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DENVER LAW JOURNAL
[Vol. 60:3 creasingly needed to understand and formulate policies to solve social, economic, and political problems. Prior to the development of the computer, vast data collection and interpretation were not possible. Some contemporary prophets have predicted that the advent of these new information transfer technologies will prove to be as significant as the invention of movable type."
An inherent problem in the development of computers is its effect on individual privacy. This article will examine that effect from historical, contemporary, and futuristic perspectives. It will also evaluate contemporary constitutional, judicial, and statutory responses to the protection of individual privacy in the United States and internationally.
The simplest definition of privacy was stated by Justice Brandeis in his dissent in Olmstead v. United States.? 7 He said that privacy is "the right to be left alone." Other more comprehensive definitions of privacy include Professor Westin's statement that privacy is “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others."9 Professor Emerson noted that “[t]he right of privacy, in short, establishes an area excluded from the collective life, not governed by the rules of collective living." "10 In this article, privacy will be defined as the unitary concept of separation of self from society.
I. COMPUTER TECHNOLOGY Development as Related to PRIVACY
After World War II, the United States witnessed a tremendous expansion of commercial and governmental activities, which resulted in a substantial increase in the volume of transactions requiring the maintenance of records on individuals. The number of bank checks written doubled and the
5. Ruggles, Symposium: Computers, Data Banks, and Individual Privacy: On the Needs and Values of Data Banks, 53 MINN. L. REV. 211, 233 (1968).
6. A. CLARKe, Profiles oF THE FUTURE 265-79 (1962), H. KAHN & A WIENER, THE YEAR 2000, at 88-98 (1967); M. McLuhan, THE GUTENBERG Galaxy 11-279 (1962); A. WESTIN, supra note 2, at 163-68.
An example of the scientific community's views of the impact of the computer on our society is the following excerpt from a speech by Dr. Glenn T. Seaborg, Chairman of the United States Atomic Energy Commission, reprinted in Computer Privacy: Hearings Before the Subcomm, on Administrative Practice and Procedure, Senate Comm. on the Judiciary, 90th Cong. 1st Sess 248 (1967): Springing from our Scientific Revolution of recent decades is what is being called our "Cybernetic Revolution." This revolution which, comparatively speaking, is only in its infancy today amplifies (and will to a large extent replace) man's nervous system. Actually, this is an understatement because computers amplify the collective intelligence of men--the intelligence of society and while the effect of the sum of man's physical energies may be calculated, a totally different and compounded effect results from combining facts and ideas Add this effect to the productive capacity of the machine driven by an almost limitless energy source like the nucleus of the atom and the resulting system can perform feats almost staggering to the imagination That is why I refer to cybernation as a quantum jump in our growth.
7. 277 U.S. 438 (1928).
8. Id. at 479 (Brandeis, J., dissenting)
9. A. WESTIN, supra note 2, at 7.
10. T. EMERSON, The System of FREEDOM OF EXPRESSION 545 (1970)
COMPUTERS AND PRIVACY
number of income tax returns quadrupled. 12 Automated data processing blossomed into a separate industry, serving the demands of business and industry for fast, accurate, and efficient data handling. 13
During the late 1960's, business and social planners began to use the concept of systems analysis, which involves the mathematical simulation of a complex activity or task. Systems analysis was applied to problems concerning health care delivery, income transfer payments, air pollution, urban transportation, and higher education. The introduction of the disciplined methods of computer-assisted management gave business and social planners new tools for evaluating the performance of programs and institutions dealing with social problems. This auditing process included tracking transactions between organizations and their clients, measuring performance against goals, providing information for planning, and assessing workload and productivity.
Many of these functions necessarily involved the collection and storage of data on individuals. For example, administrative data were needed for management of individual transactions and statistical data were needed for planning and assessing program performance. Intelligence data were needed for judging individual character and qualifications for employment, credit, welfare assistance, and other aid. Health data were needed to provide adequate health care and medical assistance. The demand generated by all these uses of personal data, and the corresponding record-keeping systems to store and process this information, challenged conventional legal and social controls to protect individual privacy.
Computer technology can be expected to continue to improve the capacity, speed, and complexity of storing and analyzing data concerning individuals. The federal government continues to sponsor the development of advanced computer systems for the military and space programs. Strong, world-wide economic pressures exist for automating various operations in the public and private sectors. Public opinion is becoming increasingly receptive to the provision of better data and faster information processing. There has been a tremendous infusion of venture capital into computer development to the extent that this has been described as the “last frontier of entrepreneural capitalism."14
Given this pattern of rapid innovation and technological development, policymakers have legitimate concerns that computer technology can severely impinge on individual privacy. As early as 1972, Professor Westin found that computer technology existed that could maintain an on-line file containing the equivalent of twenty single-spaced pages of typed informa
12. DEPARTMENt of Health, Education, and Welfare, Records, Computers, and The Rights of Citizens 7-10 (1973).
13. See generally B. GILCHRIST & R. WEBER, The State of the Computer INDUSTRY in THE UNITED States 54 (1973); M. HoloIen, Computers and Their Societal ImpacCT 4344 (1977); E. Tomeski & H. Lazarus, People-Oriented Computer Systems: THE COMPUTER IN Crisis 130-32 (1975).
14. Michael Shields, a catalogue marketer for Apple Computers said that “living (in the Silicon Valley of northern California) is like riding in the nose cone of the space shuttle. We are ding into the future." Taylor, Striking it Rich: A New Breed of Risk Takers is Betting on the High bunlay Future TIME Feb 15. 1982. at 38.
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tion about the personal history and selected activities of every man, woman, and child in the United States. 15 It would have been possible to retrieve this information on any given individual within thirty seconds.16
Although Americans enjoy the convenience and speed of information processing, a recent Harris poll found that nearly two-thirds of those interviewed were concerned about threats to their privacy; one-third said that the United States is or would soon be similar to the fictional “Oceania” in George Orwell's novel 198417_ —a nation that kept every activity of its citi
A. Major Areas of Computer Technology That Will Affect Privacy
Direct-entry input devices and optical scanning methods represent techniques by which data, either numeric or alphabetic, can be entered directly into machine-readable form. Some forecasters believe voice input devices will become widespread by the late 1980's. 19
Larger memory storage capacities are being developed to place great volumes of personal data into direct-access storage for on-line access. These new techniques include laser beam technology allowing data to be stored at the molecular level.20
3. Configuration Arrangements
More flexible options are available for arranging the configuration of computer systems. Included in this array are minicomputers and personal microcomputers which can be used for self-contained record-keeping and data processing applications. There are also improved capacities for linking terminals into on-line systems, thereby giving greater flexibility to organizations and government. Some organizations have become more decentralized in their record-keeping activities while others have elected to use large, multiterminal centralized systems.21
4. Data-base Management Software
Considerable improvement is expected in data-base management
15. A. WESTIN & M. Baker, Databanks in a Free SOCIETY 337-406 (1972). 16. Id. at 321-30. While there may not exist a single giant databank to hold all this information, it is possible to link separate computer systems within a separate organization or between organizations. Given the linkage technology already available, and if problems of common personal identifiers, compatible record formats, and appropriate software instructions for the desired use could be worked out, there would never be a need for one central processing unit to operate this data system.
17. G. ORWELL, 1984 (1949).
18. Report on Privacy: Who is Watching You? U.S. NEWS & WORLD REP., July 12, 1982, at 34
19. To Each His Own Computer, NEWSWEEK, Feb. 22, 1982, at 50
C. amwallu Boraiko The Chin 162 National Geographic 921 (1982).
COMPUTERS AND PRIVACY
software. The movement toward management information systems allowing separate data files to be unified and processed will continue. Some experts believe the continued upgrading of those systems will depend largely on an improved understanding of business, social, and political processes, and major administrative reforms within these organizations.22
5. Availability of Computers
The development of low-cost personal computers and relatively inexpensive terminal links into commercial time-sharing services has greatly increased the availability of computers to individuals and small organizations. In 1980, over $1.8 billion was spent worldwide on personal computers.23 Almost 2.8 million computers were sold in 1981 at an average cost of approximately $2,000 each.24 Predictions for 1985 are that over 50 million personal computers will be sold worldwide.25 As computers become more readily available to individuals, more personal data will be accessible in machine readable form.
6. Communication Systems
Less expensive and more specialized communications systems for data transmission have been developed.26 Microwave systems, satellites, cable television, and laser communications have been, or will be, developed for regular use.27
7. Output Devices
More flexible and less expensive computer output technology has been developed. Computers will more frequently be used as "support" for microfilm and microfiche systems. Consequently, the sorting and preparing of hard-copy media through computer-output-to-microfilm devices will continue to grow." 28 Hardware costs will continue to decline, however, the cost of increasingly complex software systems will rise.2
These technological advances make the computer essential for coping with the "information explosion."30 It has been estimated that by 1987, six to seven times the present volume of new information will be produced, however, the ability of computers to automate the information may approach
22. Interview with Timothy Skinner, Staff Attorney, Lowery Air Force Base, Denver, Colo., (Dec. 22, 1982) (federal legal information through electronics).
23. TIME, Jan. 3, 1983, at 14.
24. Striking it Rich, supra note 14, at 41.
25. To Each His Own Computer, NEWSWEEK, Feb. 22, 1982, at 50.
26. The break up of AT&T on January 8, 1982 will lead to the continued development of telecommunications systems capable of providing efficient and effective methods for data transmission. See, eg., Atlantic, May 1979, at 68.
27. G. BROCK, THE Telecommunications InduSTRY 254-86 (1981).
28. NATIONAL Academy of Sciences, Libraries and Information TECHNOLOGY: A NATIONAL SYSTEM CHALLENGE 73 (1972).
29. The Tail that Wags the Dog, NEWSWEEK, Feb. 22, 1982, at 55.
30 See, eg, N.Y. Times, Sept. 9, 1979, § 3, at 1.
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one hundred times the current capacity.31
B. Major Issues Resulting from Computer Development
Computer development and the projected use of computer technology carry many implications for society. Four issues which have been raised concerning this impact are automation, power, individuality, and privacy, 32
Just as the Industrial Revolution enhanced man's physical strength with machines, computational technology has begun to supplement some aspects of human thought processes. Computers are doing work that some people consider to be burdensome, tedious, and boring. 33 As a result, productivity and production costs have been optimized.34 Some observers believe that computers create more jobs than they displace, while others theorize that computers will eventually destroy many more jobs than are created. 35
It is said that "information is power." Computers create the potential for a few individuals to accumulate large amounts of data that can be readily accessed. Sophisticated computers create a power gap between those persons technically trained to interpret and use this information and those who do not have such skills. Computers can also dictate our actions. Systems failures, for example, can result in confusion and catastrophe. Recent system failures such as the blackouts in New York City, the accident at Three Mile Island, and air traffic control problems in Southern California have created chaotic situations.36
In the United States, the right to pursue happiness has historically been highly valued. Computers have significantly altered this emphasis on individuality. At times, our very essence is reduced to numbers on a terminal screen. Computers store aggregations of data such as fiscal and credit transactions, medical records, consumer habits, and communications. With access to so much accumulated data, however, social planners might easily begin to envision a society with goals that can be dealt with in mass, rather
31. See SCIENCE NEWS, Oct. 4, 1975, at 220, Etzioni, Effects of Small Computers on Scientists, SCIENCE, July 11, 1975, at 93.
32. W. MATHews, Master or Messiah? THE COMPUTER's Impact on SOCIETY 32-36 (1980)
33. Robots are used to weld and attach machine parts for automobiles, steel work, electronic circuits, and other assembly line products. Japan has developed robots to build other robots, See Japan's High-Tech Challenge, NEWSWEEK, Aug. 9, 1982, at 48.
34. See TIME, Dec. 8, 1980, at 72-83.
35. Machines Smarter than Men? An Interview with Robert Weiner, U.S. NEWS & WORLD REP. Feb 24 1964 at 84