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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