What Is the Federal Privacy Act? How the Privacy Act Can Protect Your First Amendment Rights from Government Intrusion
Digital media law: Is it paranoia, or merely an overweening desire to be in control? In either case, in both the Bush and Obama administrations, citizens have needed to be on their guard against attempts by the political class to improperly gain intelligence on the political activities of citizens. Recent examples of such spying have included DOJ political appointees running Internet searches to determine the political leanings of potential Justice hires, White House officials asking citizens to send emails to a website reporting on citizens who are making "fishy" claims about proposed legislation, or bureaucrats proposing to install software to track use of government websites.
The good news is that the federal Privacy Act (5 U.S.C. § 552a) makes these kinds of domestic spying illegal. The Privacy Act is the lesser known cousin to the well-known Freedom of Information Act (5 U.S.C. § 552). The thrust of FOIA is to provide procedures to make information maintained by government agencies available to the public. The thrust of the Privacy Act is to (i) limit the types of information government agencies can collect about individuals, (ii) provide procedures for individuals to correct misinformation in government files, and (iii) limit the ability of agencies to disclose information about individuals to other agencies or the public.
The Privacy Act also provides private rights of action, under which an individual can sue a government agency which violates its rules, and obtain an injunction, damages and attorneys fees.
Basic elements of the Privacy Act
Here is a broadbrush summary of the Act:
• Coverage limited to "individuals": Only citizens and aliens "lawfully admitted for permanent residence" qualify as individuals covered by the Act. 5 U.S.C. § 552a(a)(2). This means that the Act does not apply to aliens without permanent resident status. It also does not apply to fictional entities, such as corporations. OKC Corp. v. Williams, 461 F.Supp. 540 (N.D. Tex. 1978).
• Generally prohibits federal agencies from disclosing personal records about an individual: Protected records include those that contain any information that would identify an individual, such as his name, social security numbers or fingerprints. 5 U.S.C. §§ 552a(a)(4), (b). Disclosure cannot be made to "any person or to another agency." However, there are many exceptions. For example, an agency is permitted to disclose records about individuals to persons within the agency that collected the records who have a need for the record to perform their duties, or to persons in other federal agencies to assist in civil or criminal enforcement activities. Id. at §§ 552(b)(1), (7). An agency is also permitted to disclose such records to comply with FOIA. Id. at § 552(b)(2).
• Requires recordkeeping of disclosures: Agencies are required to keep "an accurate accounting" of all disclosures they make of individual records, except for disclosures made to persons within the agency or pursuant to a FOIA request. 5 U.S.C. § 552a(c)(1). This accounting must be maintained for at least five years, and, with limited exceptions, must be provided to the individual on his request.
• Individuals generally have a right to access records maintained about them: 5 U.S.C. § 552a(d). However, agencies have the right to promulgate rules that prohibit access to records for national security and law enforcement purposes. Id. at § 552a(j), (k).
• Individuals may request that amendments be made to their records: 5 U.S.C. § 552a(d)(2)-(4). An agency may refuse to grant a request to amend, but if it does so, must provide the individual with a statement of the reasons for the denial.
• Agencies have limits on the information they may collect about individuals: Among the more important of these limits are that an agency must: (1) only retain "relevant and necessary" information; (2) collect information to the greatest extent practicable from the individual him/herself when the information may result in an adverse determination about the individual's rights, benefits or privileges under a Federal program, (3) maintain all records used in agency determinations about an individual with "such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness"; and (4) maintain no record, describing how any individual exercises rights guaranteed by the First Amendment, unless expressly authorized by statute or by the individual, or unless needed for a law enforcement activity. 5 U.S.C. § 552a(e)(1), (2), (5), (7).
