roundtable: Telecom Post #19
roundtable: Telecom Post #19
Telecom Post #19
CWHITCOM@bentley.edu
Sun, 03 Dec 1995 00:32:37 -0400 (EDT)
Date: Sun, 03 Dec 1995 00:32:37 -0400 (EDT)
From: CWHITCOM@bentley.edu
Subject: Telecom Post #19
To: roundtable@cni.org
Message-Id: <01HYCNSPN6F68Y55S8@bentley.edu>
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Free Speech Media, LLC
Computer Professionals for Social Responsibility
December 2, 1995
Number 19
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Compiled, written, and edited by Coralee Whitcomb
Please direct comments and inquiries to cwhitcom@bentley.edu.
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For more information on Computer Professionals for Social
Responsibility, please write CPSR@CPSR.ORG or call
415-322-3778.
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with the message SUBSCRIBE TELECOM-POST YOUR NAME. Unsubscribtion requests
should be sent to the list from which you receive the Telecom Post unless
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The Telecom Post is posted more or less weekly. My apologies
for cross-posts.
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Ever run into a writer's block? That's the reason this issue
took so long to produce. Sorry....
TOPICS:
1. A Personal Reflection
2. Medical Records Bill - the Good, the Bad, & the Ugly
3. A Deserving Death - the Istook Amendment
4. Freedom of Speech - In trouble
5. Regulatory Reform - back again
It seems a fitting time to reflect. The week of Thanksgiving I
attended a "Conference on Governance" sponsored by America
Speaks. It was a retreat for around 60 people invited because
of their affiliation to organizations working on new forms of
citizen-based democracy. As we sat in a circle and introduced
ourselves, Yolanda Rivera offered that her main reason for
coming was her love of our country - America. The room was
quite for a moment and I guessed that, like me, many others
realized we hadn't expressed those words either out loud or in
our thoughts for a long, long time. Suddenly, the anger I've
been feeling at our systems turned to sorrow over the apathy and
resulting mistreatment our American ideals have suffered lately.
But I also felt a renewed determination to keep fighting against
the blatant greed and power mongering that seems to have
engulfed the elite and to reclaim the dream of equal
opportunity that made this country so great. I love America -
and I know you do too - and that's why we're working so hard to
make our country better. Good for us!
MEDICAL RECORDS CONFIDENTIALITY ACT, Bennett-Leahy bill, S1360
One of the scariest realities we now live under is a patchwork
of laws meant to protect the privacy of our medical records.
Each state has its own laws and they range from strong
protection to nothing at all. There is no currently no federal
law. The current situation is awful and something desperately
needs to be done.
Senate bill 1360 is an attempt to create federal law in order to
bring a consistent and adequate level of privacy to all medical
records. It would supersede state law in which case it would
add protections in many states - and lift protections in others.
There are two schools of thought as to the desirability of this
particular bill. Support is led by the Center for Democracy and
Technology (CDT) with the claim that privacy legislation is
needed so badly - anything is better than nothing - though they
admit this bill needs improvement. Strong opposition to the bill
comes from Consumer Project on Technology, Electronic Privacy
Information Center (EPIC), ACLU/Massachusetts, Center for
Patient Rights, and Electronic Frontier Foundation (EFF).
Opposition arguments are not against the bill's objectives so
much as its methods. Many of the bill's provisions will put a
legal ceiling on protections and will foreclose on more
effective approaches.
The bill's objectives are admirable. Taken from a statement by
CDT:
* To establish the individual's right to access, correct and
update his or her health information;
* To establish strict, meaningful, informed consent requirements
for the use and disclosure of personal health information;
* To create a warrant requirement controlling law enforcement
access to health information; and
* To provide strong civil and criminal sanctions, as well as a
private right of action, for privacy violations.
Objections to the bill include the following:
* While the bill pushes for further computerization of medical
records (through the development of centralized "Health
Information Services" serving as keepers and distributors of
medical records), it does not acknowledge any of the access
protections inherently needed for electronic record keeping. In
fact it barely identifies the need for computerization at all.
* Authorized access would go far beyond your typical privacy
expectations.
1. Access by virtually all law enforcement officials. These
officials must obtain a subpoena, judicial summons or warrant
claiming nothing more than "probable cause" your medical
information is "relevant" to a legitimate law enforcement
inquiry. It does not mean you are necessarily the target of the
inquiry. In some cases you need not be notified and, in effect,
its acquisition can be hidden from you if thought necessary. It
appears that law enforcement officials can search databases by
key word in order to match criteria rather than accessing
specific individuals. There are over 840,000 qualified state
and local officials as well as officials from the FBI, CIA, NSA,
AFT, INS, IRS, military intelligence agencies, and most
investigators from federal and state agencies.
2. Public Health Authorities can request your records without
notifying you from health care providers, health plans, health
researchers, employers, insurers, schools or universities, and
more.
3. Health Researchers are an ill-defined bunch that can obtain
your records without your notification. This would include
graduate students, consulting firms, etc. Personal identifiers
can be included in the disclosed information.
4. Health Oversight Agencies or "a person who ... performs or
oversees the performance of an assessment, evaluation,
determination, investigation, or prosecution relating to
compliance with legal , fiscal medical, or scientific standards
relating to ... the delivery of or payment for, health care,
health services or equipment, or health research; or. .. health
care fraud or fraudulent claims regarding health services or
equipment, or related investigations of fraud or payment for
health care.
5. The opposing party in a lawsuit can have your medical
records without your consent if you medical or mental health is
at issue.
6. Those who market personal information can obtain it
(without identifiers) without notifying you as well as all who
work in health care organizations, insurance companies, and
employers.
I'm not sure who that list leaves out but I'm sure it will be
easy enough to circumvent any barriers they might find.
Americans have a mistakenly high expectation of privacy when it
comes to medical records. This is not an area where many of us
make the claim of, "I have nothing to hide" as we often do in
other privacy areas. Therefore, this is an excellent issue to
define the basic privacy guidelines that should be applied to
all personal records. We've go to get it right the first time,
otherwise flawed logic will be built into everything.
Unlike many of the telecommunication issues we work on - this is
one that deals with an existing image in the minds of most of
the public. The dismal privacy of our personal records and the
total lack of accountability of the keepers of those records is
becoming an issue most Americans are aware of due to some
horrific personal experience. I believe that we can truly make
an educational impact on the public and begin building a sense
of the best privacy structure suited to protect personal
records of all kinds. The list of sponsors of S1360 are below.
It is imperative that they hear what we think about their
approach to privacy - but beyond the negative - I propose that,
as a community working in the public interest, we put forth a
set of guidelines to be used with all personal records and
propose enforcement mechanisms that will build both a respect
for our personal privacy and empower us to protect it.
Sponsors - Senators fax numbers
Nancy Kasenbaum 202-224-6351
Robert Bennett 202-224-6717
Robert Dole 202-228-4569
Ted Kennedy 202-224-2417
Bill Frist 202-228-1264
Paul Simon 202-224-0868
Orrin Hatch 202-224-6331
Judd Gregg 202-224-4952
Ted Stevens phone - 202-224-4952
James Jeffords vermont@jeffords.senate.gov
Herb Kohl phone - 202-224-9787
Tom Daschle 202-224-2047
Russ Feingold 202-224-2725
ISTOOK AMENDMENT - A WELL DESERVED DEATH
The last week of November was the death of the Istook Amendment.
This is a great victory of the grassroots and special thanks
from all of us who work with or depend on nonprofits to the Let
American Speak Coalition - OMB Watch, Independent Sector, and
the Alliance for Justice - for an incredible electronic campaign
and pressure put on legislators. This was an incredible story
of power plays. Its inception and support had little to do with
the public interest or any public concern for wrongdoing. The
only explanation of the incredible energy expended to get it
passed was its key role among other initiatives to shut down the
voice of the American public. While we enjoy a moment of
victory and relief, we must all diligently watch for other
attempts to "silence America".
If you've been following the journey of the "Istook Amendment"
for the last couple of months, you've most likely become
completely confused. The Istook amendment, also known as the
"Silence America" Amendment, targeted nonprofits that receive
federal funds. Those nonprofits currently must adhere to limits
upon their "lobbying" activities. These provisions are accepted
by the nonprofit community. The Istook amendment, claiming that
current law is the equivalent of "welfare for lobbyists" and
that transgressions run rampant, put such radical restrictions
on "advocacy" (a much broader term than "lobbying") that many
nonprofits would no longer be able to serve their constituents.
Sponsors of this amendment attempted to piggyback it to several
appropriations bill but found Senate resistance in every case.
Having been attached to and then stripped from the House Labor-
Health and Human Services - Education appropriations bill, the
Treasury- Postal appropriations, and most recently the
Continuing Resolution, it then jumped onto Lobby Reform in the
House. The Lobby Disclosure bill, HR2564, if contaminated with
amendments, was considered dead. Lobby reform is something that
has received much lip service and little genuine action for
years. This year's reform bill passed through the Senate
unanimously and had tremendous momentum in the House. All other
proposed amendments were defeated in the House and the Istook
amendment was ultimately withdrawn.
It is a fascinating story. I hope someone writes a book on all
the backdoor attempts that were made to sneak a bad piece of
legislation by the American people. Heroic grassroots efforts
kept America aware of this bill and snatched victory from it
time after time.
While this story may not be directly related to
telecommunications - the role electronic democracy played was
essential. It is a great example of the empowerment a free and
open internet provides the voice of the grassroots. There are
many other battles to wage. From all accounts the
telecommunications bill now in conference will emerge containing
a flavor of the Exon Amendment. Allowing control over content
to reside in the carrier or defining ridiculously broad areas of
unprotected speech on the Internet is unacceptable.
FREEDOM OF SPEECH - BATTLE TIME
When the Cox/Wyden Amendment passed overwhelmingly in HR1555
many of us breathed a sigh of relief that reason had prevailed
in telecommunications legislation. Reports from the conference
committee, however, serve as a warning that protectors of the
First Amendment must return to duty. The New York Times News
Service reports that on Friday, Dec. 1 a compromise was reached
on language dealing with sexual material on the Internet. This
compromise is drafted by Rep. Rick White (R-WA) and is based on
the Communications Decency Act (CDA) or "Exon Amendment". It
would retain the original fines and prison sentences but would
trade the language "filthy", "lewd", and "indecent" in for
"harmful to children". On-line providers would receive
protection if they make a "good-faith" effort to keep sexual
material away from children.
The compromise is reported to have been reached due to a
"coalition of on-line services and some civil liberties groups"
agreeing to the new language. The only civil liberties group
identified so far is the Center for Democracy and Technology
(CDT). The conference committee is apparently undergoing
tremendous pressure from the Christian Coalition and Rep. Henry
Hyde (R-IL).
REGULATORY REFORM
You may remember the multiple futile attempts Sen. Bob Dole
(R-KA) made some months back to pass regulatory reform. This
bill would have required extensive review and cost-benefit
analysis of all existing and new regulations. Having easily
passed the House, the bill went into the Senate with great
momentum. Public exposure and presidential resistance help to
stop the bill in its tracks. Time and time again Dole attempted
to get it passed but finally gave up leaving all to believe
reform was dead for this year. Suddenly Sen. Chuck Robb (D-VA)
has made an about-face on the bill and it has re-emerged onto
the scene. This puts Clinton in a very awkward spot as
regulatory reform is in keeping with his agenda - just not THIS
regulatory reform.
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