From the Spring 2009 issue of The News Media & The Law, page 5.
“There are benefits to the computer age,” Sen. Edmund Muskie announced on Aug. 20, 1974, midway through a committee markup session on S.3418, the nub of the eventual Privacy Act. The meeting was cluttered with fears — of recent history, of a digitized future, of government either unwieldy or hamstrung. Seeking to protect individual privacy in 1974, Muskie said, “is like blowing into a gale.”
President Nixon had resigned that summer, and yet Watergate formed only part of the backdrop: From the Army’s systemic tracking of political dissidents during the 1960s, to the looming image of a future outlined in George Orwell’s 1984, the country and its lawmakers were attuned to government overreach.
The Privacy Act joined a package of contemporary laws aimed at protecting individuals from government snooping and forcing the bulk of government operations into public view. The Freedom of Information Act, for instance, had been around since 1966, but it got its teeth in 1974, in the form of amendments that upped the ante for government stalling on the release of public records. Together, the laws were meant to keep the public aware of government’s machinations, while giving meaning to a person’s right to be free from government intrusion. Rather than provide clear answers where those values collide, though, they set the stage for 35 years of litigation.
For all the drive to protect Americans from Big Brother, the Department of Justice would describe more than 20 years later in a guide to the Privacy Act that it “was passed in great haste during the final week of the Ninety-Third Congress.” There was no conference committee to resolve differences in the bills, so Congressional staffers were left to merge their language.
The law took effect in September 1975. Congress didn’t check back in on it for almost 10 years.
At heart, the Privacy Act seeks to safeguard private facts about everyday people in two ways: First, it sets out a dizzying list of requirements for government agencies to obey in collecting and safeguarding those facts when they fall within a system of records. As Muskie said, the Act was built to deal with computers. Plainly, a personal fact must be retrievable from a system of records to garner protection.
On the other end, the Act gives you the right to find out what information the government has about you in many of those systems. It says you can set the record straight if an agency has its facts wrong. Taken with the revived FOIA, the Act was supposed to shine sunlight in many of the darkest corners of agency bureaucracy. But in practice the Privacy Act has doubled back on its promise, forming the statutory backbone for government’s refusal to release information that deals even tangentially with an individual person.
Congress also specifically crafted a section barring an agency from monitoring through records a person’s exercise of his First Amendment rights, except as part of a law enforcement investigation. It is yet another provision of the Act that has since taken on darkly ironic hues.
In June 1983, with a nod toward Orwell’s approaching ominous year, a House subcommittee held the first oversight hearings on the Act. Reporters Committee Executive Director Jack Landau was among those who testified. He came with two primary concerns with the Privacy Act: First, he wanted the First Amendment provision strengthened for the good of a free press. The law-enforcement exemption was such a broad loophole that it threatened to swallow the whole provision, he said, a particularly worrisome shortcoming when the Reagan administration was using polygraph exams to track down news leaks and allowing the CIA to infiltrate news groups for national security.
Second, Landau worried that the Privacy Act was already being interpreted in certain courts as a statutory exemption to FOIA. He and many others wanted agencies to release the maximum information allowable under both laws. Landau talked about one peculiar twist of FOIA and privacy interests, raised by the Reporters Committee’s pursuit of the rap sheets of three suspected mob members in Pennsylvania. The government had cited privacy principles in its refusal to hand over a rap sheet — a compilation of bits of information that were admittedly public, and available in courthouses scattered around the country.
Six years later, and exactly 20 years ago now, that dispute would land in the Supreme Court in the 1989 case Department of Justice v. Reporters Committee, and form a legal precedent that has dogged open government advocates since: Certain otherwise public information can be withheld if it is tough to access in its original form — a notion known as “practical obscurity” — and if it doesn’t illuminate what the government is “up to.”
Indeed, Landau’s FOIA dilemma is still fresh. And the tendency of government to use privacy interests as a reason for nondisclosure of information, often relying on broadly interpreted Privacy Act provisions and principles, has stuck with us through the second Bush administration’s wars and the sorting of their legal implications.
But no one pressed Congress during the government excesses of the last decade to strengthen the First Amendment provision of the Privacy Act for added protection. Instead, the news media has seen a new threat develop under the Act, in the dutiful efforts of plaintiffs suing under the law to out reporters’ confidential sources.
As media lawyers have pointed out in court briefs in recent years, it takes a mental leap to get from a law aimed at protecting a system of records to a legal claim over the leak of a person’s status in a criminal investigation. Having exercised their First Amendment rights to report on some of the gravest national issues, journalists have found themselves in the unlikely position of incurring punishment under a law with express admiration for the First Amendment.
And so the Privacy Act, and privacy principles broadly, have doubled us back on ourselves. u