I know everybody's income and what everybody earns;
And I carefully compare it with the income-tax returns;
To everybody's prejudice I know a thing or two;
I can tell a woman's age in half a minute-and I do!
Yet everybody says I am a disagreeable man!
And I can't think why!

King Gama in Gilbert and Sullivan's Princess Ida

IV. Recommended Safe guards for Administrative Personal Data Systems

Our inquiry has led us to distinguish two categories of personal data systems that deserve separate attention in developing safeguards. One consists of administrative systems; the other of statistical-reporting and research systems. The essential distinction between the two categories is functional. An administrative personal data system maintains data on individuals for the purpose of affecting them directly as individuals-for making determinations relating to their qualifications, character, rights, opportunities, or benefits. A statistical-reporting or research system maintains data about individuals exclusively for statistical reporting or research, is not intended to be used to affect any individual directly.'

In our brief review of the history of record keeping in Chapter 1, we took note of the origins and existence of intelligence records. These should be thought of as a type of administrative personal data system, since intelligence records are maintained about people for the purpose of affecting them directly as individuals. We have not, however, examined intelligence record-keeping systems as such, and it was not with such systems in mind that we developed the safeguard recommendations set forth in this chapter. At the end of the chapter, we have included a brief statement about the application of our safeguards to intelligence records.

This chapter contains general recommendations for all personal data systems and safeguard requirements for administrative personal data systems used as such. Chapter V contains additional safeguard requirements for statistical-reporting and research applications of administrative systems. Systems maintained exclusively f or statistical reporting or research and safeguard requirements for them are addressed in Chapter VI.

Although our specific charge has been to analyze problems of automated systems, our recommendations could wisely be applied to all personal data systems, whether automated or manual. Computer-based systems magnify some record-keeping problems and introduce others, but no matter how data are stored, any maintenance of personal data presents some of the problems discussed in Chapters II and III. Moreover, the distinction between an automated and a non-automated system is not always easy to draw; requiring safeguards for all personal data systems eliminates the need to rule on ambiguous cases. Uniform application of safeguards to all systems will also facilitate conversion from manual to automated data processing when it does occur.

We define an automated personal data system as a collection of records containing personal data that can be associated with identifiable individuals, and that are stored, in whole or in part, in computer-accessible files. Data can be "associated with identifiable individuals" by means of some specific identification, such as name or Social Security number, or because they include personal characteristics that make it possible to identify an individual with reasonable certainty. 'Tersonal data" include all data that describe anything about an individual, such as identifying characteristics, measurements, test scores; that evidence things done by or to an individual, such as records of financial transactions, medical treatment, or other services; or that afford a clear basis for inferring personal characteristics or things done by or to an individual, such as the mere record of his presence in a place, attendance at a meeting, or admission to some type of service institution. "Computer-accessible" means recorded on magnetic tape, magnetic disk, magnetic drum, punched card, or optically scannable paper or film. A "data system" includes all processing operations, from initial collection of data through all uses of the data. Data recorded on questionnaires, or stored in microfilm archives, are considered part of the data system, even when the computer- accessible files themselves do not contain identifying information.

Consistent with the rationale set forth in Chapter III, we recommend the enactment of legislation establishing a Code of Fair Information Practice for all Automated personal data systems.

. The Code should define "fair information practice" as adherence to specified safeguard requirements. (Safeguard requirements for administrative personal data systems are set out below; those for statistical-reporting and research systems will be found in Chapter VI.)

. The Code should prohibit violation of any safeguard requirement as an "unfair information practice."

The Code should provide that an unfair information practice be subject to both civil and criminal penalties.

. The Code should provide for injunctions to prevent violation of any safeguard requirement.

The Code should give individuals the right to bring suits for unfair information practices to recover actual, liquidated, and punitive damages, in individual or class actions. It should also provide for recovery of reasonable attorneys' fees and other costs of litigation incurred by individuals who bring successful suits.

Pending the enactment of a code of fair information practice, we recommend that all Federal agencies (i) apply the safeguard, requirements, by administrative action, to all Federal systems, and (ii) assure, through formal rule making, that the safeguard requirements are applied to all other systems within reach of the Federal government's authority. Pending the enactment of a code of fair information practice, we urge that State and local governments, the institutions within reach of their authority, and all private organizations adopt the safeguard requirements by whatever means are appropriate. Labor unions, for example, might find the application of the safeguards to employee records an appropriate issue in collective bargaining.

Establishing Automated Personal Data Systems

We were not charged with developing criteria for determining when and for what purposes to establish personal data systems. It is doubtful that any such criteria are feasible or warranted. Our inquiry, however, has prompted us to make cautionary observations to those who must decide whether, when, and how to establish automated personal data systems.

The general proposition that records and record-keeping systems are desirable and useful does not necessarily apply to every system. Some data systems appear to serve no clearly defined purpose; some appear to be overly ambitious in scale; others are poorly designed; and still others contain inaccurate data.

Each time a new personal data system is proposed (or expansion of an existing system is contemplated) those responsible for the activity the system will serve, as well as those specifical ly charged with designing and implementing the system, should answer explicitly such questions as:

What purposes will be served by the system and the data to be collected?

How might the same purposes be accomplished without collecting these data?

If the system is an administrative personal data system, are the proposed data items limited to those necessary for making required administrative decisions about individuals as individuals?

Is it necessary to store individually identifiable personal data in computer-accessible form, and, if so, how much?

Is the length of time proposed for retaining the data in identifiable form warranted by their anticipated uses?

A careful consideration of questions such as these might avert the establishment of some systems. Even if a proposed system survives a searching examination of the need for it, the very process should at least suggest limitations on the. collection and storage of data.

Formalized administrative procedures and requirements should be followed to assure that questions about the purposes, scope, and utility of systems are raised and confronted before systems are established or enlarged. Members of the public should also have an opportunity to comment on systems before they are created.

It is especially important that such procedures be followed whenever data -collection requirements, imposed by any Federal department or agency on States, other grantees, or regulated organizations, are likely to result in the creation or enlargement of personal data systems. In our view, any such data collection requirement should be established by regulations adopted after the public has been given an opportunity to comment, rather than by less formal means, such as program guidelines or manuals. Adoption of a regulation also forces a Federal agency to go through a formal process of internal justification and executive review. In the case of Federal data-collection requirements, the notice of any proposed regulation should contain a clear explanation of why each item of data is to be collected and why it must be collected and stored in identifiable form, if such is proposed.

The Safeguard Requirements

An automated personal data system should operate in conformity with safeguard requirements that, as stated above, should be enacted as part of a code of fair information practice. It is difficult to formulate safeguard requirements that will assure, in every system, an appropriate balance between the interest of the individual in controlling information about himself and all other interests-institutional and societal. However, because the safeguards we recommend are so basic to assuring fairness in personal data record keeping, any particular system, or class of systems, should be exempted from any one of them only for strong and explicitly justified reason.

If organizations maintaining personal data systems are left free to decide for themselves when and to what extent to adhere fully to the safeguard requirements, the aim of establishing by law a basic code of fair information practice will be frustrated. Thus, exemptions from, or modifications of, any of the safeguard requirements should be made only as specifically provided by statute, and there should be no exemption or modification unless a societal interest in allowing it can be shown to be clearly paramount

Safeguards for Administrative Personal Data Systems

to the interest of individuals in having the requirement imposed. "Societal interest," moreover, should not be construed as equivalent to the convenience or efficiency of organizations that maintain data systems, the preference of a professional group, or the welfare of individual data subjects as defined by system users or operators.

Existing policies that guide the handling of personal data should not be uncritically accepted or reaffirmed. Nor should the basic "least common denominator" quality of the safeguards discourage law-making bodies, or organizations maintaining personal data systems, from providing individuals greater protection than the safeguards offer. Existing laws or regulations that provide, protections greater than the safeguards should be retained; those that provide less protection should be amended to meet the standards set by the safeguards.



A. Any organization maintaining a record of individually identifiable personal data, which it does not maintain as part of an administrative automated personal data, system, shall make no transfer of any such data to another organization without the prior informed consent of the individual to whom the data pertain, if, as a consequence of the transfer, such data wil I become part of an administrative automated personal data system that is not subject to these safeguard requirements.

All other safeguard requirements for administrative personal data systems have been formulated to apply only to automated systems. As suggested earlier, the safeguards would wisely be applied to all personal data systems that affect individuals directly, whether or not they are automated. If this is not done, however, it is necessary to assure that individuals about whom an organization maintains records of personal data, which are not part of an automated system, will be protected in the event that personal data from those records are transferred to automated systems. Requirement LA. is intended to provide such protection by requiring that transfers of personal data to automated systems not subject to the safeguard requirements be made only with' the informed consent of the individuals to whom the data pertain.

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