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An Examination of the Right of Privacy Prepared for Submission to the 1999 National Debate Topic Selection Committee The Right to Be Left Alone: An Examination of the Right of Privacy The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fourth Amendment to the United States Constitution "The right to be left alone the most comprehensive of rights and the right most valued by a free people. " Justice Louis Brandeis, Olmstead v. U. S. (1928) Although the word "privacy" does not exist in our constitution, the Fourth Amendment serves as the basis for the discussion of a "right to privacy" in our country, a right which has been controversial since its inception.
However, there has never been such an assault on privacy as exists now; the increasing reliance on science and technology and the growing role of government as protector has made it possible to circumvent traditional protections on privacy and subject the individual to increasing scrutiny by government, employers, and the public at large. Incursions on privacy have a long history, largely in response to technological advances: 1861 Western Union begins operating the first transcontinental telegraph line 1861 wiretapping begins during the Civil War 1890 Louis D. Brandeis articulates the legal expression of a "right to privacy" in a Harvard Law Review article 1899 the credit reporting agency, Equifax Inc. , is founded under the name Retail Credit Company 1902 the Medical Information Bureau, Inc. is established to act as a clearinghouse for medical claims to assist insurance companies 1935 the Social Security Act creates a de facto national identification number 1950 the first credit card is issued 1972 electronic mail is introduced 1974 the Privacy Act is signed into law There is also a historic record of privacy protection. Amitai Etzioni, author of The Limits of Privacy, and a professor at George Washington University, describes three historical periods in the formation of privacy rights: Stage One pre 1890 a vague social concept of privacy exists which is linked to property rights, i. e.
if you damaged someone's reputation by revealing private details you were harming something owned (a reputation). Private property was held semi sacred, a part of natural law. Stage Two 1890 - 1965 an essay by Samuel D. Warren and Louis D. Brandeis, considered "the most influential law review article ever published" asserted that privacy was distinct from other rights, particularly property rights. They called it the "right to be left alone" and considered its existence self-evident.
Later authorities declared it an "inalienable right. " Privacy was considered to be protected by tort law. Stage Three post- 1965 legal foundations of privacy are established with cases such as Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Roe v. Wade (1973) which all happened to deal with reproductive issues.
Supreme Court decisions established privacy as an unlimited good and paved the way for legislative recognition of the right to privacy. Although Etzioni stops with stage three, it's possible that we are now in a fourth stage, as traditional concepts of privacy are challenged by both technological innovations and social concepts of utilitarianism. While Americans have been fighting against governmental incursions on privacy, the private sector has been making steady inroads. Consumers, employees, even patients and children have little protection from marketeers, insurance companies, bankers, and corporate surveillance. Additionally, as the Supreme Court has given greater leniency to law enforcement officials in recent decisions our personal privacy may gradually be coming to an end. A 1996 Harris/Equifax poll found that 80 % of Americans were somewhat or very concerned about threats to personal privacy while a 1997 Harris-Westin poll found that 92 % of Americans were concerned about threats to their personal privacy. (Etzioni, p. 6 - 10) Indeed, as Carl Michael, professor of philosophy and director of the Science, Technology, and Society Program at Penn State University, noted in The World and I on March 3, 1996, Although extensive bureaucratic record keeping is no new activity, computerized information is vulnerable to electronic invasion and manipulation by hackers and program viruses in ways that hard-copy records never were.
Additionally, much more information is being collected than ever before, and in forms that allow the linking of medical, financial, and legal records to create integrated profiles of use to commercial as well as law-enforcement interests. Privacy is an issue that affects all Americans in virtually every aspect of their lives. An internet search to the Electronic Privacy Information Center revealed the following in exhaustive list of areas in which privacy is threatened: Children's privacy - from marketing efforts This gives a good idea of the scope of the problem. We will now look at a few of the issues in more depth in order to understand how privacy is impacted on a daily basis. A discussion of these issues is not meant to establish priorities, but rather to illustrate the wide range privacy matters entail. Imagine this: A prominent local banker is appointed to a state health commission.
He peruses the commission's computer files to identify every cancer patient living in his community. Then he has the bank call in their mortgages. What about this one: a teenage prankster uses her mom's access to computerized hospital files to get a list of emergency room patients. Then the mischief-maker calls seven of the patients and falsely informs them they have tested positive for the HIV virus. Or how about this? a member of congress running for reelection has her medical records faxed to a newspaper in her district on the eve of the primary.
She and her family wake up to find a front page story about her attempted suicide years earlier. (Washington Times) Sound farfetched? Hardly. According to The Washington Times in August of 1998, these violations of medical privacy have occurred in recent years. Etzioni explains how "the privacy of sex offenders or encrypted messages may not be of direct personal interest to everyone, but we all have medical records and cherish their privacy. " (Etzioni, p. 139) This concern about medical privacy seems to be justified; a 1993 Louis Harris poll quoted in the article found that, " 34 percent of medical professionals admitted that patient information is given to unauthorized persons 'somewhat often. '" (Washington Times) This concern becomes even more urgent as most of the medical profession is switching from paper records to computerized files to online databases.
The problem is that access is not just given to health care professionals but a variety of other sources as well such as pharmaceuticals, employers and research centers. A report issued by the Office of Technology Assessment (OTA) observes that "as a result of computers, patient information will no longer be maintained, be accessed, or even necessarily originate with a single institution, but will instead travel among a myriad of facilities. " These electronic medical records give a "cradle to grave" view of a patient's health care history. Health care providers are not the only sources of medical information. Equifax, the giant consumer credit reporting agency, said in 1995 that it would supply computerized medical records systems in addition to consumer credit reports. The major problem associated with disclosure of this information is that a growing number of employers are using this data to the detriment of prospective and current employees. In fact, in 1996, 35 percent of the Fortune 500 companies acknowledged they use this information in making employment decisions.
These companies employ millions of people, the effect is staggering. (Washington Times) Another potential concern is that fear of improper use of medical records is harming medical research and may endanger treatment. Senator Olympia J. Snowe (R-Maine) reported: One third of high risk women refused to participate in a Pennsylvania study to understand how to keep women healthy with a breast cancer gene. They refused to participate because they feared losing confidentiality with respect to genetic information. (Washington Times) A. G. Breitenstein, director of the Health Law Institute, a Boston advocacy group, said, "People are not going to feel comfortable going to the doctor, because now you are going to have a permanent record that follows you around for the rest of your life that says you had syphilis, or depression, or an abortion or whatever else. " (Washington Times) Numerous individuals avoid counseling or schedule sessions sporadically in order to pay in cash to avoid creating an insurance "file" on their mental health which could adversely affect them later.
The "information brokers" adopted voluntary guidelines on January 1, 1999 to restrict data they sell. Ed Mierzwinski of the U. S. Public Interest Group, a consumer advocacy organization stated in USA Today that " These new rules will protect some of your information some of the time... Rules are a poor substitute for legislation." Current legislation is a morass of erratic law, both statutory and judicial, defining the confidentiality of health information. Between a lack of regulations or relevant regulations in the states, computerized interstate transmissions which make state laws irrelevant, and state laws that do not go far enough.
Secretary of Health and Human Services Donna E. Shall concurs that: every day, our private health information is being shared, collected, analyzed, and stored with fewer federal safeguards than our video store records... To eliminate this clear and present danger to our citizens and our health care system, we must act now with national legislation, national education and a natural conversation. (Washington Times) Other specific examples of how privacy rights are affected within the realm of medicine include insurance companies and their access to medical records. The very real potential of companies denying benefits based on access to privileged records is frightening and also highlights the need for national protection. Individuals with HIV or Hepatitis C have a vested interest in keeping their medical records private to avoid discrimination based on societal stereotypes.
The use of genetic information (from gene mapping) can also contribute to the misuse of the data. In yet another scenario described by the Yale Daily News on October 16, 1998, doctors who determine that there is a genetic risk of a fatal disease may be prohibited from sharing that information with family members in danger if the original patient wants to keep that information confidential - all because such information is privileged. On the other hand, employers who discover that their potential employees have genetic markers for certain diseases may be reluctant the hire them fearing the high cost of health insurance. Privacy is affected on both sides of the issue. Even efforts to reform the health care system (at both the provider and insurer level) come with a cost to privacy.
The efforts made in the 1996 Health Insurance Portability and Accountability Act to electronically gather medical records to guarantee insurance "portability" would not only create a "unique health identifier" number but would also make it possible for all of your medical records to be accessed by anyone with a connection to the database. PRIVACY AND CONSUMERS There are several areas in which individual privacy is compromised by businesses. The Minneapolis Star Tribune reported on July 6, 1997 that promotions, such as those found in grocery stores, are often used to track shopping patterns. For example, stores which use buyer cards to give discounts use data collected to increase sales and profits, without notifying consumers that personal data is being disseminated.
Video stores can use buyer cards to track movie viewing patterns. If you have ever received a pre approval form for a credit card you have had personal, private information distributed about you. Many catalog companies do the same thing. Manipulation of such information is not only unregulated currently, but is defended by businesses as essential to their operation. They resist regulation citing higher costs, but fail to acknowledge that they are using information gleaned without permission for free. There are other examples of potential consumer exploitation.
The Dallas Morning News noted on March 7, 1999 that Microsoft Corp. was having to modify its Windows 98 operating system when it was discovered that the company had quietly been using it to compile a vast database about computer users. An identifying number in the program could even be used to trace documents created by the individual using the computer. In essence, a "digital fingerprint" had been created. Intel was involved in a similar controversy. Both companies took action only after tech-savvy consumers noted the markers.
The average computer user would never have known the information was being collected. As Marc Rosenberg, director of the Electronic Privacy Information Center (EPIC) in Washington, noted, "The problem is the absence of legal rules that limit the collection and use of personal information. " Employees aren't even safe within their own companies. EPIC reported on April 22, 1996 that some corporations not only disclose confidential employee information to creditors, but they also neglect to tell their employees about such access and even what is contained in their records. David Linowes, who is one of the nation's experts on privacy laws and who directed a study of Fortune 500 companies, said "This limited approach is not sufficient. A uniform federal law is needed to protect individuals and to set guidelines of fair-information practices for businesses. " In the study, 35 % of the companies polled admitted using medical records in making employment-making decisions.
Linowes continued to note that the US lags behind other industrial nations in securing such private information. (EPIC) Another area in which privacy may be compromised is an area known as Identity Theft. This crime involves the selling or stealing of critical information which can be used to steal someone's credit information, bank records, etc. The incidence of such theft is alarming. USA Today reported on January 18, 1999 that as many as 1000 people a day report that their identity has been stolen. To make matters worse, it may take years for an individual to clear their records once such theft has occurred. With easy access to databases, a thief often only needs a social security number, birthdate and a mother's maiden name to take on a new identity while ruining the credit rating of the innocent and unknowing victim.
Credit bureaus and information brokers who had been distributing private information, without the knowledge of the individuals involved, voluntarily imposed regulations on January 1 st to avoid federal government intervention, but privacy advocates say that the rules are crafted too narrowly. "The rules are a poor substitute for legislation, " says Evan Hendricks, editor of the newsletter Privacy Times. There is a growing field of new technology to counter identity theft. One such device was described in the Iowa City Press-Citizen in June 1999. The article describes how the banks of the future will use retina scanners at ATM machines to prevent fraudulent use of accounts.
Retina scans prove to be valuable as an identifying marker because no two are alike, rather like fingerprints. Critics, however, fearful of an Orwellian nightmare, are reluctant to embrace such intimate technology. Private records are also involved in the field of adoption searches. Many states are now considering legislation to open adoption records to adoptees on their 21 st birthday.
Birth parents are very concerned that information they had thought protected could now be made public two decades later without their consent. Both sides of the issue have legitimate interests at stake; emotional issues as well as competing rights claims of parents and children are involved. Adoption itself may be at stake. Counsel for the Edna Gladney Center, one of the largest private adoption agencies in the country argued that, "without assurances of confidentiality, some parents are simply unwilling to consider adoption. " (Dallas Morning News, March 7, 1999) Adoptees' interests range from finding closure about their birth circumstances to uncovering hereditary health information. Typically courts have sided on the side of the child and private records are frequently unsealed. The internet, with its ability to make searches affordable, has contributed to the intensity of the controversy.
Currently, states are responsible for the final decision in each case, leading to patchwork solutions. Ruth Shulman lay pinned inside her family's overturned car, her legs sticking out, in a ditch alongside a freeway. She moaned in pain, begging to know if her children had survived and at one point urging a paramedic to let her die. Little did she know that the crash that left her a paraplegic would be weekend fare for millions of TV viewers across the nation.
The paramedic had worn a mini-microphone. A cameraman on the helicopter ambulance had taped the frantic trip to the hospital. 'They took one of the most tragic moments of my life and made it entertainment for the nation, 's aid Shulman, 53, who sat stunned in her hospital room three months later, watching herself on a syndicated show about real-life rescues. (LA Times, August 1, 1997) This dramatic account is indicative of invasions of privacy being displayed in the mass media. A cursory perusal of the weekly television listings will reveal a number of "real life" shows which feature the use of hidden cameras, tiny microphones and "ride alongs" to capture the drama of everyday life. The problem is that these "real life" people have their most traumatic, embarrassing and horrifying moments captured without their permission and then displayed for everyone in the nation to watch. In one case, a widow watched a news program which showed the frantic efforts made to sa...
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Research essay sample on Health Care System Identity Theft
