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Stanford and he again applied for a six-day temporary visa. The visa was denied on the grounds that his "1968 activities while in the United States went far beyond the stated purposes of his trip...represent[ing] a flagrant abuse of the opportunities afforded him to express his views in this country." Mandel and six U.S. citizens, all university professors, sued the 96 United States. The professors claimed that their First Amendment rights to hear and communicate with Mandel were being violated. A closely divided Court rejected the First Amendment
The Mandel decision paved the way for a variety of entry denials or deportation proceedings against foreign born tenured professors at American universities. Three recent examples:
Dennis Brutus, a poet, writer and critic of apartheid, banned in South Africa for petitioning the South African Olympic Committee to allow black South Africans to compete on the national team. By attending a meeting of the South African Olympic Committee he violated the ban by being "with more than two people at a time." He was sentenced and served 18 months in prison. He came to the United States in 1970 to accept the teaching position at Northwestern University. His visa expired in 1980. He was required to obtain permanent visa from outside the U.S. but because he had let his British passport expire this was not possible. He requested asylum. At his asylum hearing in 1983, Immigration Department lawyers used classified documents to make their case denying Brutus' attorneys access. Indirectly it
Id.. at 757. He was also invited to Princeton, Amherst,
at 759. The State Department conceded, however, that Mandel may not have been adequately informed of visa restrictions in 1968. See Id., at 773, note 4.
was learned that he was
considered deportable under Sec. 212(a)(28) because of membership in the South African "Colored Peoples Congress". He was ordered deported but on appeal won asylum in late 1983.
Cosmo Pieterse, who came to Ohio State University in 1970 and was tenured in 1976. In 1979 he went to London to meet with his publisher and when attempting to return in 1981 was denied re-entry. This denial was based on classified information. It is believed that he has been denied entry for being a Communist even though his university colleagues deny
He is still in London.
In addition to these university professors, a wide variety of foreign speakers invited to address university audiences in the United States have been denied entry from time to time in recent years under the "prejudicial to the public interest" pro
Angel Rama, a native of Uruguay, who made many trips to the U.S. before 1966. He was admitted on a regular visa until 1969 when he was apparently classified as a subversive and allowed to enter only on a waiver basis. In 1980 he earned tenure at the University of Maryland and applied for permanent residence status. The Immigration Department denied this request stating that the denial was based on "classified information...which [could] not be discussed...or made available..." Rama believed his denial was based on a series of articles he had written in the magazine Marcha, in which he reported on attempts by the CIA to infiltrate Latin
American intelligence organizations. He was killed in a
plane crash in Madrid before his case was resolved.
Id., at 7-9.
Id., at 10-12.
See "The Denial of Visas Under Sections 212(a)(27) and (28),
vision of the McCarran Act. Among these are Nobel prize-winning authors Gabriel Garcia Marquez and Czeslaw Milosz, as well as author Carlos Fuentes, playwright Dario Fo, actress Franca Rame, NATO Deputy Supreme Commander Nino Pasti and Hortensia Allende, widow of former Chilean President Salvador Allende.100
The free flow of ideas among scholars and their colleagues is essential to the fabric of academic life. The foregoing discussion shows the extent to which federal authority is now being asserted to restrict and disrupt that flow.
A. Soma & Wehmhoefer, "A Legal and Technical Assessment of the Effect of Computers on Privacy," 60:3 Den L.J. 449 (1983).
B. "The High-Tech Threat to Your Privacy," Changing Times, April 1983, at 61.
D. Neustadt & Swanson, "Privacy and Videotex Systems," Byte, July 1983 at 98.
F. Boorman & Levitt, "Big Brother and Block Modeling," New York Times, Nov. 20, 1983.
G. Boorman & Levitt, "Block Models and Self-Defense," New York Times, Nov. 27, 1983.
H. Rule, McAdam, Stearns, & Uglow, "Documentary Identification and Mass Surveillance in the United States," Social Problems, December 1983, at 222.
I. Clymer, "Privacy Threats Worry Americans,” New York Times, Dec. 8, 1983.
K. Brownstein, "Computer Communications Vulnerable as Privacy Law Lag Behind
L. Burnham, “IRS Seeks Links to County Computers in Texas to Find Debtors," New York Times, March 13, 1984.
M. Burnham, "U.S. Agencies to Get Direct Link to Credit Records," New York Times, April 8, 1984.
N. Grier, "Who's Snooping and How? U.S. and U.S.S.R. 'Peer Into Mist', " (pts. 2-6), Christian Science Monitor (Apr. 17, 18, 19, 20, 23, 1984).
O. Earley, "Government to Share Deadbeat List With Private Credit-Rating Bureaus," Washington Post, Apr. 25, 1984.
P. Shattuck, "Computer Matching is a Serious Threat to Individual Rights," 27 Communications of the ACM 538 (June 1984).
Q. Burnham, "IRS Rejected in Hunt for Estimated Income Lists," New York Times, Oct. 31, 1984.
R. University of Maryland, Center for Philosophy & Public Policy, "Privacy in the Computer Age," QQ, Fall 1984.
APPENDIX II-MISCELLANEOUS MATERIAL
A. The Direct Mail/Marketing Association's "Suggested Guidelines for Personal Information Protection" (1982).
B. National Defense University, Department of Defense Computer Institute, "Selected Computer Articles 1983-84".
C. Yudovich, “Administrative Surveillance-A Means of Police Repression," Dec. 6, 1983 (translation prepared by Radio Liberty Research (RL-454/83).
D. Marx & Reichman, "Routinizing the Discovery of Secrets," 27 American Behavioral Scientist, March/April 1984, at 423.
E. Letter to Hon. Robert W. Kastenmeier from Robert A. McConnell, Assistant Attorney General, U.S. Department of Justice, dated Mar. 30, 1984.
A LEGAL AND TECHNICAL ASSESSMENT OF THE
JOHN T. SOMAa* and Richard A. WEHMHOEFER**
Alexander Solzhenitsyn observed that "as every man goes through life he fills in a number of forms for the record, each containing a number of questions.... There are thus hundreds of little threads radiating from every man. Computer technology collects, combines, and analyzes these threads in an efficient and timely manner.2 An increasing amount of information is being collected by government and private industry. This information includes data collected from census and tax files, medical and credit reports, arrest and criminal records, and magazine subscription files. When accumulated in centralized data files, this information has the potential of being used as an instrument of control or, at the very least, may be used to trace and regulate an individual's movements and activities.3 Many commentators are concerned that the computer's insatiable appetite for information, image of infallibility, and eternal memory may cause it to become the heart of a surveillance system that will make society a transparent world in which our homes, finances, and associations will be bared to a wide range of observers.+
The use of collected data, however, is indispensable in our modern society. Personal information in both individual and aggregated contexts is in
J.D., Ph.D., Associate Professor of Law, University of Denver, College of Law. B.A., Augustana College, J.D., M.A., Ph.D., University of Illinois, Urbana. Dr. Soma is currently completing a book on Computer Technology and the Law for Shepard's/McGraw-Hill. J.D., Ph.D., associated with Akolt, Dick & Akolt, Denver, Colorado. B.A., M.A., Ph.D., University of Colorado, Boulder; M.P.A., Graduate School of Public Affairs, University of Colorado, Denver; J.D., University of Denver, College of Law. Dr. Wehmhoefer is currently writing a book on Practical Statistics for Lawyers.
1. Linowes, Must Personal Privacy Die in the Computer Age?, 65 A.B.A. J. 1180 (1979). A fundamental issue of privacy is the amount of freedom each individual possesses. Freedom is of course directly related to the number of people in a defined space. Herbert wrote that beyond a critical point,
within a finite space, freedom diminishes as numbers increase. This is as true of humans in the finite space of a planetary ecosystem as it is of gas molecules in a sealed flask. The human question is not how many can possibly survive within the system, but what kind of existence is possible for those who do survive.
F. HERBERT, Dune 493 (1965).
2. See generally A. MILLER, THe Assault on Privacy (1971); A. WESTIN, PRIVACY AND FREEDOM 158-68 (1967); Bazelon, Probing Privacy, 12 GONZ. L. Rev. 587 (1977).
3. See A. MILLER, supra note 2, at 38-46. This fear resulted in considerable opposition to both the government's proposed National Data Center in 1967 and President Reagan's proposal in 1981 to create a centralized data file in the Department of Health and Human Services in order to track welfare recipients.
4. See, eg, V. FERkiss, Technological Man 227 (1969); Miller, The National Data Center and Personal Privacy, THE ATLANTIC, Nov. 1967, at 53; Osborn v. United States, 385 U.S. 323, 353 (1966) (Douglas, J., dissenting); Lopez v. United States, 373 U.S. 427, 450 (1963) (Brennan, J., dissenting).