Privacy and the public

by Bob Zelnick

On April 19, 1989, during firing exercises some 260 miles northeast of Puerto Rico, the middle gun in Turret Two aboard the battleship USS Iowa exploded, killing 47 sailors and hastening the day these dinosaurs of the sea were returned to mothballs.

The Navy immediately launched an investigation of the disaster. Within weeks, leaks from the Naval Investigative Service (NIS) suggested that the investigation had begun to focus on a seaman named Clayton Hartwig, one of those who had lost his life in the explosion. The word was that Hartwig had been despondent over the break-up of a homosexual relationship with another sailor aboard the ship and over his failure to obtain a coveted assignment to the security team at the U.S. Embassy in London. According to leaks, while serving as gun captain of the Turret Two middle gun Hartwig had managed to place an incendiary device between two of the powder bags. During the ramming procedure used to prepare the powder for ignition, the incendiary device was detonated, causing the powder to explode prematurely.

During the entire period of the investigation, I was the Pentagon correspondent for ABC News. As I began my own inquiry into the case, I found several reasons to treat the Navy’s leaks with skepticism. We learned that the ship’s command had been careless in its handling of the gunpowder — storing it at temperatures considered too high to be safe — and had been conducting unauthorized and unsafe weapons tests. Close friends of Hartwig of both genders denied he had been homosexual. Letters from Hartwig shared with us by family and friends in his hometown of Cleveland were forward-looking and optimistic, according to several independent psychiatrists I consulted. One sailor from the Iowa, himself a former security guard at the London embassy, told us Hartwig had spent his last night on earth seeking advice on how to handle what he thought would be his new responsibilities. Another sailor told us that Hartwig had not even been scheduled to work in Turret Two until the morning of the disaster, something which would completely undermine the notion of premeditation.

My assistant, Mark Brender, and I followed our own leads on a number of fronts. These included at least three written inquiries made pursuant to the Freedom of Information Act. First, we requested complete records of the storage of gunpowder aboard the ship as well as the documents related to recent firing tests. Second, we requested a status report as of the date of Hartwig’s death on his requested assignment to the U.S. Embassy in London. And finally, we requested a copy of the duty roster for the final voyage of the Iowa. We emphasized that the request was time-urgent and we also told the Navy we were prepared to appeal any denial of our request.

To its credit, the Navy made all this material available. And their information reinforced my conclusion that the NIS investigation was hopelessly off-course. The Navy’s careless storage of the gunpowder and unauthorized gun exercises were confirmed. Hartwig’s assignment to London was so close that he was not even on the duty roster for that final voyage because both he and the Navy assumed he would be separated from the ship and sent to London before the training exercise was completed.

To close the chapter on this account, the Navy released its scurrilous report on the incident, which I challenged, both on ABC and in an op-ed page piece in the New York Times. Both Houses of Congress held hearings on the affair. Sen. Sam Nunn, chairman of the Senate Armed Services Committee, “requested” — in reality, ordered — the Navy to submit its physical evidence for review by the Sandia National Weapons Laboratory in Los Alamos. Sandia concluded that there was no physical evidence to support the incendiary device theory. And it found that it could replicate the explosion by subjecting the powder to greater than normal pressure, thus strongly suggesting an over-ramming accident. Eventually, the Navy withdrew its first report and issued a second, saying it could not determine the cause of the explosion aboard the USS Iowa. It expressed regrets to the Hartwig family.

I think about the USS Iowa and the Navy’s irresponsible first investigation and the agony it caused the Hartwig family — already grieving the loss of their son — every time I hear of efforts to restrict public access to government records and documents in the name of privacy. I would hate to think that anything we sought back in 1989 as part of our legitimate effort to investigate both the standard of care practiced aboard the Iowa and the Navy’s investigation of the explosion, could be held beyond our lawful reach under today’s federal or state standards or those that are under consideration.

Efforts to restrict access to government controlled information are today widespread. They involve all three branches of government — the executive, legislative and judicial — and, with respect to the judiciary, include both decisions and the administration of the court system. This process of retrenchment began nearly two decades ago with the 1982 Supreme Court decision in United States Department of State v. Washington Post Co. There the court read broadly the language of an exemption to the Freedom of Information Act that dealt with “personnel and medical files and similar files.” The term “similar files” was read by the justices to include any file that “applies to a particular individual.” That language was held broad enough to prevent release of the final words of the crew of the Challenger recorded by mission control, in effect extending the right of privacy beyond the grave. That is interesting because, as you know, a deceased’s estate has no claim for damages even against one who has disseminated false, malicious, and defamatory statements, the theory being that a dead person can suffer no damage from such insults. Apparently the dead are more sensitive about invasions of privacy than malicious insults.

In a second case, United States Department of Justice v. Reporters Committee for Freedom of the Press, which involved FBI “rap sheets” on organized crime and corrupt politicians, decided in 1989, the Supreme Court established the so-called “practical obscurity” standard, meaning that even information once in the public realm could be withheld by the government if the interests of confidentiality outweighed the public value of the information. The case also narrowed the scope of the public interest to be weighed to the “core purpose” of FOIA: to shed light on an agency’s performance of its statutory purpose.

More recently, in the 1998 case of Kallstrom v. City of Columbus, the Sixth Circuit ruled that Ohio’s “right of access” law, which made available the personnel records of state employees, including undercover police officers, constituted an unconstitutional breach of privacy — the first time ever that a federal court invalidated a state open government law on constitutional privacy grounds.

Both the federal and state governments have also made significant moves in the direction of privacy versus access. Just last month the Bush Administration introduced a sweeping set of guidelines under the Health Insurance Portability and Accountability Act of 1996 giving patients greater control over their medical records, restricting those who can view such records, and requiring documentation each time the records are reviewed.

And last year, in the case of Reno v. Condon, the U.S. Supreme Court upheld sections of the Driver Privacy Protection Act of 1994, which bans states from disseminating information contained on driver’s licenses. Many states were making millions a year selling this information to commercial customers.

The states too have been active in extending socalled privacy rights. Three years ago, Mississippi became among the first states to close 911 calls to the public and last year its state House overwhelmingly rejected a proposal that would allow some records of 911 calls to be released.

A second example involved the February death of NASCAR superstar Dale Earnhardt at the Daytona 500 race. The Orlando Sentinel requested the autopsy photos of Earnhardt, not for publication, but as part of an investigation into NASCAR safety. Earnhardt’s widow, Teresa, fought the move, saying she feared the pictures would wind up on the Internet, and NASCAR fans besieged the legislature and governor’s office with demands not to let this happen. In just three weeks, the legislature passed and Governor Jeb Bush signed a law restricting the release of autopsy photos unless done pursuant to a court order. After signing the bill into law, Gov. Bush posed with the Earnhardt widow on the steps of the Capitol.

Rhode Island, too, appears to be moving to make confidential a vast array of individual information, including medical and psychiatric records, child custody and adoption records and information about grades on employment exams, and academic performance generally. Alleged victims of sexual abuse would also have most records shielded.

Many of these laws and proposals — in Rhode Island and elsewhere — reflect legitimate concerns about individual privacy. Many are targeted at forms of dissemination or publication — particularly for commercial purposes — which may only incidentally include the media. Yet many deprive the media of vital tools of their trade, and the public of some potentially critical information.

Take the Kallstrom decision, for example. At first blush, many might applaud the protection of personnel records on constitutional privacy grounds. But think back just a few weeks to the killing of a fleeing black youth in Cincinnati by a white officer seeking to arrest him on more than a dozen misdemeanor charges — and the subsequent riots and allegations of racism. Would knowledge of that officer’s personnel record be in the public interest? Many would say, yes. I certainly would. After all, who’s employing him in the first place?

The other cases are also more complex than one might at first suspect. Investigative reporters sometimes use the information from drivers’ licenses to find sources or bring troublesome material to light. For example, as noted in a research paper by one of my Boston University journalism students, the Atlanta Journal- Constitution searched through 5.4 million computer files to identify 43 drivers who had at least 15 drunken-driving convictions, many of whom had successfully and repeatedly renewed their licenses. And the St. Petersburg Times used the computer to identify substitute teachers who had criminal records, some for sex offenses.

As for 911 calls, what better way to check on the quality of police response to emergencies than to employ the taped calls as a point of reference.

With respect to the Earnhardt autopsy photos, I understand they have already appeared on the Internet. More to the point, might they have contributed to better auto safety for the men who drive the racecars? Balanced against the privacy interests of a decedent, I would be surprised if the law passed in only three weeks survives future constitutional and political scrutiny.

Rather than a comprehensive review of the Rhode Island bills, a few cursory observations are in order. First, with regard to victims of domestic assault, there may be circumstances where the victim or her children are placed at greater risk when their location is made public. Where no such special danger is present, however, I think the more sexual abuse and assault crimes are treated like all others, the more we will do to remove the self-described shame or stigma of some of the victims. And the more we will do to erase what Professor Alan Dershowitz of Harvard Law School claims is an inequality in the law: the name of the alleged perpetrator is made public — to his infinite shame and humiliation — but the alleged victim is protected from disclosure.

Another observation about Rhode Island. It would be most unfortunate if privacy laws became a shield against criticisms for policies a majority of Rhode Islanders may oppose. For example, if the state university system maintains a program of racial preferences whereby minorities with lower objective credentials are admitted, it would be highly relevant to see how they perform vis a vis their class at large. The same would hold true for, let us say, a promotion exam for firemen. Are we following test score results, or notions of social justice? The public has the right to know.

Again, let us not ignore the public benefits of access and plunge blindly into the forest of confidentiality. The Reporters Committee for Freedom of the Press offers the following limited sample of important stories broken because of access by journalists to public records:

¦ The Syracuse Post-Standard discovered that thousands of bridges in New York had not been inspected on schedule and that when they were, many were found to be in dangerous condition.

¦ The Atlanta Journal and Constitution analyzed hospital bills in Georgia and found major discrepancies at what patients were charged for identical services at different facilities.

¦ The News Tribune of Tacoma, Washington, found hundreds of pounds of military explosives are stolen each year, much of it winding up in the hands of criminals or white supremacist paramilitary organizations.

¦ In 1988-90, despite soaring homicide rates in the District of Columbia, the Washington Post found that 75 percent of the city’s murders were not even prosecuted.

¦ US News and World Report disclosed that many patients were still receiving transfusions of HIV or hepatitis-infected blood as well as mislabeled, contaminated or mistested blood despite health officials’ assurances to the contrary.

¦ I can add one or two further examples of my own. After the Associated Press received a Pulitzer Prize for its account of an alleged U.S. troop massacre of South Korean civilians at No Gun Ri in 1951, US News and other papers used FOIA to document the fact that as many as three of the AP’s key sources were not even at the scene of the alleged massacre.

¦ And in my research for a book I am writing on the Florida Bush-Gore contest, I came across a Miami Herald piece which reported that on the basis of analysis of 500,000 ballots cast in 12 counties, it was clear that at least 445 convicted felons voted illegally and as many as 5,000 may have done so statewide. Incidentally, 75 percent of them were registered Democrats.

Despite these public benefits of access, one must ask why is there so much activity running in the opposite direction now? I think there are two reasons. The first, of course, is the coming of the computer era, the wired society with all the attendant loss of privacy risks. Americans are only now beginning to realize how much about themselves they disclose when they apply for a driver’s license, or even check out at a supermarket counter, let alone file for bankruptcy, purchase a home, engage in a custody battle, register to vote, check into a hospital for surgery, shop by catalogue, subscribe to a magazine or join a club. In the hands of an adept computer operator, this information will be as widely shared as his list of clients. As one executive commented, “You have no privacy. Get over it.” (Of course, my own personal fantasy has been to obtain the subscription list to Cosmopolitan Magazine. All my life I have wanted to meet the woman who knows 125 ways to give him a turn-on he’ll never forget.)

The second factor is widespread distrust of the press. The press, in the view of many, is no longer the New York Times of the Scotty Reston era and the CBS News of the avuncular Walter Cronkite.

Instead it is the pestilential horde of Drudge Reports, screaming talk radio, rumor-mongering Web sites and slashing ideologies.

As a result, when the debate over privacy and media rights enters the public domain, most people focus not on rigorous investigative work but instead on the publication of the Starr report on the Clinton- Lewinsky relationship, or Princess Diana’s car hurtling through a Paris tunnel, paparazzi in hot pursuit. The general view appears to be that greater media access to information means an inevitable increase in seamy or prurient details in which most people profess to have little interest. In his insightful book, “The Unwanted Gaze,” distinguished legal scholar Jeffrey Rosen complains that the media’s ability to cast light on the tawdry details of a person’s private life makes it impossible for the public to judge the complexities of his or her entire personality. He writes: “Knowing everything about someone’s private life inevitably distracts us from making reliable judgments about his or her character and public achievements.”

If Rosen’s complaint sounds hauntingly familiar, consider this indictment of the press: “The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.”

The author’s recommended solution: creation of a right of privacy to arm the victims of this intrusive press. The author: Louis Brandeis writing with Samuel Warren in 4 Harvard Law Review 193 (1890). Those Brandeis remarks are much quoted today. Mentioned much less often is the crisp Brandeis observation — spoken much later in life — that “sunlight is the best disinfectant.”

Today the courts themselves are wrestling with the problem of privacy in the administration of their own system. Until recently the records of court cases both civil and criminal were kept in paper files open to those members of the public interested enough to come to the courthouse and search for them. But with the rapid computerization of such files, members of the media, employment agencies, credit bureaus, insurance companies and other interested parties can access this information within minutes. Applying the theory of “practical obscurity” first articulated by the Supreme Court in the DOJ v. Reporters Committee case of 1989, many court administrators have expressed concern that the wholesale access made possible by computer technology will play havoc with the right to privacy.

The Administrative Office of the Federal Court System has been seeking comments on how to accommodate the competing public interests of reasonable privacy and the right to know. The options include continuing to assume the records are public, reclassifying them to make some available and some not, providing different “levels of access,” with the parties, their lawyers and court staff entitled to everything promptly and the media and others entitled to some lesser degree of access. Under most proposals, the most restricted material would involve criminal cases where “Access to documents such as plea agreements, unexecuted warrants, certain pre-indictment information and pre-sentence reports would be restricted to parties, counsel, essential court employees, and the judge.”

The Maryland state judiciary went through a similar exercise last year. Its proposal would have restricted computer access, now subscribed to by some 3,000 firms, and allowed administrators to turn aside file requests that are “unduly burdensome.” The proposal drew fire from many fronts. A private detective wondered whether without speedy access to court records she would have been able to identify the convicted child molester who had applied for work as a baby-sitter. And the manager of a nearby nuclear plant felt his access to court documents had helped him identify a potential saboteur applying for work at the facility. The Washington Post worried that “reporters and representatives of citizen groups critical of judges or court procedures (might) find themselves inexplicably denied information they need.” Moreover, as the Post editorialized, “Banks use the system to make background checks on tellers, day care centers, to check for criminal records of potential employees. Parents seek information about day care centers and schools.” In the end, the Maryland courts abandoned their effort to revise the rules and decided instead that the difference between paper and computer files is one of degree rather than kind.

I confess that I place a rather high premium on the right to privacy. Though not of a conspiratorial bent, I personally would prefer my grocery purchases remain a matter known only to myself, the lady behind me who complains I have too many items for the line I’m in, and the valedictorian at the counter who can’t tell the difference between plastic and paper. I have always viewed my financial condition as privileged material, certainly to go no further than my accommodating local bookie, though concededly it’s tough to keep that information from one’s banker, the beady-eyed huckster who sold you your used car and the financing to get it off the lot, your mortgage holder, your credit card company, the financial aid office at your daughter’s law school, your accountant, your brokerage company, and the friendly IRS agent who is just an eyelash short of being able to indict you. As to my medical records, I blush when I have to buy a bottle of aspirin, let alone Viagra.

Yet despite this love of privacy, I am concerned about restrictions that protect no vital interest, that are not narrowly tailored, and that potentially cause many problems for the work of a free press. Today, as a student of mine observed, the mouse and the spreadsheet are, to many reporters, as important as shoe-leather and the notepad. Computer-assisted reporting is now studied in the journalism schools, and practiced in the field. The Seattle Times won one Pulitzer Prize for a computer-assisted report documenting that the Boeing 737 had potentially fatal flaws, and a second for a report documenting how Indian tribal leaders were buying expensive homes while 100,000 Native Americans remained in need of basic shelter.

I would suggest that some of the restrictions now being proposed are unconstitutional on their face, while others seem to be grounded in theoretical rather than documented need. In the first category are those seeking to prevent the publication of information on the public record or otherwise lawfully obtained by the press regarding the victims of crime, or witnesses, or other matters to come before the court. In a long line of cases beginning with the 1979 Supreme Court decision in Smith v. Daily Mail, the court has held the press immune from prior restraint, criminal punishment, or civil damages for printing the information. The three reasons are: First, that the legitimate privacy interests do not suffer since the protection extends only to lawfully obtained information. Information obtained, for example, by wiretap, bugging or computer hacking would fall outside the zone of protection.

Second, as Justice Thurgood Marshall wrote in The Florida Star v. B.J.F., where a law banning publication of the names of rape victims was thrown out, “Punishing the press for its dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act.” In other words, if it’s obtainable through public channels, it is going to come out one way or the other.

And third is the issue of timidity and selfcensorship. The courts simply do not want the press fearing its own shadow. It knows democracy works best with a robust, confident press, whatever the occasional excesses and irresponsibility. Again quoting Justice Marshall, “We continue to believe that the sensitivity and significance of the interests presented in the clashes between the First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” And quoting the Daily Mail decision: “If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

As I mentioned, we are also witnessing mighty responses to magnificent non-threats. Just last year, Congress passed and President Clinton vetoed what would have been America’s version of Britain’s Official Secrets Act, banning publication of classified information likely to compromise national security or harm U.S. soldiers.

Well frankly, I would be more open to the remedy if someone would inform me what the problem is. Which reports from what reporter during war or peace have proven damaging to U.S. national security interests, dangerous to the lives of American troops, or of benefit to any enemy, past or present? I can’t think of any, and I covered Vietnam as a freelance reporter and the Pentagon during eight years in the ’80s and ’90s, a period that included the end of the Cold War, the invasion of Panama, and the conduct of the Persian Gulf War. During that time I and my colleagues at NBC and CBS broke many stories involving classified information. Did we ever jeopardize U.S. national security interests, or put the lives of American soldiers at risk, or benefit an enemy of this country in any way? I think not.

So again I ask: Is there a valid concern about privacy in the computer age? Yes. Are there some legislative steps that might offer a plausible response to at least part of the problem of involuntary disclosure of private information? Probably. But let us act with a healthy regard for Constitutional principle and precedent. And let us not target the press, which claims a special and constitutionally protected place in the working of a free society.

To date, the abuses, while potentially troublesome, do not strike me as overly threatening, and, to the extent they may be, they should be approached with a scalpel and not a butcher knife. There is never a good time to roll back First Amendment principles. Doing so at the dawn of the computer age seems particularly misguided.

The preceding was a lecture delivered at Brown University on May 2, 2001. Robert Zelnick spent twenty-one years with ABC News covering political and congressional affairs. He now teaches in the Department of Journalism at Boston University.