April 9, 2001
Representative Richard Armey
301 Cannon House Office Building
Washington, DC 20515
Dear Majority Leader Armey,
I am writing in response to your letter of April 9 regarding the
protection of privacy in America. The Electronic Privacy
Information Center (EPIC) has worked with many organizations
across the political spectrum on a wide range of privacy issues.
We have opposed Carnivore, Clipper and other efforts to extend law
enforcement surveillance to the Internet, but we have also urged
the adoption of strong privacy safeguards to build consumer trust
and confidence in the new commercial services that are being
developed.
Your letter addresses an issue that is of great concern to many
people. Poll after poll indicates that the majority of Americans
favor government action to safeguard the right of privacy. The
critical question that I do not think you have answered is how
will the House of Representatives under your leadership assure
that one of America's most treasured freedoms is adequately
protected in the years ahead.
As you must certainly know, the protection of privacy in law is
one of the great contributions of the American legal system. When
the framers of the Bill of Rights set out in the Fourth Amendment
a legal procedure that placed a judge between the authority of the
state and the rights of the citizen, they established a structure
that today distinguishes democratic governments from
dictatorships. It is without question a burden to the police that
they may not freely seize evidence, intercept phone calls, or
detain individuals without probable cause, but this is a burden
that every Constitutional democracy accepts as a fundamental
requirement to safeguard the rights of it citizens.
But it is not just with respect to government that our country has
established rights of privacy in law; we have done so also with
respect to actions among private individuals, the practices of
business, the use of new technology, and the collection and use of
personal information for commercial purposes. Our tradition of
protecting privacy rights in law has carried forward with each new
technology. From the privacy provisions in the Radio Act of 1934
that safeguarded the confidentiality of telephone communications,
to computers databases containing bank records and credit reports
in the 1960s and 1970s, cable television subscriber records,
electronic mail, videotape rentals, and auto-dialers and junk
faxes in the 1980s and 1990s, the US Congress has acted to ensure
that the privacy of Americans will be safeguarded as new
technologies emerge. The medical privacy regulations that you have
expressed concern about are the direct result of the automation of
medical information in the United States and the recognition by
Congress that ensuring the rapid and secure exchange of medical
information requires establishing in law basic rights and
responsibilities for the collection and use of healthcare
data.
Our privacy laws, like all laws, are imperfect. But they reflect
at their core a belief that we have the ability, through our
government and our legal institutions, to control the technologies
that we create, to ensure we can obtain the benefits of new
technology and preserve important political values. So, when
privacy and consumer advocates testify in support of restrictions
on government surveillance, safeguards for financial records, and
protections for consumers in electronic commerce, it is with full
regard and understanding of an American legal tradition that has
protected against abuses in both the private and public
sectors.
In understanding the protection of privacy in America it is also
critical to keep in mind the central role that the Congress and
the state legislatures have played in safeguarding privacy. In
some instances, it has been the courts that have established
rights of privacy, but more often it has been the legislature that
has set out by means of statute the rights and responsibilities
associated with the use of personal information in the commercial
realm. Support for these efforts has also cut across political
lines, as the protection of privacy reflects core values in the
American tradition.
Of course, we share your concerns about privacy abuses by
government and we urge you to pursue these issues. There are
several areas where Congress could do much more to safeguard the
privacy of Americans from abuse by government:
1. Congress should establish a permanent agency to oversee
enforcement of the Privacy Act of 1974. Particularly since the
President has indicated that he will not fill the privacy
counselor position at OMB, it is vitally important to the privacy
interests of Americans that strong oversight of the Privacy Act be
established.
2. Congress should hold hearings on such issues as the use of
Census data and the potential for privacy invasion that might
result from some of the proposed commercial uses of information
that is collected under Constitutional authority.
3. Congress should update the federal wiretap statues to take
account of recent efforts by law enforcement to extend
surveillance authority by such means as the use of locational data
and should specifically suspend operation of Carnivore ("DCS
1000") until this matter is addressed.
4. Congress should enact legislation based on the Executive Order
Banning Genetic Discrimination in the Workplace to ensure that
personal genetic information will not be improperly used by the
federal government.
5. Congress should examine the international activities of the
Justice Department and other agencies involved in negotiating
multilateral law enforcement treaties. One such ongoing
negotiation, the Council of Europe's proposed Convention on
Cyber-Crime, contains several controversial provisions that could
jeopardize the privacy of Internet users at home and abroad.
If the House is prepared to take proactive steps to pursue these
goals, we believe there would be strong support across the
political spectrum. But we do not believe that problems with
privacy protection in the federal government should become a basis
for inaction elsewhere.
There is today widespread public support to establish Fair
Information Practices for the collection and use of personal
information in the commercial sector. There is a strong American
tradition to protect privacy in law, many legislative precedents
and broad based public support. The issue is squarely before the
lawmakers: will you ensure that America's long-standing tradition
of protecting privacy in law will be carried forward in the years
ahead?
Sincerely yours,
Marc Rotenberg
Executive Director
Electronic Privacy Information Center