The Privacy Act: A Sword and a Shield but Sometimes Neither

• Author: ByMajor JohnF. Joyce
• Pages: 02

1. INTRODUCTION

   The goal of defining and givmg content to an individual's nght to pn. vacy has proven to be elus~ve Efforts by judges, legislators, and com. mentators have met with varying success. The Privacy Act of 1974 was statutory attempt to protect an individual's personal privacy from var. iou8 intrusioni by the federal government.'Ta understand the scope and thrust of the Privacy Act and to assess Its effectiveness in protecting personal privacy, it is essential to study the Act in context with other privacy safeguards. These safeguard8 include the common law tort for the invasion of privacy, the developing constitutional right to privacy, and several statutes which protect privacy interests in specific, function. a1 areas.

   1. SEVERAL DIMENSIONS OF THE RIGHT TO PRIVACY

      The concept of an individual's right to privacy is not new, although It

      IB a relative late-comer to the system of individual rightn in the United States. Angldaxon and German tribal law protected the peace that at. tached to every feeman's dwelling and provided compensation for dam. ages to property, insulting words and trespass The nght to privacy made it8 first appearance in American law as a civil suit far money dam.

      5 522al1976)

      ' I DE Geseue Der Angelraehaen Ab, 8, 15. 17 HI 11. kE 40, Ine 6-6 3 IF Lieberman ed 1903),

      1 F Pollock & F Maitland The Hmiar) of the English Lau 45 12d ed 1968)

      ' ThrPnuac~Actal1974.5USC

      ages or for injunctive relief against an unwarranted invasion of the "right to be let alone." Although Judge Cooley was the first to arbcu. late the right to privacy in this context, Justice Brandeis in his clasaic dissent in the wiretapping caee, Olmstead u. United States, described with unsurpassed eloquence the impartance of the right to privacy and it8 constitutional underpinnings. His words do not go stale from repeti. tion.

      The makers of our Constitution undertook to secure condi. tiow favorable to the pursuit of happinesa. They recognized the sigmficance of man's spiritual nature, of his feelings and of his mtellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found m material things Theysought to protect Americans in their beliefs. their thoughts, their emotions and their senaationa. They conferred, 8s agamst the Government, the right to be let alone-the most compre. henave of rights and the right most valued by civilized men.'

      Earlier, Justice Brandas, with Samuel D. Warren, had argued for the existence of a privacy tort in their famous law review article.' The pri. vacy tort was given further definition by Dean Prasser, who analyzed the existing body of caee law and concluded that the privacy interests that had been protected fell into four categories: wrongful approprie. tion and use of a person's name, likeness or personality. physical intru-aon into a person's solitude or seclusion, public disclosure of private facts that a reasonable person would find objectionable and publicity that places a person m a false light in the public eye!

      Several modern commentators have sought to further define the substantive content of the right to privacy. Professor Tom Gerety p s t o lates that privacy is comprised of three distinct elements: autonomy. identity, and intimacy Professar Ruth Gavison suggested that a ne-tral concept of privacy LS a complex of three independent and irreducible elements: secrecy, anonymity, and solitude.' Each of thee formulations centers on the extent that ~n individual is accessible by others. Notwith. standing the labels given, most commentators agree, mmetimes intui.

      " "he right to pmonal pmacy IPS ivsf deunbai 81 the "right to be let alone'' by Judge ' 2 7 7 0 8 438,47811927)(Brander,J ,dlaaenfmg)' WmenbBrandeis, TheRighl toPnmay.4Harv L.&v 19311890).' Prosser.Pnuoay, 48 Cahf L Rev 119601 Seeaiso. W Prawri. HmdbookofthaLasol Tarv5 11714fhed 1971)

      'Gerory.Rad~f~ningPni.aiy.l2Harv C R-CLL Rev 233119771

      ' Caulson. Piivoc and lhr L~rnitsof law. 89 Yale L S 421 11980) Prafmr Gavvon

      brstei that secrecy, anonymity and sohfudi are ahorthand for the extent to which anindwrdusl IS horn, the extent ta when an individual 18 the aubiect 01 attention, and the extent taorhxhothers haveaecesstaanindividual.114

      CaoleyinT Cwley.Torts2912dai. 1888).

      tively, on the factors that must be conadered in analyzing an mdwid. ual's privacy interest There IS, however, no unified acceptance of a nght to privacy which embraces all three privacy areas: the privacy protected by tort action, the privacy granted by Statute and the privacy guar. anteed by the Constitution. A common feature of most privacy literature is that it leaves "essentially unspecified the substance of what 18 being

      However, this unsettled State of affairs should not be SUPpnnng Privacy is a developing nght, the contours of which will grad. ually emerge from the traditions, experience, and needs of society." Law, 88 always. reflects societal concerns-albeit slowly-and privacy has progressed from general commentator doctrinaire to legal principles grounded in innovative constitutional moorings.

      In 1965, the Supreme Court fmt announced a constitutional nght to privacy.'l This newly articulated constitutional protection has beenfurther defined in subsequent cases. The Court has generally character. ized privacy interests as thow relating to marriage, procreation, abor. tion, contraception, family relatimahips, and child rearing." Due to Its ad hoc development, the constitutional nght to privacy has eluded an exact definition and remains analytically unclear. It IS uncertain wheth-er Judges regard privacy BS B single right or simply as a convenient ex. pression for a cluster of related rights. The greatest uncertainty iswhether courts will limit the constitutional right to privacy to the con. ventianal interests of marriage and the family or expand the concept tcencompass B notion of individual autonomy

      ' L.Tnble, AmericanConstaut~onalLaK 5 lE-l.at887 11978)

      "Emermn ThpRighfofPIivoryondFr.adom ofthePiesa, 14Harv C R.-CLL Rev 329119791

      " Griswold 5' Connecetaut 381 U S 479 11565) [right to privacy m penumbras of first eight amendments protects lnteredts of marned personainnsing contraceptives) Although the Court had allvded to a prwacy right m PTLW c a m auch as Meyer Y Nebraska, 262 U.S. 390(1923! inGruwaid thocourtforthefirattimagrovnded thlrrlghtmtheConPrltvtlon

      " Kat2 v United States. 389 U S 347 11967) lright to privacy found ~n fourth amend. ment proLee16 individuals against warrantless w~etsp!. Stanley v Georms 394 US 567 (15691 (right b privacy embdied tn first amendment pmteets mdwduals intaresf LOwenng pornography st home), Eiienstsdt Y Baad. 405 US 438 (1872) (rlght to prw~cy gusranteea m e b d to bvlh control devices by unmarried perbans). Planned Parenthood af Miiaaurl Y Dsnforth, 428 U S 52 11978) (atate Isw muck down requumg ~pouml, m mthe m e of an unmarried minor, parental consent. pmr to iecvilng an aborfianl Carey Y

      Poilulation Services international 431 US 678 11577) IDIY~~IWdeeman afrvck down

      There are several statutory provisions m specific functional areas which protect privacy mterests. The Coneumer Credit Protection Act of 1968 was designed to insure fair credit billing and reporting procedures Procedures were established to allow consumers to raise and resolve bill-mg errors m periodic statements. Additionally, consumer reporting agencies were required to follow certain procedures designed to insurethe accuracy, confidentiality, and proper use of credit reports. Consu. mew are entitled to access and have the nght to rebut adverse information The various drug and alcohol treatment Statutes prohibit the un.consented disclasure of information regarding an mdiwdual's participation ~n B rehabilitation program unless needed by the personnel administering the program. m response to a medical emergency, ordered by a court of competent jurisdiction. or in furtherance of scientific research The Right to Financial Privacy Act of 1918 limits the access of the fed. era1 government to the financial records of the customers of fmancml mstitutmns." There are also restrictions on the disclosure of Infarmation about individuals that IS mamtained by educational msntutions." The Privacy Protection Act of 1980 limits the authority of law enforcement officials to search for or seize the work product of members of the communications media 16 The Intelligence Identities Protection Act pro. scribes the disclosure of the identity of American intelligence person-nel."Two dtatutmy safeguards which apply to most mdi\iduals are the limitations on the disclosure of tax return information for purposes not related to tax admmistratm lo and the hmitstmns on the disclosure and use of census information Although this discussion of specific statu-

      "The Camprehansiie Alcohol Abuse and Alcoholism Preienrm Tre~imeni and Rehabdiianon Act of 1970 12 L 5 C 5 1682 119761. The D~ig

      Abuse Office and Treat menf AN of 1972, 21 D SC 5 1175 119761 implement in^ repukhoni b) the Public H~slrhSpi.nr.ir.ird2CIR 6 77 llqRli

      tory protections 1s not exhaustive, it illustrates B growing aw~reness by Congress af privacy related interests and an attempt to legislate specific protections in certain areas In other mtuations involving the federal government's collection, maintenance. use or disclosure of personal mfomation, the analysm of the protection of privacy must turn to the two statutes which govern federal information practices. the Freedom of Information Act *'and the Pnmcy Act Is

      B THE FREED0.V OFl.YFOR.\l.-l U0.Y

      A('? iFOl.-l,-I'HEGIHEH .\I.-l.lOR ST.4TL.TE GO I%R.YI.YG 1.YFORJL-l Cl0.Y PRA('UC'E.5The FOIA, a8 the primary federal law on openness in government, ISpremised on the cangresaanal stance that an informed citizenry pro. vides a check against corruption and can more effectively hold the gov ernment accountable to the governed It has served 88 a madel far subsequent open government statute8." The prior disclosure...