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A Privacy Report Card for Obama

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Michael Ostrolenk
Campaign For Liberty
Thursday, Sept 17th, 2009

[This talk was given to the National Press Club on September 9, 2009]

I will be laying out a bit of history and then the present day issues at hand when it comes to both medical privacy and secure flight and then offering a grade to date for President Obama’s Administration on both issues. The historical context and comparisons between Administrations is important but I will also be basing my grade not just on comparisons between Obama, Bush and Clinton but on what is appropriate for a Constitutional Republic based on the sovereignty of the individual.

Looking at medical privacy, the starting point for grading the Administration is based on the fact that an individual’s medical records are their own. They should be allowed to provide or withhold consent on the release of this information. The only limits being contractual obligations and the VERY limited access provided by a court-ordered subpoena process — and NOT the kind found in the PATRIOT ACT, which is a whole other discussion.

The Federal assault against medical privacy began at least in 1991 when the Workgroup for Electronic Data Interchange, or WEDI, was established to develop a national electronic medical records system. One of its successes, at the expense of OUR rights, was getting a requirement for the creation of ‘unique health identifier’ included in the 1996 HIPAA law. Fortunately, to date, Congressman Ron Paul has offered and passed an amendment each year which de-funds this program.

In 1999, the Clinton Administration proposed HIPAA privacy rule changes prohibiting doctors, hospitals and others from obtaining consent before releasing your medical records. Fortunately, more than 52,000 Americans spoke out against this rule change and it was dropped.

In August 2002, the HHS under President Bush modified the HIPAA privacy rule making it possible to transfer your medical records without your consent. This could be done for reasons of payment, treatment, healthcare operations and for other purposes. Two lawsuits, one by Citizens for Health et al and the other by the Association of American Physicians and Surgeons were unsuccessful in stopping its implementation.

This leads us to the Obama Administration and H.R.1 — The American Recovery and Reinvestment Act of 2009 which according to the Institute for Health Freedom includes:

-“The utilization of an electronic health record for each person in the United States by 2014.” (See p. 445 of H.R. 1) [AND]

-Advancing [a system known as] “enterprise integration”…”The term ‘enterprise integration’ means the electronic linkage of health care providers, health plans, the government, and other interested parties, to enable the electronic exchange and use of health information among all the components in the health care infrastructure in accordance with applicable law, [See “What Every American Needs to Know about the HIPAA Medical Privacy Rule”]. . .”

So, it should be obvious from the little bit of history I laid out that there is a growing threat to our medical privacy rights. The truth is, It gets progressively worse from administration to administration — it doesn’t matter whose in office — Republican or Democrat – they are all bad. They all want to expand state power and if they can get away with it they will. For corporations its no different. The technology makes it possible and financially rewarding. Now to be fair, President Obama did include a few positive things related to medical privacy in H.R.1. Those included:

-the prohibition of the sale of medical records to third parties, of course, with a number of exemptions which still need to be examined; and

-a limited requirement for notification to be given when your data is breached.

All of those things are positive to a certain degree but its like putting band-aids on a few knee scrapes while the patient bleeds out from bullet wounds to the chest. If the Obama Administration were serious about medical privacy they would start by encouraging the passage of H.R.2630 which;

-grants individuals the ability to opt out of any federally mandated, created, or funded electronic system for maintaining medical information;

-repeals the authority of the Secretary of Health and Human Services to adopt standards for the creation of a unique health identifier;

-requires informed consent for the sharing from electronic medical records of any information created pursuant to a federally mandated, created or funded program; [AND]

-states that the federal government may not require a health care provider to participate in any federally mandated, created, or funded electronic system of maintaining health care information.

The Obama Administration should also push to repeal the disclosure rule under HIPAA and those provisions in H.R.1 mentioned above.

I grade the Obama Administration a D+ for the effects their policies will have on medical privacy. It’s a grade worse than Bush and Clinton because of the acceleration of the assault on our medical privacy rights.

  • A d v e r t i s e m e n t

Now that I have given a D+, we can only go up with Secure Flight, or can we? My starting point and the basis for my grade is the simple fact that U.S. citizens have an inherent right to travel in public spaces, anonymously and unmolested by the state — in other words – without having to show ‘papers’.

Secure Flight is the evil younger brother of CAPPS 2, or the Computer Assisted Passenger Prescreening System. CAPPS 2 examined commercial and government databases to access risk and score passengers on that risk as part of a pre-screening program. Those deemed an ‘acute danger’ would be referred to law enforcement. It was abandoned in 2004 due to pressures from civil liberty and privacy groups.

Secure Flight is a program administered by Transportation Security Administration (TSA), which requires airlines, travel agencies, tour operators, and others to collect date-of-birth and gender information for all passengers. The collected information is then sent to TSA to compare to their terror watch list. That terror watch list is created by the FBI’s Terrorist Screening Center which reviews, in secret, the names picked by other agencies for inclusion on the various watch lists. The FBI then decides, again, in secret, which names are placed on which lists.

The traveler can be denied an airline ticket or subject to secondary searches depending on whether or not they are on a particular list without due process or any judicial review. Keep in mind that the terror watch lists are already full of errors — like the inclusion of the recently deceased Senator Ted Kennedy. Even the DOJ’s Inspector General Report stated that there are “deficiencies in the integrity of the watch lists”.

Not only are there many problems with the terror watch lists, Secure Flight itself has been plagued by significant challenges. An investigation announced on June 15, 2005, led to the program’s suspension. The Department of Homeland Security’s Privacy Office wanted to know if Secure Flight had violated the Privacy Act during its testing phase. Seven days later, the TSA admitted that it had collected and maintained detailed commercial records on thousands of travelers in violation of the Privacy Act.

Although there are obvious problems and many civil liberty concerns, Secure Flight is now being implemented throughout the travel industry for all flights.

First CAPPS 2 and now Secure Flight. It’s the continuation of the false notion the Federal Government has that it can turn whole industries, in this case the airline industry, into tools for law enforcement.

The Obama Administration should suspend the implementation of Secure Flight as well as end all requirements to show an identification card as a prerequisite for air travel.

I will have to give the Obama Administration a D+ in the effects their policies will have on Americans right to travel due to their implementation of Secure Flight, its ID requirements and the Administration’s support for a national ID card called REAL ID.

Again, a grade worse than Bush, if you can imagine, and Clinton because of the acceleration of the assault on our freedom to travel.

This article was posted: Thursday, September 17, 2009 at 3:48 am

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