Just Between You, Your Doctor and the Police

By Nat Hentoff

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 ClintonShalala 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
burdenofproof 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."

So much for Justice Louis Brandeis's 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 ShalalaClinton 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, at will, by law
enforcement.

What gives me some hope that Congress might resist the president is a
Time/CNN poll which indicates that 87 percent of us vigorously disagree
with Donna 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.

It will be interesting to see where Al Gore stands on this issue. If he
stays with the president, he will have more than the Buddhist temple to
answer for as he eyes the presidency.

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? Magistrates have
home telephone numbers, and even fax machines.

In any case, is the personal security in the medical records of millions of
Americans less vital than police efficiency in speculatively going after
perpetrators?

And what will the effect be on the doctorpatient 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?

Copyright 1997 The Washington Post Company