Particulars of the Privacy Act of 1974
Torts on privacy invasion developed in the United States as a result of an influential law review article published by an attorney, Louis D. Brandeis, who later became a Supreme Court justice. In attempting to protect the privacy rights of individuals, the government had been very cautious. It must allow access without censoring data, and yet provide protection to citizens so that they are not exploited.
The Privacy Act of 1974 is a federal mandate that governs the treatment of personal data. The Act requires public acknowledgment of the existence of data files and an individual’s access to his/her file. Furthermore, it stipulates that citizens have the right to see any record kept on them and have ample opportunity to correct it. It also created due process rules through which an individual may challenge the accuracy and pertinence of personal data that is held in a file. It contains a provision offering grounds for redress when personal information is used for purposes other than those for which the file is officially intended.
The Privacy Act applies only to the data that is held by federal agencies. The major weakness of the Act is the lack of a personal data ombudsman to enforce it. Any oversight is charged to the Office of Management and Budget. This weakness provides no enforcement of the Act amongst the agencies, creating loopholes for agencies to stretch the laws. One such lax is the interpretation of “routine" use; such use is defined as the use of a record for a purpose which is compatible with the purpose for which it was collected. However, the executive branch interprets all information entering the federal sphere to be available for all federal agency use, justifiable under the above definition.
The Privacy Act governs information on each individual that is maintained by a federal agency in a “system of records.” This system is one from which information about an individual is retrieved by name or other identifying characteristic. The only records subject to the Act are those in which information is retrieved in this manner. However, the Act’s restrictions on information collection are applicable whether the information is ultimately put into a system of records.
The Privacy Act stipulates that agencies that collect data on individuals must inform the individual that such information is being gathered, as well as explaining the purpose of collection and whether disclosure of information is mandatory or voluntary. The individual, under the Act, is entitled to be provided with protective warnings about the gathering of information on them. After the data has been collected, it can only be retained if it is “relevant and necessary” to accomplish a purpose of the agency that is required by statue or executive order of the President.
The Privacy Act of 1974 is unlike the Freedom of Information Act (FOIA) in that it is applied to federal agencies only. Its intended purpose is to strengthen the individual’s control of flow of information about self by authorizing the subject of information to obtain access to it and restrict disclosure without his consent.
Remember, the objective of FOIA was disclosure, but it made provisions for the protection of personal information in several places – protecting against unwarranted invasion of privacy.Disclosure through communication to any person or to another agency is prohibited under the Act unless one of the following specific authorizations for disclosure applies:
- Consent of individual given;
- Within the agency maintaining record to those who have need for it in their work;
- Where required by FOIA;
- For a “routine use”;
- For law enforcement purposes, under certain circumstances.
The Act makes no provisions for intergovernmental agencies/activities. This allows them to exchange information on an interagency, need-to-know basis. Federal law enforcement agencies that receive criminal law enforcement information about a particular individual from states will not be required by the Act to disclose this data to the subject individual.
To read the text of the Privacy Act of 1974, please click here.
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