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The Fourth Amendment is one of our precious constitutional rights: "The right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated."
For various specific purposes, the government requires us to disclose information about our persons, houses, papers and effects. But the government's use of that information should be restricted to the purpose for which it was constitutionally demanded and received. The government should not be able to act as though it owned that information, or to sell it or display it or traffic with it without our consent.
Some years ago, the telephone companies asserted a copyright, or property right, in the telephone book with its listings of our names, addresses and telephone numbers. The Supreme Court unanimously ruled in Feist v. Rural Telephone Service (1991) that copyright protection is granted only to authors who create new works, not to corporations that merely collect data, so the phone companies do not own their listings of names and phone numbers just because they spent money collecting them.
Likewise, the government does not own its listings of our name, address, phone number, Social Security number, photograph or other personal information just because we are required to provide them for specific purposes. For the government to behave as though it owns that information, or to sell it to others, is not only a misappropriation of rights that belong to the individual, it is an action that tends to destroy public confidence in government and its trustworthiness.
For example, we are required to give a great deal of personal information to the Internal Revenue Service, but we would be outraged if we discovered that the IRS were transferring that information to other agencies or selling it. Likewise for the information we give to the Social Security Administration.
When we apply for a driver's license, we give our identity information along with a photograph and some medical information to our state's motor vehicle bureau in order to be granted the privilege of operating a motor vehicle on the public streets. We don't give that information for any other purpose.
We have been shocked to discover that some states have been selling that information for commercial use or otherwise making it available to the public. That wasn't why we gave the state that information.
We were particularly dismayed to discover that the U.S Secret Service gave a grant to a New Hampshire business to buy state driver's license information, including photos, which was then marketed to private companies.
The discovery that states have been engaging in these practices makes us feel used and betrayed. We feel the state has appropriated our identity without our consent. Worse still, this contributes to a growing perception that we cannot trust our government.
The Driver's Privacy Protection Act, passed in 1994, forbade states from making such information available without providing individuals the option of having their information protected. In other words, individuals had to affirmatively "opt-out" of the system in order to keep their information from being sold. The Supreme Court unanimously upheld this law last year in Condon v. Reno.
Last year, due to the vigilance of Senator Richard Shelby, this law was strengthened by a provision in the Transportation Appropriations bill to change "opt-out" to "opt-in." This means that motor vehicle bureaus must seek each drivers' written consent before selling photos and personal information about individuals who apply for driver's licenses.
This change is very welcome. It not only corrects an injustice but it helps to reassure citizens that the government is not cheating on us behind our backs.
We should be particularly solicitous about government's use of driver's licenses because it appears that driver's licenses have become an extraordinary temptation to various special interests who see them as a means to achieve other objectives. At the federal level, some people want to convert driver's licenses into federal I.D. cards, something that is intolerable in a free society.
The 1996 Immigration Act mandated that state driver's licenses contain machine-readable Social Security numbers as the unique numeric identifier, thereby enabling the federal government to use driver's licenses as a federal I.D. card. After public protest, this requirement was repealed in 1999.
Driver's License Protection is not a stand-alone issue. It comes in the context of the growing issue of privacy and what many see as an orchestrated invasion of our privacy by the government in violation of the Fourth Amendment, as well as by legitimate commercial interests and by fraud and theft. What makes these invasions so easy is the ability of computers to store massive quantities of personal information on databases and access that information in sophisticated ways.
For example, yesterday's New York Times (4-3-00) carries a large front-page news article relating that "Law enforcement authorities are becoming increasingly worried about a sudden, sharp rise in identify theft, the pilfering of people's personal information . . ." William Safire's column of the same date calls attention to two notorious examples of the release of personal privacy information by the White House and the Pentagon. It's bad enough when private interests invade our privacy, but it's positively offensive when the government does this.
This is why Census 2000 has stirred up a firestorm. Americans have become increasingly fearful of giving the government so much personal information that can be so efficiently and rapidly retrieved from computers. Databases give the government extraordinary powers to monitor the daily activities of law-abiding Americans.
The 1996 Welfare Reform Act requires all employers to send the name, address and Social Security number of every new worker, and every employee who is promoted, to a new government database called the Directory of New Hires. We were told that this was just to locate Deadbeat Dads, but now we find that another law passed last year allows this database to be shared with the Department of Education. Another problem with the New Hires Directory is that small banks and credit unions, which can't afford the technology or manpower to search their customer databases every three months for "matches" against state-provided lists of deadbeat dads, are just handing over to the government all confidential information on all their customers and letting the government conduct its own search for "matches."
We in Eagle Forum have long been concerned about the aggressiveness of public schools in requiring children to fill out nosy questionnaires revealing all sorts of non-academic information about attitudes, behavior, health and family privacy. It was offensive enough when all this personal information went into manila file folders, but now it is entered on easily accessible databases where it can be shared with other databases.
The Federal Deposit Insurance Corporation (FDIC) tried to impose a regulation called Know Your Customer -- a plan to require banks to make a computer profile of all their customers' deposits and withdrawals and report "inconsistent" transactions to a federal database in Detroit called the Suspicious Activity Reporting System. After the comment period produced more than 250,000 negative and only 3,000 positive comments, the FDIC backed down and abandoned its plan temporarily.
However, during congressional consideration of the big Financial Modernization bill last year, we discovered that many banks are already making customer profiles and selling them to telemarketers. We are disappointed that the banking lobby successfully blocked Senator Richard Shelby's amendment that would have required banks to get the prior consent of customers before selling private financial information.
The Federal Communications Commission (FCC) has mandated that all wireless providers by 2001 be able to pinpoint the location of wireless phone calls. Cell phones are becoming homing devices for the government to track our whereabouts.
The Federal Aviation Administration (FAA) has proposed a regulation that would effectively give the government unlimited access to everyone's personal travel records. The FAA gave $3.1 million to Northwest Airlines to create software for a database of personal travel records, plus $7.8 million to other airlines to assist in deploying it.
The 1996 Kennedy-Kassebaum Act authorized the Department of Health and Human Services (HHS) to assign a "unique health care identifier" to every American so the government can enter and track individual medical records on a government database. Public reaction was so adverse that Congress put a moratorium on implementation.
The 1993 Comprehensive Childhood Immunization Act gave the Department of Health and Human Services $400 million to induce states to create databases of all children's vaccinations. The Centers for Disease Control (CDC) is trying to link these state databases into a federal database, and this will ultimately enable the government to deny admission to daycare, kindergarten, school or college, or even access to medical care for any child who has not had all government-mandated shots.
Another plan to collect private information on a government database involves sending "home visitors" into the homes of all first-time parents in the project called Healthy Families America. Information is entered on a nationwide computerized tracking system called the Program Information Management System that can eventually be combined with preschool and public school tracking systems.
HHS is recruiting senior citizens to spy on their own physicians by offering a reward of up to $1000 if they call the toll-free "Fraud Hotline" and file a report that leads to a monetary "recovery" from their doctor. The harassment potential is enormous when 39 million seniors start trying to collect a bonus if the doctor's office enters the wrong code number on a Medicare form.
All this government monitoring is allegedly for the purpose of locating terrorists, money launderers, drug kingpins, Medicare and welfare cheats, student loan delinquents, and deadbeat dads. But the reach of this monitoring goes far beyond what is necessary to achieve its purported objectives. Only totalitarian regimes monitor the private actions of law-abiding citizens.
We should prohibit the government from building databases of personal information on American citizens that is none of the government's business. And when the information is the government's business, the information should be allowed to be used only for the purpose for which we give it.