Since civil liberties are of no apparent interest to the Clinton administration, it was not surprising to hear the Secretary of Health and Human Services, Donna Shalala, tell Congress that proposed new federal regulations to protect medical records will exempt law enforcement from these tougher privacy standards.
The reason, she said, is that law enforcement personnel need to search through these records without a warrant or the patient's permission in order to fight fraud. She notes that they can do much of this now, but the administration wants to codify these current police practices so they will be solidified in federal laws.
Under the Clinton-Shalala approach to shredding privacy, any intelligence agent can order a health-care provider _ and anyone who pays for health care _ to hand over confidential health records. All the agent has to say is that the records are "needed for a lawful purpose."
As Robert Pear, a knowledgeable reporter on health issues for the New York Times, notes: ""Intelligence official' is broadly defined, as in the National Security Act, to include officials throughout the "intelligence community' _ at the Central Intelligence Agency, the National Security Agency, the armed forces, and the Departments of Justice, State and the Treasury."
Wendy Kaminer, a public policy fellow at Radcliffe College, says: "It's hard to imagine that people will talk openly and honestly to their doctors if they fear Big Brother is listening."
Robert Gellman, a Washington lawyer and privacy expert, tells me that under Shalala's proposal, "law enforcement will not have to get consent or meet a burden of proof standard or show what procedures apply to their searches. And there will be no restrictions on the redisclosure of the information they get. For law enforcement only, there will be virtually no standards, no warrants.
"Not even a written request will be necessary," Gellman adds. "A cop can walk into a doctor's office and say, "I want certain records.' And if the police _ while looking for fraud and abuse by the doctor _ find something about you they don't like in the records, they can investigate you, the patient."
So much for Justice Louis Brandeis' conviction that the framers valued privacy as "the most comprehensive of rights and the right most valued by civilized men."
On National Public Radio, Wendy Kaminer pointed out the indifference to the Fourth Amendment in the Shalala-Clinton design: "If FBI agents want to examine the financial records of your business, or your weekly shopping list, they must first obtain a warrant from a judge or a magistrate. They must first demonstrate that they have good reason to invade your privacy."
Although the Clinton administration does not expand law enforcement capacities to violate medical privacy, it now protects the FBI and other police agencies from new regulations that apply to others in the field. Meanwhile, accelerating computerization of medical records is going to make them much more easily accessible to dragnet searches.
What gives me some hope that the Congress may resist the president is a Time/CNN poll which indicates that 87 percent of us vigorously disagree with Shalala and want to be asked for permission every time our medical records leave our doctor's office. If enough Americans let their lawmakers know how strongly they feel about this, what is left of our privacy may be preserved.
Some members of law enforcement put up what seem initially to be reasonable arguments for exempting the police from new standards of privacy enforcement. To secure physical evidence that may identify perpetrators, they say, there isn't time to get a judicial warrant or deal with rules protecting medical records. But why can't current swift technology be used to find a magistrate quickly and get the warrant in time?
In any case, is the personal security of millions of Americans less vital than police efficiency in speculatively going after perpetrators?
And what will the effect be on the doctor-patient relationship if both know there is a third person taking and distributing notes on their intimate conversations that have been placed in the doctor's records? The president has eroded habeas corpus among other civil liberties. Is there no limit to his disdain for the Constitution?
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