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Privacy and the Future of Justice Statistics

• Peter P. Swire
• Chief Counselor for Privacy
• OMB/OIRA
• National Conf.on Privacy, Technology Criminal
  Justice Information
• May 31, 2000

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Overview

• Free flow of information
• Administration privacy policy
• Government as a model
• Public records
• Concluding thoughts

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I. Free flow of information

• A noble goal, but what does it mean?
• Security -- free flow to hackers?
• Intellectual property -- free flow to pirates?
• Privacy -- free flow to intruders?
• Moral
• Many wonderful flows
• Not all flows are wonderful

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Free flow in the justice context

• Common practice -- police have had unlisted phone
  numbers and addresses
• Police concern about their own and their familys
  safety at home

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The Durham, N.C. example

• Law enforcement officer concern
• After debate, city council decided to make name a
  hidden field for all property records
• County disagreed -- register of deeds decided to
  keep owners listed, online
• County tax assessor plans to post blueprints of
  houses -- additional l.e. concern

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Observations on free flow of information

• Which flows of information make sense?
• Do the flows happen automatically in the course
  of putting information on web sites?
• When should there be thoughtful consideration of
  whether personal information should become
  increasingly available?

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II. Administration Privacy Policy

• Support self-regulation generally
• Sensitive categories deserve legal protection
• Medical Genetic
• Financial
• Childrens Online
• Government should lead by example

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Internet Privacy

• Quantity of policies
• 15 to 66 to 88 from 1998 to 2000
• Quality of policies
• Seek continued improvement
• Incentives for good action by companies
• Concern about free riders with no policies

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Medical Records Privacy

• HIPAA 1996 called for legislation by 8/99
• President announced proposed regs 10/99
• Over 53,000 submissions of comments
• SOTU promise to make the regs final this year

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Medical Records (cont.)

• Fair information practices
• Notice
• Patient choice
• Access
• Security
• Enforcement
• Regs have other provisions, including for law
  enforcement access to medical records

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Genetic Discrimination

• February 8 Executive Order
• Prohibits federal agencies from using genetic
  information in hiring or promotion
• Call for legislation
• Extend protections to private sector
• Apply to purchase of health insurance
• Genetic information and law enforcement
• What will be public concerns over time about DNA
  databases?

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Financial Privacy

• Financial Modernization enacted in 1999
• Notice of uses
• Choice to 3d parties
• Enforcement
• Administration Plan announced in April
• Choice for affiliates, too
• Opt in for especially sensitive data, including
  medical
• Other provisions

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Other Privacy Legislation

• Childrens Online Privacy Protection Act of 1998
• FTC rules took effect 4/2000
• Key is verifiable parental consent
• Identity Theft law in 1998
• Pretext Calling law in 1999
• Opt in for motor vehicle records for marketing
  in 1999

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Summary on privacy legislation

• Significant level of legislative activity
• Significant level of public concern
• WSJ poll in 9/99
• Seek balance among multiple goals
• Privacy and public safety goals
• Privacy and use of information for economic
  growth
• Which uses of data are net beneficial, upon
  thoughtful consideration

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III. Government as a Model

• Government web sites
• Government computer security
• Privacy Impact Assessments
• Oversight mechanisms

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Government web sites

• How is data collected and used at government web
  sites?
• OMB guidance 6/99 for federal sites
• All federal agencies had clearly posted privacy
  policies by the end of 1999

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Government computer security

• Good security is necessary for privacy
• Weak security allows access to tax records,
  criminal investigative files, etc.
• Good security stops hackers and other
  unauthorized users
• Good security is not sufficient for privacy
• What can an authorized user do with the data?
• Post it to the Internet?
• Privacy policies govern authorized users

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Privacy Impact Assessments

• Idea build good security and privacy into new
  information technology systems
• IRS has been approved as a Federal CIO Council
  best practice
• FBI and Bureau of Justice Statistics in process

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PIAs (continued)

• Structured set of questions
• What laws apply? Privacy Act? Others?
• What agency or other policies apply?
• The friends and family test -- do our practices
  seem reasonable and fair when they become public?

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Oversight mechanisms

• New databases and flows of information often
  achieve important public safety and other goals
• What mechanisms exist to consider privacy and
  other values?
• There may be public questions in the absence of
  oversight mechanisms?

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IV. Public Records

• Many criminal and other court records are public
  records
• Dialogue with states on public records
• Recent Supreme Court cases
• The example of bankruptcy records

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Supreme Court cases this term

• United Reporting v. Los Angeles Police
• State law with stricter limits on marketing than
  for press uses
• State law upheld
• Reno v. Condon
• Federal statute limiting state release of motor
  vehicle records
• Federal law upheld against federalism challenge

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Bankruptcy records

• Whats in the public bankruptcy file?
• Bank account numbers
• Social Security numbers
• Should we place these online for millions of
  Americans?
• President has asked OMB, Justice Treasury to
  issue a report this year

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Concluding thoughts

• Many flows are good, but not all flows are good
• Take advantage of new technologies to promote
  public safety, economic growth, public education,
  and other values
• But, thoughtful consideration of the subset of
  flows that are possible but not advisable
• Home addresses of vulnerable people
• Bank account numbers of individuals

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For the justice system(s)

• Improving technology makes many new flows less
  expensive and more practical
• PIAs -- your practices should meet the
  requirements of
• Applicable law
• Applicable policies
• Confidence of the public

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Concluding thoughts

• In the Information Age, there will be a constant
  stream of issues -- which information flows are
  good?
• President Clinton has asked how do we keep our
  traditional value of privacy in this era of new
  technology?

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Conclusion

• The answer will be in the good will of all of us
  who build the new information systems
• Medical
• Genetic
• Financial
• Government generally
• Justice systems in particular
• We look forward to that challenge