I have provided to you. I have been asked in my testimony to put into perspective some of the themes that other witnesses have been addressing and I am happy to try to do so and also to be prepared to answer any questions you may have concerning the bill, which I am delighted that you have introduced, as well as the draft report. A central theme of these hearings has been the threat to civil liberties from increasingly broad claims of national security asserted by the President and other officials of the executive branch. These assertions have become especially sweeping during the current administration, as in the case of the news blackout of the Grenada invasion, the promulgation of a Presidential directive imposing lifetime censorship on Government employees, handling classified information, the use of export controls to limit publication of scientific research and many other examples brought out in these hearings. While the current administration has been particularly active in making claims of national security to curtail civil liberties, its policies are the culmination of a long trend which began after World War II and accelerated during the Nixon administration. Nowhere is this more evident than in the areas of censorship and electronic surveillance. Here the Nixon administration stands out from other recent Presidencies only because of the fate of its principal; not because its policies presented a unique threat to civil liberties. In fact, the development of a law of national security secrecy and surveillance and its steady erosion of the first and fourth amendments has accelerated in the post-Watergate era. 1 "Federal Restrictions on the Free Flow of Academic Information and Ideas," Journal of Higher Education (January 1985), supra, p. 1542; "Computer Matching is a Serious Threat to Individual Rights," 27 Communications of the ACM 538 (June 1984), supra, p. 3103. |