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than in terms of the individual.37

4. Privacy

Some observers have argued against the trend to link data banks and access information on individuals because such trends could serve as the beginning of "individual data images."38 In particular, Professor Westin has argued that existing computational technology capable of integrating several data banks into networks would allow personal data provided by an individual for one purpose to be used at a later time for unrelated purposes.39 The likelihood that an individual would realize, much less approve of, such uses is remote.

There appears to be little legal or social movement at this point to place additional protections on privacy. Professor Westin has observed that privacy is a quality-of-life issue that is usually considered less important than economic and foreign policy concerns.

40

II. THE THREAT TO PRIVACY

The threats posed to the individual from computer technology have been described by one commentator as: illicit access to personal information; unexpected consequences of making information freely available by mechanical means; use of information for purposes other than those for which it was collected; actions based on inaccurate or outdated information; placement of the individual at a disadvantage as compared to organizations with ready access to large amounts of computerized information; and the undue credence given to information merely because it is stored in a computer. Other threats include the “secrecy” of personal information; unauthorized or illicit collection methods and omissions; the visibility of the data collection and analysis process; and the regulation of computers. 42

Another commentator has observed that the major effect of the computer on privacy is the removal of the individual from the decision of whether personal information may be released.43 This loss of control can take two forms: loss of access control and loss of accuracy control.** When an individual is the sole source of information, he has at least some control over what information is disseminated to others. The advent of the computer databank added a new source of personal information over which the individual has no access control. Related to this development is the individual's diminished control over the accuracy and reliability of the personal information that is released through computer databanks.

37. A. VAN Tassel, The Complete ComPUTER 153 (1976).

38. Koehn, Privacy, Our Problem for Tomorrow, J. of Sys. Mgmt., 8-10 (July 1973).

39. See A. WESTIN, supra note 2, at 111-67, 317-54.

40. Id. at 14-20.

41. Barron, People, Not Computers, in Privacy 320 (J. Young ed. 1978).

42. Organization For Economic Cooperation and Development, Policy IssueS JATA PROTECTION AND PRIVACY 148 (1976).

3 Beaney, The Right to Privacy and American Law, 31 Law & Contemp. Probs. 253 (1966).

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redit applicant. These references are usually friends, >anks who have a record of the applicant's purchasing habfrom these sources, as well as from such court records as garnishments, or bankruptcy documents, are then supplied party such as the savings and loan association.

's surprise, his file contained a notation that he had been idenson known to have attacked or ridiculed a major doctrine of faith and the American way of life. As required by the Fair orting Act, the credit reporting agency reinvestigated this notamith protested. 58. It concluded that the notation, based solely on at Smith's father had been investigated in the 1950's by the House ittee on Un-American Activities, was not applicable to him. The herefore, deleted the notation from his file and notified the savings nassociation.

e alleged felony conviction was, in fact, a conviction for civil disobewhen Smith was involved in a sit-in as a civil rights worker in the The bank obtained this information from Smith's veteran's files. eteran's files also contained the name and address of his ex-wife. With nformation and the credit reporting agency's file, the bank conducted wn investigation. It contacted the FBI, whose files also showed the iction.

60

Smith has two remedies: he may seek expungement of his criminal recdor sue the VA under the Privacy Act.61 Expungement is generally availWe only when there is either an acquittal or dismissal of the charges and a owing of "significant abuse of authority" by the law enforcement offi-als.62 Expungements have also been ordered in cases where the sole purse of an arrest was to harass civil rights workers. A suit to obtain pungement, however, is uncertain and time consuming. A better option is seek a remedy under the Privacy Act. If the VA refuses to amend his 1 itary record, Smith may seek compulsion of such action through the irts. 65 The VA can argue that it is exempt from the requirements of the vacy Act because its disclosure to the bank was a "routine use" of such ords.66 Smith undoubtedly signed a waiver as part of his application for

.8 Id § 1681(g). See also A. MILLER, THE Assault on Privacy 82 (1971), D. Linowes, New Privacy Laws Needed?, 44 Vital Speeches of the Day 436 (1978)

9 5 U.S.C. § 552a(b) (1976). If the bank already had this information, it could have hed the VA, whose activities are excluded from the provisions of the Right of Financial acy Act under the circumstances described here. Id

1

50 Id The FBI's activities are also excluded under these circumstances

5 U.S.C. § 552a (1976).

See, eg, Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974), D. Weinstem, Confidentiality anal Records: Privacy & the Public Interest, 22 Villanova L. REV. 1205-11 (1977), points out

data collection, not just computerization, is at least part of the problem The criminal

system has a genuine need, however, for data to prevent crime, move caseloads, and

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the mortgage guarantee, permitting the bank and the VA to investigate his record and use any information they received. Any information disclosed under the Privacy Act must be "timely”67 and Smith's seventeen-year-old conviction does not meet this requirement.

Smith's available remedies do not necessarily provide certainty of outcome and the process required to pursue these remedies is extremely timeconsuming. As a practical matter, the house Smith sought to purchase would probably be sold to another bidder. His best non-legal remedy may be to seek a conventional loan from another bank using a different credit reporting agency.

Mary Brown, a thirty-year-old television reporter in perfect health and with an excellent financial reputation, was informed that she would not be issued an insurance policy. The insurance company notified Brown that it had received adverse information about her that she could inspect. At the insurance company's office Brown was shown her file with the exception of her medical and credit reports.68 She was, however, given the names of the credit reporting agency and the doctors the company had contacted for this information. The insurance company told Brown that it had received an adverse report from the Medical Information Bureau (MIB),69 and that this report had been used to supplement the credit and medical reports.

The MIB, which is subject to the requirements of the Fair Credit Reporting Act,70 was required to show Brown her file, excluding medical information. The file contained a report from a neighbor who stated that Brown entertained people of questionable character at all hours and that she used drugs. Brown disputed the report and the insurance company reinvestigated. It found that the neighbor was nearly senile and disliked Brown because her dog occasionally wandered into the neighbor's yard. The insurance company deleted the report.

The file of the credit reporting agency contained no adverse comments. The doctor's report, however, indicated that Brown had disclosed to her col

67. Id. § 552a(e)(6). The Fair Credit Reporting Act does not permit disclosures of convictions over seven years old.

68. Although this is an accepted industry practice, routine medical information, such as a blood pressure reading, may be disclosed to the individual. Id. § 552a(f)(4).

69. See Stern, Medical Information Bureau: The Life Insurer's Databank, 4 RUTGERS L.J. OF COMPUTERS AND the L. 1, 1-19 (1974). The MIB is an association of 700 life insurance companies whose members underwrite 90% of the life insurance policies in the United States and Canada. Members may obtain information on the records of over 11,000,000 people contained in the MIB's computer files. Whenever an applicant is declined life insurance, the life insurance company reports this information to the MIB. This list is not checked for accuracy and the person is placed on a list of “impairments." The traits of an “impairment” include nervousness, sexual deviation, and unhealthy appearance. The purpose of the MIB is to prevent an applicant who is a poor risk and who is refused insurance by one company from applying to subsequent companies or from withholding certain information. While the MIB will not divulge such medical information directly to an applicant, it will provide information to the applicant's personal physician, who may then inform the applicant. Under the MIB rules, such medical information is to be used only to supplement the life insurance company investigation. Id

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[Vol. 60:3 plied by the credit applicant. These references are usually friends, merchants, and banks who have a record of the applicant's purchasing habits. Information from these sources, as well as from such court records as divorce decrees, garnishments, or bankruptcy documents, are then supplied to a requesting party such as the savings and loan association.

To Smith's surprise, his file contained a notation that he had been identified as a person known to have attacked or ridiculed a major doctrine of the Christian faith and the American way of life. As required by the Fair Credit Reporting Act, the credit reporting agency reinvestigated this notation after Smith protested. 58 It concluded that the notation, based solely on the fact that Smith's father had been investigated in the 1950's by the House Subcommittee on Un-American Activities, was not applicable to him. The agency, therefore, deleted the notation from his file and notified the savings and loan association.

The alleged felony conviction was, in fact, a conviction for civil disobedience when Smith was involved in a sit-in as a civil rights worker in the South. The bank obtained this information from Smith's veteran's files. The veteran's files also contained the name and address of his ex-wife. With this information and the credit reporting agency's file," the bank conducted its own investigation. It contacted the FBI, whose files also showed the conviction.

60

Smith has two remedies: he may seek expungement of his criminal record or sue the VA under the Privacy Act.61 Expungement is generally available only when there is either an acquittal or dismissal of the charges and a showing of "significant abuse of authority" by the law enforcement officials.62 Expungements have also been ordered in cases where the sole purpose of an arrest was to harass civil rights workers. A suit to obtain expungement, however, is uncertain and time consuming. A better option is to seek a remedy under the Privacy Act. If the VA refuses to amend his military record, Smith may seek compulsion of such action through the courts. 65 The VA can argue that it is exempt from the requirements of the Privacy Act because its disclosure to the bank was a "routine use" of such records.66 Smith undoubtedly signed a waiver as part of his application for

58. Id. § 1681(g). See also A. MILLER, THE ASSAULT on Privacy 82 (1971); D. Linowes, Are New Privacy Laws Needed?, 44 Vital Speeches of the Day 436 (1978).

59. 5 U.S.C. § 552a(b) (1976). If the bank already had this information, it could have notified the VA, whose activities are excluded from the provisions of the Right of Financial Privacy Act under the circumstances described here. Id.

60. Id. The FBI's activities are also excluded under these circumstances

61. 5 U.S.C. § 552a (1976).

62. See, eg, Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974), D. Weinstein, Confidentiality of Criminal Records: Privacy v. the Public Interest, 22 Villanova L. REV. 1205-11 (1977), points out that data collection, not just computerization, is at least part of the problem. The criminal justice system has a genuine need, however, for data to prevent crime, move caseloads, and analyze statistics.

63. United States v. McLeod, 385 F.2d 734 (5th Cir. 1967).

64. 5 U.S.C. § 552a (1976).

65. See id. § 552a(g)(2)(A).

66. See id. § 552. The term "routine use” means, with respect to the 15,

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the mortgage guarantee, permitting the bank and the VA to investigate his record and use any information they received. Any information disclosed under the Privacy Act must be "timely"67 and Smith's seventeen-year-old conviction does not meet this requirement.

Smith's available remedies do not necessarily provide certainty of outcome and the process required to pursue these remedies is extremely timeconsuming. As a practical matter, the house Smith sought to purchase would probably be sold to another bidder. His best non-legal remedy may be to seek a conventional loan from another bank using a different credit reporting agency.

Mary Brown, a thirty-year-old television reporter in perfect health and with an excellent financial reputation, was informed that she would not be issued an insurance policy. The insurance company notified Brown that it had received adverse information about her that she could inspect. At the insurance company's office Brown was shown her file with the exception of her medical and credit reports.68 She was, however, given the names of the credit reporting agency and the doctors the company had contacted for this information. The insurance company told Brown that it had received an adverse report from the Medical Information Bureau (MIB),69 and that this report had been used to supplement the credit and medical reports.

The MIB, which is subject to the requirements of the Fair Credit Reporting Act,70 was required to show Brown her file, excluding medical information. The file contained a report from a neighbor who stated that Brown entertained people of questionable character at all hours and that she used drugs. Brown disputed the report and the insurance company reinvestigated. It found that the neighbor was nearly senile and disliked Brown because her dog occasionally wandered into the neighbor's yard. The insurance company deleted the report.

The file of the credit reporting agency contained no adverse comments. The doctor's report, however, indicated that Brown had disclosed to her col

67. Id. § 552a(e)(6). The Fair Credit Reporting Act does not permit disclosures of convictions over seven years old.

68. Although this is an accepted industry practice, routine medical information, such as a blood pressure reading, may be disclosed to the individual. Id § 552a(f)(4).

69. See Stern, Medical Information Bureau: The Life Insurer's Databank, 4 RUTGERS L.J. OF COMPUTERS AND the L. 1, 1-19 (1974). The MIB is an association of 700 life insurance companies whose members underwrite 90% of the life insurance policies in the United States and Canada. Members may obtain information on the records of over 11,000,000 people contained in the MIB's computer files. Whenever an applicant is declined life insurance, the life insurance company reports this information to the MIB. This list is not checked for accuracy and the person is placed on a list of “impairments." The traits of an “impairment” include nervousness, sexual deviation, and unhealthy appearance. The purpose of the MIB is to prevent an applicant who is a poor risk and who is refused insurance by one company from applying to subsequent companies or from withholding certain information. While the MIB will not divulge such medical information directly to an applicant, it will provide information to the applicant's personal physician, who may then inform the applicant. Under the MIB rules, such medical information is to be used only to supplement the life insurance company investigation. Id

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