vol. 32, no. 6

American

Civil Liberties

Union

Volume XXXII

SAN FRANCISCO, JUNE, 1967

Miarin Chapter Pot Luck

. "The Death Penalty-A Cruel and Unusual Punish-

ment?" will be the subject of the 13th Annual Potluck

of the Marin Chapter ACLUNC on Saturday, June 17

at The Katharine Branson School in Ross.

Featured speakers are State Senator George Mos-

| cone of San Francisco and Dr. Price Cobbs, president

of "Death Row '67." (A Hollywood star is expected also.)

To reach The Katharine Branson School, take High-

| way 101 to the San Anselmo exit. Follow `Sir Francis

Drake Blvd. 3.6 miles to Bolinas Ave., turn left and fol-

low signs.

beginning with A-G bring salad, H-Z hot dish. Please

bring sufficient for three times the number in your

party. Coffee and ice cream provided. -

Donation $2.00, students $1.00 R.S.V.P. 479-3155.

Saturday, June 17

In a case handled by the Arizona ACLU, the U.S. Su-

preme Court on May 16, in a far-reaching decision, ruled

that juvenile delinquents are entitled to many of the pro-

cedural protections required by the Bill of rights. "Neither |

the 14th Amendment nor the Bill of Rights is for adults

_onty,"" said the court. At another

point, the court declared that

"Under our Constitution, the con-

dition of being a boy does not

justify a kangaroo court."

The court's opinion was writ-

ten by Justice Abe Fortas. It

holds that the following pro-

cedural safeguards must be ac-

corded in juvenile delinquency

hearings:

1. Timely notice of the charges;

2. "... the child and his par-

ents must be notified of the

child's right to be represented

by counsel retained by them, or

if they are unable to afford coun-

_ gel, that counsel will be appoint-

ed to represent the child."

Confessions

3. ".. . the constitutional privi-

lege against self -incrimination

is applicable in the case of ju-

veniles as it is with respect to

adults. We appreciate that spe-

cial problems may arise with re-

Death Penalty:

Cruel and Unusual

/ 6

Punishment :

The ACLUNC board of direc-

tors last month took the position

that the death penalty per se

constitutes cruel and unusual

punishment. It thereby reversed

a policy it had held for many

years and brings the branch into

conformity with the national

ACLU policy adopted in 1965.

The board did not spell out the

reasons why the death penalty

constitutes cruel and unusual

punishment. It has always been

willing to raise due process ques-

tions in death penalty cases and

recently it voted to challenge

the penalty trials in death cases,

on the ground that there are no

"standards for juries to determine

who shall receive, the death pen-

alty.

The Board also agreed to par-

ticipate in a proposed mass test

suit similar to one that was re-

cently filed in the US. District

Court in Florida. CAdderly VS.

Maat

spect to waiver of the privilege

by or on behalf of children, and

that there may may well be some

difference in technique - but

not in principle - depending

upon the age of the child and

the presence and competence of

parents."

4, . . absent a valid confes-

sion, a determination of delin-

quency and an order of commit-

ment to a state institution cannot

be sustained in the absence of

sworn testimony subjected to

the opportunity for cross-exam-

ination in accordance with our

Jaw and constitutional require- ~

ments."

Undecided Matters

The court pointed out that its

decision did not `consider the

impact of these constitutional

provisions upon the totality of

the relationship of the juvenile "

and the state. We do not even

consider the entire process relat-

ing to juvenile `delinquents.' For

example, we are not here con-

cerned with the procedures or

constiutional rights applicable to

the pre-judicial stages of the

juvenile process, nor do we di-

rect our attention to the. post-

adjudicative or dispositional

process."

Justice Stewart dissented. Jus-

tices White and Harlan dissented

in part.

ACLU Publishes

Report for

1963-1966

The ACLUNC last month pub-

lished a 100-page report of its

activities roughly for the period

July 1963-June 30, 1966. Every

member will soon receive a copy

of the report. Additional copies

may be secured at 50 cents each:

The report, prepared by Pam-

ela Ford, is dedicated to Mrs.

Helen Salz, artist, civic leader,

co-founder of the ACLU of

Northern California in Septem-

ber, 1934, and vice-chairman,

branch board of directors.

Number 6

ACLU Protests

Gag Rule

On Lawyers

The State Bar of California

has given notice that it is con-

sidering a new rule of profes-

sional conduct by lawyers known

as Rule 2(b). This rule would

prohibit a member of the State

Bar from "directly or indirect-

ly" making or authorizing the

making of any press release,

statement or other disclosure of

information, whether of alleged

facts or of opinion relating to

any pending or anticipated civil,

criminal or other judicial pro-

eeeding, "if there is a reason-

able likelihood that such

disclosure will interfere with a

fair trial or otherwise prejudice

the due administration of jus-

tice." The ACLUNC has in

formed the Board of Governors

' that in

its opinion this rule

would violate the First Amend-

ment to the United States Con-

stitution as applied through the

Due Process Clause of the Four-

teenth Amendment becuase it is

vague and thus inhibits law-

yers' expression because of the

uncertainty of the application

of the rule.

Unwise and Unconstitutional

In a letter to the Board of

Governors sent March 28, 1967,

the ACLU states: "Although

its objective is laudable, and we

are certainly ag devoted as any-

one to the concept of a fair

trial, Rule 2(b) is both unwise

and unconstitutional." The let-

ter continues: "The adoption of

Rule 2(b) would make expres-

sion of views by members of the

Bar on controversial legal mat-

ters a very dangerous occupa-

tion. And that is the most im-

portant infirmity in the pro-

posed rule, For not only is it

vague, but its vagueness extends

to areas protected by the First

Amendment to the United States

Constitution. As the United

States Supreme Court has ob-

served, standards of permissible

statutory vagueness are strict in

the area of free expression be-

cause First Amendment free-

doms need breathing space to

survive."

The letter concludes: "For the

foregoing reasons, we respect-

fully suggest that Rule 2(b) in

its present form be abandoned

and that the drafting of a new

proposed rule be commenced, a

rule that will take constitutional

standards into account. It may

be that the preservation of a fair

trial should be left to the judge

in an individual case where a

fair trial is in jeopardy. Coun-

sels of perfection laid down in

advance do not seem to yield

solutions to the hard individual

problems in this area."

Lawyers Support ACLU

Copies of the letter to the

- Board of. Governors were sent

to a group of ACLUNC cooper-

ating attorneys in Northern Cali-

fornia and the support of the

ACLU position on the proposed

rule has been strongly expressed

by many of these lawyers in

their own letters to the Board of

Governors. Lawyers are encour-

aged to check the full text of

the rule published in the Janu-

ary-February 1967 issue of the

Journal of the State Bar of Cali-

fornia and then to write to the

Board of Governors expressing

their views on the proposed

rule.

Paul Halvonik's Report

SB 392 (Schmitz), characterized during Senate debate as

nothing more nor less than a "snitch bill" by Sen. George

Moscone (D-S.F.), would have made welfare disbursement

records "available to public inspection, and... treated in

all respects as public records." Such records are presently -

available only to the District At-

torney upon his request. The bill

passed the Senate when Lieuten-

ant Governor Finch cast a vote in

its favor to break a 20-20 tie.

This incredible invasion of the

privacy of welfare recipients re-

eeived short shrift in the Assem-

bly Committee on Social Welfare

where a motion by Assemblyman

William Ketchum (R-Kern) to

send the bill to the Assembly

floor with a "do pass" recom-

mendation failed for lack of a

_ second.

- Anti-Communist Bill

`SB 734 (Whetmore), perhaps

the most confusing bit of legis-

lation introduced this session,

has passed the State Senate and

has been sent to the Assembly.

The confusion surrounding the

bill was made manifest during

the Senate debate on the meas-

ure when the author Senator

Whetmore (R-Fullerton), ob-

served that his bill would not

prohibit Communists from speak-

ing at any public school and his

supporters all proclaimed it an

excellent bill since it would pro-

hibit Communists from speaking

at public schools. The bill's pas-

sage, in light of these conflicting

interpretations, can be attributed

to two factors: (1) an anti-com-

munist bill has endemic appeal

and (2) the office of Legislative

Counsel stated that, in its opin-

ion, the bill was constitutional.

SB 734 would prohibit any per-.

son who is speaking to an assem-

bly of students at the request of

teachers or student organizations

o "advocate or teach communism

with the intent to indoctrinate

any student with, or inculcate a

preference in the mind of any

student for, communism." The

bill then goes on to define such

"advocacy with intent to indoc-

trinate, etc.," as that which ``pro-

duces a clear and present and im-

mediate danger of inciting stu-

dents to unlawful action to over-_

throw their government." Defin-

ing "indoctrinate" to mean "in-

citement to overthrow" is, to say

the least, confusing and provides

unconstitutionally vague stand-

ards for conduct. The problem is

exacerbated by the bill's excep-

tion of a certain type of advocacy,

to wit: "the teaching of the facts

of [communism] in the abstract

.-." Abstractions are by defini-

tion not facts but essences dis-

tilled from facts. The exception

is pure nonsense. Moreover, the

bill prohibits advocacy of over-

throw of the United States Gov-

ernment and the United States

Supreme Court,:in the case of -

Pennsylvania v. Nelson, held that

all such state laws were invalid

because the federal government

has occupied the field of sedi-

tion and state statutes thus run

afoul of the Supremacy Clause

_ the United States Constitu-

ion, :

_ In the hearing on SB 734, held

before the Senate Education.

Committee, ACLUNC attempted

to make these constitutional

points which were ignored by the

-Continued on Page 2

Wine-Tasting

Reception

@ The Santa Clara Valley A

Chapter of ACLUNC is hold-0x00A7

fing a wine tasting reception, 0x00A7

Sunday, June 11, 1967, from@

| 2-5 p.m. at New Horizens Spa, 0x00A7

eur Creek Road, Saratoga, |

gone mile from Highway 17.3

# The reception is open to the f

public. f

Speaker: Peter Sitkin, attor- 0x00A7

ney for San Francisco Legal 0x00A7

f Assistance Foundation, dis-|

cussing "Legal Aid for the}

| Poor."

New members and persons

| wishing te learn more about |

sj the ACLU are especially in-/

Fvited to attend, to get ac-}

| quainted with members in the }

4 area and to join in the social}

occasion.

Swimming, wine, cheese. |

# Donation, $2.50 per person. |

For reservations call: Evelyn 0x00A7

Lages, 264-4038, or David Stu-|

art, 243-0468. . i

ACLU of Oregon Claims Major

@

Victory

"An important gain for free-

dom of expression" is how the

American Civil Liberties Union

of Oregon described a recent

court decision which expands

the permissible political activi-

ties of federal and other public

employees. The decision, involv-

ing Corvallis, Oregon, postal

worker Alden Gray, declares in-

valid a U.S. Civil Service Com-

mission rule that the Hatch Act

prohibits federal employees from

addressing a political meeting.

According to the Oregon

ACLU, the decision affects 212

million civilian employees of the

federal government and all state

and local government employees

involved in programs using fed-

eral funds.

Gray was discharged from his

Corvallis post office job in 1963

`aS punishment for alleged viola-

tions of the Hatch Act. One of

the charges against Gray was

that he addressed a meeting of

the Benton County Democratic

Central Committee stating his

views on a resolution under con-

sideration by the Committee.

The Federal District Court for

Oregon upheld the Civil Service

in Hatch Act Case.

Commission when the ACLU of

Oregon challenged the Commis-

sion's ruling. The Oregon ACLU

then appealed the case to the

U.S. Court of Appeals for the

Ninth Circuit which reversed

the District Court's decision.

The Court of Appeals stated

in its decision that Gray's speak-

ing at a meeting of the Demo-

cratic Party Central Committee

in Corvallis "reflects no more

than the public expression by

appellant of an opinion on a po

litical subject which ... activity

(is) protected ..." The Court of

Appeals also rejected four other

charges against Gray either be-

cause there was insufficient evi-

dence or because there is "sub-

stantial doubt" that the alleged

activities constitute taking am

"active part in political manage-

ment or in political campaigns."

As a result of the Court of

Appeals decision, the Civil Serv- -

ice Commission rescinded its

original action against Gray and

restored him to his job with the

post office. (The ACLU of Ore-

gon understands that Gray will

also receive back pay from the

time of his discharge to the

time he returned to his job.)

Board ef Directors

opt Plan for Chapter

rea Representation

The ACLUNC board of directors on May 11 adopted a

plan for representation of chapter areas on the branch

beard of directors. A tentative plan for chapter representa-

tion went into effect last November 1. After further study,

the Chapter Committee recommended a permanent plan to

the board under which the mem-

bership of each chapter elects a

chapter representative at the

same time and by the same

means used for nominating and

electing its own chapter beard.

Effective Date -

The new plan goes into effect

`March 1, 1968. When the terms of

interim board members expire

next October 31, chapter boards

are authorized to designate rep-

resentatives for the four-month

period before the new plan be-

gins.

Since ten chapters are eligible

to elect representatives, the

branch board could be composed

of 10 chapter area representa-

tives and 30 members at large.

Text of Plan

Following are the provisions of

the plan adopted by the branch

board:.

1. Each Chapter shall be invited

to elect a representative mem-

ber to the ACLUNC Board of

Directors, such member fo be

elected by the membership of

each Chapter at the same time

and by the same means used

for nominating and electing

its own Chapter Board.

2. Should such a Chapter-elected

member fail to attend three

consecutive meetings of the

ACLUNC Board without suf-

ficient reason, or should he

resign during his term, the

Chapter Board may appoint a

replacement member to fill

the unexpired term of office.

3. The term of office of such

a Chapter-elected member to

the ACLUNC Board shall be

from one to three years at

the option of each Chapter

and maximum tenure in office

shall be no more than six

years, after which a member

shall again become eligible

for election only after at least

one year's absence from the.

"Board. -

4. As appropriate each Chapter

shall amend its By-Laws to

permit election of its repre-

sentative between October 1

and March 1, 1968, so that his

term of office begins March

1, 1968. The Branch Board

shall amend its By-Laws to

begin terms of office of all

Board members on March 1.

5. At the expiration on Novem-

ber 1, 1967, of present inter-

im Board members elected

from the Chapter areas, each

Chapter Board shall be au-

thorized to designate a mem-

ber to the ACLUNC Board

for the term from November

1, 1967, to March 1, 1968.

6. Chapters shall amend their

By-Laws to provide that a

nominee shall be a member

of ACLUNC in good standing

at the time of his nomination

and at the time of his elec-

tion, and to provide that a

Chapter elected member of

the ACLUNC Board shall be

a voting member of his Chap-

ter Board by virtue of his of-

fice.

Privacy In a Free Society

Continued from Page I-

agencies to use electronic eaves-

dropping except in national se-

.@urity cases. Many professional

associations and private institu-

tions have begun to work out

`new ethical codes and review

procedures to assure that privacy

is respected in their operations.

Safeguarding Privacy

Despite these promising reac-

tions, the critical battle still re-

mains to be fought in 1967-68-

the struggle to frame a new set

of national legislative and judi-

cial standards to safeguard priv-

acy in a technological age. In

- his 1967 State of the Union mes-

sage, after quoting Justice Louis

Brandeis on the importance of

privacy to civilized men, Presi-

dent Johnson called for sweeping

federal legislation to forbid dis-

tribution of listening devices and

outlaw all electronic eavesdrop-

ping except in national security

eases. Hearings on the Adminis-

tration bill, and on some alterna-

tive ways to assure tight control

over wiretaps and bugs, are cur-

_ rently under way in Congress.

Other federal bills are pending

which deal with the rights to

privacy of federal employees

from unreasonable intrusions by

the Federal Government as em-

ployer, such as personality tests

and polygraphing. Systems of

Jegal operational safeguards to

eontrol future federal statistical

data centers are also under dis-

eussion in Congress. Rarely has

there been such a creative mo-

~' ment of public attention and leg-

islative concern over an issue

of civil liberties as there is now

in Congress about privacy.

At the same time, there are

growing signs that the United

States Supreme Court may be

getting ready to take a fresh

look at its doctrines on privacy.

For decades, this issue has been

mired down in the technicali-

' ties of search-and-seizure law un-

der the Fourth Amendment and

self-incrimination rules under the

ACLU NEWS

JUNE, 1967

Page 2

Fifth Amendment. The Court has

used standards such as trespass

on property, the taking of tangi-

ble things, and assumptions

about risks of being overheard,

and the result of these ap-

proaches has been that wiretap-

ping still remains outside the

control of the Federal Constitu-

tion.

A New Doctrine

Facing the increase in govern-

ment power made possible by the

new instruments of physical,

psychological, and data surveil-

lance, the Supreme Court may

now be ready to enunciate a new

doctrine about the individual's

freedom from unreasonable sur-

veillance by authorities. This

would be based on the First

Amendment to the Federal Con-

stiution, which guarantees our

rights to speak, publish, and as-

sociate. If we are to continue to

enjoy these rights, mustn't we

have the right to decide for our-

selves, subject only to self-pro-

tection powers in government,

when we communicate with

others? Doesn't any action by

government that "turns us on"

without our consent violate our

First Amendment right to speak

out or remain silent? Isn't the

' right to private personality as

much in need of constitutional

protection as the right to private

property? If the Supreme Court

moves in this direction, it would

measure all uses of technological

surveillance by government with

clear standards. Government

would have to show an overpow-

ering need to conduct surveil-

lance, a system of limiting the

scope of intrusion, rules to con-

trol misuse, and ways to allow

the citizen to challenge the sur-

veillance as it had been applied

to him. Without these, the claim

to conduct surveillance or use in-

formation would be denied, on

eonstitutional grounds.

When historians in the year

2000 look back on the late 1960's,

they may have :nany reasons to

describe this as a critical decade

in American national life. Surely

one of these reasons will be the

ACLUNC Urges

Reversal of |

Conviction

In an amicus curiae brief filed

in the San Francisco District of

the California Court of Appeal,

ACLUNC has urged reversal of

the conviction of Robert J. Rob-

erts for a violation of Section

288a of the California Penal

Code.

Section 288a proscribes "oral

copulation." Its proscription in-

cludes all such acts, hetro or

homosexual, committed in public

or private and irrespective of

whether or not the participants

are married.

Privacy

ACLUNC maintains that the

evidence of the act was the prod-

uct of an unlawful search and

seizure and that 288a is, on its

face, unconstitutional as a viola-

tion of the "marital right of

"privacy."

The brief describes the man-

ner in which Monterey law en-

forcement officers Gingery and

Martin secured the evidence:

"Gingery and Martin were able

to observe this conduct as a con-

sequence of what Gingery de-

scribed, with the becoming pride

of a craftsman, as `a bit of car-

pentry.' Earlier in the da; he

had used a brace and bit to bore

five or six peep holes into the

men's room from the adjoining

women's room. Gingery and Mar-

tin: watched everything that oc-

curred in the men's room from

their vantage point in the wom-

en's room and Gingery kept a

leg on persons who comported

themselves in a manner of which

he did not approve. While ex-

ecuting this clandestine surveil-

lance of the men's room Gingery

and Martin saw appellant per-

form the unlawful act."

Exploratory Search

ACLUNC maintains that clan-

destine surveillances of rest-

rooms are illegal -nd quotes a

California Supreme Court case to

the effect that "such a practice

`amounts to a general exploratory

search conducted solely to find

evidence of guilt, a practice con-

demned both by federal law and

by the law of this State."

To support its contention that

288a is on its face unconstitu-

tional the brief relies on Gris-

wold v. Connecticut where the

U.S. Supreme Court found a law

regulating the use of contracep-

tives unconstitutional as an in-

vasion of privacy. In that case

Justice Douglas, writing for the

majority, asked _ rhetorically:

"Would we allow the police to

search the sacred precincts of

marital bedrooms for telltale

signs of the use of contracep-

tives?" The brief notes: "The

analogous question under 288a is

`would we allow the police to

enter the sacred precincts of

marital bedrooms to determine

whether or not the couples there-

in are engaging in foreplay?' The

answer must be an even more

resounding `no.' In such a situa-

tion the state is not looking for

`telltale' evidence of a crime but

seeking to discover the crime it-

self during a period of intimate

marital contact."

fact that this was the time when

finding ways to preserve the in-

dividual's privacy from unreason-

able surveillance became the

central issue of liberty in the

electronic age. If we fail to use

our law-making talents te achieve

the proper balance between sci-

ence and privacy, the historians

of 2000 may be writing about

an interesting but extinct system

of government - constitutional

democracy.

The brief was prepared by as-

sistant staff counsel Paul Halvo-

nik who was assisted by Coleman

Blease of Sacramento. Roberts'

attorney is Patricia Lane of Car-

mel.

The foregoing speech by Prof.

Alan Westin was delivered at

the May 20, 1967, ACLU-Faculty

Program Center conference at

San Francisco State College on

"Privacy in a Crowding World."

committee meets

Halvonik's Report on

Legislative Counsel. They were

met with a wall of hostility. Sen-

ator Eugene McAteer (D-San

Francisco) urged the chair to call

ACLUNC out of order for raising

any constitutional arguments. Mc-

Ateer expressed the view that

since the Legislative Counsel had -

said the bill was constitutional

that was all there was to it and

opinions contrary to that of Leg-

islative Counsel were not ger-

mane to the deliberations of the

committee. When committee

chairman Rodda (D-Sacramento)

disagreed, Senator McAteer

opined that if he were chairman

of the committee ACLUNC's tes-

timony would not be heard. :

No one doubted the sincerity

of that remark for Senator Mc-

Ateer chairs the Senate Commit-

tee on Governmental Efficiency

which considers all testimony on

bills a nuisance. The hearings of

that committee are scheduled for

Wednesday mornings, but the

in. executive

session on the day before the

public hearing and at that session

decides the fate of the measures

upon which testimony will be

given on the following day. It

was the Senate Governmental

Efficiency Committee that per-

mitted hardly any debate on SB 9

(the Burns-Schmitz Rumford Re-

pealer), took it under submis-

"sion, and then released it to the

Senate floor with notice to no

one.

Capital Punishment

A bill to abolish capital pun-

ishment, AB 607 (McMillan) has

been. killed by the. Assembly

Committee on Criminal Proced-

ure. It thus shares the fate of

SB 403 (Moscone), killed earlier

this session in the Senate Goy-

ernmental Efficiency Committee.

The vote in the Assembly com-

mittee was a straight party line

split. The Democrats Knox,

Crown, Miller, Sieroty and Kar-

abian voted for abolition and the

Republicans, Biddle, Murphy,

Wakefield, Ketchum and Moore-

head voted for retention. Assem-

blyman McMillan provided the

committee with a number of wit-

' nesses who gave expert and in-

cisive testimony. During the

course of the hearing Assembly-

man Frank Murphy (R-Santa

Cruz) asked if the testimony

wasn't a bit redundant and if all

of the arguments hadn't been ad-

vanced before the legislature in

the past. What Assemblyman

Murphy said was certainly, for

the most part, true. It was also

very frustrating. Because al-

though most of the arguments

for abolition had been heard be-

fore they were, as before, com-

pelling and unassailable, and yet

the bill, as before, was killed.

The frustration was augmented

by the fact that no testimony

was offered against the bill, the

District Attorney's representative

did not even bother to present

token opposition at the public

hearing. Thus Assemblyman Mur-

phy will probably have to hear

the same arguments in succeed-

ing sessions until either the argu-

ments are proved fallacious or

the legislature abolishes capital

punishment.

Rumford Act Hearing

After extensive hearings the

Assembly Committee on Govern-

mental Efficiency and Economy

has taken under submission num-

erous bills that would amend the

Rumford Fair Housing Act. They

include bills te repeal the Rum-

ford Act, bills to modify the act

and provide less coverage, and

bills designed to strengthen fair

housing law enforcement. The

bills to strengthen the Rumford

Act, introduced by Assemblymen

John Miller (D-Berkeley) and

Alan Sieroty (D-Beverly Hills)

islative Activities

have very little chance of reach-

ing the Assembly floor. On a hap-

pier note, a Rumford Repealer

_ that has passed the Senate (SB

9, Burns-Schmitz), has just a lit-

tle chance of reaching the As- -

sembly floor. During the assem-

bly committee hearing Assembly-

men Leroy Greene (D-Sacramen-

to) and Earle Crandall (R-San

Jose) gave indications that they

preferred modification of the

Rumford Act to outright repeal.

Only the vote of one of them is

needed in order to keep a repeal-

er in the Assembly Committee

(see May edition of The News).

Most of the interest seemed to

center on AB 729 (Bagley), a

Rumford modifier discussed at

length in previous editions of

The News. The latest rumor in

the Capitol is that the substance

of AB 729 will be amended into

SB 9 and sent to the Assembly

floor. Since AB 9, in some form,

has already passed the Senate,

under the rules of the Legisla-

ture an amended SB 9 would go

to the Senate floor for concur-

rence in the amendments and

would not be referred to a Sen-

ate committee. This tactic might

avoid further watering down of

the Rumford Fair Housing Act.

In order to achieve such a par-

liamentary maneuver the author

of the bill must approve of it.

That such approval may have

been obtained received credence

when a real estate group, calling

for complete repeal of the Rum-

ford Act, recently attacked Sen-

ator Burns and asked him to re-

move his name as the author of

SB 9.

Mental Commitments

Assemblyman Frank Lanter-

man (R-Pasadena) and Senator

Nicholas Petris (D-Oakland) have

introduced a measure, AB 1220,

"that would revolutionize the

state mental commitment preced-

ures. The bill's chances for pas-

sage are considered good. One of

the bill's authors, Lanterman, is

a conservative Republican. The

other, Petris, is a liberal Demo-

crat. The bill also has the sup-

port of both ACLUNC and Gov-

ernor Ronald Reagan.

The bill would greatly curtail |

the present system of long-term,

involuntary commitments in

State hospitals and shift the em-

phasis on treatment of the men-

tally disturbed to short-term, in-

tensive treatment in the local

community. The bill aceents vol-

untary treatment and the prin-

cipal standard for involuntary

committment is whether or not a

person "is gravely disabled or

presents an immediate danger to

himself or others as a result of

mental disorder or chronic al-

coholism." "Gravely disabled" is

defined as "a condition in which

a person has such a pronounced

disturbance in judgment, think-

ing, and conduct as a result of

mental disorder or impairment

by chronic alcoholism that he is

unable to provide for his basic

personal needs for food, clothing,

or shelter." The bill has proced-

ural safeguards that would make

it difficult to confine a person

in an institution and such cen-

finements would be limited to 90

days unless those seeking com-

mitment reinstitute a full court

proceeding that includes a trial

by jury, appointed counsel, proof

of the alleged mental condition

beyond a reasonable doubt, and

the unanimous verdict of the

jury.

If the bill becomes law, Cali-

fornia will become the leading

state in the protection of the

civil liberties of those alleged to

be mentally ill.

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG .. . Editor

503 Market Street, San Francisco, Cafifornia 94105, 433-2750

Subscription Rates -- Two Dollars a Year ,

Twenty Cents Per Copy a oe

From earliest times, man has

tried to identify in his own era

those changes in technology or

social thought that .represented

major turning points in the life

of his society. In modern democ-

_Yracies, with our terrible aware-

ness of how easily individual lib-

erty can be lost in periods of

national and international crisis,.

the search for an "early warning

system" against such threatening

`social change has been vital to

democratic survival. e

Slowly but surely in the 1960's,

American society has become

aware that it is in the midst

of just such a profound change

in the conditions of national life.

The issue is the impact of science

on prvicay. Previously, American

Jaw and social norms were based

on the limited physical power of

government to place individuals

under sustained surveillance. Be-

cause walls and doors were real

-barriers to intrusion and because

torture and test oaths were the

only ways to penetrate the mind,

these were the intrusions that we

forbade in the name of liberty.

Because daily life was too com-

plex for authorities to keep ev-

eryone's transactions under ex-

amination, we concentrated on

those positive regulations by

-authority that forced people to

reveal too much about their per-

sonal lives.

New Devices

All this changed suddenly in

the post World War II era. In

the early 1960's, the American

public learned about "Big Ears,"

"shotgun mikes," and "TV eyes,"

-the cheap, micraminiaturized,

-easy-to-operate listening and

watching devices that space re-

`search and cold war technology

had spun off for sale on the gen-

eral market. Congressional hear-

ings and press exposes in the

mid-1960's showed that the new

devices were being used by a

host of government investigative

agencies, from the FBI and In-

ternal Revenue Service to local

_ Sheriff's offices and police de-

partments. Monitoring devices

. also. swept through the private

sector, as corporations, unions,

political groups, hotel owners,

and private-eyes used the new

technology. Landlords bugged

tenants. Store owners watched

customers on closed-circuit TV.

Voyeurs everywhere went to

shops specializing in listening

and watching equipment and

bought devices to `watch birds."

By the late 1960's, it was clear

that existing. legal controls were

failing completely to check these

trends.

Adding to public alarm was the

realization that other invasions

of privacy were increasing along-

side physical surveillance. Gov-

ernment and industry in the late

1950's and early 60's were adopt-

ing deep-probing personality

"tests and lie-detector polygraph-

ing of emotional states as "regu-

Jar" techniques of personnel se-

lection. This put millions of ex- ~

ecutives and employees under

forms of psychological surveil-

lance that had always been be-

yond the scope of direct official:

inquiry. Reports of "promising

research" in new truth drugs and

brain-wave monitoring of emo-

tions deepened public fears for

the future.

Electronic Computers

Worst of all, the advent of

electronic computers and the ex-

"'plosion of record-keeping in our

society threatened to penetrate

' the final citadel of individual

-privacy-the looseness anid ano-

' nymity of life in a democracy.

As more and more of our fi-

nancial transactions and personal

records go into the computer

memory banks, the danger arises

that central dossiers begin to

control our lives. At each sig- .

"nificant point in our careers,

_the computers feed out our early

errors, inconsistent behavior,

evaluations by superiors, pro-

jected performance,. etc., to be

"explained" by us and evaluated

by the record-keepers. We live,

on, by, and for the record.

These simultaneous advances

in physical, psychological, and

data surveillance have suddenly

made unprecedented levels of

power available to government.

Authorities have obtained

through science an ability to

penetrate walls, enter minds, and

monitor transactions that relig-

ious believers reserved for God

alone and science fiction writ-

ers bestowed on extra-terrestrial

beings.

Big Brother

It was the most natural thing

for Americans confronting these

developments to recall George

Orwell's chilling vision of life

in'a totally-monitored society. In

1984, the Thought Police of Oce-

ania used telescreens to watch

actions in every home and office

and listen to conversations there.

Thousands of microphones were

hidden in public places around

the city, and secret agents were

everywhere, "You had to live,"

the novel explained, "in the as-

sumption that every sound you

made was overheard, and, except

in darkness, every movement

scrutinized." When the wall post-

ers of Oceania said "Big Brother

is Watching You," the message

was literal.

But we must remember that

Orwell's 1984 was a totalitarian

system, conducted with open vio-

lence and terror of the Nazi and

Stalinist variety. There was no

political opposition, no civil lib-

erties, no rule of law. Surveil-

lance technology had not brought

Big Brother to power nor was

it the real basis for his contin- _

ued rule. It only helped him ad-

minister the dictatorship.

This fact is vital to appreciate

because the United States is not

likely to be taken over by a ma-

levolent dictator and his Thought

Police. Our menacing prospect

is that humane and well-meaning

authorities in government and

private organizations will con-

vince the public that new sur-

veillance methods are necessary

in order to build a stronger dem-

ocratic society. Intrusions would

be made in the name of social

values that democratic nations

warmly support-a free press,

modernized law _ enforcement,

"objective" personnel selection,

civil rights compliance, more ef-

fective welfare programs, scien-

tific research, etc. The right to

privacy would never be openly

challenged. It would be warmly

re-affirmed as a. fundamental

principle of our society, then

found to be less important "in

this particular area" than _ so-

ciety's need for disclosure or

surveillance.

But what is so menacing about

all this? In the 1960's and 70's,

can privacy be the same "right to

be let alone" that Brandeis and

his aristocratic friend Samuel

Warren prescribed for the United -

States of 1890, when we were

still a country of open spaces,

passive government, and "rugged

individualism?" Now, we are a

mass society in a continental na-

tion of advanced technology, with

crowded cities, heavily bureau-

cratic institutions, and large-scale

activist government. Though a

few individuals may want to live

largely in isolation, the great ma-

jority of us do not seek a hermit-

like privacy from the contacts

of group and public affairs. As

the Supreme Court noted just

last year, "Exposure of the self

to others in varying degrees is

a necessary prerequisite to life

in a civilized society."

Furthermore, what is the real

danger to American liberty in

these new methods of surveil-

lanee? After all, surveillance is

a basic fact of social life. Par-

ents watch their children, teach-

ers watch students, supervisors

watch employees, policemen

watch the streets, and govern-

ment agencies keep records or

conduct investigations to moni-

tor the citizen's performance of

his legal obligations. Without

such surveillance, social and legal

norms couldn't be enforced. |

In light of. this fact, and the

need for surveillance to keep

pace with the growing complex-

ity of modern society, many pub-

lic and private authorities are

genuinely puzzled by (c) protests

against surveillance. Why should

persons whe have not committed

criminal acts worry whether their

conversations might be overheard

accidentally by police officers

eavesdropping on public tele-

phone booths or at public places

where suspected criminals are

known to be conversing? Why

should truthful persons resist the

use of polygraphs to verify their

testimony in court or their dis-

claimers of dishonest acts on the

job? Shouldn't anyone who recog-

nizes the need for objective per-

sonnel placement accept person-

ality testing? What harm is there

in complete records about each

person being compiled and ex-

changed by employers, education-

al agencies, government, etc.,

since this makes possible more

informed decisions than would

be possible with partial records?

Not only does society benefit in

these instances, it is said, but the

individual himself could prove

his innocence, virtue, or talents

by means far more scientific than

those at present available.

Two Questions

These two questions are the

heart of the present debate over

Big Brother in America-what

do we mean by privacy in a tech-

nological age and what are the

effects of technological surveil-

lance on the individual in a free

tually impossible in the intense,

crowded settings of urban life.

' Melting Into `=e Crowd

Finally, in what only seems to

be a paradox, ir-dividuals go out

in public to get 1vivacy. In order

to escape the restrictive influ-

ence of those who know him, the

individual leaves his slum apart-

ment, suburban home, or down-

town office and melts into the

erowd. He may ride a subway,

attend a ball game or movie, walk

the streets, or enter a strange

bar. He is among people and

knows that he is being seen and

heard. But, unless he is such a

well-known celebrity that he is in-

stantly recognizable, he achieves

anonymity. As a passerby, he will

not be held to all the rules of

speech and action that apply in

his "home turf." The sense of

relaxation and freedom that

anonymous moments bring has

been experienced by virtually.

everyone.

As this description of the

states of privacy indicates, the

individual has moments when he

wants to be alone, and others

when he wants to be among in--

timates or-in public. Those de-

sires change from day to day,

or even hour to hour. This is why

the best definition of privacy is

Society,

by Alan Westin,

Professor, Department of Public Law and

Government, Columbia University

society? Fortunately, we have the

raw material for answering these

questions in the literature of the

social and behaviorial sciences,

and the recorded experience of

man under various forms of sur-

veillance.

Before turning to this critical

relationship between surveillance

and privacy, however, we should

pause just long enough to es-

tablish what the average Ameri-

can means when he Says he

"wants privacy." Actually, he

is describing four different re-

lationships between himself and

other people. Sometimes, he

wants to be alone, in solitude,

completely separated from the

company of others. He may still

be disturbed by noises, physical

discomfort, his conscience, or

concerns about God watching

him. Nevertheless, solitude -re-

mains the most liberating and

relaxing state of privacy.

Since individuals want to com-

municate in confidence as well

as to withhold, there are times

when a person seeks the intimacy

of a small group, such as hus-

band-and-wife, the family, or a

friendship circle. Here, he wants

the relaxed and frank relation-

ship that can take place when

he is among those he trusts.

When "outsiders" intrude into

this intimacy, the openness of

communication is limited.

Even when he is with inti-

mates, however, there are par-

ticular moments when the in-

dividual does not want to com-

municate and there are aspects

of himself that he does not want

to disclose at all. This creates the

state of reserve, when the indi-

vidual registers his desire to hold

back something and his claim is

respected by those around him.

The rules of reserve also op-

erate in public, when etiquette

establishes what questions we

should not ask, how persons

_should not be touched, and the

like. Without such rules of re-

serve, civilized life would be vir- .

the right of the individual to de-

cide for himself, under most cir-

cumstances, what information

about him should be communi-

cated to others, and under what

conditions. In democratic socie-

ties, private groups and govern- .

ment agencies also have valid

claims to privacy, though the so-

ciety's needs for disclosure or

surveillance often are more in-

sistent here than when individ-

uals are involved.

In keeping with this definition

of the right to privacy, we can

see that one of the continuing

elements in the history of lib-

erty in the West has been the

effort to limit the power of re-

ligious, political, and economic

authorities to place individuals

under surveillance against their

will. This is exactly the issue

that we are facing today, in more

technologically sophisticated

form. To understand it fully; we.

should look at the three main

types of surveillance - physical

observation, psychological extrac-

tion, and comprehensive docu-

mentation - and consider their

relation to privacy.

Physical Observation

The most common form of sur-

veillance is physical observation.

When the individual knows he

is being watched or overheard

by authorities-on the street, in

his job, in his civic activity, or

in his home, he has one of two

basic choices. He can bring his

behavior within socially accepted

norms for that particular situa-

tion or he can violate the norms

and accept the disapproval or

reprisal of the authorities. It is

exactly to keep such hard. op-

tions to a minimum that a free

society protects privacy.

First of all, privacy protects

the "safety valve" need of indi-

viduals. Most persons need to

give vent to their momentary

anger at "city hall," "the bess,"

"that cowboy in the White

House," and various others who

exercise power over them. They

need to do this in the intimacy

- JUNE, 1967

of family or friendship circles

or in private papers, without

fear of being monitored and hav-

ing to account for such com-

ments. We are not talking here

about freedom of speech -or

press, where individuals voice

their criticisms publicly and are

responsible for them in the open

forum. What is involved here. is

private commentary. It may be_

completely nasty, unfair, frivo-

lous, and libelous; in fact, it is

the recklessness of this commen-

tary that makes it especially sat-

isfying emotionally. Because it is

uttered in privacy, it is never

tested by any of the rules of fair

comment or libel, and the indi-

vidual never: has to justify what

he says before some official tri-

bunal. Without the aid of the

emotional release that this pri-

vate expression supplies for in-

dividuals facing the daily abra-

sions with authorities, most per-

sons would experience serious

emotional pressures. Even Presi-

dents and other high public of-

ficials are known to lash out an-

grily in private and to say things

that would be devastating to their ~

public roles if the remarks were

publicized. Society knows it must

protect such outbursts because

they make possible the measured

and responsible speech that is

produced for public presentation.

"Permissible" Violations

_ A second reason why individ-

uals are protected against. com-_

plete visibility is: the need for

"permissible" violations of cer-

tain social norms in a democratic

society. American society sets up

many norms, sometimes as in-

stitutional rules and sometimes

as binding law, which most

Americans violate frequently. We

break traffic laws, transgress

sexual codes, stretch expense ac-

counts, bet with bookmakers,

overstate income tax deductions,

smoke in factory rest rooms when.`

this is forbidden, etc. Society

may punish open and flagrant

violations of these rules but it |

tolerates the great majority of

the breaches as "permissible" de-

viations. If there were no privacy

to permit society to ignore these

actions - if.all transgressions

were known and recorded-most

persons would be in-jail or under

organizational discipline, or they

would be in the power of author-

ities because such action could

be taken against them. Freedom

from such harassment is crucial

to the development of independ-

ence in democratic citizens.

Another function that privacy

performs and observational sur-

veillance threatens is the indi-

viduals need to relax from play-

ing social roles. Every person

goes through daily life playing

a series of roles-thoughtful ex-

ecutive( faithful husband, loving

father, car pool comedian, tower-

of-strength in the midst of ad-_

versity, etc. Like actors on the

stage, individuals can sustain

these roles for only a reasonable

period of time. There have to be

moments "off stage,' when the

individual can cry, curse, be

weak, pity himself, or simply let

himself go. In solitude or among -

his intimates, he must lay his

mask aside, secure in the knowl-

edge that his public (and espe-

cially his enemies) will not ob--

serve and record him in these

moments of vulnerability. Pri-

vacy here gives men, from fac-

tory worker to Presidents, a

chance to rest, to be always "on"

would wear out the human or-

ganism.

Still another need of individ-

uals that privacy nurtures and

physical observation threatens is

the need for sheltered experi-

mentation and testing of views.

Democratic society regards criti-

- eal analysis, independent thought

and frank public expressions as

necessary qualities of citizen-

ship. Such activities require peri-

eds for preparing ideas and prac-

ticing them among intimates

without fear of ridicule or pen-

-Continued on Page 4

ACLU NEWS

Page 3

euroontinued from Page 3-

alty through the ideas being

"launched prematurely into pub-

lic gaze. Without such time for

incubation in privacy, ideas

. Inight be either ill-considered or

`suppressed completely. As. Rob-

ert Maciver has observed, "Ev-

erything that grows first of all

does so in the darkness before

iit sends its shoots out into the

light." ,

Confessional Release

Finally, physical observation

threatens the individual's need

for confessional release through

confidential communication. We

pour out our troubles to hus- _

bands and wives, lawyers, doc-

tors, ministers, phychiatrists, and

other professional counselors,

partly because we hope to get

help from them and partly be-

cause we know that American

law has traditionally sheltered

such communications from most

types of compulsory disclosure.

We also get important emotional

benefits from such confidential

communications, the unburden-

ing of shame and guilt pangs to

Sympathetic listeners. If police

pursuit of crime or national se-

eurity investigations were ever to-

shake the public's confidence in

its ability to be free from ob-

-servational surveillance in. such

confessional sessions, a basic as-

pect of personal freedom would -

have been lost.

_ Factors such as those we have

been describing explain why the

prospect of general physical ob-

servation is so psychologically

shattering to the individual. For

example if.a factory_is complete-

ly wired with listening and

watching devices, in the interest

.of preventing thefts and insuring

-eonformity with work rules,

workers know that every moni-

toring screen and microphone re-

ceiver cannot be manned all the

time. Yet the worker hag no. way

of knowing when he is under ob-

servation and when not. The de-

humanizing feature of this tech-

nological installation is not that

the observation is conducted by

machines rather than human

supervisors, but that the person-

to-person factor, with its soften-

ing human aspects, has been

eliminated. "You had to live,"

Orwell wrote, "in the assumption

that every sound you made was

overheard, and... every move-

ment scrutinized."

Psychological Extraction

The second major form of sur-

veillance is psychological extrac-

tion. This involves compelling an.

individual to reveal by speech or

act those parts of his memory or

personality that he wants to keep

private, or that he does not fully

appreciate he is revealing, Per-

sonality tests, polygraph exami-

nations, and new methods of

hypnotic and drug interrogations

illustrate the techniques at issue.

' The basic danger of extraction

is its effect on the individual's

sense of personal autonomy.

Democratic systems have a fun-

damental belief in the unique-

ness of each individual and his

right to self-realization. Preser-

- vation of these qualities requires

that the individual retain a be-

lief that he is not being com-~

pletely controlled or manipulated

by authorities.

"'The most widely accepted way

of representing the individual's

`need for autonomy has been the

"spatial analogy" developed by

social psychologists such as Kurt

Lewin and sociologists such aS

Georg Simmel. This pictures the

individual's relations with other

persons in terms of a small cen-

tral circle surrounded by a series

of steadily enlarging circles, In

the central circle is the "core

self," sheltering the individual's

`ultimate secrets."

These are the hopes and fears

`that are beyond sharing, unless

the individual comes under such

emotional stress that he must

pour out these ultimate secrets

ACLU NEWS

JUNE, 1967

Page 4

your decisions openly,

to secure relief. Under normal

circumstances, no-one is admitted

to this sanctuary of the person-

ality. The first circle outward

from the core contains `intimate

secrets," those that are willingly

shared with close relations, con-

fidential advisors, and those cas-

ual strangers who pass by and

cannot injure. The next circle is

open to members of the individ-

ual's friendship group, and the

circles continue until they reach

those casual conversations and

public acts which are open to

all observers.

The threat to autonomy is the

possibility that someone may

"penetrate the inner zones and

learn the intimate or ultimate

secrets. Each person knows the

`gap between what he really is

and what the world sees of him.

He also knows there are aspects

of himself that he does not fully

understand but is slowly explor-

ing and shaping. To shift the

metaphor slightly, every individ-

ual lives behind a mask in this

manner, (in fact, the original

meaning of the word "person"

was "mask," indicating that indi-

viduals achieved person-ness by

the presentation of themselves

to others.) If this mask is peeled

away and the individual's real

self is exposed to a world in

which everyone else still wears

his mask aiid believes in masked

performances, the individual can

be seared by the heat of selec-

tive exposure. The suicides and

nervous breakdowns that have

resulted from public exposures

of this kind testify to the gravity

of having shame and guilt aspects

bared. In another dimension, the

harm done to careers and crea-

tivity by the exposure of non-

conformist characteristics indi-

cates that revelations that have

nothing to do with shame and

guilt can also damage individ-

uals. :

Personality Testing

The best way to apply this dis-

cussion to current issues is to

look at the debates over per-

sonality testing and privacy.

What we are dealing with here

are the pencil-and-paper or pro-

jective psychological tests that go

beyond measurement of intelli-

gence, aptitudes, and skills and

attempt to meastre traits of per-

sonality, emotional balances, id-

eology, and similar factors for

the purposes of predicting future

behavior in a particular situa-

tion, usually a job assignment.

The basic objection on grounds

of privacy to the typical person-

ality test used in personnel selec-

tion today-with its questions on

`such topics as sex and political

values-is that many individuals

do not want to be sorted and

judged according to standards

that rest on the unexplained

evaluations of professional psy-

chologists in the employ of "`in-

stitutional"' clients. Liberals fear

that a government or industrial

psychologist will enforce confor-

mist or elitist norms, Conserva-

tives fear that school or govern:

ment testing might not only "re-

ward" liberal ideology and pen-

alize conservative ideas but also

"implant" ideas through the test-

ing process itself. Negroes are

concerned that psychologists

might enforce standards of per-

sonality that penalize minority

. groups; the personality test might

enable the "white power struc-

ture" to accomplish covertly dis-

crimination it can no longer

carry out openly.

In all these situations the as-

sertion of privacy says to those

in power: "If you make evalua-

tive decisions openly, question-

ing me directly and justifying

I can

fight out publicly your right to

judge me in a certain way. Amer-

ican society will then decide our

conflicting claims. But if you in-

voke `science' and `expertise' and

evaluate me through personality

tests, the issue becomes masked ~

and the public cannot judge the

validity and morality of these

evaluative decisions. Thus, where

such basic issues as political ide-

ology, religion, and race are at

stake, the selection process must

be objective and public. I assert

the right of privacy to close my

emotions, beliefs, and attitudes -

to the process of job evaluation

in a free society."

Furthermore, the basic aim of

that psychology is admittedly to

search for norms of conduct and

to use these for judgment in

"trait" and "prediction" matters. -

The intellectuals who lead the

anti - personality - testing cam-

paigns know how far they them-

selves are from any type of

"bland" normality, how many

conflicts and personal disturb-

anees lie behind their social

masks, and yet how useful they

are in their area of work, wheth-

er it is business, law, govern- |

`ment, teaching, or the ministry. 0x00B0

Many intellectuals are aware of

the test psychologist's answer

that he does not advise the selec-

tion of "normals" only, that the

tests can reward imagination, in-

itiative, and other traits. But,

knowing how emotional tension

and creativity are linked in the ~

indivdual, intellectuals are not

willing to submit themselves or

the majority of their fellow citi-

zens to the judgment of phychol-

ogists on that.point. One of the

the basic functions of privacy, as

we saw, is-to protect the individ-

tual's need to choose those to

whom he will bare the true sec-

rets of his soul and his person-

ality. Counseling and _ clinical

psychologists have long been

among the handful of those pro-

fessional groups in whom many

Americans have been willing to

place such intimate trust. If civic

reactions of the 1960's are any

sign of developing public trends,

many Americans will not accept

the test psychologist, working

for an institutional client, in such

a role.

"Managed" Conflicts

Finally, from the literature of

psychology and psychiatry, as

well as from personal experience,

critics of personality testing

know that many individuals go

through life with personal prob-

`lems and conflicts that they suc-

cessfully keep under control.

These "managed" conflicts may

involve sex, struggles over self-

image, careers, and similar mat-

ters. Most of these people can

grow old without having these

conflicts become serious enough

to impair their capacities at

work, in the family, or as citi-

zens. If these capacities are im-

`paired, of course, the individual

needs help. He may seek it him-

self, or it may be offered to him

when his difficulties become ob-

servable. The problem presented

by the spread of personality test-

ing is that it may, by the pres-

sures of testing and of rejection

in selection, bring to the sur-

face personality conflicts that

might otherwise never have be-

come critical in the individual's

life, and may thus precipitate

emotional crises. It can he ar-

gued that it is healthy to bring

such problems to the surface and

to lead the disturbed indivdual

to professional help. Perhaps we

are moving toward an age of pre-

ventive mental health by per-

sonality testing, when. individ-

uals will get their emotional

"check-up" just as they have

their bodies, eyes, and teeth

checked. Before we accept this

trend in American life, however,

- we had better be more certain

than we are now that we can

cure the wounds opened by such

a process, or that awareness is a

good thing even though a cure

is not always possible. Until then,

resistance to such extraction will -

be invoked as a way of saying,

"I want to go on managing my

problems myself; and what might

force me to a self-confrontation

that I do not want invades my

privacy in the deepest way."

One interesting point that il-

lustrates where the boundary

line is between extraction and

fair inquiry is the fact that role-

projection tests do not pose the

same threat to privacy as do the

typical personality tests. [If a test

asks someone to answer ques-

tions about values or solve prob-

lems as though he were a Sears,

Roebuck Salesman or a State De-

partment official, the test is one

that measures the individual's

ability to define and assume a

social role. The test does not try

to penetrate the subject's mind

and seize "the real him." Yet, in

practice, it is difficult to see why

such role-projection tests would

not be as sound a measure of the

-individual's future success in a

particular assignment as any

techniques of assessment now

used.

Comprehensive Documentation

The third type of surveillance,

comprehensive documentation, is

the modern equivalent of the

permit - passport - dossier systems

used by ancient empires and

European police-states to control

their populations. Modern life

has developed a series of record-

collection points for the individ-

ual - his financial accounts, edu-

cational record, employment

files, health records, civic activ-

ity, government-benefit files, and

government regulatory files. To-

day, these records tend to be de-

centralized, incomplete, and suf-

ficiently inaccurate that "record-

evaluation" of individuals is al-

most always softened by personal

jucgments, trial employment,

and similar refusals to live "by

the record."

With the development of com-

puters, however, more and more

records of the individual's prog-

ress in each sphere are being

compiled and stored on tapes, ex-

changed among government and

private agencies, and used to as-

sess the individual's fitness at

each check-point in his career.

Proposals have been strongly

presented that would move our'

present credit-card system to a

universal, computerized transac-

tion economy, in which the indi-

vidual's" thumbprint and voice-

print and a central financial ac-

count would replace cash as the

means of making purchases. Uni-

fied personal data files have

been suggested so that govern-

ment could have all the signifi-

cant educational, health, citizen-

ship, and employment records of

the individual available for statis-

tical use, and some have advo-

eated using such data to help

government agencies reach their

decisions about individuals. Com-

puterized intelligence systems

for law enforcement have already

been launched in several states

which will collect extensive rec-

ords about each individual who

is arrested for crimes other than

traffic violations. (A recent study :

of the Presidents Commission on

Law Enforcement estimated that

40% of youth under 21 will be

arrested for such non-traffic vio-

lations in the next decade.)

-The danger raised by these in-

terlocking systems of documen-

tation is that the very complete-

hess and comprehensiveness of

The first right of a citizen

Is the right

To be responsible

the files becomes a threat te

freedom. Partly, this is because

the individual can never escape

his past. Every youthful esea-

pade, every indiscretion, every

misstep, under pressure, every,

evaluation by previous authori-

ties would be in the central files -

to be evaluated by the authori-

ties.

For a nation built by immi-

grants fleeing the past and

shaped by frontier codes of priv--

acy, this is a sharp departure.

Men and women went to the

American West to make a new

life; they weren't asked where

they were from or what they hadi

left. Mobility patterns to new

states, within our cities, fron"

cities to suburbs, and from farms

to urban centers, along with the -

American tradition of free move-

ment and "no-passports," have

preserved this sense of "new

starts" for individuals after the.

frontier closed.

A New Environment

Now, however, computerized!

and "data-rich" information sys-

tems threaten to create a new en-

vironment. Individuals. must be

prepared to meet and "explain"

their dossiers to authorities:

whose basic code is to make

judgments "on the record." This: _

elosing of a record-net around

individuals and the creation of

dependency on the "forgiveness"

of authorities could have pro-

~ found effects on the psychologi-

cal make-up of the next genera-

_ tion of Americans.

But there are other dangers:

in comprehensive documentation,

as well. With every financiali

transaction permanently record-

ed for analysis, and almost every;

movement during the day and

from place to place entered in

records, daily life becomes as

visible through documentation as:

it would through physical surveil-

lance devices. Anonymity falls,

Inconsistencies must be ex-

plained. Life is lived to make a

"sood record." And, whoever

controls the data banks and cen-

tral records has a position of

power over individuals, busi-

nesses, and civic groups without

precedent in our history.

It is a measure of the strength

of our society that these threats

to privacy from technological

surveillance have set alarms ring-

ing all along the ideological spec-

trum during the past 2-3 years.

Invasion of privacy has been

taken up as a leading issue by

the DAR and the ADA, by Barry

Goldwater and Wayne Morse, by

the Wall Street Journal and. the

Nation Magazine. `Congressional

investigations have helped push

back some of the most intrusive

uses of surveillance by federal

executive agencies, in areas such -

-as personality testing and poly-

graphing for non-sensitive em-

ployment. Some _ states have

passed laws forbidding corpora-

tions to require polygraph tests

of employees as a condition of

getting or keeping a job, An ex-

ecutive directive by President

Johnson has forbidden federal

-Continued on Page 3.

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