PRESERVING THE PRIVACY ACT

Statement of Frank Askin
ACLU General Counsel

The Supreme Court will get another chance this term to rescue the Federal Privacy Act from deconstruction by the federal judiciary when it reviews the ACLU’s petition for certiorari in Lance Lindblom v. Federal Bureau of Investigation (97-82).

The Privacy Act was enacted in 1974 following a cascade of revelations about political spying by the federal Bureau of Investigation and other government intelligence agencies. Hearings before multiple Congressional committees had revealed that J. Edgar Hoover had turned the FBI into a virtual political strike force through massive surveillance and infiltration of left and liberal political movements. Additionally, the CIA and military intelligence had set up their own programs for monitoring lawful domestic political activity by civil rights and anti-war advocates.

In the early Seventies, I twice accompanied to Capitol Hill a client, on whose behalf I was suing the FBI, to testify in favor of the proposed legislation. My client, a 15-year-old high school student from suburban Mendham, New Jersey, whose FBI field investigation was triggered by a letter she wrote to a left-wing organization as part of a homework assignment, was an especially effective witness. Her academic diligence had earned her a permanent place in the FBI’s computers with an index number that indicated she had been investigated for “subversive activity.”

While the government conceded that it didn’t really consider my client a security threat, the Bureau’s cataloging system could not distinguish between “subversives” and “non-subversives.” All that any future peruser of the FBI’s files would know was that she had once been the target of a “subversive” investigation.

The public outrage over the revelations of the Watergate investigation, the Pike Committee in the House, and the Church and Ervin Committees in the Senate resulted in the overwhelming passage of the Privacy Act. A key section of the act,(E)(7), dealt specifically with the collection and maintenance of information on individuals’ political activities and associations. It forbade agencies of the federal government from collecting, maintaining, using or disseminating “any record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.” The legislation seemed to preclude the possibility of the nation’s ever reverting to a situation in which a national police agency would be the repository for dossiers on the political behavior of millions of law-abiding citizens.

The most recent person to be disabused by a federal court of the notion that this provision prohibited the FBI from keeping a permanent file on his lawful political behavior is Lance Lindblom, former president of the J. Roderick MacArthur Foundation, now a program officer at the Ford Foundation.

The FBI opened a file on Mr. Lindblom in 1985 when, as part of his foundation activities, he and several other prominent Americans accompanied a dissident South Korean politician, Kim Dae Jung, on a well-publicized trip back to South Korea from exile. The group was concerned that Kim Dae Jung might be assassinated by political opponents.

In 1989, the FBI conceded, pursuant to a request submitted under the Freedom of Information Act, that it still maintained a file describing Mr. Lindblom’s First Amendment activities, including his association with Kim Dae Jung. However, the bureau refused to expunge the file despite Mr. Lindblom’s unchallenged insistence that its maintenance was no longer pertinent to any ongoing law enforcement activity.

Mr. Lindblom, represented by the Illinois ACLU, sued for expungement of his file. The Federal District Court agreed with the FBI that once the bureau had a legitimate reason for collecting the information in the first place, it could maintain it (apparently) in perpetuity. With one judge objecting that the court was reading the word “maintain” out of the Privacy Act, the Court of Appeals for the District of Columbia upheld the decision.

The result was not all that surprising. Federal judges mainly appointed by Presidents Reagan and Bush have consistently refused to recognize the far-reaching implications of the work of the Watergate-era Congress in the area of political privacy. The courts have essentially given carte-blanche to the federal intelligence agencies to return to their old, discredited ways when J. Edgar Hoover was our national political policeman. In another case, the courts ruled that it was perfectly all right for the FBI to maintain a permanent file describing my client’s correspondence with Communist governments, even though it was well aware that he was a precocious teenager who instituted his correspondence when he was 11 years old, in an effort to compile his own private world encyclopedia.

Up to now, the Supreme Court has declined to involve itself in the Privacy Act issue, apparently content to allow lower court judges to eviscerate its provisions. However, recent events have revealed that it is not only political radicals, diligent teenagers and human rights activists who object to Big Brother’s keeping tabs on them. The White House Filegate incident disclosed that even conservative Republicans can be victimized by the misuse of FBI files. Now that the issue has hit closer to home, hopefully some of the politically conservative Justices will be willing to accept Mr. Lindblom’s petition to take a fresh look at Big Brother’s insidious practices.