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Maintaining Secret Government Dossiers on the First Amendment Activities of American Citizens: the Law Enforcement Activity Exception to the Privacy Act

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Maintaining Secret Government Dossiers on the First Amendment Activities of American Citizens: the Law Enforcement Activity Exception to the Privacy Act DePaul Law Review Volume 50 Issue 2 Winter 2000: Symposium - Civil Article 17 Litigation and Popular Culture Maintaining Secret Government Dossiers on the First Amendment Activities of American Citizens: The Law Enforcement Activity Exception to the Privacy Act Steven W. Becker Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Steven W. Becker, Maintaining Secret Government Dossiers on the First Amendment Activities of American Citizens: The Law Enforcement Activity Exception to the Privacy Act, 50 DePaul L. Rev. 675 (2000) Available at: https://via.library.depaul.edu/law-review/vol50/iss2/17 This Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. MAINTAINING SECRET GOVERNMENT DOSSIERS ON THE FIRST AMENDMENT ACTIVITIES OF AMERICAN CITIZENS: THE LAW ENFORCEMENT ACTIVITY EXCEPTION TO THE PRIVACY ACT* "[O]pinion, and the just maintenance of it, shall never be a crime in my view: nor bring injury on the individual." -Thomas Jefferson' INTRODUCTION On April 23, 1990, two brothers traveled to the federal district courthouse in Chicago to testify as defense witnesses against an Inter- nal Revenue Service (IRS) agent at a suppression hearing in a crimi- nal tax case.2 Shortly after the agent noticed the brothers' presence outside the courtroom, the prosecution requested, and was granted, a lengthy continuance. 3 One week later, the IRS sent audit notices to two of the three brothers.4 Suspecting that the issuance of the notices was nothing more than an attempt to intimidate them from testifying, the brothers began an administrative process that culminated in the filing of individual lawsuits against the IRS5 pursuant to the Freedom of Information Act 6 (FOIA) and the Privacy Act 7 (Act). Little did the brothers dream, that four years later they would be arguing pro se before a distinguished Seventh Circuit panel, which included Chief Judge Richard Posner, Judge Thomas Fairchild, and Judge Joel Flaum, * The author respectfully dedicates this work to his two brothers, Tom and Jeff, without whose support and courage in the face of seemingly insurmountable odds this Comment would never have been written. See Eccl. 4:9-10, 12. The author also wishes to thank Professor Susan E. Thrower for reviewing the manuscript and for her many helpful suggestions. 1. Letter from Thomas Jefferson to Samuel Adams (Mar. 29, 1801), in THE LiE AND Sn- LECrED WRrrNGS OF THOMAS JEFFERSON 564 (Adrienne Koch & William Peden eds., 1944). 2. See Plaintiffs' Response to Defendant's Motion for Summary Judgement at Exhibit N, Becker v. IRS, Nos. 91 C 1203-1205 (N.D. Ill., filed Sept. 19, 1991). 3. See id. 4. See id. Jeffrey and Steven Becker were sent audit notices on this occasion. See Becker v. IRS, 34 F.3d 398, 401 (7th Cir. 1994). The third brother, Thomas Becker, had been assigned a revenue agent, but was not mailed a notice. See id. 5. See Steven Becker v. IRS, No. 91 C 1205 (N.D. Ill., filed Feb. 26, 1991); Jeffrey Becker v. IRS, No. 91 C 1204 (N.D. Ill., filed Feb. 26, 1991); Thomas Becker v. IRS, No. 91 C 1203 (N.D. I1l., filed Feb. 26, 1991). 6. 5 U.S.C. § 552 (1994 & Supp. IV 1998). 7. 5 U.S.C. § 552a (1994 & Supp. IV 1998). 676 DEPAUL LAW REVIEW [Vol. 50:675 on an issue of first impression 8 regarding the Act's law enforcement activity exception 9 and the government's policy of maintaining records concerning the protected First Amendment activities of American citizens. Title 5 of the United States Code section 552a(e)(7) provides, in pertinent part: "Each agency that maintains a system of records shall- ...maintain no record describing how any individual exercises rights guaranteed by the First Amendment ...unless pertinent to and within the scope of an authorized law enforcement activity." 10 It was pre- dicted that "[tlhe restriction on collection of information relating to the exercise of First Amendment rights may be the most controversial area of Privacy Act litigation in future years."'" This assessment was remarkably accurate, except for the fact that the present debate fo- cused on the maintenance, rather than the collection, of First Amend- ment records. In Becker v. IRS,' 2 the Seventh Circuit made a ground-breaking de- cision in holding that the IRS had illegally maintained First Amend- ment records in the brothers' tax files' 3 and in ordering the documents expunged. 14 However, the Department of Justice (DOJ) lost no time in finding a favorable forum in which to challenge the decision, which the DOJ begrudgingly described as "the most strict application of the law enforcement exception to date."' 5 In J. Roderick MacArthur Foundation v. FBI,16 a two-to-one decision, the District of Columbia Circuit majority directly criticized the reasoning of Becker17 and ten- dered a novel statutory interpretation of section 552a(e)(7) in denying 8. Both parties agreed that the case raised an issue of first impression under the Privacy Act. See Brief for Appellants at 34, Becker v. IRS, 34 F.3d 398 (7th Cir. 1994) (No. 93-2475); audio tape: Becker, Oral Argument (Jan. 5, 1994) (on file with the Clerk of the Court, United States Court of Appeals for the Seventh Circuit); see also infra note 251 and accompanying text. 9. 5 U.S.C. § 552a(e)(7) (1994). 10. Id. In addition to the law enforcement activity exception, subsection (e)(7) permits agen- cies to maintain First Amendment records on individuals if"expressly authorized by statute or by the individual about whom the record is maintained." Id. For a compilation of cases arising under these exceptions, see OFFICE OF INFORMATION AND PRIVACY, U.S. DEP'T OF JUSTICE, FREEDOM OF INFORMATION ACT GUIDE & PRIVACY ACT OVERVIEW 702-03 (Sept. 1998 ed.) [hereinafter OFFICE OF INFORMATION AND PRIVACY]. 11. 2 JAMEs T. O'REILLY, FEDERAL INFORMATION DIscLOsURE § 21.03, at 21-12 (2d ed. 1990). 12. 34 F.3d 398 (7th Cir. 1994); see Ian Comisky & Miriam L. Fisher, Civil and Criminal Tax Penalties, 48 TAX LAW. 1121, 1124 (1995) (listing Becker as one of the "Important Develop- ments" during the year). 13. See Becker, 34 F.3d at 409. 14. See id. 15. OFFICE OF INFORMATION AND PRIVACY, supra note 10, at 704. 16. 102 F.3d 600 (D.C. Cir. 1996). 17. See id. at 602-03. 2000] MAINTAINING SECRET GOVERNMENT DOSSIERS 677 the appellant relief.18 In dissent, Circuit Judge David S. Tatel method- ically rebutted the suppositions upon which the majority based its opinion. 19 It is critical that the present conflict between the circuits be resolved in favor of the holding in Becker and against the aberrant decision in MacArthur Foundation. Otherwise, the law enforcement activity ex- ception of section 552a(e)(7) will swallow the rule and the govern- ment will again, with impunity, return to its former practice of assembling secret dossiers on the First Amendment activities of American citizens,2 0 creating lists of political enemies,21 and targeting law-abiding individuals for harassment, prosecution, incarceration, or 2 worse.2 Part II of this Comment will contain a prefatory description of the events that led to the creation of the Act 23 and examine the legislative background surrounding the evolution of section 552a(e)(7) and its law enforcement activity exception.24 Part II will also include a brief overview of the right of association2 5 and review the leading appellate decisions 26 that addressed the exception prior to Becker.27 Part III 18. See id. at 603-04. 19. See id. at 607-08 (Tatel, J., dissenting). 20. See infra notes 55-68 and accompanying text. 21. See infra notes 44-54 and accompanying text. 22. Following the FBI's now infamous siege at Ruby Ridge, the government criminally prose- cuted Randy Weaver; he was acquitted on all major charges. See JESS WALTER, EVERY KNEE SHALL Bow: THE TRUTH AND TRAGEDY OF RUBY RIDGE AND THE RANDY WEAVER FAMILY 332-33, 440 (1996). During the trial, Gerry Spence, Weaver's defense counsel, questioned FBI sniper Lon Horiuchi, who had killed Vicki Weaver in the standoff by shooting her in the head while she was holding her baby in her arms, about whether he was told that Mrs. Weaver was more extreme in her beliefs than Randy, thereby intimating that Vicki may have been targeted by the government for her views. See id. at 242-43, 404. In this regard, it is noteworthy that, more than a year prior to the beginning of the siege, the United States Marshals Service had created a profile on Vicki Weaver in which it asserted that she was the real force behind Randy Weaver's resistance and, without Vicki, Randy would quickly succumb to the government's de- mands. See id. at 160; see also DAVID B. KOPEL & PAUL H. BLACKMAN, No MORE WACOS: WHAT'S WRONG WITH FEDERAL LAW ENFORCEMENT AND HOW TO Fix IT 37-38 (1997) (noting that Bo Gritz, who acted as a negotiator at Ruby Ridge, "mentioned an FBI psychological pro- file, prepared before the attack, which called Vicki Weaver the 'dominant member' of the family, thus implying that if she were 'neutralized' everyone else might surrender"). The profile was developed from a review of scriptural passages quoted by Mrs. Weaver, her religious beliefs, and letters of protest she had sent to the government, all forms of expression specifically protected by the First Amendment.
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