6
The Record Prison
Although we feel unknown, ignored
As unrecorded blanks,
Take heart! Our vital selves are stored
In giant data banks …
—FELICIA LAMPORT,
“Deprivacy,” Look magazine, 1970
Protests—against the denial of civil rights and free speech, as well as the escalation of the war in Vietnam—punctuated the U.S. political landscape from the mid-1960s onward, as college campuses and draft boards became staging grounds for increasingly radical dissent from official policies, domestic and foreign. They would be countered, as would later be revealed, by extensive FBI, as well as CIA and NSA, monitoring: by infiltration, informants, wiretaps, mail opening, and illegal searches.1 This covert apparatus of domestic surveillance would ensure that demonstrators and marchers would become especially well-known citizens in these years.
Hiding amidst the more prominent protests of this era was one focused precisely on the state’s effort to gather intelligence on its own people, if not in the way we typically imagine it. Its target was the National Data Center, a 1965 proposal to pool statistical information held by the Census Bureau, the Internal Revenue Service, the Bureau of Labor Statistics, the Social Security Administration, the Federal Reserve Board, and a dozen or so other federal agencies.2 Against the backdrop of the Free Speech Movement convulsing Berkeley’s campus and the collective burning of draft cards, a bureaucratic plan to merge records may seem an unlikely subject for controversy. Yet it sparked a sharply hostile public reaction, evoking charges of Big Brother-style surveillance and defenses of citizens’ right to move through society unrecorded. The pushback against the proposed center revealed a transformation in Americans’ stance toward their information and powerful authorities alike. In the past, citizens had by and large accepted state tracking for the material benefits it delivered, surrendering identifying details to government agencies like the Social Security Administration with little thought. But in the mid-1960s the political winds were shifting, the computer age was dawning, and privacy concerns were gathering. It meant that state access to citizens’ data could appear much more menacing.
First recommended by the Social Science Research Council (SSRC) and endorsed by the Bureau of Budget, the proposal for a national data center was the outgrowth of a three-year study concluding that the decentralized nature of the government’s statistical information thwarted its effective use.3 Housing these data in a single location struck advocates as eminently rational. Coordination among federal agencies had become onerous, their inability to easily share information creating reporting burdens for individuals and institutions. Moreover, valuable data were lost in the shuffle, making them difficult to unearth and apply to contemporary social problems. “Issues have multiplied faster than our present ability adequately to evaluate them,” urged an official at the Bureau of Budget. A good number of these weighed on his mind: the rate of population increase; the relation between education and economic growth; the interplay among prices, productivity, and wages; the causes of unemployment; and the tracking of disease.4 Each was an area in which coordinated data—and the boon of modern, computerized record keeping—could be pressed into service. As the SSRC noted, other nations had already created centralized statistical institutions.5 Why not the United States?
None of these planners seem to have anticipated any sort of public outcry. After all, no pieces of information would be included in the center that had not already been collected by agencies of the federal government. But the bureaucrats were behind the curve, caught off guard as members of Congress, journalists, scholars, and citizens pilloried the initiative, variously calling it a “monster,” an “octopus,” and a “great, expensive electronic garbage pail”—not to mention a dangerous violator of Americans’ “secret lives.”6 Proponents had been confident that composite data were necessary for a well-ordered society, their benefits self-evident.7 The center’s opponents, in a version of Laud Humphreys’s tearoom dilemma writ large, instead emphasized the dire risks to citizens of becoming overly legible to authorities. The public outcry foiled the creation of a national data center in 1965, as well as successive iterations floated in 1967 and 1970.8
Coming as it did before revelations of widespread domestic surveillance of “subversives,” the campaign against the National Data Center signaled rising public awareness of the power of collated—and, especially, computerized—files. To some, the proposal for a national warehouse of citizens’ data looked like concrete proof of the government’s ambitions toward omniscience. Even those not inclined to sympathize with 1960s-era protesters would inch closer to their analysis of the state-as-surveillor, adept at penetrating its people’s secrets even as it sheltered its own. Neither the security of personal data nor the trustworthiness of its keepers could any longer be assumed. Not just radicals but citizens at large, that is, were coming to fear being known by the record keepers.
Data as Dilemma
If the prime motivation for turn-of-the-century privacy claims had been shielding individuals from too much publicity, the key problem in the late 1960s and early 1970s was the invisibility of the watchers. In the years surrounding the National Data Center controversy, citizens mobilized around what they had known, in low-grade fashion, since at least the 1930s: that many agencies, public and private, were not just collecting information about them but were also capable of monitoring their habits and histories in increasingly sophisticated fashion. Most Americans up until this point paid scant attention to the information about them steadily mounting in the society’s files. In the mid-1960s, quite suddenly, the existence of silent record-keeping systems on private citizens—from credit bureaus to school dossiers—burst into political debate.
Mounting distrust of society’s gatekeepers and credentialing systems propelled the critique. “Every major area in which large-scale organizations made controlling decisions about people” came in for fresh scrutiny in the 1960s, noted two contemporary scholars, leading by the 1970s to “demands that information about the exercise of lawful political dissent, cultural nonconformity, and homosexual preferences should no longer be used to bar otherwise qualified individuals from basic opportunities and rights.”9 The Vietnam War—in particular, the multiple conflicting and ultimately fraudulent accounts of its progress—helped to erode public confidence in officialdom. The Freedom of Information Act had already been enacted in 1966, born of a struggle over citizen access to government records on military activities; the compromise was the right to obtain information, but only “after the fact.”10 As Americans learned of covert U.S. actions at home and abroad in the Nixon years—CIA coups, a secret war in Laos, assassination programs—their trust in authorities plummeted further, prompting urgent calls for public oversight.11 Distrust would adhere even to the mundane data-gathering operations of agencies like the Internal Revenue Service and Census Bureau.
Hidden monitoring devices, vast warehouses of private information, and menacing bureaucracies loop through the cultural and political texts of the period. Films like The Parallax View (1974), The Conversation (1974), and Three Days of the Condor (1975) took the perspective of lone men—an investigative reporter, a CIA employee, and even a surveillance expert—trapped in the labyrinthine plots of shadowy but powerful organizations.12 Citizens found themselves ensnared in less dramatic but no less worrisome conspiracies against their ability to act undetected: closed-circuit television, magnetic stripe technology, and endless paper trails.13 In the popular media they began to encounter a trickle of reportage about the widening of surveillance practices and even a coming “surveillance society.” Federal and state agencies were only part of the picture. Powerful private institutions that amassed, stored, and processed personal information formed the other part. Law enforcement and the Selective Service but also mortgage programs, financial institutions, and the insurance and credit industries all came in for newfound questioning in these years.
It was in this context, dense with foreboding about new authorities, new lines of power, and new kinds of domination, that the Supreme Court would elaborate—in a register that could already seem outmoded—an individual civil and bodily right to privacy. In the very years that French theorist Michel Foucault’s writings on classification and distributed discipline were starting to be translated and read in the United States, a homegrown analysis of social surveillance was crystallizing. This analysis called attention to the ways citizens were captured or hemmed in by the many social institutions that “knew” them, whether through a rap sheet, a school dossier, or a credit report. Even if the term itself would have been unfamiliar to many, Foucault’s description of “panopticism”—a system of control that worked because individuals never knew when they were being watched—shared much with discussions about an emerging surveillance society in the United States. Foucault had borrowed the concept from English philosopher Jeremy Bentham, who had designed a building along these lines in the late eighteenth century as a means of better inculcating discipline in prison inmates. Bentham’s panopticon would in time become one of the leading metaphors for thinking about modern surveillance. In the 1960s and 1970s, however, Americans who contemplated such questions talked of another sort of institutionalized discipline, the “record prison.”14
It was not bodies but files that would dominate these new privacy discussions. Public law scholar Alan Westin’s influential book Privacy and Freedom (1967), which called attention to “data surveillance,” was the opening salvo in a long and tangled reckoning with the place of records in American life.15 Westin wrote at length about both physical and psychological surveillance, the latter referring to lie detectors, personality tests, and market research, all of which had sown privacy fears in the prior decade. Yet it was data surveillance that proved to have the most staying power in the swirling debates of the day. Even Westin’s definition of privacy in 1967 was oriented to what we now call “information privacy.” For all his book’s attention to the sweep of privacy violations in that era, one can detect a subtle privileging of data as the real threat in Westin’s focus on “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”16
Talk of surveillance had, prior to the 1960s, typically referred to the act of spying, whether physical or virtual. But it was tilting decisively toward data and the less individualized and intentional—but more continuous—means through which citizens were being watched in American society. Writing just a couple years after Westin, a sociologist called for sustained attention to the record systems firmly lodged in Americans’ lives. Because “the making, keeping, and reading of records” profoundly affected both individuals and the larger society, he urged, they presented a problem of major significance.17 Research subjects’ rights, as we have seen, were coming into focus in this era. Citizens who turned their attention to the place and power of records in everyday life were beginning to grasp that social and medical research was only the tip of the iceberg. Everyone was now a subject of data, captured ever more minutely by recording techniques that had without a great deal of notice taken hold in U.S. society. Some of the technologies in question were long-standing: paper filing systems, for example. It took the computer, however—still novel to most Americans in the 1960s—to ignite the debate. A new and wary focus on records, along with intense speculation about the implications of the new machines, would combine to push other privacy discussions to the background.
Not nearly as exotic as the bugged martini olives that appeared in spy thrillers and on screen, personal information preserved in files was surfacing as a pressing concern and one with a broad reach. The dizzying array of privacy threats, seemingly issuing from everywhere in the mid-1960s, would thus assume a more defined shape by 1970. In the coming decade, the privacy-invading technology that would surpass all others in Americans’ imaginations was the data bank. A steady drumbeat of congressional hearings, scientific commissions, print and broadcast exposés, scholarly studies, science fiction accounts, and social protests would conspire to make record systems, especially computerized ones, the new face of privacy fears.18 Around the globe too, privacy was coming increasingly to mean “data protection,” an issue that attracted political attention in many Western nations. Legislative solutions to the problem of secret and unaccountable record systems would be proposed. And, in a kind of scholarly analogue to contemporary science fiction accounts, a series of sober studies attempted to grasp the implications of a world run by automated managers.19
Vance Packard’s and Myron Brenton’s exposés on the scale of information banks in 1964 had already unnerved readers. As a writer for Life magazine put it that same year, “Most Americans who have served in the armed forces, taken out mortgages or insurance, made large purchases on credit or worked in defense industries know that, somewhere, dossiers on them are maintained. But few people have any notion of the extent of this dossier-keeping or of the number of facts (and gossip and lies) on file … on virtually every adult U.S. citizen.”20 A 1966 survey estimated that the government’s stores of knowledge alone comprised “more than 3 billion records on individuals, including 27.2 billion names, 2.3 billion addresses, 264 million criminal histories, 280 million mental health records, 916 million profiles on alcoholism and drug addiction, and 1.2 billion financial records.”21 Recognition of this state of affairs—in academia, in policy circles, and in the public at large—would swiftly take hold in the years to come.
The very term “dossier,” not to mention a “giant dossier bank,” as the New York Times characterized one of the proposals for centralizing federal record keeping, had already acquired a bad reputation.22 Linked to those with a criminal record or who had engaged in subversive political activities during the McCarthy years, the word “dossier” conjured up a suspect citizen who had through his own activities earned the attention of authorities. Merely having a dossier implied having something to hide; indeed, possessing “a record” was one feature distinguishing the bad citizen, or the noncitizen, from the good. For this reason, keeping tabs on law-abiding Americans, no matter that it was a routine practice of credit card companies and the IRS alike, could generate considerable unease. The headline of one negative report on the National Data Center, “There’s a Dossier on You,” tapped into just this sense of disquiet.23
But if every American now had a record, what did this imply about the society they inhabited? And what would “data surveillance” mean in practice for putatively free citizens? The easy reach many commentators made for George Orwell’s Nineteen Eighty-Four—or occasionally, Russian dissident Aleksandr Solzhenitsyn’s Cancer Ward, which was eloquent on the matter of how individual threads of information could, if dense enough, strangle individual freedom—suggested one answer.24 Even the Congressional Committee on Government Operations speculated that a national bank of citizens’ information would instill “a suffocating sense of surveillance,” which was “not an atmosphere in which freedom can long survive.”25 Files on ordinary Americans were not at all new in the 1960s, but awareness of them was, and they would become a node of public debate, even outrage.
Dossiers and records were the point of entry for these discussions, but they were soon joined by the specter of the “data bank.”26 The notion of a data bank (or, sometimes, “memory bank”) was linked to the computer in most imaginings, even if it was not indebted to the new machines.27 Political scientist Harold Lasswell had felt it necessary to enclose the term in quotation marks in 1960, but these would fall away as data banks gained more currency in American life, attracting the keen suspicion of privacy watchers.28 Acknowledging in 1970 that the word was commonly used to describe “any … aggregation of like data,” two British scholars used it as shorthand for “computer files of personal information, integrated and fully cross-referenced,” while the New Scientist and Science Journal defined a “data bank” in 1971 as a “generalized collection of data not linked to one set of … questions.”29 Others noted confusion over the term, but couldn’t mistake its pejorative ring.30 What is clear is that the worry preceded any settled meaning of the word, as awareness of the kind and volume of personal information filed away by corporations and especially the federal government increased.
The extent of such records was only one issue. The record keepers’ lack of accountability to those they documented—indeed, the widespread ignorance of these records’ very existence—was even more disturbing. As a more vigilant public and press scrutinized the U.S. government in the Nixon years, the worry grew. The British coauthors of The Data Bank Society publicized the “vast collection” of personal and business facts that their government housed in its archives, but looked even more warily at what had been “achieved by the FBI and the State police forces of America” as their records were computerized.31 Bombshell revelations in the early 1970s about U.S. Army spying on domestic political activity along with COINTELPRO, a series of covert, illegal FBI surveillance operations trained on dissidents ranging from Martin Luther King Jr. and the Black Panther Party to antiwar activists and feminists, opened all government data gathering to suspicion.32 Legal scholar and privacy advocate Arthur R. Miller reported in 1971 that “rarely does a week go by without some new information system being uncovered.” He pointed to recent revelations about
the existence of the Department of Housing and Urban Development’s Adverse Information File, the National Science Foundation’s data bank on scientists, the Customs Bureau’s computerized data bank on “suspects,” the Civil Service Commission’s “investigative” and “security” files, the Secret Service’s dossiers on “undesirables,” the National Migrant Workers Children Data Bank, the National Driver Registration Service, and the surveillance activities of the United States Army.33
Miller viewed these heretofore clandestine record systems as deeply troubling in their implications for democratic transparency and civil liberties. Unlike the public face of political surveillance in the 1950s in the form of the House Un-American Activities Committee—which operated on the principle of “trial by publicity”—these were records that almost no citizens were aware of. Yet they relentlessly shaped Americans’ fates and fortunes through a perhaps even more ominous use of state power.34
Again, this power was not the state’s alone, and only some of the dossiers that would inspire protests in this period were those of the government. Few distinguished between state and commercial uses of citizens’ information in their misgivings about the mounting and often- inaccessible piles of data inside file cabinets and mainframe computers. More important than an agency’s public or private status was the fact that it collected and housed information about millions of citizens, using it to make any number of consequential decisions about them. Indeed, the credit, banking, and insurance industries were leading candidates in discussions about the harm that could come from being monitored too closely or, even more crucially, inaccurately. Many consumers’ first brush with the potency of their files came when they were denied insurance or had difficulty applying for a job or a loan.35
Given these experiences, it is not surprising that the first piece of privacy legislation to make it out of Congress targeted consumer credit. Regulation came on the heels of reports about outfits like the Credit Data Corporation, which enabled subscribers to procure credit checks on individuals in a mere ninety seconds.36 Unsavory practices later revealed in a suit by the Federal Trade Commission against the Retail Credit Company included the deliberate misrepresentation of its agents in seeking information, as well as false or fabricated material in consumer files, born of the expectation that agents would supply “a prescribed amount of adverse information.”37 Trafficking in a mountain of detail about individuals’ “character” and habits, with few checks on the fidelity of the reporting, these agencies were rightly understood as unaccountable gatekeepers. The Fair Credit Reporting Act (FCRA) of 1970 entitled a consumer who had been denied credit on the basis of information from a reporting agency to be advised of this fact and also informed of the source of the report—although it did not go so far as to permit access to the record itself.38 Nor, noted one commentary, “is he or she even advised that the record exists until it has been used for an unfavorable decision.”39 Still, the only law of the era to rein in private sector data practices, it testified to widespread concern about privately operated, inaccessible records on American consumers.40
If what Alan Westin had termed “data surveillance” largely operated in the shadows before the mid-1960s, it earned a place in the sun in the early 1970s. Even before Watergate, millions tuned into special television reports with titles like CBS’s “Under Surveillance” and ABC’s “Assault on Privacy.” In these productions, the spotlight was trained equally on the government and the private sector. The CBS program investigated both credit bureaus and policing in its program on surveillance practices in Philadelphia, chosen “not because it is … special, but because we believe it is typical.” Among other items, it revealed that the city’s police surveillance unit alone had compiled files on approximately 18,000 individuals and 600 local organizations.41 ABC’s broadcast detailed “the many ways in which vast volumes of information are being gathered on millions of Americans,” also focusing on law enforcement and consumer credit reporting. “The net effect is the compilation of a staggering amount of data—accurate, inaccurate, properly used, sometimes abused—on virtually all adult Americans.”42 This last line was the real shock the program meant to administer to its viewers. It was common knowledge that criminals and other suspect groups might be “under surveillance.” Now, ABC made clear, all citizens had come to share this fate.
One sign of a new consciousness about files was the emerging consumer audience for privacy protection, specifically understood as data protection. Privacy Journal, “An Independent Monthly on Privacy in a Computer Age,” which launched in the fall of 1974, was designed to help citizens navigate a whole range of threats to the security of their personal information.43 It brimmed with cautionary tales from around the country: a New Jersey high school girl subjected to FBI criminal investigation after writing to the Socialist Workers Party to gather information for a class project, for example. And it reported on small victories over privacy invaders: an action against the Postal Service, in which mail was addressed “First Class U.S. Mail: May Be Opened for Inspection by CIA, FBI, IRS, NSC, FDA & EPA”; and a Providence, Rhode Island, mother’s physical removal of her eleven-year-old son’s offending middle school file from the school premises, announcing, “These records are about my child and they are not staying in this building any longer.”44 The publication plumbed topics ranging from “your psychiatrist and the insurance company” to unauthorized police record checks.45
Privacy Journal educated consumers about the new black-and-white markings beginning to appear on canned and packaged products, also known as the Uniform Product Code: “the key to a computerized retail system which may radically alter American shopping habits” and carrying the potential for “receptacles of individual financial information or personal purchase patterns.”46 It told of “a closed-circuit system of 109 covert TV cameras … activated in the U.S. Capitol complex to monitor the comings and goings of visitors.”47 It alerted readers to the presence of a black magnetic stripe on the back of their new credit cards, which eventually “may be electronically coded with unfavorable information … as the waitress slips away with [a customer’s] credit card for a few seconds when he pays his luncheon check.”48 It laid out a “snooper’s walking tour” of downtown Los Angeles, whereby an enterprising individual could get ahold of a troublingly detailed collection of public records on just about anyone.49 And it offered a layperson’s guide to the coming electronic funds transfer system—already projecting a future “cashless society”—that “will replace money, check and credit card transactions” with a direct link to a bank computer, such that the transaction could “be indefinitely retained in the terminal.” As one expert warned of the last innovation, such a system would know “where an individual is in real time, as well as what he is buying, every time he makes a financial transaction.”50
The journal reported on a dizzying set of practices: fraudulent IDs, wiretaps (which had increased precipitously after Watergate, the journal claimed), “junk phone calls,” exchanges of information between government and commercial data banks (the sharing of motor vehicle records with auto insurance companies, for example), new fingerprint reader technologies, spectrographic analysis or personally identifying “voice prints,” anonymous yet traceable questionnaire responses (via invisible ink or code numbers), “activated two-way systems” like cable TV, polygraph tests, exploitative experimentation on prisoners and Veterans Administration patients, and the invasions of “Big Mother” (the Bell System telephone company).51 But the weight of its concern was on data banks of one kind or another: the FBI’s National Crime Information Center, the Michigan Youth Services Information System, a proposed centralized Parent Locator Service to track absent fathers, an “Individual Recipient Basic Data File” requirement for public assistance clients, federal mailing lists, drug program records, medical and psychiatric files, arrest records, airline travel reservation systems, drivers’ license banks, television subscriber lists, computerized credit files, magnetic tape lists of bad checks, and even religious organizations’ troves of membership information.52
To a reader of the Privacy Journal, the quest to keep one’s personal information safe from corporations, the government, and one’s fellow citizens must have seemed impossibly daunting. A crop of advisors stepped up to help. The General Binding Corporation advertised “your own privacy machine”: a paper shredder.53 Social critic Vance Packard’s advice for evading the “all-seeing eye” of modern society was still simpler: “Don’t tell it to the computer.”54 A new genre of self-help manuals offering guidance on how to ward off public and private agencies thirsty for private data, with titles such as Privacy: How to Protect What’s Left of It, began to appear.55 Citizens were becoming protective even of information that had once been unproblematically public, such as telephone listings.56 By the end of the 1970s, the Committee on National Statistics would confirm the change that had taken place in American sensibilities. “Privacy and confidentiality have been receiving increasing attention from the public,” it reported. The cause was the “growing concentration of individual data records.”57
The New Face of Privacy Fears
The National Data Center proposals could be understood, in one observer’s view, as a “lightning rod for the vague feelings of discontent generated by the computer revolution.”58 In political action and legislative proposals, survey responses and TV specials, public concerns about privacy were beginning to focus not just on the single file but on its linkage to others in vast, unseen repositories. Computing would play a transformative role in shaping this new consciousness.
Utopianism had greeted computers, as with new technologies more generally, in the postwar United States, but their presence stirred up more ambivalence as the machines took root in society.59 Estimates vary, but there were just a handful of computers in the government’s employ in the early 1950s; by 1971, according to a federal inventory of automatic data-processing equipment, there were 5,961 (with approximately 7,000 in use nationwide).60 Jerry Rosenberg, author of the 1969 book The Death of Privacy, reported with some alarm that in that year there were “at least 5,000 people about the capital who do nothing but sell, coordinate and maintain computers for the government, and more than 75,000 people who operate them.”61 The increasing prevalence of computing was shadowed by an anxious public debate about the machines. Arthur Miller could by 1971 chronicle the frequent “scapegoating” of the computer in popular culture: errors in billing and accounts blamed on the machine rather than the operator, naked protesters at IBM with signs proclaiming “Computers are Obscene,” and the establishment of the quixotic International Society for the Abolition of Data Processing Machines.62
Still, expectations that a computerized world would usher in tremendous benefits were alive and well. The faith that computer systems would help government run better, deliver public services more effectively, and engineer new solutions to social problems animated discussions of expanding electronic networks. The municipal government of New Haven, Connecticut, for example, paired with the IBM corporation in the later 1960s to create a prototype for the computerized city. The vision, spelled out in a popular magazine, was compelling. Say a fire alarm rang out. A computer at the firehouse would instantly get to work compiling “an entire information file about the burning building even while the firemen are sliding down the pole: What sort of a store is on the first floor? Any paint or varnish stored there? Sprinkler system? Skylights? Apartments upstairs? Any invalids or children? Then the computer automatically notifies the electric company to shut off power and the police to block the street.” Likewise, a Detroit agency charged with evaluating antipoverty programs was proud to have “computerized the most intimate problems of 46,000 poor people” in that city. This was done “not to keep a dossier on them,” stated its director, but to ascertain with much finer precision than ever before how well their needs were met by social services.63
These promises of efficiency and coordination, of rapid access to and ability to act on critical knowledge about citizens, were, however, increasingly understood to come with darker implications for individual privacy. Observers found both promise and peril in the merging of data that computerization permitted. The National Data Center’s planners, to their chagrin, had neglected privacy entirely in their early proposals, one later admitting this to have been a “gigantic oversight.”64 A task force, headed by the economist and former deputy National Security Advisor Carl Kaysen, scrambled to clarify the proposed center’s interest in aggregates rather than individuals—general economic, social, and demographic data, rather than personnel records or “rap sheets.” The Center, they hastened to explain, was conceived as a statistical system, not an intelligence center.65 This distinction may have eluded privacy watchers in the mid-1960s, some of whom were inclined to believe that the former could easily shade into the latter.66
Other advocates of computerization would not make the same mistake. Even in their starry-eyed projections, they acknowledged the tension between technological marvels and individual privacy. Detroit’s antipoverty administrator, well aware of the temptation that a stash of data on poor urbanites might hold, reflected in 1968 that a federal law to protect outsiders from getting into his files might be necessary. The city controller in San Jose, California, charged with maintaining newly computerized material—of welfare files, schoolchildren’s grades, and hospital clinic records—hoped to “make it a felony for anyone to misuse the computer” and was working on plans to issue metal identity cards, switched out monthly, to city employees who would have access to the computer terminals. In an age of heightened suspicion of authorities of all kinds, the trade-offs between the benefits and the risks of electronically accessible records were becoming obvious. Casting an anxious eye on the “rapid computerization of credit-company files,” one observer understood that, as convenient as this trend was for department stores and consumers, it was also leading to a national network “with ready information on nearly every family.” Others raised questions about plans afoot for regional medical data banks, spinning out hypothetical scenarios. A Chicago man suffering a heart attack in New York might, through the push of a button, have his medical chart, including electrocardiograms, transferred to a physician on site. “Such information might well save his life,” pondered a reporter for Look magazine. But that same information, “if extracted from the computer by an unscrupulous person, might also destroy him.”67
Able to save or destroy, the new machines assumed godlike powers, appearing in such accounts as vital actors in modern society. A young adult book of 1964, The Story of Computers, captured the tone: “Although you may never have seen a computer … your life is almost certainly going to be affected by these mechanical wizards. In other words, they think about you even if you don’t think about them.”68 Similar analyses appeared in serious reading for adults. As computing spread in American society, a reporter for the Wall Street Journal reflected, “Individuals tend to feel molded to fit the computer’s needs rather than the other way around.”69 The personalization of the computer mirrored the depersonalization of individual identity now confined in databases and bureaucratic categories. The boundary between science fiction and lived social experience nearly dissolved at this point. As Arthur Miller testified in Senate hearings, referring to the popular film of 1968, “There are many, many millions of people in the country who went to see ‘2001: A Space Odyssey,’ and they have a feeling that computers are creative, that they are domineering, that they can think for themselves.”70
Computers were at once material, mundane things and cultural apparitions with elusive, almost mystical powers. Such visions predated the data bank era. By the mid-1950s, “thinking machines” were often represented as an incipient threat to individual autonomy and freedom.71 A host of novels, poems, essays, short stories, and films in the 1960s provided a rich canvas for such fears. Eugene Burdick’s novel of 1964, The 480, envisioned computer simulations replacing the political deliberations of the U.S. public. Theodore Tyler’s “outrageous novel of an unlikely hero who took on the world’s biggest, smartest computer,” The Man Whose Name Wouldn’t Fit (1968), followed the exploits of a hero driven to sabotage of the Randolf Datatronic 8080 because his name was too long for a standardized punch card form to handle. Films ranging from 2001: A Space Odyssey (1968) to Colossus: The Forbin Project (1970) imagined epic battles between sentient machines and the humans who, theoretically anyway, were their masters.72 Rhetorical attacks on computers in 1964 during Berkeley’s Free Speech Movement compared dehumanized and standardized students to newly valued IBM cards, begging the university not to “destroy, spindle and mutilate” its own.73 A later wave of campus protests sometimes pivoted into actual battles. Data centers on university campuses that held big mainframe machines were the target of thirteen direct protest actions between 1968 and 1972.74
Increasingly, however, animus toward computers shifted away from the physical machines and toward the unseen and yet formidable data they housed. The discovery that discrete pieces of information could be merged in what amounted to an electronic biography roused both popular and scholarly trepidations. Look magazine posed the question dramatically: “The Computer Data Bank: Will it Kill Your Freedom?” Its cover article in June 1968 announced that “the private lives of 200 million Americans are now being stored in the computer’s memory.” The magazine likened computers to file cabinets—just ones equipped with “phenomenal memories” and “instant recall.” While intimate personal information had “always been available to a persistent investigator with enough time and money to sift the paper trail we leave behind,” computerization meant it was now easily accessed by “any snooper … without even leaving his office chair.”75 In 1970, a behavioral scientist and computer scientist declared that 1984 had arrived early: a whole host of organizations now had “the technical power” to implement Orwell’s “chilling vision of a society under surveillance and control.” Computers, those seemingly “innocuous boxes,” had “voracious appetites, and can digest, churn around, and regurgitate information at prodigiously high speeds.” They warned of a new form of domination: rule by “computerocracy,” which harbored the “potential destruction of freedom in our society.”76
6.1a. In scholarly analyses and popular magazines alike, the computer data bank was the new face of privacy fears.
6.1b. Reporting on the capacity of computers to link files, Look magazine asked, “Will It Kill Your Freedom?”
There were arguments moving in the other direction, although they were usually made by the keepers of data. Scientist and science fiction author Isaac Asimov was one who speculated about the beneficence, rather than the dangers, of a national computer bank. Society’s quest to know citizens intimately, indeed much more thoroughly than was currently technologically feasible, struck him as a positive development. In 1973, Asimov welcomed the thought that each person might come to be “represented by a completely personal and individual symbol” legible to the computer—permitting as this would, perfectly tailored and “personal” social experiences. Indeed, having a “code that is yours and only yours,” imagined the writer, might beget a whole new form of individualism. Basing his discussion on the targeted mailing lists then beginning to make an appearance, Asimov reasoned, “What [the consumer] receives will be so likely to be of interest to him and to be slanted to his particular needs that, even if he does not buy, he will feel that someone has gone to the trouble of knowing what he might want.”77 Indeed, it was perhaps only in a thoroughly computerized world that a person could be fully individualized. Until that day, “his wants and needs are unknown to anyone but himself and his immediate associates,” making him a “faceless nothing.”78 The known citizen, in his futuristic scenario, was a well-cared-for citizen.
Where Asimov contemplated choice and personalization as the fruits of the computer’s gaze, more of his fellow citizens spied control and dehumanization. Surveys just beginning to track American attitudes toward computing suggested that the science fiction writer’s vision would not have been comforting to his readers. One, sponsored by the American Federation of Information Processing Societies and Time magazine in 1971, reported that 53 percent of respondents believed that “computerized information files might be used to destroy individual freedoms” and 58 percent that “computers will in the future be used to keep people under surveillance.”79 It was a significantly gloomier forecast than Asimov’s for the computer age.
Trapped by Traces
The United States had been, for all intents and purposes, what scholars termed a “records-based social system” since at least the 1950s.80 Indeed, Americans even in the 1920s and 1930s regularly grumbled about the new bureaucratic credentials they needed to gain access to basic opportunities and rights, all of these backed up by paper records. What was novel in the mid-1960s was not so much the existence of data systems as the heightened awareness of their power. Publicity about technological advances in record keeping was partly responsible. Modern “machine to machine” reporting via magnetic tape may only have made manual practices faster and cheaper, but it raised hackles nonetheless. That federal agencies—the Federal Trade Commission and the IRS, for example—were communicating in this fashion was roundly denounced as “shocking” and “unconscionable” in 1964.81
Cooperation among powerful gatekeepers became even more suspect in the 1970s. An ABC News investigative documentary on government records, which aired under the provocative title “The Paper Prison,” made clear why. This hard-hitting 1974 report examined, among other things, a three-number code known as a Separation Program Number, or SPN, that appeared on veterans’ discharge forms. ABC’s correspondent, Frank Reynolds, informed viewers that since 1967 alone, upward of 200,000 veterans who had been honorably discharged were nonetheless carrying on their record—unbeknownst to them—a damning SPN number. The digits alerted those schooled in the code that the bearer was a “shirker,” a “latent homosexual,” or a “marginal producer”; harbored an “apathetic attitude”; or evinced “substandard personal behavior,” or any one of approximately five hundred other such classifications.
As ABC reported, despite the fact that the SPN lists were marked “For Official Use Only,” major corporations—among them Firestone, the Chrysler Corporation, Standard Oil of California, Republic Steel, Boeing, McDonnell-Douglas, and Honeywell—had managed to obtain them in order to “screen prospective employees.” Even men who had earned combat awards were vulnerable to this form of blacklisting. An ex-Marine interviewed on the program noted that his “chestful of ribbons” and promotion to sergeant had not helped him evade an ambiguous but worrisome “early separation” code. Other veterans wondered if an SPN had cost them a job or was the price they paid for civil rights agitation or entirely legal political activity, such as circulating a petition to end the Vietnam War. Asked on air whether the Army used these numbers to “punish a man,” a colonel insisted that this was not at all the intent, although he was willing to allow that “it may be the effect.”82 In this slippage from intent to effect lay the whole conundrum of data sharing.
Soldiers had often tattooed their draft numbers on their bodies, a mark of their dedication to the service. A black mark on their record at discharge, although they might not be aware of its presence, was similarly indelible. Exposés like ABC’s disproved the popular notion that a record was a kind of rap sheet, trailing behind only those who had earned society’s distrust. Veterans willing to make the ultimate sacrifice for their country were just as likely to have a record as a common criminal. Moreover, that record could be dangerously misleading. As the publicity for “The Paper Prison” explained, “Government records can contain highly personal facts about you—as supplied by your neighbors, your teachers, your employers. Many of the facts may be wrong—but they’re on your record.”83 This characterization of an ever-expanding and inescapable information net was becoming conventional wisdom. A reviewer of the ABC program described as “frightening” the “unfair, immoral, and punitive use of the billions of pieces of information filed on ordinary Americans by government agencies across the nation.”84 What made it frightening was not just the volume of the data: it was the manifold possibilities of error, and—worst of all—its easy availability to those with an interest in knowing.
Computerization and record keeping proved an especially combustible combination, and their coupling could cause unremarkable features of modern life to take on a sinister aspect. This was the case for a much more familiar set of digits than the SPN: the Social Security number. In the mid-twentieth century, SSNs had—in a way never intended or anticipated—become the next best thing to a national identification number.85 Decades after their début, they would erupt as a political issue, prompting the creation of a federal task force in 1970 and multiple congressional hearings in the early part of the decade.86 This timing stemmed from the numbers’ crucial role in newly networked filing systems. As even Social Security’s commissioner would concede, the agency’s records constituted “one of the world’s largest concentrations of personal data”—identifying information on 256 million people and their earning histories, as well as family, financial, and sometimes medical data—“all of it indexed according to SSN, and much of it instantly retrievable from computer records.”87
More ominous still was the fact that millions, even billions, of pieces of information were connected to other pieces through the simple fact of sharing, somewhere, the identical string of nine digits. By the late 1960s, it was common knowledge that “our Social Security number has become the key in the registering of … billions of transactions.”88 The American Medical Association strongly protested, in light of this fact, a uniform discharge form proposed by the Department of Health, Education, and Welfare in 1976 requiring an SSN from every patient. “In this age of great concern over the right to privacy,” charged the AMA, “we are shocked that a federal department would now formally propose to establish a mechanism by which most physicians and every hospitalized Medicare, Medicaid, and Title V recipient could be classified, identified, matched, compared, reviewed and computerized with the impersonal ease of electronic machines.”89 Some would even call for repeal of FDR’s Executive Order 9397 of 1943 authorizing the SSN for federal record keeping.90
Many more Americans in the 1970s were prepared to see the menace rather than the promise in what had become a de facto national identity number: few, if any, contemplated a Social Security tattoo. Beginning in the mid-1930s, the SSN had been required of employees in the majority of the nation’s workplaces and had even been prized by some as a badge of economic rights. But observers in the 1970s insisted that something had happened to that proud, independent citizen as the society’s record-keeping systems churned and grew. If some citizens had once claimed a stake in New Deal security through their SSNs, those same numbers, now ubiquitous, seemed to impinge on the citizenry’s psychic “life space,” as one philosopher had it.91 In further Senate hearings in 1974 on the computerization of personal data—this time focused on financial, medical, educational, and census records—California congressman Barry Goldwater Jr. averred that “the average citizen” had come to view the SSN as both “dehumanizing and threatening.”92 Palpable in such comments was the sense that power was shifting in American society in favor of the institutions that controlled individuals’ data—and thus also their daily lives and opportunities—and away from individual citizens themselves.
The diminished status of the individual in a sea of computerized records preoccupied many of the early writers on data banks. In their analyses, the data bank had gained the upper hand. Sociologist Michael Baker, for instance, noted that the “ownership and control” of what he called “record identities” were “firmly in the hands of organizations.” The individuals in such systems were objects, not citizens with rights, and had few tools with which to protect their “record privacy.” The key dilemma was the tremendous mismatch between the capacity of the record system and of the citizen to keep track of data. Given what it would take for a person “to genuinely take charge of records about himself,” the sociologist reasoned, “it does not seem likely that we can expect self-protective vigilance from more than a few dedicated citizens.” The problem did not admit of an easy solution. As Baker cautioned, “We have to beware of establishing remedies which turn out to be fictional because they require daily acts of minor heroism on the part if [sic] the individual, as he challenges clerk, manager and officials on record-keeping matters and works to grasp the significance for his interests of each record-related choice he is given.” On these grounds, Baker believed that solutions to the records problem would not and, indeed, could not come from empowered citizens. They would “have to be accomplished primarily for, not by, the individual—a paternalism which, while perhaps not welcome, does reflect the individual’s position in this society and his existential relationship to everyday record-keeping processes.”93
If few matched Baker’s resignation concerning the individual actor’s impotence in a records-based society, others echoed his primary theme. Arthur R. Miller posited that “many people have come to feel that their success or failure in life ultimately may turn on what other people put in their file.” The passage of time, he mused, was no barrier to a computer data bank. Its memory was permanent, “absent an electronic eraser and a compassionate soul willing to use it.”94 Miller was particularly concerned with the way that the record could harden, or imprison, one’s personal history.95 He offered an unsettling hypothetical example:
Consider the potential effect of a computer entry: “arrested, criminal trespass; sentenced, six months.” Without more data how will the user know that our computerized man was demonstrating for desegregation in the South in the 1950’s or equal employment opportunities in the North in the 1960’s and was convicted under a statute that was overturned on appeal as an unconstitutional restraint on free speech?96
The computer, Miller feared, had become the “unforgetting and unforgiving watchdog of society’s information managers.”97
Miller’s invocation of a “computerized man”—stripped of his privacy but also his individuality and social context—suggested the way that critics were grasping the changed relationship between human and machine in the age of the data bank.98 Individuals were portrayed in such accounts as the mute subjects of record-keeping organizations. By contrast, the files were replete with vitality and power. People could be drowned out or swallowed up—incapacitated—by their own preserved traces. Arrest records, which often lingered even when a charge was dropped (and, even if successfully expunged, could still leave a worrisome reference to the expunged record), were just one especially vexing example.99 As a credit industry insider confessed in 1973 hearings on amending the Fair Credit Reporting Act, “Every time I wrote a new application, I knew I was opening up the customer’s most intimate personal secrets and locking them in to a computerized system that could not distinguish right from wrong, truth from lie, and could never forget.”100 With a computer readout more enduring and authoritative than a person’s word, how could an individual ever escape the prison cell of his own record?
The very mindfulness of their files that Americans now carried around with them was itself a dilemma. Given that many of citizens’ interactions and transactions were now transcribed somewhere, wrote a sociologist, “individuals have become oriented very early in life to making or maintaining ‘a good record,’ or sometimes to avoid if possible making any record at all (as is clearly the point with police records).”101 Senator Edward Long likewise warned, “Because of this diligent accumulation of facts about each of us, it is difficult to speak or act today without wondering if the words or actions will reappear ‘on the record.’ ”102 Yale Law professor and sociologist Stanton Wheeler feared a “dossier consciousness” taking hold in the population: “Will people develop an increasingly bifurcated personality, one part oriented to their private lives, a second part oriented to matters of record?” He ventured that “we will become increasingly concerned, not with what we are, but with what the record makes us out to be.”103 Arthur Miller regarded this attentiveness to one’s “record image in the eyes of those who may have access to it in the future” as a new and subtle means of social control. It was the “real evil of the record prison.”104
In this light, collections of data were not just intrusive or irritating features of living in the modern age; rather they did things to people and maybe even changed the nature of personhood. Data banks had a way of ricocheting back on the person, inviting questions about what a “subject of data” really was. “As the public becomes increasingly aware of the information orientation of modern life,” wrote Miller, “it is understandable that people may begin to doubt whether they have any meaningful existence or identity apart from their profile stored in the electronic catacombs of a ‘master’ computer.”105 So thoroughly known by their society and its agencies, individuals risked losing a deeper sense of who they were. The problem was not just how little Americans knew about their own files but also how utterly unrecognizable one’s own bureaucratic identity could be—not to mention the observable fact that, in many settings, a credit history or medical file spoke more convincingly than the physical person it represented. To echo Miller, was a person even provable as someone outside his or her computer dossier?
The influential 1973 Report of the Committee on Records, Computers, and the Rights of Citizens to the Secretary of Health, Education, and Welfare—the culmination of years of hearings on a national data center and on the problem of the Social Security number—itself blurred the file and the person in its bleak references to citizens as “data subjects.” It framed the conflict of human versus machine rather poignantly, calling the “struggle of individual versus computer” a “fixed feature of modern life.” The problem was not Americans’ alone. Rather, the report named the “loss of individuality, loss of control over information, the possibility of linking data banks to create dossiers, rigid decision making by powerful, centralized bureaucracies” as the common lot of industrialized populations. The power of pooled files, which made it possible “to bring a lifetime of information to bear on any decision about a given individual,” was made abundantly evident in its pages.106 The utopian vision of Isaac Asimov aside, these ever-more detailed caches of personal information seemed to dehumanize rather than individualize—and somehow to prevent a citizen from truly being known.
James Rule, an early theorist of the “surveillance society,” would elaborate on this grim picture. Systems of criminal records, vehicle and drivers’ licensing, health insurance, and consumer credit, he argued, were not simply pale, inert reflections of real individuals and their histories. Instead, they constituted a “paper world,” parallel but not identical to the real social world, that at times “stirs with life of its own, and comes to shape and dominate men’s experiences.” Rule cautioned that personal data on private citizens might well be the future basis for controlling them. With Britain and the United States as his examples—although he was certain the same developments were afoot in all industrial societies—Rule envisioned an Orwellian order based on systematic “personal documentation.”107 The gathering public consensus, built from a steady accumulation of commentary about but also experience with bureaucratic potency, seemed to agree with him.
In fact, Rule’s careful study of five existing bureaucratic systems of “mass surveillance” in the United States and United Kingdom demonstrated both the potential and the limits of social control via documentation—whether gauged in terms of specific systems’ size, centralization, speed of information flow and decision making, or “point of contact” with their clienteles.108 In other words, what Rule termed surveillance capacity varied considerably. “Unlike Orwell’s world,” he observed, “modern societies provide many opportunities for those who wish to avoid the attention of the authorities simply to drop out of sight.” While conceding that “available signs are disquieting,” he acknowledged that the increasing reach of bureaucratic processes did not inevitably lead to diminished privacy or totalitarian control. He even allowed for the possibility that “the same social changes which make mass surveillance feasible and necessary may also release men from other forms of surveillance.”109
6.2. A 1973 federal report called the problem of computerized records a “fixed feature of modern life.”
There were other, similarly measured, positions that were staked out in the roiling data bank debate of the early 1970s. The most comprehensive of these was a report commissioned by the National Academy of Sciences and published in 1972. Coauthored by Alan Westin, the best-known privacy expert of the day, and the organizational sociologist Michael Baker, Databanks in a Free Society set out to temper public disquiet about electronic records with empirical evidence. As Orville Brim Jr.—president of the Russell Sage Foundation and coauthor of an important report on privacy and social research—explained in his foreword, “We have our doomsday prophets crying out about national data centers, our widely shared anecdotes about credit-card society and tattooed Social Security numbers, and plenty of wild and misinformed testimony at congressional hearings.” The report was an attempt to weigh in on and correct confused thinking, with the express goal of separating hypothetical future uses of computerized records from present practices.110
The study summarized in the report was an ambitious ethnographic canvass of fifty-five “computerizing organizations,” ranging from the Social Security Administration and the National Crime Information Center, to the Bank of America and Mutual of Omaha, to the Massachusetts Institute for Technology and the Church of the Latter-Day Saints. Its aim was to assess computing’s impact on practices of record keeping and confidentiality. Specifically interested in what transpired when “people records” were automated, Westin and Baker debunked many popular fears about computer data banks. The authors found the increase in transactions “in the organizational world” to have preceded rather than followed computerization.111 More strikingly, apart from increased efficiency in record keeping, they discovered no radical departures from the ways organizations had employed personal information in the precomputer era. Instead Westin and Baker documented gradual and partial computerization; the coexistence of manual and automated files; continuity in the contents, scope, and sensitivity of information entered into records; and data-sharing practices that resembled those of the manual era. The scholars in fact documented a marked retreat from centralized data bank projects—the effort “not merely to do the old things faster, but to do new things with information”—because of technical, conceptual, financial, and organizational constraints.112
Indeed, Westin and Baker found in their site visits in 1970 and 1971 that “there were no central computer databanks of the kind which had raised civil-liberties alarms.” They were surprised to discover a number of organizations that were collecting less personal information than they had in the past, this the result of new legislation and social norms around the reporting of race, religion, nationality, sex, ethnic background, and marital status. The authors explained, for instance, that changes in entitlement to welfare aid meant that questions about identification and need were retained in automated systems, but that “historical reconstructions of the individual’s personal life” (such as marriages and job history) had been eliminated.113 Moreover they found no evidence to support widespread worries about machines replacing human judgment. Overall, they argued, “The first 15 years of automation have simply not as yet altered relationships between people, data, and organizations in the ways projected by those who first looked with anxious eyes at the relation of computers to civil liberties.” Computer use, they pronounced, “has not created the revolutionary new powers of data surveillance” many had predicted.114
What had changed decisively was Americans’ awareness of their own records. Individuals in an earlier day knew in a “dim way” that their “transactions generated a long trail of files,” wrote the researchers, but they “didn’t devote much thought or attention to them.”115 That era had passed. Data banks were on everyone’s minds now, and popular convictions about a “dossier society” coming into being would be difficult to shake. Although for Westin and Baker it was little more than an afterthought, the arrival of a new public consciousness about the data traces lingering behind and beyond every citizen may have been their most significant conclusion of all.
Rights in an Age of Surveillance
James Rule completed his book on the theory and practice of surveillance just as the scandals that would embroil the Nixon administration broke. For him, as he noted dryly in the preface, “the Watergate affair hardly comes as a surprise.”116 One suspects that no one who had closely monitored the privacy landscape over the prior decade could have been shocked by revelations of spying in the corridors of executive power: the theft of Daniel Ellsberg’s psychiatric records following the release of the Pentagon Papers, the bugging of the Democratic National Committee offices, the prying into citizens’ tax returns for political purposes, the administration’s resort to shadowing and sabotage. For those observers, Watergate—far from being an eye-opening moment—was a corroborating event, cementing rather than creating an analysis of the United States as a surveillance society.
If the scandal was not a revelation, it still had reverberations. Watergate brought into focus the reach and extent of surveillance practices at the highest levels of government, intensifying the spotlight on state secrets. But the glare extended to the more mundane surveillance of filing cabinets and data banks too. One of the casualties was the dispassionate, nuanced stance on record systems represented by Databanks in a Free Society. In the scandal’s wake, almost no one could be found to defend the new data banks, not even those ostensibly in charge of them. President Gerald Ford voiced the threat posed by computerized government records in vivid, nightmarish terms. In a speech at Stanford Law School, he declared, “We must protect every individual from excessive and unnecessary intrusions by a ‘Big Brother’ bureaucracy,” portraying the vulnerable citizen as a “faceless set of digits in a monstrous network of computers.”117 His predecessor, Richard Nixon—the man partly responsible for stirring up such fears—employed equally dystopian imagery. In a radio address during the Watergate hearings, he warned, “Until the day comes when science finds a way of installing a conscience in every computer, we must develop human, personal safeguards that prevent computers from becoming huge, mechanical, impersonal robots that deprive us of our essential liberties.” The president went on to say, “It is becoming much easier for record-keeping systems to affect people than for people to affect record-keeping systems.” With seemingly no sense of irony, Nixon called for open access to government records, claiming that “at no time in the past has our Government known so much about so many of its individual citizens.”118
Indeed, politicians were discovering that privacy was, as Francis Sargent, the governor of Massachusetts, put it, “good politics.” In 1973, he refused to allow his state’s crime records to be entered into the FBI’s computerized data bank system, believing it “poorly secured and loosely controlled.” Far from being controversial, he reported, the move had been deeply popular with voters. “There turned out to be an untapped, large constituency out there—people concerned over their diminishing personal freedom and uneasy about a rapidly developing technology controlling their daily lives and environment.” Sargent garnered praise not just from his own constituents but also from citizens nationwide—and from every corner of the political map. On what other issue, he asked, “could a governor attack the FBI and be roundly applauded for it by both the New Bedford American Legion Post and the Newton Americans for Democratic Action?”119
Confirmation of illegal government surveillance ushered in a new vigilance to citizens’ efforts to protect their secrets from the routine, relentless machinery of bureaucracy.120 Watergate also gave privacy advocates leverage to press for legal remedies. Given that few politicians “wanted to appear friendly to government surveillance over private persons,” the wheels of congressional action began turning more quickly.121 The result was the passage of the Family Educational Rights and Privacy Act (FERPA), the amended Freedom of Information Act, and the Privacy Act of 1974.122 The last of these was most significant, and its appeal defied partisan lines, as its House co-sponsors, conservative Republican Barry Goldwater Jr. of southern California and liberal Democrat Ed Koch of New York City, attested.123 Groundbreaking legislation, it was heavily influenced by the “fair information practices” established by the federal report on Records, Computers and the Rights of Citizens the previous year. In one fell swoop, the Privacy Act disallowed secret data-gathering systems, prevented information collected for one use to be used for another, and enabled individuals to know of and to correct material in their records.124
With the Privacy Act, the United States joined a host of nations grappling with information privacy in the 1970s.125 The first data-protection law was enacted at the opening of the decade in the Land of Hesse, Germany. Legislation quickly followed in Sweden (1973), the United States (1974), Germany (1977), and France (1978), with Portugal and Spain embedding individual data privacy protections in their respective constitutions in 1976 and 1978.126 Although the substance of legal regulations would diverge, with European law offering stronger individual protections, this was a moment of broad transnational reckoning with computerized records.127 International conferences and policy borrowings testified to the novelty, and the intractability, of the problem. In an unusual step for the inward-looking Congress, the U.S. Senate Committee on Government Operations in 1975 went so far as to commission a study of information privacy in peer nations, hoping to draw on the “wealth of European experience” with “preserving individual liberty from undue data surveillance.”128
Recognition of the stubborn permanence of files, as well as the perniciousness of errors once deposited in a data bank, intensified after Watergate. As a report from the Freedom of Information Center commented, “Blacklists, ‘secret files,’ falsified records and other abridgements of individual freedom have been hot news items the past several years.” Recent political events had made Americans “concerned with more than just ‘personal privacy’: they also want to verify the accuracy of whatever records have been accumulated on them.”129 The Family Educational Rights and Privacy Act, also known as the Buckley Amendment, exemplified this impulse. The legislation was signed into law—adopted by voice vote on the Senate floor, with no hearings—only twelve days after Nixon’s resignation.130 Both the quick assent to the legislation and its slowly unfolding implications make it an illuminating case study of attempts to protect privacy in the computer age.
The public discussions that led to FERPA unfolded on the terrain of the schoolyard, but were a microcosm of the larger debate, disclosing fears of secret gatekeepers, arbitrary categorizations, and bureaucratic errors that, unchecked, could become a permanent liability. The aim was to pry open school records to inspection by students and parents. At issue was not so much whether a pupil would be documented in a variety of ways by school authorities—this was by now expected and assumed—but whether that student’s record would be documented accurately and fairly, how long it would be maintained, who else would have access to it, and how the subject of that record would go about finding out what it contained. Tellingly, advocates placed their emphasis less on curtailing record keeping than on securing access to files. Keeping sensitive or confidential information out of students’ dossiers to begin with perhaps seemed implausible by the time the legislation was taking shape in 1973 and 1974.
FERPA was powered by “ideological and committed parents,” coordinated by the National Committee for Citizens in Education (NCCE), based in Columbia, Maryland, and the Children’s Defense Fund.131 For these activists, the problem of records hit very close to home; indeed it built on worries over the privacy of the home that personality testing had raised across the prior decades. Activists—an “odd alliance of conservatives and civil-rights liberals,” as one journalist described them—were united around a very particular anxiety.132 This was the possibility of their children being “locked into a records prison” via questionable and potentially damaging information in public school files.133 By the 1970s, parents were alert to the ways files intersected with the life chances of their children. Discrimination and stigmatization, whether on account of race, character, behavior, or “mental disability,” could be the lasting product of materials in one’s record. As a committee of African American teachers and counselors in San Francisco rather succinctly put it, “Black students’ folders tend to be at least half an inch thicker than those of white children … which tells you something about the child even before you open the folder.”134
Like the Fair Credit Reporting Act, FERPA marked a sharp departure from privacy fears centered on publicity or invasion: the broadcasting of personal details in the media or intrusions into one’s private space. It was the closed nature and cloaked use of school records, not their public airing, that posed the threat. That their contents could be leaked to others but were sealed to the data subject—who might never learn of that fact—was the crux of the injury. The NCCE would both trade on and fuel “growing national concern over abuse of student records.”135 Time magazine’s report on those abuses, meant to scandalize readers, noted that, among other travesties, the phrase “ ‘homosexual tendencies’ … was allegedly inserted in the files of one nine-year-old after he hugged a classmate.”136 A similar story in circulation told of a schoolboy who returned “unzippered” from a trip to the bathroom, only to have “the observation put in his file that he had ‘exhibitionist’ tendencies.”137 Such anecdotes captured the essence of the matter, revealing as well the lingering shame that could be produced by charges of non-normative sexuality even in a more liberated age.
The problem was both the authority and durability of school records. “Every United States public school system creates a file on each of its students that starts the day the child enters kindergarten and continues until the day he leaves school and graduates,” intoned one commentator. “The test scores, personality profile and other data that are compiled when a person is six years old can, and usually do, remain ‘on file’ somewhere for the rest of his life.” The upshot was that “a hastily concluded judgment by an annoyed, impatient third grade teacher could become a lifelong albatross around the neck of an innocent individual.”138 Wrote activist Diane Divoky in an influential article for Parade Magazine,
You, the parent, probably can’t see most of these records, or control what goes into them, much less challenge any untrue or embarrassing information they might contain. But a lot of other people—the school officers, welfare and health department workers, Selective Service board representatives, and just about any policeman who walks into the school and flashes a badge—have carte blanche to these dossiers on your child. And to top it off, parents are never told who’s been spying on their children.139
Aggravating the problem, once again, were technologies such as magnetic tape, optical scanners, and computerized storage that worked together so smoothly and conclusively to lodge comments in a student’s file. Divoky’s protest encompassed “hard” and “soft” data alike: grades, IQ scores, and medical records as well as teacher anecdotes, notes on parent interviews, and disciplinary reports that were “routinely filed away in school offices or stored in computer data banks.”140 The student record had a place, Divoky argued elsewhere, but “like Frankenstein’s monster, it now has the potential to destroy those it was created to protect.” And its liability for misuse by authorities was ever present, transforming the “unwary kindergarten teacher” into a “government intelligence agent.”141 Even the National Education Association, a strong voice in favor of more comprehensive record keeping in the 1920s, had come out in favor of a code of student rights, which placed the interest of the student ahead of “all other purposes to which records might be put.”142
These concerns responded in part to the accelerating use of psychological assessments in the postwar era.143 Swelling school files were part of the quest for what Divoky termed “a picture of the ‘whole child,’ his family, and his psychological, social and academic development.”144 Another analyst explained that the need for a student right to records was especially acute given that “the educational system compels the student to reveal his abilities and personality to school authorities.”145 As they had been for journalists like Vance Packard and Myron Brenton, who had written exposés of school testing a decade before, psychological measures were a particular bone of contention, one court finding such testing “highly personal and probative of the family relationship.”146 There was a difference, however. The earlier debate about psychological instruments in the schools had focused on the privacy invasion at the moment of its occurrence. The record itself was now squarely the concern.147 Temporally distant from the event in question, it was no less of—and in an age of permanent computer “memory banks,” perhaps more of—a privacy violation.
Indeed, seeking to build its membership rolls, the National Committee for Citizens in Education identified the records issue as one that would mobilize public passion. It planned in 1973 to focus on invasions of privacy “at a higher noise and scare level” than previously.148 A test mailing invited parents into the issue by alerting them to the extensive records on nearly every child in the country. The message was simple. School files were stuffed with questionable material and yet were wide open—in more than half of the nation’s school districts—to a host of parties: the FBI, the CIA, juvenile courts, and prospective employers. The NCCE experimented with a “distinctly attention getting envelope” to get out the word. “Do you know what’s in your child’s school record? It might surprise you …,” it tantalized. A string of handwritten phrases—“unnaturally interested in girls,” “history of bedwetting,” “too challenging,” “strangely introspective,” “peculiar political ideas,” “alcoholic mother”—dotted its face.149 The NCCE summoned parents and citizens, heretofore “virtually powerless,” to join the battle against “entrenched bureaucracy.” “How would you like to know everything that’s known about you?” inquired another of its mass mailings. The organization employed creative tactics, in one case inciting citizens to take action by testing for themselves record keepers’ willingness to part with information. Request “a simple bit of data about yourself” from your own school, the NCCE urged, providing a fill-in-the-blank postcard. “When your request is denied or modified write to us and we will send you the necessary information to push right back.”150
The NCCE aimed to serve as a training ground and catalyst for grassroots action. Sympathizing with “how difficult it is to muster the courage, confidence and energy necessary to pursue issues with public officials,” it armed interested citizens with strategies for gaining access to their sons’ and daughters’ records and for challenging school policies. The organization’s field manual included a “plan of action”: templates for letters of inquiry, suggestions for talking to principals and superintendents (“be pleasant,” “do not be cowed,” “kee[p] a diary”), tips for organizing town meetings, legal advice as to parents’ rights over their children’s education, and contact information for key officials in each state.151
As this effort took off, the NCCE became a clearinghouse for tales of students and parents wronged by records, with thousands of letters flowing in from all over the country. Many of these detailed the ways that “children and families are being harmed or intimidated” by the information keepers.152 A parent who had sought unsuccessfully to see a child’s record to discover why he had been placed in a “slower” class, asked, “Do I have any legal rights to demand to see these records and tests instead of just hearing personal opinion?” Learning of “character reports” maintained on her three schoolchildren, another wanted to know, “Is it possible that the very people and organization we entrust almost 75% of their young lives to is one more major threat”? One parent, even as she moved her family to a new school district, feared on her daughter’s behalf the lasting “repercussions of a file that is fictional rather than factual.” Still another wrote of “threatening the school and administration” in order to view a child’s record and then finding out that the girl “had been branded as emotional and of a low potential by her first grade teacher.” A high school senior and honor roll student who described himself as unjustly saddled with “a history of trouble-making” discovered that he had been turned down for a job because of his school record. “I feel like a criminal,” he wrote, “and am being discriminated against because of the quick impressions that teachers write about in student’s [sic] records.” A man who had come across Divoky’s article in Parade wanted advice on how to dig up his school file from many years past in the belief that it was continuing to hamper his employment prospects. He wrote: “I am male—37 and it’s very hard to find work.” Still others confided their shock at finding commentary about themselves or their home lives through a glimpse of an open file on a counselor’s or psychologist’s desk. “What else has been written about my husband, me and my son …?” asked one woman, and “what has been said about my girls in these juicy school records?”153
With FERPA’s passage, these questioners would get some answers—and the slow burn over invasions of privacy at school, kindled in the late 1950s, finally received an official response. A provision that would have required parental consent before any psychological test or behavioral inquiry could be conducted did not survive in the final legislation. But the long list of materials that parents would now have a right to review told its own story about the trove of data schools housed: “identifying data, academic work completed, level of achievement (grades, standardized achievement test scores), attendance data, scores on standardized intelligence, aptitude, and psychological tests, interest inventory results, health data, family background information, teacher or counselor ratings and observations, and verified reports of serious or recurrent behavior patterns.”154 Just ten days or so after FERPA became law, a man sought the release of filed material on his son indicating “aggressive homosexual behavior” that had allegedly caused him to be denied a place at Vassar College. “Under the law,” he asserted, “the contents of any information in your possession about my son must be revealed to me upon request.”155 A mother from Levittown, New York, a few months later emerged victorious in her quest for her son’s school records. “They were so damaging, you wouldn’t believe,” she wrote to the director of the NCCE. “Teachers stated that I was crazy and my child was anything but good.” The superintendent and principal agreed to transfer her son to another school—and perhaps more critically, “not to send his records along.”156
The law was celebrated by the NCCE and others as a civil liberties victory and a lever for the rights of individuals—some eight million college and university students, and the parents of more than 45 million school-age children—against “insensitive and overreaching institutions.”157 Schools had been put on notice, and citizens would now have some means of redress against previously unaccountable institutions and records systems. One of the NCCE’s leaders was optimistic that FERPA might “put a stop to the dossier mentality” in the schools.158 A spokesman from the Children’s Defense Fund chimed in: “If there are bonfires all over the place, we’re delighted.”159 More profoundly, the act’s supporters hoped it would stand “as a bulwark against the encroachments of a Big Brother society.”160 The NCCE remained vigilant, establishing a monitoring operation on the legislation’s effectiveness the very day FERPA became law, enlisting other organizations’ assistance as watchdogs and setting up a hotline “to give parents a chance to report their experiences in getting student information from schools.”161 It proposed that the new rights should be printed clearly on report cards, just like the consumer notifications that now appeared on credit card bills and cigarette packs.162
After FERPA’s passage, some schools did destroy information in student files. The assistant superintendent of the Kentucky Department of Education, for example, instructed school districts to “purge cumulative record files of unsubstantiated or irrelevant miscellanea and unsubstantiated teacher opinions which might tend to categorize pupils,” just as the law’s backers would have hoped.163 A school district in Columbia, South Carolina, urged its school commissioners to pay heed, predicting “numerous law suits if extreme caution is not used in the handling of student records.”164 The chair of the Providence, Rhode Island school committee posted public notices that parents would hereby have full access to student records.165 The head of the Association of Elementary School Principals acknowledged that student files had become “dumping places” for “hasty teacher comments” and advised the organization’s 28,000 members to expunge such material accordingly.166 There were stories of other schools ordering “all unverified comments or opinions” to be removed from files or completely obliterated. (Tellingly, the superintendent in this case also asked school personnel to ensure that “no potentially defamatory references to parents are included in records inasmuch as, of course, parents will now have the right to inspect such records.”)167 In the lead-up to the law taking effect, the NCCE reported being “buried with requests” for information from state-level officials responsible for drafting bylaws and procedures.168
FERPA did not exactly amount to a turning of the tables, however. Other reports revealed significant or even “gross, gross” noncooperation with the legislation—which had no real penalties for violation or mechanisms for policing compliance—as well as instances of unauthorized transfer of student information to the juvenile justice system and the Immigration and Naturalization Service.169 Representatives of higher education had lobbied hard to exempt colleges and universities from the legislation. Although they did not succeed, they found loopholes. Referring to new rules about access to college recommendation letters, the most controversial provision of the law, one of President Ford’s advisors noted that the standard response by institutions was coercion: “students are strongly pressured to sign waivers.”170 The University of Virginia’s dean of admissions, for example, sent a letter to all incoming students noting that “the act’s purposes are best achieved when fewer records are kept and used”; the university proposed destroying all letters of recommendation, statements by teachers and counselors, and other confidential material—unless the student was willing to sign away his or her access rights.171 Some schools, it was reported, had begun prohibiting teachers from writing letters at all.172 The Ford advisor further noted that FERPA did not extend to individuals whose college applications were rejected, even though “this group is perhaps the most in need of Buckley Amendment rights.”173 And one commentator observed that “the law’s first impact on college campuses” was in fact to increase data collection, as some schools “immediately began keeping files of students’ written requests to see their records, instead of promptly granting access as required by law.”174
At the primary and secondary school level there were also “numerous complaints” about the implementation of FERPA protections. One sore spot was the excessive copying fees that some school districts were planning to charge to those wanting access to their records “by including in the costs staff time, electricity, overhead and other items which have a clearly delaying, harassing character to them.” The forty-five-day response period for record requests was also deeply frustrating, especially in cases involving special education placement or suspension hearings. And there were worries about records being destroyed, ironically enough, following requests for access. Given that “most parents and students” found school personnel intimidating “or can easily be made to feel that way,” FERPA’s policies required too much of the record seeker, concluded the NCCE. The procedure for gaining access to one’s files “leads too easily to marathons of endurance, demanding persistence and extraordinary conviction.”175 The balance of power between data subjects and their gatekeepers may have shifted, but how much?176
A similar story unfolded regarding the implementation of the Privacy Act of 1974, described by one of its co-sponsors, Senator Edmund S. Muskie, as the first major U.S. legislation “aimed at the protection of personal privacy” and by U.S. News and World Report as a “new weapon to fight the growing trend of government to pry into people’s private affairs.”177 The act aimed to resolve the conflict between civil liberties and official records. But if federal legislation was in some sense a victory for privacy rights, it was a profoundly equivocal one. Designed to empower citizens vis-à-vis the record keepers, the law would wind up stoking fears that the United States had become a full-fledged surveillance society in which individuals were outmatched from the outset.178 In earlier periods, those whose privacy had been infringed sought to hold specific individuals or entities liable: a photographer, or an employer, or a police officer. The Supreme Court itself had imagined a tangible body and a zone of privacy for the autonomous individual. Americans in the 1970s contended instead with a virtual body, a body of data, caught up in dossiers and files. In an era of computer databases and anonymous agencies—what Hannah Arendt had chillingly called the “rule of Nobody” in her analysis of the evils of bureaucracy—it was increasingly difficult to identify those who invaded a person’s privacy, much less curb them.179
Earlier in the decade, Arthur R. Miller had speculated that “the seeds of a computerized dossier society may have already been sown by the steady proliferation of data banks,” such that “only the extremities of a vast, subterranean information structure may be visible.”180 The Privacy Act supplied conclusive proof. That there was no stopping the flow of data was the clear implication of a stream of commentaries in the national press following its enactment. The law’s requirement that federal agencies publicly disclose their records systems exposed the real problem: nobody, not even the bureaucracies themselves, knew what they held in their files. As the Washington Post explained, “Some agencies were maintaining secret files and concealing some abusive practices from Congress and the public.” The larger difficulty, however, was that “the government’s data demands had grown so fast, and had been answered in so many uncoordinated ways, that not even the agencies themselves had a firm grasp of all their information practices.” Even once the inventories were mostly compiled—by the fall of 1975, “over 8,000 records systems … summarized in fat volumes of the Federal Register totaling 3,100 pages and more”—they were so various and unruly as to be incomprehensible. The Post made the point with a ludicrous laundry list of its own: “There are listings for the sensitive files of the Defense Investigative Service; for records of the participants in National Security Council meetings …; for HEW’s roster of licensed dental hygienists; for the Agriculture Department’s list of people interested in forestry news, and for the Export-Import Bank’s roster of employees who want parking spaces.”181
The Privacy Act tackled the problem of personal records not through redacting or reducing the amount of information that the government stored, but through transparency, in the form of still more data. But this information itself fueled public apprehensions. The Privacy Act had taken effect “after six months of preparation by federal agencies notable mainly for having produced the largest volume of federal paperwork since the Republic was founded,” summarized one watchdog organization.182 The Los Angeles Times reported that “what has been revealed … is that the government keeps track of its citizens on a scale that not even the most paranoiac critic of government snooping would ever have suspected.” This article concluded, “There is apparently no detail about American citizens that does not interest some bureaucrat.”183
As did others, this reporter recounted a bewildering array of records maintained by the federal government: lists of New Jersey driving examiners, “behavior performances” of Kentucky tollbooth operators, and hearing tests taken by Cincinnati firemen. Some of these data appeared harmless, but other records had a more sinister cast: “Why does the Department of Transportation need dossiers on everyone who ever had his driver’s license suspended or revoked? Why does HEW keep a file on children with birth defects?”184 Press coverage lent substance to Miller’s earlier portrayal of government information collecting as “an unrelenting flow of data that is generated and consumed by some diabolical Sorcerer’s Apprentice.”185 Even as officials swore that the “biggest fallacy” in the Privacy Act was the assumption that federal agencies were adept at pinpointing particular individuals and that “nothing could be further from the truth … [than] that the government keeps orderly files from which information is easily retrieved,” the torrent of data lent itself to scenarios of total surveillance.186
This same outpouring of information about the mere existence of federal data systems (as opposed to their contents) prompted other suspicions, some critics wondering whether its sheer volume “could be so formidable that it will discourage public interest in testing the Privacy Act.” One congressman complained that a number of agencies, in a “typical manifestation of bureaucratic behavior,” were “carrying the reporting requirements to an extreme,” thereby making it more difficult for citizens to unearth the information that they were now legally entitled to access.187 In fact, in the first six months under the Privacy Act, the Department of Justice reported receiving “over 30,000 requests for access, a number far in excess of what anyone had anticipated,” which “transformed this into a major area of departmental operations.” The same was true for the Freedom of Information Act (FOIA), amended that same year: the level of requests would lead officials to complain of individuals “abusing” the new disclosure laws and even, in a few cases, of harassment. The office that administered FERPA had, eighteen months after the law’s effective date, received less attention, but still more than 10,000 requests for information.188 The Fair Credit Reporting Act, passed in 1970 to similar ends, saw much more regular use. One credit agency found that requests for access “jumped from 2000 to 200,000 yearly when FCRA passed”; another had such requests jump from an insignificant number to 200 per day in 1974. Associated Credit Bureaus reported in 1972 that its member bureaus conducted “1.7 million interviews with customers wishing to know the content of their files, 1.3 million of these prompted by a denial of credit,” to the tune of $3.4 million annually.189
Such numbers indicate that some citizens were not shy about exercising their new rights and that they were able to circumvent significant obstacles in order to gain access to their files. Individuals who made use of the Privacy Act could view and possibly even correct some of their personal information that had been secreted away in government agencies. Just a decade earlier, this kind of admittance to official records would have been unimaginable. Likewise, one scholar noted that, until the passage of FCRA, “individuals had virtually no relationship with the commercial organizations which compiled credit, pre-employment and pre-insurance reports on them. Individuals were quite literally the objects of a report and little more.”190
In this sense, legislation in the 1970s would not just lay down fair information practices. For better or worse, it would also endorse individuals’ growing claim to possession of their virtual selves, those bits of biography distributed across the society’s expanding data systems. Personal records, scattered across space and time, became legal entitlements, a kind of property. In theory, anyway, citizens might be the owners, or co-owners, of their files. Changing conditions of organizational life—faster computers, larger bureaucracies, expanding data banks—thus did not straightforwardly erode citizens’ privacy, although it may have appeared that way at the time. These same conditions generated novel claims and claimants for the protection of personal information, ultimately producing new rights for the “data subjects” and increasingly well-known citizens of the Watergate era.
As with FERPA, an initial review of the implementation of the Privacy Act did not suggest particularly dramatic changes: some agencies had destroyed duplicate or useless files; seventeen had removed SSNs from existing records “when deemed appropriate.” On the other hand, the act had vividly revealed the extent of the U.S. records infrastructure. There were at least 6,723 federal government data banks, with an average of “18 files for each man, woman and child in the U.S.” and containing information on 3.8 billion “identifiable persons,” reported one source.191 A hopeful advocate ventured that the “law’s restrictions could prove so costly and troublesome that the government might decide, on its own, to dismantle some data banks, unplug some computers and throw out some files.”192 But his was a lone voice against a chorus certain that the clock could not be turned back on a “record-based social system”—and that patient, persistent bureaucracy would win out in the end. Too much was to be gained through knowing citizens, most Americans suspected, to toss out the files. Policy makers also pointed out the weakness of the new laws in preventing the disclosure of personal data, laced as they were with exceptions for “legitimate business needs” in the case of FCRA or “routine use” in the case of the Privacy Act.193 In all the commentary about the new legislation, few doubted that sensitive records on citizens, lodged in only partially penetrable systems, would continue to proliferate.194
Nor did the Privacy Act, which applied only to the agencies of the federal government, address the private sector. It thus was silent about the problem Myron Brenton had memorably described as “Big Brother in civilian clothes”: the extent of data collection by private employers, banks, insurance companies, telecommunications outfits, and marketing firms, all of which had helped create the crisis around personal data and the “record prison.”195 Although its authors hoped the Privacy Act would be “only a beginning,” paving the way for “an expanded law protecting the privacy of all of us, in every aspect of our daily lives,” such would not come to pass.196 A federal Privacy Protection Study Commission took up the question of extending the Privacy Act to private entities, only to shelve it.197 Indeed, the political will to clamp down on the record keepers seemed to ebb as Watergate receded in the headlines.198 The commission itself would close up shop in 1977 with none of its recommendations realized—but not before concluding that the Privacy Act “had not resulted in the general benefits to the public that either its legislative history or the prevailing opinion as to its accomplishments would lead one to expect.”199
Despite all the protest kicked up about the quantity of personal records in state and corporate hands by the mid-1970s, then, there seemed to be no easy way to reverse these developments—or to restore privacy to some imagined status quo ante. Under the Privacy Act, as with FCRA and FERPA, one could know of and even correct one’s information in a file. But one could not escape being filed in the first place. That the assertion of broader privacy rights could be so quickly followed by retraction of practical control was a sign that legal regulations around information privacy would not, and perhaps could not, alter the basic terms of U.S. society, fully entwined as it was with computerized data banks. Indeed, the 1974 Privacy Act in certain respects worked more to facilitate than to staunch or even slow the flow of data into record systems. Privacy policy in its aftermath veered away from regulating the type, amount, and control of personal information stored in files and toward norms of fairness, accuracy, and security.200 This was the new, if uneasy, pact that would be achieved in the 1970s between citizens and those who would know them through their records.201
The final report of the Church Committee, convened in 1975 to investigate intelligence abuses of the FBI, CIA, NSA, and IRS, was damning. “Too many people have been spied upon by too many Government agencies and too much information has been illegally collected,” it declared. Another of the report’s findings—that the government had “swept in vast amounts of information about the personal lives, views, and associations of American citizens”—would not have surprised those coming to see themselves as data subjects in the 1970s.202
Newfound attention to the risks of computerized records in that era coexisted with and confounded more corporeal and physical understandings of privacy that accompanied Supreme Court rulings beginning with Griswold v. Connecticut. Even as the Supreme Court moved to protect Americans’ physical “zones of privacy,” other trends were alerting citizens to the vulnerability of their virtual bodies: the stash of personal information steadily accumulating in the society’s data banks. But the individual who could be frisked by police, was involved in intimate marital relations, or could carry a child or terminate a pregnancy was a different matter to regulate than the body of records that accompanied citizens through society. The Court’s expanding protections of “decisional autonomy” in the reproductive rights cases were likewise difficult to apply to the data subject, who did not make a conscious choice to house personal information in record-keeping systems in the same way that a woman might decide to have an abortion. Americans typically did not choose but rather discovered themselves to be enmeshed in a network of files through a lifetime of interactions with the public and private institutions of U.S. society.
Dawning recognition of the problem appeared in the Court itself, in the 1977 ruling Whalen v. Roe. At issue was whether New York State, in the interest of monitoring drug abuse, could require the disclosure of the names and addresses of patients who were prescribed certain medications.203 The Court ruled that it could; however, it deliberately left open the question of the relationship between individual privacy and the society’s increasing reliance on networked records. Justice John Paul Stevens noted, “We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files.”204 Forty years later, those remain almost the Court’s last words on the ways advancing technologies of data collection, storage, and transmission might impinge on the privacy and security of citizens’ digital lives.205
Information preserved in files presented a thorny problem. Immaterial and invisible, it was nevertheless socially valuable, as well as personally consequential. Distributed across many sites, it could not be cordoned off physically like a bedroom or overseen like a research laboratory. Slippery and difficult to contain, it could at the same time be remarkably intractable. If built up sufficiently, as critics of the “record prison” warned, it could entrap a person. Citizens’ concerns about burgeoning data banks triggered novel claims for the safeguarding of personal information, as well as landmark legislation. But the evident limits of those protections also cast doubt on the federal regulations associated with the privacy jurisprudence of this era—not to mention the very notion of the autonomous citizen they were meant to safeguard. Bureaucratic and technological developments alike suggested that the conditions that had informed American notions about personal privacy no longer obtained. Thus, in an era when both Congress and the Supreme Court intervened in new fashion to protect citizens’ private affairs, privacy could seem ever more vulnerable.
The naming of the United States as a “surveillance society” was a product of this conundrum, one of the first appearances of the term coming in a 1970 opinion piece in the Los Angeles Times by Arthur R. Miller.206 The coinage connoted something beyond government watchfulness and control. Like other concepts of the day—“record prison,” “dossier personality,” “information power”—it pointed to a type of social organization that had the collection and scrutiny of personal data as its basic feature and a citizenry fundamentally shaped by new capacities to observe, record, and track.207 Legal experts and social theorists but also muckraking journalists, science fiction writers, grassroots activists, policy makers, and others newly worried about their Social Security numbers all sensed its arrival.208 This was a vision of society and a vision of power that called into question the civil liberties and individual rights remedies of the recent past.209 If privacy was going to survive, it would need to be rethought.