Journal of Mass Media Ethics Volume 11, Number 4, pp. 210-222

Computers, Journalists:

Copyright 1996 by Lawrence Erlbaum Associates, Inc.

Privacy, and A Suggested

Code of Information Practices

By Wendell cochranl American University

a ~ h e rise of computer-assisted journalism coincides with increasing public con- cerns about individual privacy, especially in the realm of information stored in electronic databases. This article contends that journalists (a) need to be more re- ceptive to privacy concerns, and (b) need to reassure the public they will be sensi- tive in dealing with private information contained in electronic databases. The au- thor calls for creation of a Code of Information Practices that could guide journal- ists in making decisions about usingprivate information in electronicformat. Such a code might help persuade the public to be more receptive to journalists' argu- ments over the need for access to records and information.

The growing conflict between the interests of individuals in protecting private facts and the ability of journalists and other data-seekers to secure, store, and manipulate those facts with computers is illustrated clearly by the Boxer Amendment (Driver's Privacy Protection Act, 1994) and its im- pact on availability of driver's license records. Journalists, especially those who have flocked to computers as a tool in their reporting, are rightly con- cerned about the closing of these data in most states. After all, a driver's license record-based story (Jaspin, 1986) was among the first to demon- strate the power and utility of computers as reporting tools.2 But journal- ists also should recognize that the public has reasons to be squeamish about reporters, or anyone else, for that matter, poking around in what are con- sidered private affairs. Members of the public have even more reason to be concerned if news organizations begin to assemble sophisticated databases that link discrete elements of their lives into a dossier of sorts. The com- puter makes this incredibly simple to accomplish; all it takes is a little de- termination and a small amount of computer coding. Want to know how much money Mercedes drivers who own dachshunds named Wolfgang and live in brick houses in a particular neighborhood gave to a specific congressional candidate? Coming right up.

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Cochran 211 This article is not a reaction to some egregious example of the mishan-

dling of private electronic records by investigative journalists. Nor does it suggest that investigative reporters stop doing the things they are required to do to serve the public interest and advance the public good. Even those who have studied the issue of privacy and computers at length have rec- ognized that, on occasion, general principles of data protection may not apply, and that at times, those concerns might be overridden by "the inves- tigatory press" (Privacy Working Group, 1995). Instead, the aim of this ar- ticle is to raise the level of awareness of privacy concerns among journal- ists, especially in the realm of data held in electronic databases, and to begin a conversation over how best to balance legitimate privacy concerns with the need for access that is central to the functioning of the press in a democratic society.

To that end, the article suggests news organizations should consider a Code of Fair Information Practices to help guide them when they inevita- bly intrude into the private lives of ordinary citizens. The general prin- ciples for this code already are well established, both in the United States and around the world (Organization for Economic Cooperation and De- velopment, 1980). They have been adapted to the health care industry, online service providers, and even the direct marketing industry (Interactive Ser- vices Association, 1995). So far, however, there is no generally accepted set of guidelines for news organizations to follow. The aim is to construct a set of practices that will help journalists reassure the public that they share concerns over privacy and that they are willing to take extraordinary steps to put those concerns into action.

A New Appreciation of Privacy

The first thing that is required before journalists can begin to enact a new protocol for dealing with privacy issues is a new appreciation of the concern the general public has over protecting itself from unwanted intru- sions. Frankly, journalists in general, and investigative journalists in par- ticular, have given these worries relatively little consideration. Instead, they have focused much more attention on the serious problems of access to information. In the future, though, preserving the right to access will likely require more weight be given to privacy issues.

Alderman and Kennedy (1995) attempted to put the concerns about privacy into a broad social context in which privacy becomes more of a human need than a sharply defined right.

Why we as Americans so cherish our privacy is not easy to explain. Privacy covers many things. It protects the solitude necessary for creative thought.

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2 1 2 Information Practices It allows us the independence that is part of raising a family. It protects our right to be secure in our own homes and possessions, assured that the gov- ernment cannot come barging in. Privacy also encompasses our right to self-determination and to define who we are. Although we live in a world of noisy self-confession, privacy allows us to keep certain facts to ourselves if we so choose. The right to privacy, it seems, is what makes us civilized. (p. xiii)

In contrast, journalists have been doing their best to help bring into reality the prediction that "the notion that information can be kept secret to any degree may simply vanish in cyberspace" (Alderman & Kennedy, 1995, p. iii). For the last several years, journalists-including the author of this article, who has not only practiced computer-assisted journalism (CAJ), but who also has helped train scores of other reporters to use these new tools-have been honing their computer skills, learning to manipulate and build databases often constructed of information that members of the pub- lic would seek to keep private.

From an ethical standpoint, most computer-assisted journalism prac- tices have been considered the equivalent to their non-computer-aided counterparts (Steele & Cochran, 1995). There certainly is justification for that view. Electronic mail has many of the same features of telephone inter- viewing; in analyzing government budgets, spreadsheets are merely more powerful calculators; database management programs can be viewed as simply being replacements for stacks of color-coded index cards. There- fore, it is little surprise that journalists have paid only passing attention to the ways in which their new tools might provide the public with new rea- sons to worry about journalistic practices: Privacy concerns on the part of the public never have been given much weight by journalists.

The privacy codes of major journalism organizations, including the Society of Professional Journalists, the Radio and Television News Direc- tors Association, and the Associated Press Managing Editors, give little attention to issues relating to privacy. None of these codes make any spe- cial mention of heightened privacy concerns related to the use of personal information in electronic databases, although the APME Ethics Cornmit- tee, in a "Proposal for Newsroom Ethics Policy (Associated Press Manag- ing Editors Ethics Committee, 1994)," has said: "Journalists should recog- nize the danger to individual privacy and loss of credibility inherent in pushing intimate details about ordinary citizens that are obtained from electronic databases or covert surveillance."

To be fair, journalists are not the only members of society who struggle with the proper way to treat privacy issues. Additionally, the legal concept

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Cochran 213 of privacy has been evolving for nearly a century, with courts often send- ing conflicting signals. This profession-wide stance, in which privacy is often relegated to the second rank of concerns, combined with the trou- bling legal muddle, has serious consequences.

The result is that journalists have been caught between what the law allows and what their consciences will permit. This confusion has led to ethical bungling on a scale that has probably undermined the entire profession's credibility and fed two stereotypical notions: One, that journalists will do anything to get a story, and two, that audiences will willingly consume anything the journalist delivers. These images are not only at odds with reality, but they also make getting and understanding legitimate stories even more difficult. (Patterson & Wilkins, 1994, p. 111)

Patterson and Wilkins (1994) encouraged journalists to understand just where it is they stand with regard to the public's view of privacy. They cited Professor Louis Hodges's (1994) depiction of privacy as being a se- ries of concentric circles, with openness increasing with each widening ring. In the context of these "circles of intimacy," journalists clearly fit in the outermost ring occupied by the general public (Patterson & Wilkins, 1994, p. 114). Information at this level is either of the sort one wouldn't have any hesitation sharing with the public or information one can't avoid disclos- ing to the public, such as hair color. Much of the information journalists seek clearly fits into more private spaces, meaning that it is information that the individual might wish to keep private; it also is information, which, if disseminated, would require some measure of protection. There is no way around the fact that computers make it easier to acquire, manipulate, and disseminate much of this data.

The public intuitively understands this conflict in which more and more personal information is collected at the same time that technology has wid- ened the ability of those who would misuse it. In some cases, it seems re- signed to giving out information it would just as soon protect: Social Secu- rity numbers, credit card numbers, telephone numbers, and a wide variety of other nuggets of sensitive personal data are widely collected and dis- tributed, not always by those who have the public's best interests at heart. But, it also seems clear that, given the power to act to keep some informa- tion out of the public domain, people are willing to act. Already privacy advocates have been successful in shutting reporters out of vital databases maintained by public agencies but consisting largely of private informa- tion. As mentioned above, new federal and state legislation is closing the door on access to driver's license databases in most jurisdictions across the United States. The so-called "Bork laws" have placed the video rental

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2 1 4 Information Practices records of individuals, and in some cases, library check-out records, out of bounds. State laws in Virginia and other jurisdictions permit police organi- zations to regularly withhold routine information about crimes, including addresses. More general threats to access appear on the horizon. For ex- ample, the California Assembly (Information for Public Affairs, 1996) passed a bill establishing a task force on personal information and privacy that is supposed to consider

what changes to existing laws relating to the use or distribution of personal information about individuals by public and private entities are necessary to ensure that state law adequately protects the right to privacy and ad- dresses the issues raised by the rapidly changing nature of information tech- nology and systems. (p. 1)

Among the topics to be studied are "Privacy issues related to the use and distribution of public records kept by state and local government agen- cies, including the sale of computerized public records to private informa- tion brokers and others" (Information for Public Affairs, 1996, p. l).

If journalists are not careful, they soon will discover more vital statis- tics placed out of public view, making it more difficult than ever to hold government accountable for its actions. Investigative journalist Don Ray (DONRAY, 1996) said:

The growing sentiment is to seal records or inhibit access. So while journal- ism is jumping on the number-crunching CAJ bandwagondemanding that more of the information from the already-public source documents be com- puterized-it goes up against (and fuels) the large body of opponents who would prefer they be able to contribute in secrecy to their favorite candi- date.

Whenever secrecy is proposed, news organizations must make the case that it will be the general public, not only journalists, who are placed at a disadvantage if public records aren't available for penetrating scrutiny. One can envision, for example, pleas to keep such information as the value of a person's home, property tax bills, tax delinquencies, arrest records, and other important data out of the hands of journalists and other members of the general public. But imagine how easily public officials could get away with unfair property valuations and unequal tax treatment if reporters and the public at large didn't have access to a county's real estate tax records. However, it is unlikely that the public will buy this argument if it feels genuinely threatened by having private information fall into the hands of people who aren't willing to offer assurance that the information will not be misused. The ultimate purpose of this article is to urge journalists to

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Cochran 2 15 take steps to give meaning to these reassurances. Journalists need to show that they can be trusted to act with discretion, or that they are willing to at least recognize the often unavoidable conflicts between the interests of dis- closure on behalf of the public and the privacy concerns of individuals. Showing that they are willing to take steps to mitigate these invasions would be a helpful start.

Toward a Code of Fair Information Practices

To help make that case, or to be more credible with a skeptical public, journalists also have to do their part to recognize and act on the legitimate privacy concerns of society. That is the primary reason for advocating de- velopment of a code of information practices similar to those already adopted by the federal govemment and other users of sensitive personal information. The notion of such codes is nearly a quarter century old, hav- ing first been drafted in 1973 by a federal task force. Many of the principles laid out then were incorporated into the Privacy Act of 1974 (Legislative History of the Privacy Act of 2974,1976). In 1980, the Organization for Eco- nomic Cooperation and Development enunciated a similar code that could serve as an international guide (Electronic Privacy Information Center, 1994). These codes have in common a set of principles. Among them are a limitation on data collection principle, a data quality principle, a purpose specification principle, a use limitation principle, a security safeguards prin- ciple, an openness principle, an individual participation principle, and an accountability principle (Organization for Economic Cooperation and De- velopment, 1980). Many of these principles could be modified to fit the needs of journalists.

The standard put forward here for journalists to follow has five princi- pal parts:

1. A reason to pursue private information, reassuring the public that private information won't be sought without sufficient cause.

2. A set of protections designed to prevent improper or unnecessary dissemination of private data, including a provision for confidenti- ality agreements and a prohibition on disclosure to non-news de- partments.

3. Policies to segregate data related to investigation "targets" from those of "non-targets."

4. Means to guarantee that discrete pieces of private information are not needlessly combined into pseudo virtual dossiers.

5. Procedures to either update or destroy private information once it is no longer needed.

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2 1 6 Information Practices None of these provisions are aimed at increasing secrecy. None would

extend the current legal definition of invasion of privacy-newsworthiness would remain the primary test of the appropriateness of publishing pri-

vate facts. None would prohibit the investiga- tion of subjects of 1e- gitimate public con- cern. Journalists would not be prohibited from acquiring private facts. And, most important, there would be no ad-

ditional restraints on the publication of stories based on examination of databases containing information individuals might consider private. What there would be is new recognition on the part of journalists that they have responsibility to assist the public in protecting private information.

1. A reason to pursue. One of the key underpinnings for privacy in the United States is the

Fourth Amendment to the Constitution proscription against "unreason- able searches and seizures." Courts long have ruled that this provision means police agencies must have a "probable cause" to believe a crime has been committed in order to obtain a warrant authorizing a search. A judge, who is presumed to be an impartial trier of facts, must be persuaded, based on strong evidence, of the validity of this probable cause before the war- rant can be issued.

The populace has no such protection against journalists, who are not bound by the Fourth Amendment's strictures. If a reporter decides to com- pile a list of people in a certain neighborhood who own red brick houses with three bedrooms to see if brick home owners are more likely than frame home owners to have a divorce just because the notion sounds interesting to her, she is free to do so. Journalists will argue that the story is built on public records, obviating, in their minds, any privacy issues. But the ques- tion for ethicists isn't, "Can she?" The question is, "Should she?" The code of fair information practices would give pause to these fishing expeditions.

The proposed code would institute a type of "probable cause," or "a reason to pursue" that would be determined before any records contain- ing private information were retrieved. News managers should construct a process for determining whether the request in question is sufficiently important to warrant intrusion into records that contain private informa- tion. At the least, a senior editor would review the reason to pursue and grant permission to proceed. Newsrooms also might consider establishing

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Cochran 2 1 7 "privacy advisory panels," consisting of members of the public as well as journalists. These panels would be similar to the review boards required of researchers in other fields who plan to use human subjects in their work.

The factors that need to be considered in deciding if there is sufficient "reason to pursue" will differ from case to case. A starting point, however, might be the Privacy Checklist proposed by Black, Steele, and Barney (1995).

The goal is to avoid, to the extent possible, the practice of securing a database full of private information (or information that individuals might reasonably take steps to protect), then rummaging through it to see

O w information has been received, if there really is a responsibility for its protection falls to story there. In a the @-list* typical database, this exposes the private information of thousands of individuals to unwanted, and perhaps unwarranted, disclosure. The assumption is that the threshold test of newsworthiness will be met easily in most cases: Journalists are not in the habit of proposing stories they think have little news value.

2. Protection from improper dissemination. Once private information has been received, responsibility for its pro-

tection falls to the journalist. Thii protection can be achieved in a number of ways. First, the number of people authorized to have access to the data should be kept as small as possible. Access to databases of private infor- mation should only be granted to persons authorized by a senior news- room manager. Second, the data should be protected from inadvertent dis- closure: Passwords should be put on computer files containing private data about individuals; source tapes and disks should be locked up; work areas where private data is used should not be generally accessible. Third, those with access could be asked to sign confidentiality agreements; dissemina- tion to non-news departments should be expressly prohibited to make it clear that the private data were collected solely for journalistic purposes, not to become part of a marketing campaign.

3. Segregation of "non-target" and "target" data. Manipulating data with computers enhances the journalist's ability to

find what he or she is looking for. For example, if the journalist is trying to demonstrate that members of the city council who voted against new gun control rules own guns, then using a computer to match city council mem- ber names to a list of registered gunowners would simplify the task. But what should happen to the gun ownership records of the thousands of city

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218 Information Practices residents who aren't members of the city council, people who clearly aren't "targets" of the story? Ultimately, it might be best if these "non-target" records simply were destroyed. Lacking that, the "target" records should be segregated from the active database, by keeping them in separate files. Preferably, the non-target records would be removed from the computer and stored. Reactivating the non-target database would require journalists to go through the "reason to pursue" process once again.

4. No unnecessary combining of private facts. The most intrusive aspect of computerized private data collection and

storage is the ability to combine unrelated information in order to build new databases, which can paint a more complete picture of an individual.

This ability also is one of the most compelling reasons for journalists to use computers in their work, because it gives them powerful new ways to create and analyze information. And so long as they are working with records that involve little private information, there is little apparent dan- ger. For example, no one could quarrel with a reporter's combining records of building permits in a city with census data in an attempt to document racial disparities in development and construction. Nor could there be much harm in having journalists track the financial contributions of the develop- ers to see whether those who give more to city council members get quicker handling of their zoning requests.

However, there would seem to be little value in adding to this data- base the driver's license records in order to report that builders who ig- nore the inner city and give a lot of money to city council members also are more likely to have been arrested for drunk driving. Many other examples of databases that combine unrelated facts can be imagined. And many jour- nalists appear intrigued by the possibility of being able to simply go to a newsroom computer, enter an individual's name and retrieve all manner of information, from name, address, and telephone number to voting hab- its, to real estate ownership and so on and so on. The idea that news orga- nizations might build extensive dossiers on individuals certainly would trouble most civil libertarians, perhaps even more than having the govern- ment build such extensive related data files. At least the government is- supposedly-restrained by the concerns of the public.

Under the code of fair information practices, journalists would be ex- pected to regulate themselves in this regard, as well as in all others. Among the requirements that should be met before private records are combined would be an extensive internal review, preferably with some opportunity for outside comment. This review would require that a compelling news purpose be demonstrated; the data protection features outlined above would have to be enforced even more stringently.

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Cochran 219 In addition, some technical steps could be taken to restrict data combi-

nations: Databases can only be linked when the same information, such as an identifying number or code, is contained in each table. The Social Secu- rity number is an example of such a code, and it is ubiquitous in govern- ment-held databases as well as those in pri- vate hands. Attaching it to all records would give journalists a pow- erful ability to com- bine private informa- tion. A less intrusive approach might have journalists create their own codes for each of their databases, then destroy the underlying Social Security number, or, at the least, remove it from the databases. Each database code would be different. This would make it very difficult to connect discrete bits of an individual's life inside the news organization's computers, and it would make the data virtually worthless to anyone on the outside because that code would exist nowhere else.

Alternatively, government agencies could create such "nonsense" codes for their information. In some instances, this would be a great benefit to journalists. Take, for example, the records of individual financial contribu- tors to political campaigns collected by the Federal Election Commission (FEC). Journalists have to go to great lengths to accurately calculate the total contributions by any individual because the only identifying infor- mation is name, address, and occupation. If the contributor changes the information on different contributions even slightly, or if the FEC's data entry clerks make a small typing mistake, getting a correct total requires painstaking research efforts, defeating one of the important purposes of disclosure of the information. Requiring campaigns td collect Social Secu- rity numbers, then having the FEC create a nonsense code for each num- ber, which would be attached to all files, would make campaign finance reporting easier and more accurate. Such a procedure already is in effect in some instances. For example, the Maryland Health Department contracts with private companies to code some types of health records; the contrac- tor is required to encrypt identifying codes and only discloses the encrypted codes to the state (MPARHAM, 1996).

5. An update or destroy commitment. The meat-processing industry operates under a pithy, but revealing,

maxim: "sell it or smell it," which recognizes the limitations on the ability to preserve meat products. The stuff simply goes bad after a while. Jour-

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2 2 0 Information Practices nalists, and others, should have a similar understanding about the value of the computerized information collected, and they should act accordingly: They should either keep their data fresh, or they should get rid of them.

A database is merely a snapshot of information at a particular point in time. Thus, data begin to go bad the instant they are collected. For example, scores, if not hundreds, of people listed in a statewide driver's license da- tabase may move each week; dozens of others will get married; several will die. A database built on these records is quickly outdated to the point of being virtually worthless. That is one reason automobile insurance com- panies use driver's license data differently from journalists. Instead of try- ing to collect the information once, insurance companies query the license database each time a person applies for coverage, helping them make sure the information they receive and act on is complete and current. It's the data collection and update function that gives value to the information. Most news organizations don't have the capacity, or aren't willing to make the investment required for constant updates of their data, especially if they, as many are today, are maintaining dozens of data files.

The alternative, then, is to destroy this outdated information. This de- struction should take place shortly after publication. Information that jour- nalists gather and then decide not to use as the basis for articles or broad- cast reports should be destroyed immediately. There is no justification for journalists to maintain inaccurate, outdated information, especially if it could be used improperly if it were inadvertently transferred outside the news organization. This will cause much agonizing in newsrooms; after all, valuable time and scarce money are almost always involved in collect- ing and using computerized databases. And by nature investigative re- porters and editors are pack rats, as almost any cursory visit to a news- room can confirm. However, this is an area where the vital interests of the public, which is what journalists say they are dedicated to serving, over- come the cultural practices of journalists.

Conclusion

In their quest for ways to understand and deal with the new privacy issues raised by the growing prevalence of electronic collection, storage, and retrieval of personal information, journalists are hardly alone. Indeed, it appears that western societies in general are struggling with these con- cerns. Alderman and Kennedy (1995) made this conflict clear: "From a pri- vacy point of view, we are in the midst of the most unsettling period in this revolution. . . . the privacy problems posed are so different from those that have come before, there is no framework to deal with them" (p. 326).

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Cochran 2 2 1 Considerable evidence exists to suggest that an alarmed public will act

to protect information. When Lotus proposed selling a program called Marketplace, which would have put data about tens of millions of Ameri- cans into the hands of marketers and others, a broad coalition of public interest groups, computer users worried about privacy, and others, arose to protest. The company quickly retreated, even if the idea didn't die. More recently, there was a huge outcry when it was reported, evidently errone- ously, that Lexis-Nexis was making Social Security numbers, mothers' maiden names, and other personal identifiers available electronically.

The notion that individuals can control their own information through a variety of schemes is gaining more currency. For example, under some formulations, citizens would be compensated by those who wish to use their information. Some have suggested that information could not be col- lected without permission, in essence creating a market for individuals to sell access to their data (Alderman & Kennedy, 1995). This clearly would chill investigative journalism as it currently is practiced. There are more ominous overtones as well. Alderman and Kennedy (1995) argued that,

even if leaving privacy protection to market forces makes sense in certain areas, it makes no sense where consumers have no choice, as in dealing with their state Motor Vehicle Bureau or the IRS. Then, privacy advocates say, we need tough new laws to secure personal information. (p. 330)

In other words, journalists can look forward to the shutting of doors in the rooms where private information is kept by government agencies.

Perhaps it is naive to believe that a self-regulatory scheme conceived, enacted, and enforced by journalists (because the First Amendment would prohibit any other body from such an effort) can overcome these concerns. Perhaps it is merely wishful thinking that the public, which appears so distrustful of the media on so many grounds, could be persuaded that jour- nalists sincerely would act in its interest in this very sensitive area. Perhaps it is impossible to get all journalists to agree to follow the practices pro- posed here, especially if they think they might be able to gain competitive advantages by occasional violations. However, the profession might well find itself in near future having to take steps that challenge long years of cultural practices or facing restrictions that make it impossible to carry out the vital mission of investigative journalism. The proposal outlined here seems far less chilling than that potential.

Notes

1. The author wishes to acknowledge the contributions of Robert Gellman to the development of this article.

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222 Information Practices 2. Jaspin's stories, based on computerized driving records showing that Rhode

Island school bus drivers had poor driving records and other legal problems, often are credited with opening the era of computer-assisted journalism.

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