Here’s a piece I wrote in 2009 on one of Obama’s first assaults on privacy. A few of the piece’s punchier lines:
*Privacy is very lucrative for the Beltway boys: they reap millions when they betray it.
*We now know that psychologists were brought to the prison at Guantánamo to exploit detainees’ weaknesses for interrogation purposes. Do the millions of Americans who have received psychological treatment want government agents to have access to their vulnerabilities? Suppose that when a policeman pulls you over for a speeding ticket he can quickly tap into a database with your health records, including any therapy. Even before he walks up to your car window and demands your identification, he will know if you have a “problem with authority.”
*We are left with a facade of privacy protection and the reality of an iron fist for data collection.
Health of the State
By JAMES BOVARD • March 9, 2009
The computerization of personal healthcare records is one of the showpieces of the new stimulus bill. President Obama promised, “We will make the immediate investments necessary to ensure that within five years all of America’s medical records are computerized.” Congress ponied up $19 billion to subsidize the digitization of patient files and creation of electronic healthcare tracking systems. The ultimate goal is “the utilization of a certified electronic health record for each person in the United States by 2014.”
Shoved into a 1,400-page bill passed in a panic, the plan went largely undebated. But the implications are horrifying. Doctors will be coerced into a massive federal healthcare scheme, and government will serve as the leaky repository of patients’ most intimate information. Much as the Patriot Act pried, this measure intrudes on a far more personal level. No patient left behind—or alone.
The president promises that computerizing doctors’ records will “cut red tape, prevent medical mistakes, and help save billions each year.” But in fact, the federal mandate is likely to destroy the progress being made with voluntary efforts to computerize records in a way that assures confidentiality and individual control of health data.
At this point, fewer than 20 percent of the nation’s physicians have gone full-speed on computerization. Obama’s plan offers between $44,000 and $64,000 to doctors who computerize patient records and up to $11 million per hospital. “On the stick side of the equation,” the Wall Street Journal reported, “the measure includes Medicare payment penalties for physicians and hospitals that are not using electronic health records by 2014.” If records are digitized on the federal dime, it will be far easier for politicians to claim the resulting information.
But the feds have no technological silver bullet to distribute to docs across the land. David Kibbe, a top technology adviser to the American Academy of Family Physicians, warned Obama in an open letter late last year that existing medical software is often poorly designed and does a miserable job of exchanging information. Kibbe declared, “If America’s physician practices suddenly rushed to install the systems of their choice, it would only dramatically intensify the Babel that already exists.”
Marc Roberts, a Harvard professor of political economy and health policy, notes, “Many healthcare systems are now intentionally building medical record systems that are nonstandardized and noncompatible so they can own and control the data.”
In the same way that George W. Bush bragged about the percentage increase in homeownership, President Obama will be able to boast about the increase in doctors’ offices using electronic records. It didn’t seem to matter to Bush that many of the new federally subsidized homeowners went bankrupt, and it may not matter to Obama that the federally controlled health-record system is bound to be a trainwreck.
The administration estimates that digitizing health records will create 212,000 jobs. But the New York Times noted in January, “So far, the only jobs created have been for a small army of lobbyists trying to secure money for health information technology.” At best, the plan will create jobs for legions of clerks. The low skills required would make a mockery of the promise that digitizing records will result in a sharp decrease in medical errors since the data-entry process would almost certainly produce vast bogs of blunders. Perhaps the real job creation will be for undercover agents to go around to doctors’ offices to see whether there are compliant keyboards on the premises.
The idea that the feds will be dictating quality standards for private businesses is laughable, considering Uncle Sam’s abysmal record on computer modernization. The IRS and the FBI have each gone through buckets of billions of dollars in vain efforts to create computer systems that were non-Paleolithic. The terrorist watch list has been a joke in part because numerous agencies used different software and created incompatible systems for identifying suspects. Remember the faulty no-fly list that grounded U.S. senators? Do we really want these same federal aces ruling on drug interaction and managing open-heart surgery?
One of the plan’s aims is to create systems able “to exchange electronic health information with and integrate such information from other sources.” This is a huge step toward a national database, and the centralization of 300 million Americans’ health records should be seen in light of other data the government has already gathered. In the name of fighting terrorism, the feds have conscripted far more information than people realize. And the Pentagon’s pursuit of Total Information Awareness on the American people—combined with Congress’s contempt for ensuring that federal agencies obey the law—assures that the surveillance horrors have only begun. If the government has the right to fine doctors for not digitizing their patients’ files, wouldn’t the feds also claim a right to punish those who refuse to turn over the records?
Team Obama is promising that the government will scrupulously respect the privacy of the newly computerized private data—a claim eerily reminiscent of President George W. Bush’s 2004 promise that no American was being wiretapped without a warrant.
Consider the feds’ record on protecting the confidentiality of personal records. Rep. Joe Barton (R-Texas), co-chairman of the Congressional Privacy Caucus, and 3,000 other people’s health files were on a National Institutes of Health laptop stolen last year from a car trunk. The Veterans Administration was disgraced in 2006 after computer files with the Social Security numbers and other personal information of more than 20 million veterans were stolen. A VA inspector general report condemned the agency for its grossly negligent attitude toward protecting medical records.
But the biggest betrayal occurred with the Health Insurance Portability and Accountability Act of 1996, known as HIPAA, which left the Department of Health and Human Services to define medical privacy. When HHS finally proposed regulations in the last month of the Clinton presidency, it noted, “The electronic information revolution is transforming the recording of health information so that the disclosure of information may require only a push of a button. In a matter of seconds, a person’s most profoundly private information can be shared with hundreds, thousands, even millions of individuals and organizations at a time.” But the Bush administration blocked the proposed privacy regulations and instead issued rules that largely abolished a patient’s consent over the use of his own medical data. It rolled out a red carpet to industries hungry to exploit private health information.
Harvard law professor Richard Sobel observed, “HIPAA is often described as a privacy rule. It is not. In fact, HIPAA is a disclosure regulation, and it has effectively dismantled the longstanding moral and legal tradition of patient confidentiality.” Physicians B.K. Herman and D. Peel noted in a 2004 article entitled “The End of Medical Privacy” that “the Hippocratic Oath, the foundation of medical ethics and the most important of all patients’ rights, has been rescinded by federal decree.” The Patient Privacy Rights Foundation warns that “over 4 million businesses, employers, government agencies, insurance companies, billing firms, and all their business associates that may include pharmacy benefits managers and pharmaceutical companies as well as marketing firms and data miners” are entitled to see and use individuals’ healthcare records.
The issue is not whether the personal health information the government commandeers will be abused. It is simply a question of when, where, and how.
Medical data does not simply track the number of times a person goes to the doctor seeking a cure for a runny nose or stubbed toe. Medical records can include details of long-ago abortions, impotence or sexually transmitted diseases, anti-depressants and mental breakdowns, AIDS or HIV status, or any number of diseases. No information is more integral to a person’s existence—or more deserving of discretion.
We now know that psychologists were brought to the prison at Guantánamo to exploit detainees’ weaknesses for interrogation purposes. Do the millions of Americans who have received psychological treatment want government agents to have access to their vulnerabilities? Suppose that when a policeman pulls you over for a speeding ticket he can quickly tap into a database with your health records, including any therapy. Even before he walks up to your car window and demands your identification, he will know if you have a “problem with authority.”
Surveys show that tens of millions of Americans are already engaged in deceptive or evasive behavior because they fear that their medical information could be used against them. The dread that computerized records will end up in a federal database would make far more people engage in “privacy-protective behavior.” But of course the trust between doctors and patients is irrelevant compared to politicians’ promises to take care of everyone.
Privacy is very lucrative for the Beltway boys: they reap millions when they betray it. Rep. Roy Blunt (R-Mo.) and Sen. Tom Harkin (D-Iowa) have each received more than a million dollars in contributions from health professionals and the pharmaceutical industry since 2000, and they each sponsored industry-favored amendments in the stimulus bill that would undermine patient privacy, the Washington Post reported.
A flood of campaign contributions from the telecommunications companies swayed congressmen to award phone companies retroactive immunity last year for violating federal law and betraying their customers’ privacy. If congressmen would vote to permit phone companies to wiretap people’s calls and e-mails illegally and unconstitutionally, why expect that they would not sell out health privacy as well? Civil libertarians can score isolated victories here and there, but the bankrolls of the healthcare industry, insurance companies, and pharmaceutical manufacturers will trump in the end.
The computerization of individuals’ health records is a stepping stone toward Obama’s proclaimed goal of universal coverage. And there can be no universal coverage without universal submission.
This is why superior private alternatives that have been rapidly evolving are unacceptable to the feds. Both Microsoft and Google now offer individuals the opportunity to place personal health information online in secure accounts. Microsoft’s HealthVault program and Google Health both offer better privacy guarantees than Uncle Sam does. There was no need for tens of billions of dollars in subsidies or the threat of endless penalties for these companies to create and offer such products. They simply responded to consumer demands for their services—but forced no universal program.
For patients who prefer not to have their data online, Sue Blevins of the Institute for Health Freedom notes, health information could be stored electronically on “cards that patients could take with them from doctor to doctor, rather than establishing a centralized system through the federal government.” This would allow them to help new doctors quickly get up to speed on their medical history and avoid retaking tests. As long as progress is not paralyzed by a federal mandate, private companies will continue innovating and offering better, more secure solutions. But politicians reap no windfalls when problems are solved without their help.
Thus we are left with a facade of privacy protection and the reality of an iron fist for data collection. The Obama mandate is guaranteed to subjugate doctors and patients to politicians and bureaucrats. We’ll be destroying real confidentiality for a bogus promise of efficiency. And Americans will be stuck with the huge bill for creating their own digital fetters.
James Bovard is the author of Attention Deficit Democracy and eight other books.