Database Nation

The upside of "zero privacy"

Declan McCullagh from the June 2004 issue

(Page 5 of 5)

To curb these awesome powers, the usual response has been to place specific limits on what government agencies can do. The Fourth Amendment to the U.S. Constitution and laws such as the Privacy Act of 1974 restrict searches and information collection by the government. State constitutions also have long restricted government data collection.

In today's world, halfway measures like the Privacy Act don't go far enough to restrict government abuses. Enacted largely as a result of a federal report on automated data systems, the Privacy Act covers any government-operated "system of records" with personal information on American citizens. It limits the use and disclosure of those records and requires that the databases be protected with "appropriate administrative, technical and physical safeguards" to preserve their security and confidentiality. But Congress could never have envisioned the tremendous outsourcing of databases that has taken place during the last three decades. More and more, the private sector stores information on the feds' behalf and the information in outsourced databases is not covered by the Privacy Act.

Other loopholes exist. Image Data signed a contract with the Secret Service in 1997 to create a national identity database for the federal government. Documents obtained through the Freedom of Information Act show that the Immigration and Naturalization Service, now part of the U.S. Department of Homeland Security, queried private-sector databases 20,000 times a month over the last few years. In fiscal year 2002, the U.S. Department of Justice inked an $11 million contract for access to databases held by ChoicePoint -- a self-described "leading provider of identification and credential verification services for business and government" -- including Americans' names, addresses, previous addresses, places of employment, spouses' names, and Social Security numbers. The FBI now insists, improbably, that the bureau's arrangement with ChoicePoint is so secret that even the contract number may not be disclosed.

Databasification, in other words, does have a dark side: increasing government access to private collections of information. Some privacy activists cite this cooperation as a reason to regulate private databases, which makes as much sense as preventing companies from manufacturing binoculars simply because police can use them for unlawful surveillance. The more sensible approach is to restrict the power of the police to snoop in the first place. That means taking steps such as updating the Privacy Act of 1974 to limit government access to outsourced databases; increasing the authority of inspectors general at federal agencies to monitor data abuses; boosting criminal penalties for lawbreaking cops; requiring police to meet higher standards of proof before perusing databases; and, most important, rethinking the drug laws that invite snooping into Americans' personal lives. (About 78 percent of domestic wiretaps conducted with court oversight in 2002 were for drug offenses. Investigations of violent crimes such as murder, kidnapping, and extortion accounted for just 6 percent.)

Focusing on government power would keep intact the undeniable advantages of databasification -- lower prices, cheaper mortgages, and more-efficient uses of information -- while limiting possible abuses by law enforcement. The aim should be to retain the tremendous benefits of living in a database nation while preventing it from devolving into a police state.