The First Amendment; Miller

WP V8 radio in cooperation with the Institute for democratic communication at Boston University. Now present the First Amendment and a free people. An examination of civil liberties and the media in the 1970s and now here is the director of the Institute for democratic communication Dr. Bernard Rubin. Welcome to this edition of The First Amendment and a free people. My co-host today is Professor Jim Higgins of the School of Journalism communications at Boston University and our guest is Professor Arthur Miller of The Harvard Law School who among other things has been chairman of the Messe commission on privacy and is a frequent expert with congressional committees on technology and the law. He is going to discuss with us and I'm going to use his book's title published in 1971 by the University of Michigan press and available in paperback of the assault on privacy or how cybernetics invades or protects us and our worries about

these things. In that book he mentions. Some of the problems and I'm going to read from the hardback edition professor of on Page 239. The considerable benefits conferred on us by computer technology may opiate our awareness of the price that is being exacted in terms of personal freedom. It just seems imperative to sound the klaxon as a warning that the computer may be precipitating a subtle realignment of power within our society as it begins to play a greater role in the decision making process of practically all of our significant governmental and non-governmental institutions. As the importance of information increases the central issue that emerges to challenge us is how to contain the excesses of this new form of power while channeling its benefits to best serve the citizenry. If we really believe that personal privacy is fundamental to our democratic tradition of individual autonomy and that is

preservation is thought desirable then my raising a voice against the trend toward a dossiers society seems justified end of quote. My first question to you Arthur Miller is how close are we. Despite the protections of recent legislation toward the dossier society towards the cybernetic revolution hurting us. Well I think that in 1976 we are no longer in the position we were in say three years ago of being absolutely defenseless. We used to say the word 1984 minus seven or eight or nine and counting. But I think that in the last few years we have had some very effective fallout from the Watergate phenomenon that has not only increased public sent the sensitivity on the privacy issue but has finally brought to light some of the dossier practices of organizations like the FBI and the

CIA and military intelligence to the point where the Congress is finally exercising its oversight function and beginning to take control of what. Previous to that point had been a rather unregulated surveillance system going on in the United States. So the prognosis as of 76 is not bad it's certainly better than it was in 72 when I wrote that book. But on the other hand there is still an enormous amount of work to be done because I think a lot of people are sitting back and resting on let's say the Federal Privacy Act that just went into effect with the creation of things like the Massachusetts commission on privacy and to a degree these are placebo. They are first generation attempts to deal with a problem that's much harder you're in deep seated then. These little tinkering devices suggest good just before I turn

to Jim Higgins I want to refer to the Privacy Act of 1974 and to the Freedom of Information Act of the same period which is beginning to give us some new clues as to as to our concerns. Basically the concern is that the computer is with us one of the basic concerns that information gets piled up which is very very useful. But the individual citizen is not protected against who uses that information who stores it who asks for it and indeed who drs. it. Despite these facts this is my follow up question. Is the computer gaining over the intricacies or possibilities of the political and neck winds. No I think we've got to avoid the very common practice of treating identifying the computer as a thing in itself and I

try to know computer operates itself know computer programs itself know computer gathers data. There are ways human beings and we tend to think of the computer in anthropomorphic terms that it's a living institution but that is not true. Throughout we have had to control people. We've had to control the FBI and the handling of its manual records in the credit bureaus and the handling of their manual records and now we have to control the way people use computers I think that's my question if for example the FBI or the CIA is asked to eliminate certain data banks because they were held on the wrong people or held for no valid political reason and they say yes we are doing so since you phrase it so beautifully We must control people. What is to prevent in a technological sense people from saying yes we have

done this. And at the same time transferring it over to another data bank system where it still lives still exists. Well thats a very very good question because we had exactly that phenomenon in connection with military intelligence the Army with the army Senator Ervin's work in theory closed down the Military Intelligence Center at Fort Holabird Maryland and four or five years later we discovered that there was a bleed off of the files and that they existed as I got a lot of science fiction movies the non killable bacteria so to speak. Theres only one answer and that is that we have to develop within our corrective mechanisms the kind of technological expertise and the kind of civil liberties orientation. That combination simply represents sort of a counter thrust to any technological prowess in the surveillance agency. It's never going to be 1000 percent

successful. We've just got to reduce the odds. Well I'm interested in your use all the way through the work week. And I'm interested in who are we. Because you talk for example about the Freedom of Information Act Congress either revitalizing or creating for the first time exercising its own oversight responsibility. The Massachusetts commission on privacy but you indicated there were certain limitations to this kind of thing that is that we can't entirely depend on oversight. We can't and totally depend on the legislative action. And you said I think you said that there are other measures other means that we would have to take now what I would be interested in what those are. Well Jim I think what we are seeing

emerge in the law as the law is developing in this area is the recognition that each of us as human beings have certain rights in information particularly when the information's about us. If you want to take the simplest analogy to my informational profile is part of me. I have a right in my informational problem profile and therefore I should have a variety of procedural rights to make sure that my informational profile as it's reflected in files particularly files held by other people and particularly held by powerful people and institutions actually are nonetheless within my access and controls by we I mean the people must be given access rights to their files. The power of challenge the power of notification and correction and not only simply the access and

procedural rights but also sticks sticks by way of civil remedies damage remedies criminal sanctions is costly. Sure no no one ever promised anyone of Rose Garden in terms of the protection of constitution I was interested author in your introduction to your very fine book you said that you wanted Very made very clear that you are not an expert on the computer technologies themselves but you're concerned with the issues and I think this is a problem that I have. I was talking many years ago to a friend of mine at the University of Michigan from University Michigan can organ scheme and he's one of the nicest people I'm one of the most proficient in population analysis population trend world your physics and all the rest of it. Now with his wife. But he had just taken a computer course and he said I wanted to get up on this was about 10 years ago I wanted to get up on this computer business because it was so essential to my work he said but the problem is that the people who know the

issues usually don't know the computers and the people that know the computers usually don't have any issues in their mind he says quite startled to see the average attitude mentality background training of the computer people. My question is how can we ensure that your thoughts will will somehow lead them to stop since they don't really get to the issues they just do their work. Well I am a Macchiavelli and. I must admit and I am feeding on and have been feeding on for a number of years. A late 1960s early 1970 phenomenon that has affected all of American life regardless of what the discipline is and that is guilt. There is massive guilt within the computer profession as to what they are doing. And I am always amazed by the fact that I run into people in various aspects of the computer profession who are as

concerned or more concerned about some of the systems that they are creating particularly the systems that control the bombing runs in Vietnam or the systems that help the law enforcement agencies or the credit bureau agencies. These people are developing a real sense of social consciousness a real professionalism I think to ensure that a variety of technological safeguards are plugged into systems so that the path is easier for the policymakers. And the issue spotters and the technicians to communicate I think there's a growing community of thought that recognizes that. Every technological innovation whether it's the wheel or fire or the internal combustion engine let alone the computer has a series of deleterious side effects and the quicker we spot them and quicker we come to grip with them the more effective the technology is going to be so I am very sanguine that a lot

of the Spartina of defective systems will come from within the computer fraternity itself. Jim Acosta could I could I just take you will to another track because of time. Maybe you want to pursue this let us the question that this might be a good technique Jim you asked the question that you think is most appropriate now that you think is not appropriate. You got to the issues that are raised in Professor Miller's book author's book about such things as the to cut follies where people come in and invade privacy in another way not involving the computer now but involving the basic rights to our personal profile that people who are not in charge of themselves are also entitled to. There is there's Well you know you're really you're really asked that question I think you know I don't want to answer it. MILLER I will answer it but it would seem to me there are two issues involved in such a thing as the Follies. One is as to whether the public as a whole has a right to know what goes on inside the public institutions and the other is I

suppose as a newspaper editor for 20 years and I was always. Very concerned about the vulnerability let's say of the disadvantaged of the helpless of the victims of the society the vulnerability of these people to information that could be gathered against them with with impunity. I wanted to get back to you know do I want to ask another question because you spoke about deleterious side effects I would think in the for example bombing runs in Vietnam that there were some deleterious direct effects comprehensible effects and it seems to me what you raised is a question of political policy as well as a technological question of how you build in control so that side effects deleterious side effects don't appear. Yeah. Yes I think you're quite right. I think the whole issue of data banking.

Proceed to two levels first. Is this databank really necessary. I mean do we need a data bank such as the one that was created by military intelligence. Can you socially justify collecting information about politically active Americans in the name of internal security. The second question is even if you can justify such a system what kind of political social human technological administrative controls do you put over the decision making that decides aid goes into the bank. But B doesn't go into the bank or X item of information is relevant to internal security and want y element of information is not. These questions are of enormous sophistication and the problem is that we have historically abdicated to people with mission orientation with the line responsibility to make those decisions

what bothers me the logic of. That's why I'm not quite as sanguine author is because when I look back at Eisenhower's farewell address warning about the military industrial complex which he said could exist for its own sake as it were. When you look back on such novelized treatments of future events novelists a futurologist are they not Seven Days in May were a military base was set up using the computer in an attempted overthrow in the novel was made on the United States government. Will you look back on the direction of the military bombing or their absolute requirements of producing a new military airplane. It seems to me that the political process is not responding well enough. Two to check and safeguard. I think that the the crisis could come and we would be overwhelmed before we would realize that we didn't check up on as a very vital point. Is this too pessimistic. Well it's too pessimistic. You know I don't know

that it's too pessimistic I would agree with you that those risks do exist and probably always will exist. I am not at all confident that no matter how much energy you devoted to the safeguarding process you would ever eliminate those risks. It's like then the image that the computer necks always offer they when they're asked can you devise a claque proof or foolproof data bank. The answer is No. And the image is there has never been a lock without a key to it. All you can do is play probabilistic games in a sense of making the cost of intrusion on a system sufficiently high. So that cost effectiveness really deters the people who would seek access. The answer to that of course is that in certain climates cost is not a deterrent to seeking access to a system nor to take the image back one level cost often is never a deterrent to

establishing the system. That is true in terms of some of the surveillance banks. My source of optimism. It's guarded optimism stems from the fact that for the first time in the history of intelligence agencies in the United States the political arm known as the Congress is starting to infiltrate oversight mechanisms we had last summer was last winter too hard for me to remember a Senate vote creating a lead Legislative Oversight Committee on the CIA now assuming it doesn't become a captive of the CIA always arrest. That was a watershed occurrence because it's never happened before that we put legislative controls on the day to day operation of the CIA whether we can do anything more than that. I don't know. Well as Alice said to the Mad Hatter how if if the if

the Congress cannot handle oversight of the Social Security system which is relatively simple amazingly complex but relatively simple when compared to the the wider issue that you're discussing ather can the Congress in defense of the First Amendment. Oversee agencies which by law are given immense protections despite all that happened to maintain the secrecy and which indeed they must have if they are to carry out their mission alone. Congress cannot do it but Congress in conjunction with that sort of rag tag grab bag assembly of social activists. Obviously I'm not being pejorative about that whether they're Nader's Raiders or the ACLU or whatever group you want to name. If those people are given procedural rights to look over the shoulders of the file keepers those people in conjunction with Congress I think can do about all.

Now we can possibly be much more optimistic when it comes to the Freedom of Information Act provisions than I am about the computer and data banks themselves because if you ask for information that is in the far in the in the regular narrative sense that's most of the information that is given is not testable data but narrative data you can get it it's tedious but now we have the legislation. But people don't even know how to ask for other kinds of data. That's where I think the social activist groups come in and advising people who ask of a friend that I've mentioned to you before Bernie Wilson that Princeton teaches a course in the politics of civil liberties and who is writing letters to all and sundry among his friends I've received one instructing them how to go about asking for any information that federal security agencies might have and so forth so I think the responsibility does come to this. What the other called a grab bag collection of. Very were these social activists such as the

nadir of the Civil Liberties Union. But I thought I'd like to ask either another question which has to do with the First Amendment. It seems to me in one way that you could interpret the freedom of speech and press because of the First Amendment as almost guaranteeing the press the right to invade privacy to assault privacy. Is that over or am I going too far in that kind of interpretation. No no certainly I've spoken to enough of your colleagues who would say you're being too conservative. I think you've just put your finger on what I suspect is going to be a cataclysmic confrontation between the right of privacy and First Amendment values over the next 10 decades I think we've already had some previews of this in some Supreme Court decisions of recent vintage. Look at some of the statutes that we have we have right here in Massachusetts a statute that says that no one can get access to criminal offender record

information other than the subject of that file. Our law enforcement agency or governmental agencies authorized by law. There's nothing in that statute that says Vote press can gain access to criminal ofen to record information not take this very simple scenario. Somebody is running for public office. An investigative reporter on Hunt sure didn't believes that this individual may have had a criminal offense either a simple charge or actual conviction 20 years earlier. Normal investigative reporting yields nothing. Can that individual go to the centralized records in this state by the probation department and say I would like to see John Smith's criminal offender record information. The statute says no. But it seems to me that if this case were

taken to court some judge would tear his or her hair out trying to figure out how to resolve the confrontation between the press and the law over this privacy even in the recent ruling of the Supreme Court unanimously. Striking down the Nebraska ruling for gagging the press in that murder trial the Simons murder trial. This doesn't say a word about judges not being allowed to seal records outright grand jury or anything else. What is left out is even more significant than what has transpired exactly servo The same is true of the decision a year ago when Cox Broadcasting vs. CONAN involving the public disclosure of the name of a deceased rape victim in violation of Georgia law. Now the Supreme Court threw that out but all that case deals with is public records and there's nothing in that opinion to suggest that a state could not adopt as a matter of social policy a rule that said criminal records are sealed or

to be expunged or unavailable to the media. You know I just. By the by the time this program is there this may be moot but we happen to be recording this program some weeks before it will be aired and I heard on my car radio this morning which is in late July that in some of Bill a report of the C program the federal program employment program there has just been impounded by a judge on the petition of six citizens that this report invades their right to privacy. And the judge has in a sense put the put the report in the safe for the time being now what will happen as a result of this I don't I don't know. I would like to ask another general question in relationship to this First Amendment issue because you put the press and in the I would say or rather good light in attempting to find out

whether or not a candidate for public office may or may not have had a criminal record. At the same time what is your feeling about the conduct of the press in relationship to the what you call the right of profit privacy which I can find as a matter of fact no statutory base for and you mention in your book as a psychological base and there is a historical basis for that whereas the right of privacy is spelled out and whatever it's presented as one of its definitions. Well there are those who say that if you read your constitution by candlelight it will become apparent that is indeed one of the great weaknesses that the pro privacy people have to deal with that unlike the press closer to themselves in the first amendment there is no word in the Constitution with the possible exception of the limited concept of search and seizure rights Fourth Amendment. There really

deals with privacy and number last. The Supreme Court has at least recognized a right of privacy that is constitutionally based in terms of certain what are called zones of privacy. For example Griswold case and Stanley vs. Georgia suggest that there is something of a zone of privacy in the home and within the family to conduct certain kinds of conduct such as contraception and in the pornography in the home. Then again in Roe versus Wade the Supreme Court of the United States in the context of whether a state could criminalize abortion quite clearly said there is a constitutional right of privacy in the human body although that doesn't mean we can commit suicide of the old drug cases and search and seizure when they would use this dumb gun to get the drugs they read. God referred to the right of a visitation and I remember one line what is more private than one's

interests. He said the border of there was one case involving the stomach pump and one case involving an enema and somebody wrote an article due process as above and below the belt. In any event there it is there is at least some physical and associational privacy but the Supreme Court has been reluctant to recognize informational privacy. Yes so absent a constitutional basis to answer your question I'd have to then point to the statutes that are emerging. Recognizing privacy or to a whole host of common law decisions that are building up involving for example arrest records. Yes in terms of the sources of privacy but those of us who fight on the privacy law on the side of the line recognize that you people on the media side have that kind of constitutional advantage you know. Well we have all sorts of constitutional advantages but we don't have any advantages when that old clock and then turns around we are we are the victims of its movements.

I want to thank you Arthur Miller professor of law at the Harvard Law School for being our distinguished guest today and I want to thank my co-host for this session. Jim Higgins from the school of public communication at Boston University. This is Bernard Rubin saying good night. There will be a few VHF radio far from in cooperation with the Institute for democratic communication for the Boston University has presented the First Amendment and a free paper an examination of civil liberties and the media. In the 1970s this program was recorded in the studios of WGBH radio Boston.