Exactly 50 years ago, as each lengthening night brought the U.S. closer to the end of 1974, it was a time of transition and immense uncertainty for the country.
A few short months prior, President Richard Nixon was convinced to resign rather than face his inevitable impeachment by Congress. His unassuming vice president replaced him. Gerald Ford promised to restore integrity to the presidency, but the citizenry was only cautiously optimistic about his prospects, consumed as they were by a domestic economy with an inflation rate exceeding 12% and an unemployment rate of more than 7%.
A lengthy reflection on the summer of Nixon's downfall was published that year in the New Yorker magazine — cover price 50 cents — under the headline "A Reporter in Washington, D.C." In it, the inimitable Elizabeth Drew shared her contemporaneous journal-style missives, which one can imagine her scribbling freehand as she roamed the echoing halls of America's capital city.
Before he took office, Drew wrote about the incoming president, "Ford has limitations, and is more conservative than most people seem to think, but his relaxed and apparently open style have made him popular. Ford is also a creature of the traditional political and congressional processes. Will the public grasp at this opportunity to assume that most of our problems are over? The particular grotesqueries of Watergate may be gone, but many issues involving how decisions that affect our lives get made, how power is allocated and superintended remain. There is still a lot of work to be done. It is still not settled whether government can be bought. It is still not clear whether government agencies can be used to harass us. Or whether presidents can be called to account."
'The right most valued by civilized men'
Still earlier in 1974, toward the end of February, Nixon gave a radio address about the "American right to privacy."
The speech took place some 20 months after several burglars were arrested in the Democratic National Committee headquarters at the Watergate complex in Washington, D.C. As President Nixon pursued all avenues to weather the ever-growing scandal, he sought to buttress the public's eroding trust in government by, among other things, tackling heightened concerns around informational privacy.
Of course, privacy concerns were driven by more than governmental overreach. It was the beginning of the computer age, and many were troubled by the prospect of frictionless access to individual's records.
Over the radio, Nixon addressed these concerns and the emerging "big business" of data gathering.
"At no time in the past has our government known so much about so many of its individual citizens. This new knowledge brings with it an awesome potential for harm as well as good — and an equally awesome responsibility on those who have that knowledge. Though well-intentioned, government bureaucracies seem to thrive on collecting additional information. That information is now stored in over 7,000 government computers. Collection of new information will always be necessary. But there must also be reasonable limits on what is collected and how it is used.
"The same process has been at work in the private sector where computers and modern data technology have placed vast quantities of personal information in the hands of bankers, employers, charitable organizations, and credit agencies."
While applauding the passage of the Fair Credit Reporting Act, the first major privacy law in the U.S., which he had signed in 1970, Nixon also admitted more guardrails were needed.
"Many of the good things in life that Americans take for granted would be impossible, or impossibly high-priced, without data retrieval systems and computer technology," he said. "But until the day comes when science finds a way of installing a conscience in every computer, we must develop human, personal safeguards that prevent computers from becoming huge, mechanical, impersonal robots that deprive us of our essential liberties."
And so, to address these concerns, Nixon announced the assembly of "some of the most able men and women in government" to serve on a Domestic Council Committee on the Right to Privacy, a "blue-ribbon panel" tasked with gathering perspectives on the collection, storage, and use of personal information and issuing "a comprehensive series of specific recommendations for action."
The president also announced that his Privacy Committee would be chaired by then-Vice President Ford.
The Domestic Council Committee on the Right of Privacy
Over the ensuing months, as Nixon's presidency waned, the Privacy Committee doggedly pursued its goals across what became 14 policy initiatives. The areas of inquiry remain remarkably relevant today, ranging from consumer transactions to cable television to school records to military surveillance.
Fortunately, Ford chose to make every scrap of paper from his presidency public domain, and each has been painstakingly digitized by the Gerald R. Ford Presidential Library and Museum.
The records paint a picture of the profound influence of the Privacy Committee during the transition to the Ford presidency.
For one, Ford used his influence on the committee to squelch a proposal to link computer systems across the federal government, a project that had been given the somewhat ominous name “FEDNET.”
Most importantly, in what seems like lightning speed to an observer from 2024, the Privacy Act of 1974 was also drafted, introduced, and passed by Congress during this time, with close engagement from the committee. The same is true of the Family Educational Rights and Privacy Act of 1974.
The lead staffer of the committee, Philip Buchen, joined the White House as Legal Counsel to the President. As Ford assumed the presidency, he put his own vice president, Nelson Rockefeller, in charge of continuing the work of the cabinet-level committee. Its records and recommendations continued to accumulate.
Privacy's godfather
On the final day of December 1974, Ford signed the Privacy Act from his “winter white house” in Vail, Colorado. Released the next day, his signing statement promised to continue prioritizing privacy for all Americans, "Experience under this legislation, as well as further exploration of the complexities of the issue, will no doubt lead to continuing legislative and executive efforts to reassess the proper balance between the privacy interests of the individual and those of society."
A draft speech from Ford's presidential files goes even further.
"Because we live in a society in which bigness and complexity are the rule — where big organizations and complicated laws and regulations have a profound effect on our everyday lives — decency, fairness, and straightforwardness, which in turn build confidence and trust, are now more valuable than ever. As a people, we must have confidence that our political and social institutions are serving us well. We must be able not only to trust what they tell us, but to hold them accountable when they fail to keep their promises.
“Laws and administrative actions to protect personal privacy are means of building such trust and accountability. They aim to assure the American people that institutions that collect, record, and use information about them do so openly and according to established rules. They seek to define areas of an individual’s private life that are immune from trespass without his consent. They attempt to give the individual a central role in determining whether information about him is accurate and complete, and to hold record-keeping institutions to any promises they make not to disclose personal information to someone else.
In 1975, the Privacy Committee and the Ford Administration added five more legislative victories to its list of successes: safeguards in criminal justice information systems, confidentiality of taxpayer records, limits on military surveillance, amendments to the FCRA adding the modern privacy safeguards we know today and restrictions on disclosure of cable television subscriber information.
However, as every privacy pro knows, this remarkable slate of legislative victories nevertheless failed to extend the same protections across all domains of the private sector.
What will the historians say?
It is remarkable that the transition from a time of profound uncertainty led to the reification of individual rights, especially around informational privacy vis a vis the government.
But such gains did not come easy.
In one undated entry of Drew’s New Yorker report, she muses about how 1974 might one day be viewed:
"There is already some talk about what 'the historians will say' — the historians, those unknown people who in the future will have the franchise to interpret what is going on now. We tend to assume that out of their years of accumulation of fact they will sift the truth — a truer truth than any we can hope to grasp. They will have many more facts. And they will have what is called 'perspective' (which means they will not be trapped in the biases of our day and can freely write in the biases of their day — can find what they are looking for). But I wonder if they will really understand what it was like. Will they know what it felt to go through what we have gone through? Will they know how it felt to be stunned — again and again — as we learned what had been done by people in power? Will they know how it felt to be shocked, ashamed, amused by the revelations — will they understand the difficulty of sorting out the madcap from the macabre? … Can they conceivably understand how it felt as we watched, on our television screen, our president say, 'I am not a crook?' Will they be able to understand why, almost two years ago, some very sensible people wondered whether it was the last election? Will they understand how it felt — as it did last fall at the time the president fired Special Prosecutor Cox, and on several later occasions — when it seemed that there were no checks on power? Will they understand how degrading it was to watch a president being run to ground? Will they know how it was to feel in the thrall of this strange man, who seemed to answer only to himself? Knowing the conclusion, as they will, will they understand how difficult, frightening, and fumbling the struggle really was?"
Please send feedback, updates and new year's resolutions to cobun@iapp.org.
Cobun Zweifel-Keegan, CIPP/US, CIPM, is the IAPP's Washington, D.C., managing director.
