The Multiracial Activist - www.multiracial.com

 

Today, a group of 27 legal scholars and technical experts and 13 privacy and civil liberty groups filed an amicus brief with the United States Supreme Court in the case of Herring v. U.S.  The Multiracial Activist (TMA) was among the signers of this brief.

From the Electronic Privacy Information Center on this case:

In Herring v. US, the police searched and then arrested Bennie Dean Herring based on incorrect information in a government database. He was illegally arrested and searched even though he told the officers that there was no arrest warrant, and no officer had seen or could produce a copy of the arrest warrant.

After he was indicted, Herring petitioned the district court to suppress the evidence gathered incident to his unlawful arrest, arguing the exclusionary rule prevented the use of such evidence. But the district court rule against him. Herring then appealed to the Eleventh Circuit Court of Appeals, which affirmed (pdf) the district court's ruling. Herring then petitioned for cert. to the US Supreme Court. The US Supreme Court agreed on February 19, 2008 to consider the case and decide whether to suppress the evidence obtained.

The heart of this case speaks to the dangers of information sharing, domestic surveillance and centralization of public and private data in federal hands, something TMA has been quite vocal about in the past:

There has been an increase in information sharing not just among government agencies, but between federal, state, local, tribal and commercial entities. In October 2005, President George W. Bush issued Executive Order 13388 (pdf), which created the Information Sharing Environment among these many entities. An outgrowth of this has been "fusion centers," which have received $380 million in federal grants and millions more from state governments. There are 43 current and planned fusion centers in the U.S., and some states have more than one, according to (pdf) the Congressional Research Service. The expansion of fusion center goals and increasing interaction with federal and private sector entities leads to a massive accumulation of data, raising questions of possible misuse or abuse. The Department of Homeland Security (DHS) seeks to create a "national network" of local and state fusion centers, tied into DHS's "day-to-day activities." This national network combined with the Department of Homeland Security's plan to condition grant funding based on fusion center "compliance" with the federal agency’s priorities inculcates DHS with enormous domestic surveillance powers and evokes comparisons to the publicly condemned domestic surveillance program COINTELPRO.

You can explore the links below for more information on this important legal effort. 

Relevant Links:

EPIC Herring v. U.S. page:  http://epic.org/privacy/herring/

The Multiracial Activist:  http://www.multriacial.com

Amicus Brief filed today: http://epic.org/privacy/herring/07-513tsac_epic.pdf

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FOR IMMEDIATE RELEASE

CONTACT:

Ashley Katz

Patient Privacy Rights

(512) 732-033 or (512) 897-6390

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www.patientprivacyrights.org

25 NATIONAL ORGANIZATIONS URGE PRIVACY IN E-PRESCRIBING

What Could Be Scary About E-Prescribing? Plenty.

What is scary about e-prescribing? Much more than you might think. Today, plenty of private corporations and employers have access to Americans’ private prescription use that includes individually identifiable data. Deborah Peel, MD, Founder of Patient Privacy Rights and leader of the Coalition explains the need for privacy with e-prescribing, “Our current system allows every prescription in the United States to be data mined and sold. This has been the reality for over a decade. You cannot keep a prescription private in the U.S. or stop your data from being sold, even if you pay cash.” This practice is completely compliant with the Health Information Portability and Accountability Act (HIPAA).

While e-prescribing is attractive to many, Americans do not want their private prescription information data mined and used without their permission. Many Americans would be quite alarmed to discover their employer and others know they take an anti-anxiety medication or that they are being treated for an STD. West Virginia is a perfect example: when state employees recently learned that Express Scripts was selling their prescription records to data miners, they were outraged. Express Scripts promptly agreed to stop this practice when faced with losing 200,000 customers.

Some argue the e-prescribing bills do not change anything. While the fact that the U.S. has a systemic, extensive system for prescription data mining and sale is NOT a secret anymore, the Coalition argues that now is the ideal time to end this unethical use of our private prescription records. When you know something bad is happening, that is the time to stop it. “Would you sit there and watch a house burn down, or let somebody bleed to death before your eyes and do nothing? Or would try to stop those harms?” asks Peel. “Now that we know beyond a shadow of a doubt that the systemic theft and misuse of personal data is occurring, why wouldn’t we do all we can to stop it now, starting with e-prescribing?” Members of the Coalition for Patient Privacy actually see this debate as a golden opportunity to ensure both progress and privacy.

The Coalition for Patient Privacy recommends the following basic principles in any eprescribing legislation:

• include a right to health information privacy (the right to control access to personal health information);
• require that any prescription data transmitted via e-prescribing be used only for the express purpose of prescription filling and submitting the necessary codes to the insurer for payment;
• include a provision requiring prompt notification of privacy breaches;
• include a provision that creates meaningful penalties and enforcement mechanisms for violations detected by patients, advocates and government regulators;
• include provisions enhancing the security of e-prescription data such as encryption when data is transmitted, stored or retained in any storage and retrieval systems, including access devices, readable cards or other methods;
• ensure physicians who decline to use e-prescribing are not penalized;
• ensure transparency by requiring annual reporting to patients listing everyone who has accessed their prescription data;
• include a provision ensuring stronger state privacy laws are not pre-empted;
• require reporting of privacy complaints to the Centers for Medicare and Medicaid Services (CMS);
• require CMS to provide an annual report to Congress on privacy complaints made; and
• ensure prescription technology allows those with disabilities to be able to use eprescribing tools efficiently and effectively.

The Coalition for Patient Privacy

American Association of People with Disabilities www.aapd.org

American Association of Practicing Psychiatrists

American Association of Small Property Owners www.aaspo.org

American Civil Liberties Union www.aclu.org

American Council for the Blind www.acb.org

American Psychoanalytic Association www.apsa.org

Citizens for Health www.citizens.org

Confederation of Independent Psychoanalytic Societies www.cipsusa.org

Consumer Action www.consumer-action.org

Consumers for Health Care Choices www.chcchoices.org

The Cyber Privacy Project

Electronic Privacy Information Center www.epic.org

Equal Justice Alliance www.EqualJusticeAlliance.org

Fairfax County Privacy Council www.fairfaxcountyprivacycouncil.org

Gun Owners of America www.gunowners.org

Just Health www.justhealthnow.org

Liberty Coalition www.libertycoalition.net

The Multiracial Activist www.multiracial.com

National Association of Social Workers www.socialworkers.org

National Center for Transgender Equality www.nctequality.org

Pain Relief Network www.painreliefnetwork.org

Patient Privacy Rights www.patientprivacyrights.org

Private Citizen, Inc. www.privatecitizen.org

Republican Liberty Caucus www.rlc.org

Tolven, Inc. www.tolven.org

The Coalition for Patient Privacy first formed in 2006 and represents millions of Americans. Dr. Peel leads the Coalition and is the founder of Patient Privacy Rights, a national consumer health privacy watchdog organization based in Austin, TX.

Background Material

The elimination of consent for health records

The millions of individuals and entities who legally have rights to your personal information

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May 11, 2008

Honorable Max Baucus (D-MT)
U.S. Senate
Chairman, Senate Finance
511 Hart Senate Office Building
Washington, D.C., 20510-2602

Honorable Charles Grassley (R-IA)
U.S. Senate
Ranking Member, Senate Finance
135 Hart Senate Office Building
Washington, DC 20510-1502

Honorable Charles B. Rangel (D-NY)
U.S. House of Representatives
Chairman, Ways and Means
2354 Rayburn House Office Building
Washington, D.C., 20515-3215

Honorable Jim McCrery (R-LA)
U.S. House of Representatives
Ranking Member, Ways & Means
242 Cannon House Office Building
Washington, D.C., 20515-1804

Honorable John Dingell (D-MI)
U.S. House of Representatives
Chairman, Energy & Commerce
2328 Rayburn House Office Building
Washington, D.C., 20515-2215

Honorable Joe Barton (R-TX)
U.S. House of Representatives
Ranking Member, Energy & Commerce
2109 Rayburn House Office Building
Washington, D.C., 20515-4306

Re: Electronic Prescribing Legislation

Dear Member:

The Coalition for Patient Privacy urges you to include privacy protections in any measures supporting or mandating electronic prescribing. While e-prescribing is attractive to many, we can also state affirmatively that Americans do not want their private prescription information data mined and used without their permission. The Coalition urges you to insure any e-prescribing legislation recognizes Americans’ right to health privacy and prohibits the use of prescription data for purposes other than prescription filling.

Our current system facilitates the daily data mining and sale of every prescription from all 51,000 pharmacies in the United States. This has been the reality for over a decade. You cannot keep a prescription private in the U.S. or stop your data from being sold. Even paying cash will not stop the sale of your prescription information.

Mandating e-prescribing without privacy provisions endorses and encourages the current practices. It sets Americans up for even greater violations of their private health records in the future.

We encourage you to seize this golden opportunity to insure progress and privacy.

How would you feel if your prescription regimen was emblazoned on your shirt for the entire world to see? Did you know that the primary purchasers of prescription records are insurers, drug marketers and employers? What kind of judgments would be made if others knew you took an anti­depressant, a cholesterol-lowering, an anti-anxiety or weight loss medication? What about medicine for a sexually transmitted disease? If you are a diabetic, do you want to be bombarded by unsolicited mail about new diabetic drugs or want your doctor to be pressured to change your medications? Or would you rather discuss that private matter with your trusted doctor?

Clearly, Americans want to keep matters related to their health between themselves and their health care professionals. Americans do not want their private prescription information data mined or made public. All Americans want is to get the prescriptions and treatment they need -­ safely and privately. In late 2007, the state of West Virginia and Express Scripts learned the lesson the hard way. When the 200,000 state employees learned their prescription records were being sold to data miners, they were outraged. Express Scripts promptly agreed to stop this practice when they were faced with losing 200,000 customers.1

The Coalition for Patient Privacy recommends the following basic principles in any e-prescribing legislation:

• include a right to health information privacy (the right to control access to personal health information);
• require that any prescription data transmitted via e-prescribing be used only for the express purpose of prescription filling and submitting the necessary codes to the insurer for payment;
• include a provision requiring prompt notification of privacy breaches;
• include a provision that creates meaningful penalties and enforcement mechanisms for violations detected by patients, advocates and government regulators;
• include provisions enhancing the security of e-prescription data such as encryption when data is transmitted, stored or retained in any storage and retrieval systems, including access devices, readable cards or other methods;
• ensure physicians who decline to use e-prescribing are not penalized;
• ensure transparency by requiring annual reporting to patients listing everyone who has accessed their prescription data;
• include a provision ensuring stronger state privacy laws are not pre-empted;
• require reporting of privacy complaints to the Centers for Medicare and Medicaid Services (CMS);
• require CMS to provide an annual report to Congress on privacy complaints made; and
• ensure prescription technology allows those with disabilities to be able to use e-prescribing tools efficiently and effectively.

The future impact of greatly expanding the electronic transmission of our private prescription records without privacy will undoubtedly result in a vast array of unintended consequences. Those consequences may include breaches of private information and ultimately discrimination based on illness or genetic risk of disease.

The Coalition for Patient Privacy cannot stress enough the opportunity before you to avoid exacerbating the invasive data mining practices. You have the perfect opportunity to stand tall for privacy, efficiency and quality. Your constituents and the American public will be grateful for your forward thinking. We look forward to working with you and your staff on this issue.

Sincerely,

The Coalition for Patient Privacy

American Association of People with Disabilities www.aapd.org

American Association of Practicing Psychiatrists

American Association of Small Property Owners www.aaspo.org

American Civil Liberties Union www.aclu.org

American Council for the Blind www.acb.org

American Psychoanalytic Association www.apsa.org

Citizens for Health www.citizens.org

Confederation of Independent Psychoanalytic Societies www.cipsusa.org

Consumer Action www.consumer-action.org

Consumers for Health Care Choices www.chcchoices.org

The Cyber Privacy Project

Electronic Privacy Information Center www.epic.org

Equal Justice Alliance www.EqualJusticeAlliance.org

Fairfax County Privacy Council www.fairfaxcountyprivacycouncil.org

Gun Owners of America www.gunowners.org

Just Health www.justhealthnow.org

Liberty Coalition www.libertycoalition.net

The Multiracial Activist www.multiracial.com

National Association of Social Workers www.socialworkers.org

National Center for Transgender Equality www.nctequality.org

Pain Relief Network www.painreliefnetwork.org

Patient Privacy Rights www.patientprivacyrights.org

Private Citizen, Inc. www.privatecitizen.org

Republican Liberty Caucus www.rlc.org

Tolven, Inc. www.tolven.org

cc:           Every Member of the U.S. Senate Every Member of the House of Representatives

For additional information please contact:

Deborah Peel, MD

Founder & Chair

Patient Privacy Rights

(O) 512-732-0033

(C) 512-970-9007

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1 http://wvgazette.com/section/Opinion/200711265

“Anyone today who thinks the privacy issue has peaked is greatly mistaken…we are in the early stages of a sweeping change in attitudes that will fuel political battles and put once-routine business practices under the microscope.” Forrester Research

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From: American Civil Liberties Union
Bill of Rights Defense Committee
Center for Constitutional Rights
Center for Democracy and Technology
Congress Against Racism and Corruption in Law Enforcement
Defending Dissent Foundation
DownsizeDC.org, Inc.
Equal Justice Alliance
Friends Committee on National Legislation
International Association of Whistleblowers
Liberty Coalition
National Judicial Conduct and Disability Law Project, Inc
OMB Watch
Pain Relief Network
Republican Liberty Coalition
Rutherford Institute
The Multiracial Activist
United for Peace and Justice
U.S. Bill of Rights Foundation

Re:       Homegrown Terrorism

Governmental efforts to deal with the problem of “homegrown terrorism” raise serious civil liberties concerns.  House and Senate committees charged with overseeing these efforts, the House Homeland Security Committee and the Senate Committee on Homeland Security and Governmental Affairs, have conducted a series of hearings on the matter and received some troubling recommendations.  Legislation to address the problem, the Violent Radicalization and Homegrown Terrorism Prevention Act (H.R. 1955) passed the House and companion legislation, S. 1959, is stalled in the Senate. We understand that the Senate Committee plans to issue a report based on the hearings. We encourage the committee to take the following concerns and issues into consideration in writing that report.   

We must be clear; the need to prevent criminal acts of violence is unquestionable. Studying and understanding the origin of terrorism and what provokes violence is an important element of prevention. But one of the greatest challenges to countering such movements is drawing the line between advocacy of ideas, including violence, and taking concrete steps toward carrying out a violent act.  It is also important to distinguish between violence that injures or kills people and minor acts of vandalism that are part of an act of civil disobedience.  Properly viewed, dissent can be an antidote to terrorism, not a precursor to it. 

Defining the Problem

The first challenge policy makers face is to define the problem that is to be addressed.  It is critically important that the articulation of the problem does not cause people merely exercising their First Amendment rights to fear being swept into the net of suspicion.  For example, any definition of the problem must recognize that it is perfectly permissible for Americans to hold and promote a system of beliefs that others might find “extreme,” and for those who hold those beliefs to seek, without violence, political, religious and social change based on those beliefs.  The reference in pending homegrown terrorism legislation to “the process for adopting an extremist belief system” raises concern that advocacy of particular beliefs would become the subject of study, instead of studying the causes of violence that a person engages in, citing such beliefs. 

A second challenge is to determine whether there even is an identifiable process that leads to terrorism.  A statistically and methodologically flawed study by the New York Police Department purports to identify a four-step “radicalization process” that terrorists go through, but even the authors of the study admit limitations to the application of their model, namely:

• that not all individuals who begin the process pass through all the stages;

• that many “stop or abandon this process at different points;” and finally,

• that “individuals do not always follow a perfectly linear progression” through the four steps. 

What is dangerous is that the four steps each involve religious conduct, and the authors fail to note that millions of people may progress through these “stages” and never commit an act of violence. 

The Government should not be in the business of trying to thwart the adoption of belief systems to which some in government object.  And, when assessing whether particular advocacy can be stifled – including objectionable advocacy of violence – it is useful to recall that the Supreme Court set a high bar to governmental prior restraint.  Under the Brandenburg v. Ohio incitement test, speech cannot be curtailed unless it is intended to and has the effect of causing imminent lawless conduct.  Mere abstract advocacy of violence, however objectionable, may not be barred.  

The Danger of Focusing on the Internet

Much of the discourse on homegrown terrorism has singled out Internet communications in a troubling way.  For example, the pending homegrown terrorism legislation notes, "The Internet has aided in facilitating violent radicalization, ideologically based violence, and the homegrown terrorism process in the United States by providing access to broad and constant streams of terrorist-related propaganda to United States citizens." The truth of this statement lies in its universality: the simple fact is the Internet has become an essential communications and research tool for everyone.  

Our concern is that this focus on the Internet could be a precursor to proposals to censor and regulate speech on the Internet.  Indeed, some policy makers have advocated shutting down objectionable websites.  The Senate Homeland Security and Government Affairs Committee heard testimony from a Dutch counterterrorism official whose government monitors mosques and works to take “the most radical” websites offline: “Our message is clear: we do not allow them to preach intolerance.”  This is not consistent with American values of free speech or the First Amendment.

Moreover, testimony at the hearings indicates that such an approach not only fails muster under free speech principles, but is unlikely to be effective.  The Senate Homeland Security and Government Affairs Committee also heard testimony indicating that the content of many of the websites that are objectionable is “mirrored” on other websites, and that as a result, shutting down one or two will not make the information disappear.   Lt. Col. Joseph Felter, Ph D., Director of the Combating Terrorism Center at West Point, testified to the Senate Committee that “Attempts to shut down websites have proven as fruitless as a game of whack-a-mole.”  It can even be counter-productive.  Attempts to shut down websites often draw attention to the very content that may be objectionable.

If the Internet is a focus of efforts to stop “homegrown terrorism” it should be because it can be a tremendous tool for dissemination of vast amounts of material that could counter the messages of the terrorists.  The Internet, and the free speech it facilitates, can be an antidote to terrorism.

The Counterproductive Focus on Islam

Much of the discourse about homegrown terrorism in these hearings has focused on Muslims and Islam, even though perpetrators of terrorism in the United States have had many religious and ethnic backgrounds.  Suggestions have been made that Muslims need to be watched because any particular Muslim might at any time become a homegrown terrorist.  The Los Angeles Police Department, for example, launched a program to “map” mosques in the Los Angeles area as part of its efforts to counter homegrown terrorism. 

Focusing the discussion of homegrown terrorism on Muslims may actually increase the potential for violent radicalization in the United States.  Many witnesses before the Committee spoke of the growth of Islamophobia and the polarization of the Muslim community as risk factors that raise the potential for extremist violence.  Unfairly focusing suspicion on a community tends to create the very alienation these witnesses said could lead to homegrown terrorism. 

Moreover, there is not one monolithic Muslim community in the United States, according to Committee witness Farooq Kathwari, who co-chaired the Task Force for Muslim American Civic and Political Engagements.   Muslim Americans emigrated from many different countries across the globe, with many different religious, ethnic and social traditions, while a significant number, particularly African American Muslims, are not immigrants at all.   A focus on Muslims can create an impression that all adherents of Islam are suspect and lead to racial (or religious) profiling. 

Dr. Marc Sageman, who conducted research on terrorists in Europe and the United States, suggested religion may be less of a driving factor than local police actions: “It is important to realize that the terrorists are not – and I emphasize not – Islamic scholars.”

Discriminatory profiling is a counterproductive anti-terrorism strategy.  It shifts the locus inquiry away from indicia of violence to characteristics such as race and religion which are not predictors of terrorism.  Moreover, it can contribute to feelings of alienation that can be preyed upon by those who intend to do harm. 

Learning from History

A look back at U.S. history shows that many major social change movements advocated ideas that were considered radical at the time and used tactics that could fall into an overbroad definition of homegrown terrorism. Any plan of action to address the problem that suggests that “extremist beliefs” will become a subject of suspicion will discourage people from advocating their beliefs and ideas in an open and democratic process.  That result would harm our society, not protect it.  Indeed the civil liberties of U.S. citizens can be respected while protecting national security.  

Unfortunately, recent U.S. history is full of discouraging examples of nonviolent groups being subjected to unwarranted surveillance, even incarceration and deportation based not on any crime, but on political beliefs or ethnic identity:  the Palmer raids, the internment of Japanese Americans in World War II, and the FBI’s counterintelligence program (Cointelpro) of the 1960’s and 1970’s.  The legislative branch has a history of using innuendo and guilt by association to ruin reputations and silence dissent, from the New York legislature’s Lusk Committee (which published a report in 1920 entitled  Revolutionary Radicalism)  to the House Un-American Activities Committee hearings of the 1940’s, 50’s and 60’s.  Most Americans agree that these violations of civil liberties were more harmful than the threat from ‘radical’ groups.

Conclusion

Broad definitions of terrorism and radicalization, coupled with the public's knowledge of surveillance of nonviolent groups by the Justice Department, give cause to concern that Americans' ability to speak freely will be threatened by efforts to address homegrown terrorism.   We believe that efforts to prevent people in the United States from turning to terrorism can only succeed if we protect the free speech, religious and associational rights of those against whom these efforts are directed.  We strongly urge policy makers to tread lightly and carefully in this area, and to make every effort to preserve free speech and association rights.

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