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returns, pose a special difficulty: first because of the proximity of the party, 199/ and second because of the special requirements of a voluntary tax system. Third, a premium has been placed on accuracy in third party intragovernmental records transfers. While the Privacy Act of 1974 prescribes a procedure for ensuring accuracy, it exempts the most controversial and fluid problem: criminal histories. Neither the authorization for FBI record keeping nor the courts have successfully grappled with this question. The Fair Credit Reporting Act imposes a higher standard of care on one type of user of much information and imposes liabilities for using inaccurate or obselete information. It would appear that if a trend exists in this underlying issue, the trend is merely to raise it as an issue.

Fourth, notification poses a special problem in third party records investigations since it may give the individual an opportunity to thwart enforcement. No federal statute is known to prohibit voluntary notification of a person that 200/ records pertaining to him have been summoned by an investigative authority. Notification on request is required by the FCRA, whether this disclosure would serve to inadvertently notify or confirm suspicious or hearsay. Notification is required when the IRS issues an administrative summons to a third party record Where an important interest is perceived in a record, the more likely a

holder.

right of notification or access will be granted.

199/ The second reason is undoubtedly more important, but this example is the most readily available Federal records submission. In the states, the best example would appear to be registration of firearms by the possessor.

200/ This includes the grand jury process. A witness may be admonished not to communicate his grand jury testimony to a putative defendant, but there is no sanction against doing so.

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Fifth, notification leads necessarily to attempts at intervention. Here a consistent trend exists to deny intervention, with the exception of

tax summonses.

Finally, federal pre-exemption poses a special trend - a non-trend. Where a federal interest is exclusively administrative, e.g. federal taxation, there is no question of state legislation. Outside of that instance, federal legislation has avoided pre-emption intentionally or inadvertently and the courts apply a rule of construction to foster

non-pre-emption if possible.

This leads to a more highly developed privacy right in some states and more restrictive access to some records; while in others the opposite may be true.

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J. Contemporary Legislative Proposals

Unlike the dearth of bills associated with the trilemma in Chapter II,

third party records acquisition and confidentiality has proved a fertile ground for the introduction of legislation.

No less than 43 original bills have been

introduced in the House and 5 in the Senate thus far in the 95th Congress. Due to the complexity of individual bills, which would only be compounded by any consolidated analysis, each bill will be summarized individually unless that bill has been incorporated in a later introduction.

H.R. 10076 is an omnibus bill consolidating the ideas of sixteen previous bills in the legislative recommendations of the Privacy Commission, although 201/ all remain viable. Title I of the bill establishes a Federal Information and and Privacy Board, gives the Board investigative authority over compliance with the FOLA, Privacy Act, Sunshine Act, Fair Credit Reporting Act, and other laws, as well as transnational data flow, electronic funds transfer, criminal history and other information.

Title II of the bill substantially rewrites the Privacy Act of 1974,

as amended. The key to the new provisions is the removal of the "primary function" test for criminal law enforcement agencies and an increasing stress on accuracy through procedural restraints.

202/

201/ H.R. 10076, introduced November 11, 1977 by Mr. Preyer, Mr. Koch and Mr. Goldwater, consumes the following House bills: 9989, 9986, 9982, 8288-8879 1985, 434 and 433. See, also: H.R. 3070, Introduced February 2, 1977, by Mr. Rouselot (for himself, Mr. Symms and Mr. Morehead of California), (financial), H.R. 2603, Introduced January 27, 1977, by Mr. Patterson of California. See, Privacy Protection and Study Commission, Personal Privacy in an Information Society, 371-379 (1977).

202/ H.R. 10076, Tit. II.

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Title III of H.R. 10076 includeds general provisions for acquisition Consent would generally be required under procedures 203/

of third party records.

requiring a signed and dated writing. Administrative subpoenas would be re

quired to be served on the subject of investigation who would then have the right to object and intervene in enforcement proceedings.

Administrative subpoenas

to third parties would be limited to instances where there exists reasonable
204/
cause to believe that the subject has violated a Federal law. The use of

search warrants to obtain third-party records would not be effected by this
205/
bill. Judicial subpoenas may be obtained, under the bill, on a showing author-
ity and reasonable cause to believe the subject has violated a federal law; the
206/
subject must be notified and an opportunity to intervene is implicite.
judicial subpoena is construed to include subpoenas issued in the course of a
207/

grand jury as well as discovery.

The

The bill provides that no administrative

or judicial subpoena, or search warrant can be issued for personal papers, such as 208/ business records of a sole proprietorship.

Grand Jury subpoena are additionally

restricted when personal records are subpoenaed, requiring 1) an actual presentment

to the grand jury for the limited purpose of indictment; 2) return or destruction

203/ H.R. 10076, 303.

204/ H.R. 10076, 304.

205/ H.R. 10076, 305.

206/ H.R. 10076, 306.

207/ H.R. 10067; 306(b).

208/ H.R. 10076, 307.

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of the documents if not used for the limited purpose or sealed in the minutes

of the grand jury and 3) maintenance by prosecuting authorities of the record 209/

only if used. A specific right to challenge subpoenas is granted and material 210/

improperly obtained is excluded from evidence under the bill. The bill also prohibits disclosure of information acquired to other agencies or use other 211/

than the purposed of the subpoena. Exceptions to these provisions include 212/ material and examinations by supervisory agencies. The remainder of the title provides for jurisdiction, civil and criminal liabilities, and defini213/

tions.

Title IV of the bill authorizes the Secretary of HEW to promulgate bases for state ligitation to protect individual's and conditions Federal 214/ public assistance and social services financing on compliance. Title V would amend the Social Security Act to insure the limited use of medical files and information, grant access to the patient with an opportunity to dispute or correct the information, and notification to the patient of all uses of the

information.

215/

Title VI extends the scope of the Fair Credit Reporting Act to

215/ H.R. 10076, Title V, §§501-502.

These titles are dealt with summarily due

to their limited utility or consequence in law enforcement. Cf. H.R. 2593, Introduced January 27, 1977, by Mr. Kildie.