March 18, 2009
There is little doubt that the United States is far ahead of the rest of the world in its use of information technology. The country’s drive for supremacy in the Cold War, and the race to the moon in the 1960’s, were the driving forces behind our development of computers.
At first, this trend had little impact on American consumers because computers were both difficult to operate and expensive to purchase. But as with all technical innovations, price was driven down over time, making mass-marketed computer applications viable.
The acceptance of computers, and specifically the use of databases, which store huge amounts of information on consumers, is having tremendous societal impact; affecting the way credit is granted and denied, standards of living, socially acceptable behavior, hurting small business and changing our views on personal privacy.
So, in a series of articles, we’re going to examine these issues in depth.
Information Technology – The Early Years
America’s use of information technology is a great story. Like all great stories, it is full of high-points as well as failures.
North American Rockwell, the builder of the Apollo rockets that took the first humans to the moon, accomplished its task with 20 megabytes of disk space. Those 20 megabytes of space didn’t sit in a desktop computer. They resided in a series of computers that took up an entire building the size of two city blocks. Both the company and NASA were more reliant on engineers using slide rules than they were on computers. But use of computing was a necessary element in the race for the moon, and the Apollo program showed that computers work. This is a high-point.
When Bill Gates developed his Windows operating system, he attempted to sell it to IBM for $100,000. IBM said "no". You just know that there is somebody over at IBM who would prefer not hearing this story told again.
As with virtually all technological innovations throughout the history of mankind, the use information technology started for military purposes. And it began in earnest in the 1940’s when the allies were trying to crack Germany’s Enigma code. This was a secret code that Germany used to direct its U-boats scattered around the globe. The best minds of the United States and Britain worked on this problem for years, but it was actually the eventual capture of a cipher machine (a very simple computer) from the Germans that led to a breakthrough. From that point on, computers were used in military intelligence.
By the 1950’s, the predecessors to today’s computers were being developed for the government. Big, bulky, unreliable machines with very little processing power, they could do simple mathematical calculations. Built with cathode ray tubes, they threw off so much heat that they could only be operated for short periods of time. Modern hand-held calculators possess more processing power, but these were the first necessary steps that had to be taken for us to gain access to the technology we have today.
And throughout the Cold War and the race for space, the US Government continued to drive the development of computer processing power and disk storage space. By the 1980’s, development costs had been driven down to a point that businesses could afford to purchase personal computers for their employees, and a small group of affluent consumers could afford computers in their homes.
At this same time, this cheap and easy access to data processing power was the impetus behind a consolidation within a community of data gatherers; what had been the local credit bureaus — 2,600 companies that had been owned by local merchants with the express purpose of serving the credit needs of the local community began to be gobbled up by larger corporations.
The local bureaus, which had never been intended to turn a profit and which had always operated in the best interests of the community, were viewed by the conglomerates that purchased them as a panacea of information that could be bought and sold for a profit, regardless of the consequences. Over a 20-year period, those 2,600 companies were reduced to three companies of any consequence, and the large consumer database was born.
Add to this the emergence of the Internet, and seeds were sewn for a meltdown in business, political and even personal ethics which continues to this day. A paradigm shift in the way that consumer data was collected and sold occurred, along with a shift in acceptable business practices. The "customer" who had always been viewed by businesses as their bread and butter, someone that you would never consider injuring, suddenly became a commodity. And the personal data provided to businesses by consumers for a specific purpose, such as securing a loan, somehow became the property of the business; something that could be sold.
To make matters even worse, data provided to small businesses that still wouldn’t dream of selling information about their customers changed hands. The data was — and for that matter still is — provided to the three credit repositories, who in turn sell it.
All for the Sake of Convenience
As consumers, we became our own worst enemies. We thought nothing of providing our most personal information to virtually anyone who asked for it. Websites such as Yahoo provided personalized news and entertainment. But if you want to see your horoscope every day, you need to provide them with your date of birth. If you want to see the forecast for your city, you need to provide them with your address. And if you want to see a stock report, you need to tell them what commodities you own.
We traded all of this information for no money and a little perceived convenience.
The companies that we have given this information to have amassed huge databases of information on us. Over the years they have come to know our likes, dislikes and perversions. And they have used this information to better target their advertising and to sell lists of information to the highest bidder.
Banks too have gotten into the act. They purchase and sell consumer information to list brokers and data providers. They have affiliated companies that they share information with, regardless of the consumer’s wishes. And as individuals, there is little that we can do because our representatives have actually codified some of their most egregious practices, saying that it is in the best interests of commerce, and hence, the nation.
The truth is the companies that engage in these practices now donate so much money to candidates that they have "paid" for this legislation.
The Politics of it All
The Gramm-Leach-Bliley Act, which was an abominable piece of legislation, allowed the banks to get into other lines of business and share data. It has led to higher consumer prices for banking services and intrusions of privacy.
The Fair and Accurate Credit Transactions Act took all authority away from the states to regulate the data sharing practices of creditors with regard to their affiliate companies. This legislation was passed even though numerous polls show that more than 90% of Americans want stronger privacy protections. So whose interests do you think Congress was actually protecting?
And more bad legislation is on the drawing board. Sen. Dianne Feinstein (D-CA) has been proposing privacy legislation for years that strengthens current privacy laws in some states, but at the same time sets a federal privacy standard which would weaken laws in other states.
She has advocated specifically forbidding the states from setting higher-than-federal privacy standards for many companies in the financial services and database industries. She proposes legislation and stands behind a bully-pulpit disingenuously claiming to represent consumers, while she accepts large campaign donations from the very companies that she claims to be protecting us from.Her proposals are far from the worst though. It’s like letting the fox watch the hen house. Something stinks in Denmark.
The fact is that the databases containing our personal information have become so valuable that multi-billion dollar corporations have been built up around them. These include credit reporting agencies, commercial database companies, banks and list brokers. Some try to operate in obscurity while others are well known.
These companies sell their information to anyone who wants it. Over time, inaccurate information is added to their data, either because of a simple thing like a name mix-up, or because accuracy is less important than profit. The reason is actually far less important than the results; 79% of consumers now have inaccurate information on their credit reports.
The credit reporting companies know that their data is inaccurate, yet they continue to sell it. This hurts every business that relies on this data to make credit decisions with their customers. And consumers are also hurt. These companies sell worthless credit monitoring services to consumers, giving them the impression that credit monitoring will protect them. It won’t. And it won’t help them restore their good credit in the event that their identities are stolen either.
Accurate or not, most of these database-driven organizations reap large profits and have no intention of letting the details get in the way. Poll after poll shows that Americans are concerned about their privacy rights, yet our legislators continue to pass anti-consumer legislation, and we let them get away with it. Some of this legislation is passed out of shear ignorance, but a large amount of it is due to the fact that Washington has become an eBay for the rich and famous:
- a place where political favors are traded for ever-larger campaign donations, and where political pork is balanced on the backs of hard working citizens
- a place where "doing what is right for America" has been traded for "getting re-elected at any cost"
- a place of leadership without any leaders.
The End Results
The results of this trade in personal information are already coming home to roost. Inaccurate information in these databases leads to the denial of credit to those who deserve it. It also leads to the granting of credit to those who can’t afford to it pay back. This means that merchants can’t rely on the information they use to grant credit. This trend has a lot to do with the current mortgage crisis. Lenders made a lot of loans to people based on inaccurate information. While a lot of this was because of the fact that lenders were offering no-document loans, it doesn’t alter the fact that even with these loans they were looking at credit reports. And those reports contained a lot of inaccurate data.
The databases compiled by the three large credit reporting agencies are used to power the country's credit scoring system. Since, as previously mentioned, 79% of all credit reports contain inaccuracies, the data used to derive credit scores is corrupt. Therefore, the scores themselves must also be corrupt. But the companies that provide credit scores claim that their methodologies are proprietary. And the three credit repositories claim that they don’t create the data — they just report information which is provided to them by creditors. It’s their way of saying that they have no responsibility for their reports; something which the courts have not agreed with of late.
The result is a system with little accountability; a system that is broken at its core, and consumers and businesses that are left in the dark.
Identity theft is at an all time high and growing faster than any other form of fraud. Easy access to data, and security procedures that are lacking within many companies, has helped fuel this process.
Private-sector data breaches have included outright thievery at companies like TJX, ChoicePoint and LexisNexis, which were well publicized, as well as a number of less publicized cases involving the loss or theft of computers at universities and medical providers.
This trade in data has led to invasions of privacy — unsolicited marketing offers that come in the form of mail and SPAM. And when you buy from one of these offers, it is likely that your file will be updated and sold again and again, allowing marketers to target you even more effectively.
And because of the shear volume of personal information that companies control, the large commercial databases contain huge amounts of inaccurate information. The companies that control them are constantly trying to merge data from disparate sources, without the assistance of the consumer.
So if your name is John Smith and you live on Main Street in Peoria, and if there is another John Smith who also lives on Main Street in Peoria, there is a very good chance that your information will be merged at some point.
The federal government uses some of these same commercial databases for national security purposes. The ramifications of this are disturbing and best.
But it is not just commercial databases we need to be concerned with. Governments have also gotten into the act by making public records available via the Internet. Public records include things like your voter registration information and the deed to you house. Often, they include Social Security numbers.
The purpose of public records is to allow citizens to keep an eye on government. But the government has turned these tables on the citizens. Making these records available electronically is misguided.
We’re going to examine all of these issues. We’re going to look at the ramifications of what is happening today and what the future may hold. We’ll examine how these databases impact on your credit, your business and your privacy. And we’ll look at efforts to both diminish and to enhance privacy rights, along with stories of both success and failure for consumer rights.
In the end, we’ll try to paint you a picture of how the databasing of America affects you personally — how it costs you money, lowers your standard of living, and threatens your privacy.
And finally, we’ll tell you what you can actually do to start protecting yourself.
March 20, 2009
In part 1 of our series we discussed a number of factors that are impacting how the personal data we all provide to companies is bought and sold. In this segment, we’re going to look at our broken political process and why it is having such a negative impact on both credit and privacy.
It’s all about the money!
In the 2004 election alone, the financial industry contributed more than $330 million to campaigns. That is more than $1 for every man, woman and child living in the United States; and it represents nearly a six-fold increase in industry donations since 1990. The 2008 election cycle saw an even more dramatic increase with more than $463 million in donations from the financial services industry.
This kind of money makes it very difficult for consumer voices to be heard. It also makes it very difficult for our politicians to represent their constituents rather than large corporate donors; and this is just from one industry.
Soft Money Contributions
Donations to Democrats
Donations to Republicans
% to Dems
% to Repubs
One notable change from 2004 is that the industry is willing to play to whomever it thinks will win the election. Although both the Republicans and Democrats received more donations in 2008 than they did in 2004, the Democrats were the big winners. Their donations increased by 67%. The Republicans only saw an increase of 15%.
The 20 senators getting the largest donations from this industry segment all received well in excess of $500,000 in 2004, with Charles Schumer topping the list. He received a little over $3 million. By 2008, the top 20 all received more than $1 million. Excluding the Senators running for President (Obama, Clinton, McCain, Romney), the top recipient of money from the industry was Chris Dodd with more than $6 million in contributions.
Congressmen did nearly as well, with 19 out of the top 20 recipients getting more than $500,000 in 2004. In 2008, all of the top 20 recipients in the House received more than $600,000 and with seven of them receiving over $1 million. Most notable among these are Charles Rangel (D-NY - $1,364,810 – the #1 recipient) and Barney Frank (D-MA - $1,024,898 - #7 recipient). Both men chair key committees dealing with finance.
But Presidents and presidential candidates receive the most money.
- In 2004, President Bush received more than $33 million of financial services money for this reelection bid — 10% of the total contributions from this industry, all going to a single candidate.
- In 2008, Barack Obama received $38 million from the industry.
- It is also notable that his Chief of Staff, Rahm Emanuel, who ran for Congress in 2008 received more than $1 million himself from the industry.
Where there is smoke, there is fire
When you or I work for a company, it is part of our job to show loyalty to that company. There is an unwritten contract that says, “I won’t intentionally do anything to hurt your business, and I’ll tell you if I have a conflict of interest.” Moreover, most companies have policies that allow them to fire anyone who acts in a manner that is counter to the interests of the business.
A good example might be of an employee that works for General Motors, designing new cars. If that employee accepts a “gift” from a competitive company, and then that competitor comes out with a new car that looks just like a new car that GM is getting ready to introduce, common sense says that something is wrong. When GM discovers the “gift”, not only can they fire the employee who received it — if they can find enough evidence that he was the source of the leak — they can also have him prosecuted and sue him personally. Why? Because such behavior makes him crooked.
But in Washington, DC, this behavior is apparently perfectly acceptable. For instance, of the 13 Senator’s who sponsored the bankruptcy reform bill a couple of years ago, every single one of them received more money in campaign donations from the financial services industry than from any other industry segment. When it looks like a bribe, and smells like a bribe, then it probably is a bribe.
Party & State
Financial Services Industry Donations
Financial Svcs. Industry - Largest Campaign Contributor?
A similar pattern can be found in the sponsors from the House of Representatives as well.
This particular legislation, which was signed into law by President Bush, made is significantly more difficult for consumers to declare bankruptcy or dig themselves out of financial debt. The lending industry argued that the old law was being abused even though they were aware that the vast majority of bankruptcies in the United State occur due to one of two factors: either an uninsured major medical emergency or unemployment.
Several proposed amendments to the bill that would have required the financial services industry to act more responsibly were defeated. So while the law significantly curtails consumer rights, it places no additional restrictions on the industry. Credit grantors are still allowed to use predatory lending practices and to solicit customers even if they know that their solicitations are going to people that can’t afford more debt.
Ironically, the bill may have increased the number of foreclosures that we are currently seeing, and it is likely that history will show us that it also resulted in the collapse of certain banking institutions. At the time the industry was lobbying so hard for the bill, certain members of the industry had no idea that they might be committing suicide.
While the bankruptcy law has little to do with the sale of consumer data, it is indicative of what has become a widespread problem in Washington. Legislation is definitely for sale if you have the right people in your pocket.
And the legislation is making life for consumers significantly worse with respect to matters of personal and financial privacy.
The legislative record
In 1996, Congress updated and reformed the Fair Credit Reporting Act (FCRA). As a part of the reform procedure, new portions of the law forbad the states from enacting credit laws preventing credit grantors from sharing consumer data with their affiliates. But these restrictions had a sunset-clause, and they were set to expire at the end of 2003.
The theory in implementing the state restrictions was that it was in the best interests of the nation, and the credit industry, not to force companies to comply with different regulations in each state. Based on the congressional debate that took place in 1996, it is clear that the state restrictions were enacted reluctantly.
Unfortunately, the new federal law left consumers exposed to privacy violations. Furthermore, the sharing of data with affiliates also led to those affiliate companies attempting to match the data received from their banking partners with other data that was housed in commercial databases. All of this was done with minimal standards of quality control and without regard to consumer privacy.
The end result is that one consumer’s information easily got mixed up with another’s, so the database data became corrupted. And since all a credit report really is, is a series of records stored in several databases, this has led to errors on 79% of all credit reports.
This erroneous data is relied upon by businesses and lenders to extend credit. It hurts business in a variety of ways. Obviously, when incorrect data is relied upon it will lead to mistakes. Loans will be made to people who can’t afford them. This in turn leads to higher default rates on everything from credit cards to home mortgages. Other people who actually have good credit will be denied loans because of mistakes in their credit file. This means that businesses will turn away perfectly good customers that would otherwise be adding revenue to their bottom line.
Everyone, with the notable exception of the companies that sell this erroneous data, get hurt.
The lack of general privacy standards has also led to problems. These include the theft of personally identifiable financial and medical data on consumers, identity theft, more inaccuracies on credit reports, etc… The list goes on and on. These privacy breaches have even led to murder.
By 2003, consumers were fed up. Numerous studies showed that nine out of 10 consumers wanted stronger privacy standards. In California, the strongest privacy law in the country was passed. It even allowed consumers to opt-out of affiliate-sharing of information by credit grantors.
But the financial services industry wanted nothing to do with California’s law. And it feared that other states would make similar moves. So the large credit grantors sent their lobbyists to Washington and they got Congress to pass the Fair and Accurate Credit Transactions Act (FACTA). And, when passed, FACTA made the 1996 temporary moratorium on state privacy laws permanent, even though this provision was opposed by the Attorney’s General in 49 states.
This means that the states have absolutely no power to protect their citizens from certain egregious practices by credit grantors even if the voters within those states want such protection.
FACTA’s permanent preemption of states rights seems to have started a trend. Since becoming law, a variety of other proposed laws now include state law preemption provisions.
Where is this trend headed?
The Bush administration used the incidents of 9/11 to rapidly move forward with a variety of programs using centralized databases. These programs have a number of things in common. Each of them looks at massive amounts of consumer data. Most of the program managers have expressed an overwhelming desire to merge data from commercial databases with the data that they develop on their own. Most of them have few privacy protections. And we are currently unaware of any government database program investigating the use of commercial databases, expressing any concern over the fact that commercial databases are widely known to contain inaccurate information.
What will happen under the Obama administration is anybody’s guess, but so far there have been no policy statements from the new president that would lead us to believe that he wants to reverse the prior administration’s policies.
The fact is that merging commercial data with government data is just a very bad idea. The government’s position has been that it needs access to this data to protect the country from terrorists. What it fails to point out is that, if the data that is put into government screening databases is inaccurate, then by definition, the information that comes out of those databases will be inaccurate. The current path could actually make us more vulnerable to terrorists.
But that aside, the Bush administration and certain members of Congress made many of the programs using databases a matter of "patriotism". This has made it very difficult for Congress to oppose them, although there does appear to be some movement to a more common sense approach. It has also made it difficult for voices of reason to be heard.
The implications of government use of database technology are frightening. And a large part of the problem stems from the fact that many legislators are, for all practical purposes, computer illiterate. Many have latched onto ideas that they think sound good, and they take action without any understanding of the ramifications of their actions.
Across the country, both local and state governments have made many public records available online. Many of these records contain information that is highly personal and which can be financially damaging, such as Social Security numbers. In fact, with very little effort, anyone can find Social Security numbers, names, addresses, birth dates, the amount people paid for their house, where they went to school, etc… all available online through public record information.
And while some local and state governments have passed laws that restrict this type of distribution, others continue to make information even more accessible. If the government was a company, and citizens were considered the customers, there is a good chance that by revealing this information, the company could be found criminally negligent. Yet the government sees nothing wrong with its actions.
Under the Real ID Act, which will eventually regulate the information that must be contained on a driver’s license laws, it will be impossible for you to take public transportation, enter a court house, collect any form of government benefits such as Medicare or Social Security, or even exercise your constitutional right to vote without first flashing an ID card. And who knows if the data that the government will be using to identify you will be accurate.
I’m from Washington and I’m here to help!
There is perhaps no phrase more frightening. A group of people, who sit in a city making laws that impact nearly 300 million people, scattered across more than three million square miles. And they believe that they know more about what is in your best interests when it comes to finances and privacy than your local mayor or state legislators.
Just as frighteningly, they seem to think that they know more about business than virtually anyone. If the economy tells us anything, it should be telling us that these legislators need to be reigned in. Many of the laws they have passed over the past decade are coming home to roost now in the form of higher unemployment and failing businesses.
The problem with federal laws that strip the states of power is that even if the laws are well written, they don’t allow the states to come up with more creative solutions that address the needs and desires of their citizens.
For instance, a couple of years ago when it was revealed that ChoicePoint, a commercial database company, had exposed the identities of nearly 150,000 consumers to thieves. Shortly thereafter it was revealed that LexisNexis, another commercial database company, had revealed the identities of 330,000 consumers to thieves.Neither of these incidents would have been made public if California hadn’t had a law requiring companies that expose consumers in this way to notify impacted consumers.
Since these incidents, most states have now passed laws that are similar to California’s. Yet, there has been an ongoing campaign in Congress to pass a national standard for data breach notification that would nullify some or all of these laws.
You may still have democracy available at your state and local levels, but at the federal level it is very apparent that Congress has sold out to the highest bidders. This means that as individuals, we all need to do everything we can to protect our own data, and then cast our votes against those that would allow our data to be sold without explicit permission.
March 24, 2009
In part 1 of our series, we looked at the history of information technology and how the information that we provide to commercial and government entities is being used. In part 2, we looked at our broken political process and how corruption in Washington is quickly resulting in reductions in consumer rights.
In this segment, we will look at what ramifications of recently passed and currently proposed legislation will mean to us all.
And the beat goes on!
For more than 50 years, proposals for a national identification card have floated around Washington, DC. And for more than 50 years, every one of these proposals that actually made it to some type of vote in Congress went gone down to defeat. But all of that changed with the passage of the Real ID Act.
The bill, sponsored by Rep. James Sensenbrener, had been defeated as a stand alone piece of legislation. So, in a cowardly act, certain influential members of Congress allowed him to attach the bill as a rider to funding for the war in Iraq. These so called political leaders knew that Real ID would not be able to stand on its own merits but they calculated that it would be political suicide to oppose the war funding bill. They were right.
Not wanting to appear to be casting a vote against funding for the troops in the war, the bill passed both houses. The irony of this is that a number of senators, including Hillary Clinton, who voted for the funding bill proclaimed their distain for Real ID — an even more cowardly act perhaps. Where were these voices before the vote? These complaints ring hollow when one realizes that the vote in the Senate was unanimous for passage.
As a result of this vote, if the law is ever fully implemented driver’s licenses will be linked to a central database. That database will give the federal government and other states visibility into the lives of everyone in every state participating in the program. Driver’s licenses will in essence become a national ID card. Some have said they will actually be an internal passport. But the law may never be implemented in full.
Real ID gave final word on whether or not to participate in the program to the states. To be sure, the law uses a carrot and stick approach. It provides some very limited funding to some states that participate as the carrot. As the stick, it says that residents of states that don’t participate will not be able use their driver’s licenses to board planes, enter federal buildings or apply for federal benefits. But that may be more bluster than anything else.
A number of states have passed measures that make it illegal for them to participate in the program. The strongest of these measures was passed by Montana. Simply put, the state has refused to participate in any aspect of Real ID. Montana alone can’t keep the program from moving forward; largely because of the states low population. But many of the other states that have come out in opposition have much larger populations, and they serve as transportation hubs. This means that if they continue down this path, it will be virtually impossible for the federal government to move forward.
The upside of Real ID is that it would make it much more difficult for those in this country illegally to get jobs, apply for benefits or use public transportation. But the government’s claim that Real ID would stop people from coming across the border illegally is simply false. The program is more a privacy invasion and a way to monitor the movement of law abiding Americans than anything else.
Real ID is not the only legislative threat to personal privacy however. And the problem doesn’t just rest at the federal level. Fifteen states, (Alaska, Arizona, California, Kansas, Louisiana, Maryland, Michigan, Minnesota, New Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Texas and Virginia) have all passed legislation requiring DNA collection at the time someone is arrested. Advocates have sold these bills as anti-crime legislation that is akin to collecting fingerprints at the time someone is arrested. But there are significant problems with these laws from both a privacy and a scientific standpoint.
When DNA collection occurs at the time of arrest, the DNA data is taken and entered into a government database. If the person arrested is eventually cleared of the crime that they were accused of, depending upon what state they are in, they may not have any right to have their DNA data removed from that database. And even if they do have such a right, it may be impossible for them to exercise it from a practical point of view.
Governments — both state and federal — have a bad habit of using the data they collect for purposes other than what it was collected for. For instance, Social Security Cards used to have a warning on them that they were not to be used for identification. Obviously, mission creep has forced the government to remove that warning. Who knows what DNA data could be used for? Are you genetically predisposed to certain diseases? Could the government make this information available to insurance companies and make you uninsurable? The laws are not written in such a way that we can answer these questions.
From a scientific point of view, these laws are also problematic. If you look at everyone alive on the planet, the odds of finding someone with exactly the same DNA you have are astronomically low. But that’s not true with the databases used for crime fighting.
DNA used in criminal cases almost always involves degraded samples. This means that all of the DNA markers used to identify someone are not actually available in the sample. And when you start dealing with partial samples of DNA, there is nearly a 100% chance that portions of your DNA match portions of someone else’s DNA
The oversight board for the FBI laboratory has recognized this issue for several years now and has been advising the FBI to inform juries about the problem. But the FBI has overridden that recommendation each time it has been made.
Now just imagine a scenario in which your DNA resides within such a database and someone with several DNA markers in common with you commits a crime. It doesn’t take a great deal of imagination to understand what kind of problems may be caused.
Good Intentions, Bad Consequences
In the recently passed economic stimulus bill was language that forces doctors and hospitals to convert medical records to electronic form over the next five years. Neither patients nor doctors have the ability to opt out of the system. President Obama claims that the reason for converting all medical records to electronic form is to cut costs in the medical system. But this utopian view ignores a number of issues.
To be sure, there will be some benefits associated with electronic medical records. If you get hurt while you are traveling, your records can easily be made available to your attending physician. And there will certainly be some cost benefits to doctors and insurers alike. But there was nothing in the legislation that forced those cost benefits to be returned to you in the form of lower fees for doctor visits or reduced insurance costs. The group that the bill was supposed to help — consumers — was actually left out of the bill’s language.
The downsides to electronic medical records are many. Nearly 600,000 people will have access to your records once they are in electronic form. These are people who work for insurers, hospitals, clinics, pharmacies and even the government — people whom you don’t know. This will certainly lead to problems such as medical identity theft; something that has already happened at a number of hospitals that already use electronic records.
Medical identity theft can cause a number of issues. It can lead to incorrect information in a medical file. If you are a victim of it, you can be held responsible for someone else’s medical bills. The burden of proof that you are a victim is on you; much the same as with other forms of identity theft. It can even make you uninsurable. For instance, if someone steals your medical identity and gets treated for cancer, no insurance company in the world is going to give you a decent insurance rate.
The stimulus bill also setup an oversight board to review the medical decisions that your doctor makes. The eventual outcome of this government run plan is going to be rationing of health care based upon cost. The language in the bill allows the government to overrule your physicians prescribed treatment in favor of lowering costs. Instead of “change you can believe in”, the bill provides “change that can kill you.”
But medical records are not the only thing that the government wants to monitor. There is currently a bill in Congress to outlaw anonymous wireless computer hotspots. HR 1076 and its companion Senate Bill S 436 would make it illegal for companies to provide free, anonymous wireless internet access. Instead, they would have to require you to setup an account and log-on every time you access the internet.
The bill also requires Internet Service Providers (ISPs) to track your internet activities and store this data for two years. The government wants to know what you are doing online. The sponsors of these bills claim that the reason for wanting access to this data is to prevent crime and terrorism. But this is broad overreach by a nosey government who could use this information for virtually anything. They are saying that because a crime might be committed, we need to monitor you. It’s like saying because your might be in a car accident, you have to mount a camcorder in your car that has to be on at all times while driving.
These two bills are just the tip of the iceberg. Both of the them will require the establishment of large central databases to store information. And these databases will become targets for hackers.
Typically stored electronic data can also be used in civil and criminal cases, without any need for a search warrant — a simple subpoena will do the trick. And if this isn’t enough for make you feel uneasy, just consider the idea that many employers now conduct background checks on their employees. When applying for a job, many companies now require applicants to sign a waiver allowing a credit check. It is foreseeable that these waivers could eventually contain language allowing a potential employer to check your internet surfing habits too.
A Bastardization of the Law
In a 1928 dissenting opinion, Supreme Court Justice Louis Brandeis wrote of “the right of privacy” that it was "the most comprehensive of rights and the right most valued by civilized men." In 1967, the Supreme Court finally agreed with him in Katz v. United States by requiring the government get a search warrant before obtaining a wire tap.
Applying that principle to the ISP bill, the government should not be able to force ISPs to trap and store your internet activity and then make those records available to the government through a simple subpoena. In Katz, the court said essentially that a suspicion of wrong doing was not enough for the government to monitor someone’s activity — to go on a witch hunt. But the ISP bill will allow just that.
Who will win this battle is unclear. If the ISP bill or similar legislation ever does become law, it is likely to wind up in the federal court system eventually. If it ever gets to the Supreme Court, it could pose some difficult questions. The Supreme Court has repeatedly affirmed that people have the right to post content to the internet anonymously. But the court has also given Congress a wide birth — much wider that the founders ever intended — to regulate.
What is clear is that while this battle rages on, the average citizen is bound to lose. While many people believe that the government should have the necessary authority to do virtually anything in the name of national security, it must always be kept in mind that no government in the history of the world has ever started spying on its citizens without eventually trying to oppress the speech and political views of the very people it claims to be protecting. The words of Benjamin Franklin ring true even today.
“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”The same can also be said of privacy.
But if you are wondering which way our politicians are leaning in this battle, look no further than the words of President Bill Clinton who said,
"We can't be so fixated on our desire to preserve the rights of ordinary Americans."Oh, yes we can.