THE ASSAULT ON PRIVACY. By Arthur R. Miller. Ann Arbor: University of Michigan Press, 1971. Pp. xiv, 333. $7.95.
TRIAL DIPLOMACY. By Alan E. Morrill. Chicago: Court Practice Institute, 1971. Pp. xxix, 1174. $17.50 (Paperback)

Greenfield, Stanley W.

Seeburger, Richard H.

English

Duquesne University: Digital Commons

Duquesne Law Review Volume 10 Number 3 Article 13 1972 Book Reviews Richard H. Seeburger Stanley W. Greenfield Follow this and additional works at: https://dsc.duq.edu/dlr  Part of the Law Commons Recommended Citation Richard H. Seeburger & Stanley W. Greenfield, Book Reviews, 10 Duq. L. Rev. 518 (1972). Available at: https://dsc.duq.edu/dlr/vol10/iss3/13 This Book Review is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. Book ReviewsTHE ASSAULT ON PRIVACY. By Arthur R. Miller.t AnnArbor: University of Michigan Press, 1971. Pp. xiv, 333.$7.95.In June of 1970 I was fortunate enough to attend the BiennialConference of the American Civil Liberties Union. Once every twoyears delegates from the various ACLU affiliates convene to discussbroad policy and "frontier" issues. I must confess I was bewildered bythe delegates' concern about data banks. I left there unconvinced thatthe computer presented a civil liberties issue.Ironically, while I was reading Miller's book about computers, databanks and dossiers, Dr. Strangelove came on the tube. The subtitle was,you may recall, "How I Stopped Worrying and Learned to Love theBomb." At that point I was reading Chapter 7 of Miller's book,entitled "How to Live with the Computer Without Becoming Neurotic-Safeguarding the Privacy of Computerized Information." By then,I was convinced that not only was the chapter title apt, it was inevitable.I now am deeply concerned about computers.What Miller does, he does well. He begins in the prologue with theconfession of bias:I am one who believes that although the new information tech-nology has enormous long-range beneficial consequences for soci-ety, we must be concerned about the axiom-so frequently verifiedsince the industrial revolution-that man must shape his tools lestthey shape him. The computer is not simply a sophisticated index-ing machine, a miniaturized library, or an electronic abacus witha gland condition; rather, it is the keystone of a new communica-tions media that eventually will have global dimension and anenormous impact on our lives and those of generations yet tocome.'He explains clearly to the neophyte basically how computers work. Hethen talks about the time sharing of computers, the risk of simultaneousexposure of several distinct bodies of data in one information systemso that one user might have access to another's files either by accidentor by design, all complicated by remote access techniques leading in-t Professor of Law, University of Michigan Law School.1. A. MILLER, THE ASSAULT ON PaivAcy 7-8 (1971).518Book Reviewsevitably to a nationwide network of centralized data. The problem islarger than just creating a national computer "utility," because Millerforesees the ultimate amalgamation of computer and communicationstechnologies. We have, with melodramatic McLuhanesque overtones,two giant industries on a path of confluence. Presently, each seems to becreating a demand for the other and the future may well be an almostbiological merger. In any event, as information recording processeshave become cheaper, the appetite for data has intensified according toParkinson's Law.The threat to privacy is obvious. The threat comes not just frombroadcasting information about an individual, nor from a bad actordeliberately seeking to harm someone with false information. The in-jury can be quite unintended. The information divulged might befactually true but erroneous in context. Thus a person described as a"felon" might simply be a conscientious objector who could not meetthe requirements for exemption from the military service on thegrounds of religious belief that existed at the time he refused to beinducted. Similar problems exist today when a person's arrest recordshows that he was arrested for disorderly conduct. In the good old daysthere was an opportunity to tell the recipient of the information eitherthat the arrest did not result in a conviction or that if it did it was forcivil rights activity in the South. Centralization of records and increasedaccess to them render such correction difficult.The threat to personal privacy is not solely in the dissemination ofinformation which might be erroneous. It is also in the very collectingof the information while we might be unaware of it. (E.g., considercomputers collecting and storing knowledge about our airplane reserva-tions, car rentals and charge accounts.) There is an even more obviouspsychological impact from the collecting of information about certainpublic activities such as political speech. There is a real risk that peopleincreasingly might base their decisions and fashion their behavior interms of enhancing their record image in the eyes of those who mayhave access to it in the future. As Professor Miller states, quoting VancePackard, "The Christian notion of redemption is incomprehensibleto the computer."'2Professor Miller, however, is not a Luddite and does not urge thesmashing of machines, and not just because such a course of con-duct would be ineffectual, but because he believes that the computer2. Id. 50.519Duquesne Law Reviewif properly controlled is of great value to the future of man. After amoving plea for privacy, a succinct survey of the current law of privacyincluding constitutional limitations on protection thereof, and a dis-quieting survey of the current practices such as the Army's collectingof information on political protestors, Professor Miller moves on tomake his proposals for control of the computer. I quite agree with himthat a property theory of privacy wherein the common law would pourold wine into new bottles to afford protection is unworkable. One ofthe difficulties with the current practice is that nobody knows when afile is being maintained on himself, thus, individual enforcement ofthe right would be impossible. Furthermore, credit bureaus, employers,governments, etc. would probably be successful in getting individualsto "waive" their rights. Further, with such a national problem there isprobably little room for the luxury of fifty different approaches asdevised by fifty different states. Professor Miller suggests variations onthe federal legislation proposed by Senator Ervin to provide for thefollowing prerequisites to conducting a voluntary survey:(1) an administrative presentation of a clear and significant needfor the data; (2) a showing that the data have not been secured byother federally conducted surveys; (3) a demonstration that thedata are not available as a result of state, local, or private informa-tion gathering efforts; (4) a determination that the samplinggroup is no larger than is necessary to obtain the requisite database; (5) an articulated and persuasive administrative findingthat the questions are not intrusive or violative of individualprivacy; (6) a demonstration that the individual responses will beprotected against risks of privacy invasion and unnecessary dis-semination.3The voluntary survey is only the tip of the iceberg. Another proposalinvolves requiring computer manufacturers to incorporate safeguardsinto the hardware to maintain the integrity of personal information.Professor Miller is not satisfied, however, that in an age of rapidlychanging technologies a single piece of legislation can cope with allthe potential abuses and misuses. Rather, he prefers an administrativeapproach with the creation of some new federal agency. He feels theFCC would be in a conflict of interest position ideologically since itsprimary concern is the efficient and useful exploitation of the nation'scommunications technology. He recognizes, however, that any agencywill have to work hard to avoid becoming a captive of the governmental3. Id. 222.520Vol. 10: 518, 1972Book Reviewsor private interests that have a stake in information networks, but hehas some hope, because the Government Accounting Office seems tohave achieved an independent watchdog rule.Unfortunately, he has done too good a job describing the disease forme to buy any of the suggested cures. He candidly recognizes theirshortcomings. While technological failsafe devices might make it muchmore difficult for there to be unauthorized access to information, therecan be no guarantee they will be effective. Ultimately, any system willdepend upon the ethical sensitivity and integrity of the informationmanagers. Therefore, "computerniks" should be trained with a viewto their wider responsibility, and, conversely, traditional policy mak-ing groups should develop appreciation for the technology so as tominimize their abdication of responsibility to computer specialists.Some sort of professionalization and code of ethics is necessary, perhapsthrough an expensive licensing procedure, by which the sanction is theloss of the license. No "system" can guarantee individual dignity unlessthose in the system think it is important. Professor Miller fears self-regulation will be ineffective because unlike the physician or lawyer thecomputer operator does not have the face to face dealings with thepeople whose life history he processes to engage his sympathies orremind him of the importance of discharging his duties properly. Idisagree. The realities of the medical or legal "business" are not ashe supposes. I see no alternatives except to become a Luddite andsmash the machines.RICHARD H. SEEBURGER*TRIAL DIPLOMACY. By Alan E. Morrill.t Chicago: CourtPractice Institute, 1971. Pp. xxix, 1174. $17.50 (Paper-back).In recent years, undoubtedly in part because of trends in the crim-inal process, there has been a studied impetus by educators, judges, andexperienced attorneys for development of the long neglected art oftrial advocacy among the law students and young lawyers. Law schoolcourses to this end are now as commonplace as they were rare a shortten years ago.* Professor of Law, University of Pittsburgh School of Law.t Member of the Bar of Illinois; author of ANATOMY OF A TRIAL (1968); faculty mem-ber and lecturer in trial technique at John Marshall Law School.Duquesne Law ReviewPresumably to serve both as an instructive text in the law school andas a primer for the young lawyer, Alan Morrill of the Illinois Bar hasput together a mammoth work which is slightly inadequate for either.Trial Diplomacy with text, cases, and illustrations is too vast in scope,attempting to encompass trial preparation from investigation to appealand including at the same time, nineteen trial cases replete with testi-mony, full page exhibits, four appendices, four bibliographies, and amedical glossary, all within one cover.The idea of a single volume is laudable and certainly convenient,but Morrill proves that we can't possibly marry all that is appropriateto trial advocacy education for the law student with all that may benecessary for the practicing lawyer. The result, at least here, is at oncetoo superficial for the practitioner and, in many respects, irrelevant forthe student. The sections on general investigation of a case, videotapedepositions, wiretap considerations, together with a capsulized recita-tion of federal law, a sample brief for use in a FELA case, a medicalglossary, one appendix of medical abbreviations and another formedical visual charts, medical and legal bibliographies, and sampleletters to clients in preparation for a deposition, all would seem re-motely suited for the student and in any event, much too broad brushfor any practitioner about to be involved, for example, in a wiretapdefense.The section dealing with discovery, having extensive interrogatoryforms, the one on motions, listing 184 possible motions, (though Itake it an infinite variety of motions is possible), and the host of mini-illustrations, on the other hand, all would be useful to student andpractitioner alike.The problems based on actual cases would be valuable to studentand practitioner as illustrations of advocacy in a given situation (asthe foreward indicates). However, since the scenario is fully set out(testimony, exhibits, etc.), it is difficult to imagine what more thestudent really can do in the classroom. In short, it's all done, and anypossibility of ingenuity in presentation and argument would appearto have been virtually eliminated. Yet, the problems do have the virtueof showing "how to."In reading Trial Diplomacy one gets the feeling that Morrill istrying desparately to put everything to which a trial lawyer or studentmight ever meaningfully be exposed within an assigned space of onevolume.522Vol. 10: 521, 1972Book ReviewsUndertaking an objective of such enormity comes off, predictably,as too enterprising.Stanley W. Greenfield** Adjunct Professor of Law, Duquesne University School of Law.523

Book Reviews

https://dsc.duq.edu/cgi/viewcontent.cgi?article=1651&amp;context=dlr

Book Reviews

Abstract

Similar works

Full text

Available Versions

Duquesne University: Digital Commons