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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.

a non-trend.

Finally, federal pre-exemption poses a special trend Where a federal interest is exclusively administrative, e.g. federal taxation,

there is no question of state legislation.

Outside of that instance, federal intentionally or inadvertently

and the

legislation has avoided pre-emption 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,

Due

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. 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.

201/

H.R. 10076 is an omnibus bill consolidating the ideas of sixteen previous bills in the legislative recommendations of the Privacy Commission, although all remain viable. Title I of the bill establishes a Federal Information enė 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/ equiring a signed and dated writing.

f third party records.

Administrative subpoenas would be re

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

to third parties would be limited to instances where there exists reasonable
204/
ause 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/

ill. Judicial subpoenas may be obtained, under the bill, on a showing authorty 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

grand jury as well as discovery.

207/

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

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

information.

215/ H.R. 10076, Title V, $8501-502.

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.

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independent credit card and authorization services, as well as adding procedures

for depository and insurance businesses.

216/

Title VII of the bill would amend the procedure for acquisition of
Federal tax return information by other Federal law enforcement officials by
requiring the head of the agency or department to bring a civil suit against
the taxpayer for a determination by a court that the tax return information
may be disclosed.

The court may grant the determination of it finds; 1) probable
cause of a violation of Federal law, 2) probable cause that the return information
is probative evidence of the issue, 3) acquiring the information from the tax-
payer would not be prohibited as a matter of law, and 4) the information cannot
217/
be reasonably obtained from a source other than the IRS. The title would also
expand disclosure to local tax authorities, require states to provide privacy
legislation on tax matters and eliminate disclosure of information to corporation
218/
Commissions.

216/ H.R. 10076, Title VI, $5601-605. This general extension brings additional
sources of information within the strictures of the FCRA and its disclosure
restrictions, but does not substantivity after the restrictions.

217/ H.R. 10076, $706. Amending 26 U.S.C. 6103, discussed supra, notes
The section would also provide for in camera review, taxation of costs, expe-
dition of proceedings, finality of judgement, stay of mandate and preservation
of the Secretary's discretion not to disclose, but, see, H.R. 1493, Introduced
January 6, 1977 Mr. Hagedom.

$704,

218/ H.R. 10076, $703. The title would also alter examination of prospective
Presidential appointees and permit access to child support agencies at
705. Title VII would amend the educational privacy provisions of the General
Educational Provision Act and d the Buckley Amendment.