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"Public" Records in the Electronic Age

by Mary M. Connors

CPSR News Volume 13, Number 3: Fall 1995

This article begins by examining the historical bases of public records, and the modern developments that have led to so much information about individuals being held in these records. It then examines the adequacy of the traditional distinction between public and private information and suggests that the new media context requires new definitions and categories.

Bases for Public Records
The concept that some information is private, while other information is public, has grown from social values, which, though not opposed, sometimes compete.

There has been a historical assumption in our society that the individual is primary in determining how he or she exercises the right to "life, liberty and pursuit of happiness," and that the right of the society to interfere in this process is limited. This freedom from government or societal interference is the essence of what Americans refer to as living in a "free society." It is the basis for keeping information about one's self to oneself, that is, keeping certain information private.

A coexisting value in our society is that government must be responsible to its citizens, and that what is done in their name must be knowable by the people. This, in essence, is what Americans refer to as living in an "open society." It is the basis for making information that affects society as a whole available to all, that is, keeping certain information public.

At the extremes, there is little argument. Most people accept, at least in theory, the need for both a Privacy Act and a Freedom of Information Act. It is when a claim of "private" is made concerning government information, or "public" concerning information about identifiable individuals, that conflict arises. This article focuses on the latter issue.

Public Information about Private Individuals
If the actions of individuals significantly affect the rights of others, most people would agree that the community has the right to know. The general acceptance of this right over the years has led to certain kinds of information about individuals being publicly accessible. Examples are records of birth, marriage, divorce, and death; property transactions; court records; bankruptcy proceedings; and professional licensing information. This level of public access to particular information about private individuals has generally worked.

However, several trends have emerged in recent years that bring the public-private dichotomy into question. The first trend is the expansion in the kinds of information to which third parties can now acquire access; that is, more and more information once deemed private is now considered public. The second involves shifting interpretations of whose fundamental rights are being protected. The third and most important trend concerns the logistical ease with which personal information about identifiable individuals can now be collected, combined, and redistributed.

From "Private" to "Public"
There has been a quantitative shift from privately held to publicly accessible information. For a complex of reasons, many related to the credit economy, people today do not object as strongly to the gathering and sharing of information about themselves and their activities as did those of past generations. The relatively benign example of real estate transactions illustrates this point. Until the 1980s, finding out what someone paid for a piece of property in California required that one ask the buyer or the seller, something few would do, or else make an estimate from tax records (a highly unreliable method). Today, finding out what someone paid for a piece of property can be accomplished by thumbing through the real estate section of the local newspaper, where this information is routinely published.

A more problemmatic way in which personal information has become public is through government databases. Having so much information about individuals stored in government databases has the tendency to convert the data itself to public information. Examples include information contained in voting, school, and motor vehicle records; the files of publicly owned utilities; and the like. Decisions about whether such information, which previously was considered confidential, will or will not be released frequently depend on who happens to be in charge of the database. Moreover, some government employees seem to believe they can get in more trouble by resisting a request for information than by complying with it.*

Whose Right Is It Anyway?
It is difficult to maintain one's rights, including the right to privacy, when there is a blurring of what the right constitutes and whom it protects. For instance, rights that start out as protections for one group of people are often recast to accommodate a totally different group. The criminal justice system affords a useful example. At one time, husbands and wives were prohibited from testifying against each other. The result of this "marital privilege" was that it protected the accused. Today, a spouse is not required to testify in such a case, but may choose to do so. This reinterpretation of the marital privilege essentially shifts the protection from the accused to the spouse of the accused. Similarly, in the early days of our nation it was determined that trials should be held in a public setting, and that if someone were being detained, that fact should be public information. The purpose was to limit the power of the state. Preventing the police from holding an individual without the knowledge of his family or friends and preventing the state from imposing sentences in secret hearings safeguarded the rights of the accused. Today, access to trials and evidence is more often argued on the basis of the public's right to know than of the accused's right to have these circumstances known, and cameras in the courtroom can be ordered even over the objections of the defendant. In short, the values by which information was once held to be public have been confounded, while the information itself is exposed to an ever-widening audience.

Ease of Access
The most important recent development affecting the widespread dissemination of information about people's lives and activities is the ease with which it can be gathered, recorded, and distributed. This development has affected public as well as private institutions, resulting in a significant change in the way governments view information and the right of government entities to acquire and use it. The Privacy Act of 1974 placed a few restrictions on how the federal government treats personal information. Many of these restrictions have been overturned or ignored in the years since. However, more significantly, the Privacy Act applies almost exclusively to information held in federal databases. This leaves state and local entities largely without privacy restrictions, except for those they may impose on themselves. Much personal information is held at the state and local level, and the gathering of such data shows no sign of diminishing.

Until recently, the only personal data one was required to supply to obtain a government service was the information necessary to support that particular activity. Today, one can face an extensive inquiry, even for as simple an act as obtaining a library card. This sweeping approach to acquiring information is based primarily on the fact that technology makes these records easy to gather and cheap to maintain. The next step may well be to make this "public" information available to all who want it, from the comfort of their homes, at the touch of a keyboard.

This ease of access to personally linked information held in government records carries significant societal implications. If public information as presently constituted were to be made electronically available over interconnected networks, it could usher in a new era, one of informational intimacy among virtual strangers. This is not just a different way of doing the same old things; it is a dynamic break from what has happened in the past.

In the past, an interested party had to travel to the jurisdictional location where a public record was kept, at considerable cost in time and sometimes money, just to find out how one court hearing had been decided. We are now at or close to the point where one can sit at home and browse the county records to determine, for instance, how much each neighbor pays in court-ordered child support. This quantitative change in the investment one must make to obtain information translates into a qualitative leap in social impact. While it might be assumed that someone who invests his time in searching a particular government record has a genuine need to know, one cannot make that assumption about someone "surfing the net."

Conclusion
Many people are becoming increasingly uneasy about the amount of information others have about them. Direct mail coming into the home often refers to facts that even close friends or family members may not know. While some of this information is gathered from private sources, much of it comes from government databases. In this brief paper, I have attempted to show that public information no longer covers the same domains, protects the same individuals, reflects the same values, or serves the same purposes as was originally intended. For these reasons and because making some forms of "public" information widely available over electronic networks would result in significant new privacy violations, we need to reconsider where we are and ask ourselves what should happen next.

Left to their own devices, will holders of public records make personal information available through the Internet? It's too early to tell. Most are still struggling to bring up a home page. However, the point is that a great deal of personal data is sitting in these records and, given the present situation, could be brought on line. While some of this information may be needed by others; much of it serves no useful public purpose.

We need to revisit the question of what information is needed for public purposes. Perhaps three categories of information will emerge. In addition to a "fully public" and a "fully private" category, we could have a category of information that is available through individual inquiry, but is not indiscriminately distributed or sold to marketeers. Whatever the conclusion, the issue needs debate before the question becomes moot.

If we are to maintain an open society, in which government is responsible to its citizens, while at the same time banefitting from the opportunities provided by electronic communication and preserving the individual liberties necessary to a free society, it is time to reassess how we label and treat information. The simple public/ private distinction no longer suffices.

Note
*For instance, two brothers in California sought to obtain printouts of arrest records for use in a private business. Of the six California counties approached, only two raised objections to handing over these records, although the state's Information Practices Act lists such records as "confidential." (Peninsula Time Tribune, April 4, 1991, p. 4.)

Mary Connors is a research psychologist focusing on issues of human/machine interaction She is CPSR's Western regional director and is active in the Palo Alto Civil Liberties Working Group. She can be contacted at mconnors@cpsr.org.

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