provisions (especially, but not only, the Fourth Amendment) unmistakably limit the power of government to invade the lives of citizens.

When law enforcement and national security are concerned, the sources of concern about privacy rights are readily apparent. On the one hand, law enforcement must be able to gather information about individuals in order to identify and apprehend suspects and to enforce criminal law and regulatory standards. National security agencies gather and analyze information about individuals and organizations in order to protect and enhance national security. On the other hand, the very process of gathering and using such information may pose serious risks to individual privacy.

A somewhat similar set of tensions apply to data that have already been collected for some purpose other than law enforcement or national security. As noted in earlier chapters, a wide variety of personal information on individuals is collected for a wide variety of purposes by both government agencies (e.g., the Internal Revenue Service, the Census Bureau) and private sector organizations such as banks, schools, phone companies, and providers of medical care. In some instances (such as survey data collected by the Census Bureau), such information has been collected under a promise, legal or otherwise, that it would be used for a certain purpose and only for that purpose, and would otherwise be kept confidential.31 If and when external circumstances change (e.g., the nation comes under attack), some would argue strongly that it is criminal to refrain from using all resources available to the government to pursue its law enforcement and national security responsibilities. Others would argue just as strongly that the legal restrictions in effect at the time of data collection effectively render such data unavailable to the government, legally if not physically.

According to scholars William Seltzer and Margo Anderson,32 an example of such government use of privileged data occurred during World War II, when the Bureau of the Census assisted U.S. law enforcement authorities in carrying out the presidentially ordered internment


One exception is that the USA PATRIOT Act of 2001 allows the attorney general to obtain a court order directing the Department of Education to provide to the Department of Justice data collected by the National Center for Education Statistics (NCES) if such data are relevant to an authorized investigation or prosecution of an offense concerning national or international terrorism. However, the law also requires the attorney general to protect the confidentiality of the data, although the standards used for such protection are formulated by the attorney general “in consultation with” the Department of Education. Prior to the passage of the USA PATRIOT Act, NCES data were to be used only for statistical purposes.


William Seltzer and Margo Anderson, “After Pearl Harbor: The Proper Role of Population Data Systems in Time of War,” paper presented at the annual meeting of the Population Association of America, Los Angeles, California, March 2000, available at the American Statistical Association’s Statisticians in History Web site.

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