Electronic Health Reporter

The NSA and federal government spying dragnet has filled the news cycle and brought to light the government’s programs that spy on U.S. citizens. Effectively, the feds are collecting every American’s data, from emails, phone calls, Tweets, Facebook pages, Google search and whatever else they can get their hands on, which begs the question: If the government is freely collecting the data of every citizen of the United States – the FBI recently admitted to spying on American using drones on American soil – why them would the data collection stop with these communication methods? Why not continue the collection of data that’s gathered through our medical records through that’s being collected through several efforts, including the meaningful use program.

All of that aside, more information than we can fathom is going to be collected about each of us once Obamacare takes effect next year, which will be siphoned off through several agencies to ensure we’re vetted for the new national healthcare program.

I bring this up for a single purpose – we now know data is being collected about us, so what makes us think our health data won’t be collected and used against us in some manner, as  Pierluigi Stella so clearly outlines in the post – “How Will the NSA Info Gathering Affect Healthcare and Individuals’ Electronic Health Records” — for this site.

Though this effort is nothing new and information gathering has taken place aggressively for more than 10 years, health data collection is relatively new and the information included is very personal and can be used about us as we decide to hand over another civil liberty. And even if the government “abstains” from collecting our health records, there’s nothing that’s going to stop them from tapping them at some point.

Not the Constitution, and certainly not HIPAA, as some suggest.

David Szabo, a business law partner at Edwards Wildman Palmer and a member of the healthcare and privacy practice groups, notes: “Based on press reports, NSA seems to be focusing on Google, Facebook, Microsoft, etc., most of which are probably not major sources of medical data except for the stray email. HIPAA-compliant providers should be using more secure means of communication.  Press reports indicate that FISA warrants are focusing on communication with foreign nationals, which again probably does not implicate medical data. Finally, if the NSA wanted to hack into a medical database or hospital computer, who is to say they lack that capability, but that’s not what these press stories are about.”

However, I must concede the following point from Sharona Hoffman, professor of law and bioethics and co-director of the Law-Medicine Center at Case Western Reserve University School of Law, “I do not believe that the NSA information gathering efforts include electronic health records in any way.  This might be in part because the HIPAA Privacy Rule already allows public health and law enforcement authorities to collect data without patient consent. In fact, we should not forget that the government’s gathering of health information often benefits the public in very significant ways. It allows the government to combat flu or infectious disease outbreaks by determining where they are concentrated, what caused them and what treatments are most effective.

“It also has enabled the government to quickly determine the source of various food-related illnesses, such as e-coli or hepatitis and to initiate appropriate responses. I don’t think we’d want to live in a country in which the government was powerless to investigate and address serious public health threats because it didn’t have access to the information it needs. In any case, I don’t think the NSA controversy should cause people to be concerned about their health privacy,” she said.

But I can’t help but be intrigued by the comments of Dr. Philip Alcabes, author of “Dread:  How Fear and Fantasy Have Fueled Epidemics from the Black Death to Avian Flu.”

“Should the NSA have access to any private information on US citizens?” he asks. “It’s reasonable to ask what the justification is for allowing NSA to spy on Americans. So far, the sole response has been that it is to prevent “terrorism.” Since terrorism, so called, in all its forms, over all of US history, has accounted for the deaths of fewer American than are killed by firearms in any single month, there seems to be no justification for sacrificing any civil rights at all in favor of terrorism prevention.”

And another question: “Should government medical agents be able to compile medical information in a national database to streamline care, improve treatment outcomes, and/or lower costs? Some countries that do exactly that (e.g., Finland, France) have both better records on civic justice overall and on medical outcomes in particular (e.g., lower infant mortality rate, longer life expectancy). The U.S. should be encouraged to adopt a system like the French carte vitale. It would be greatly to the benefit of public health to create a centralized medical records system to which all medical providers would have access. Of course, stringent safeguards would need to be in place to make sure that confidentiality is protected, and that the data are not available to private corporations for marketing. Or to spy agencies.”