Privacy leading light Alan Westin passed away this week. Almost fifty years ago, Westin started his trailblazing work helping us understand the dangers of surveillance technologies. Building on the work that Warren and Brandeis started in “The Right to Privacy” in 1898, Westin published Privacy and Freedom in 1967. A year later, he took his normative case for privacy to the trenches. As Director of the National Academy of Science’s Computer Science and Engineering Board, he and a team of researchers studied governmental, commercial, and private organizations using databases to amass, use, and share personal information. Westin’s team interviewed 55 organizations, from local law enforcement, federal agencies like the Social Security Administration, and direct-mail companies like R.L. Polk (a predecessor to our behavioral advertising industry).
The 1972 report, Databanks in a Free Society: Computers, Record-Keeping, and Privacy, is a masterpiece. With 14 case studies, the report made clear the extent to which public and private entities had been building substantial computerized dossiers of people’s activities and the risks to economic livelihood, reputation, and self-determination. It demonstrated the unrestrained nature of data collection and sharing, with driver’s license bureaus selling personal information to direct-mail companies and law enforcement sharing arrest records with local and state agencies for employment and licensing matters. Surely influenced by Westin’s earlier work, some data collectors, like the Kansas City Police Department, talked to the team about privacy protections, suggesting the need for verification of source documents, audit logs, passwords, and discipline for improper use of data. Westin’s report called for data collectors to adopt ethical procedures for data collection and sharing, including procedural protections such as notice and chance to correct inaccurate or incomplete information, data minimization requirements, and sharing limits.
Westin’s work shaped the debate about the right to privacy at the dawn of our surveillance era. His changing making agenda was front and center of the Privacy Act of 1974. In the early 1970s, nearly fifty congressional hearings and reports investigated a range of data privacy issues, including the use of census records, access to criminal history records, employers’ use of lie detector tests, and the military and law enforcement’s monitoring of political dissidents. State and federal executives spearheaded investigations of surveillance technologies including a proposed National Databank Center.
Just as public discourse was consumed with the “data-bank problem,” the courts began to pay attention. In Whalen v. Roe, a 1977 case involving New York’s mandatory collection of prescription drug records, the Supreme Court strongly suggested that the Constitution contains a right to information privacy based on substantive due process. Although it held that the state prescription drug database did not violate the constitutional right to information privacy because it was adequately secured, the Court recognized an individual’s interest in avoiding disclosure of certain kinds of personal information. Writing for the Court, Justice Stevens noted the “threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files.” In a concurring opinion, Justice Brennan warned that the “central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.”
What Westin underscored so long ago, and what Whalen v. Roe signaled, technologies used for broad, indiscriminate, and intrusive public surveillance threaten liberty interests. Last term, in United States v. Jones, the Supreme Court signaled that these concerns have Fourth Amendment salience. Concurring opinions indicate that at least five justices have serious Fourth Amendment concerns about law enforcement’s growing surveillance capabilities. Those justices insisted that citizens have reasonable expectations of privacy in substantial quantities of personal information. In our article “The Right to Quantitative Privacy,” David Gray and I are seeking to carry forward Westin’s insights (and those of Brandeis and Warren before him) into the Fourth Amendment arena as the five concurring justices in Jones suggested. More on that to come, but for now, let’s thank Alan Westin for his extraordinary work on the “computerized databanks” problem.