From: Declan McCullagh <declan@well.com>
Date: Wed, 29 Oct 1997 05:58:28 +0800
To: "Jennifer S. Granick" <jgranick@dnai.com>
Subject: Re: Search warrants and Senate hearing on medical privacy
In-Reply-To: <v0310280eb07bbe4d4839@[207.167.93.63]>
Message-ID: <v03007809b07c0b5032a7@[204.254.22.161]>
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If you're going to respond to Tim's post, you should copy him or
cypherpunks... I've attached your whole message below...

I will respond to one point, though:

>The free market approach won't keep medical records private.

We haven't tried that approach yet, at least in the late 20th century. The
wealth of federal regulation and involvement in health care is
breathtaking. Ever since after WWII when for tax reasons businesses began
bundling insurance and the rise of medicare/medicaid, well, the "free
market" in healthcare has become much less robust. (Fortunately Clinton's
socialistic health care plan was derailed.)

In other words, the reason a "free market" approach may not work right now
is because the market isn't free.

-Declan



At 13:14 -0800 10/28/97, Jennifer S. Granick wrote:
>Tim May wrote:
>
>>At 9:15 AM -0700 10/28/97, Declan McCullagh wrote:
>>
>>>Well, senator, perhaps the best way of protecting our privacy is to ensure
>>>that law enforcement officials need a search warrant before browsing
>>>through your medical files. Right now police do not need to go before a
>>>judge to get your records from your hospital or doctor's office; often
>>>"informal arrangements" exist. If a doctor or hospital wants to promise to
>>>"protect your privacy," they can't.
>>
>>Not just this, but doctors and nurses are under strong laws which forbid
>>them from keeping certain kinds of patient information private. For example:
>>
>>* under Tarasoff, counsellors and shrinks must "narc out" their patients
>>who are discussing their fantasies, dreams, past actions, future plans, etc.
>>
>
>This comment probably sent anyone out there who sees a therapist into a
>downward depressive spiral.  But don't worry!  That thing you said about
>your mother last week hasn't been reported to the Feds and included in your
>FBI file.
>
>Under Tarasoff, a psychiatrist has a duty to warn a foreseeable and
>identifiable potential victim of his patient's. In other words, if I have a
>fantasy about killing my boyfriend, he doesn't have to tell.  If I talk
>about killing my boyfriend, and my plans to do so, and it would be
>unreasonable for the doctor to think that I wasn't going to try to kill my
>boyfriend, then he has to warn my boyfriend to watch out.
>
>Please read nothing into the fact that I used killing my boyfriend as an
>example.
>
>>* gunshot and similar wounds may not be treated in privacy....doctors and
>>nurses face prison time if they don't narc out such patients
>>
>
>In California, its a misdemeanor punishable by up to 6 months in the county
>jail and/or a fine of up to $1000.  i.e. not state prison, but definitely
>potential jail time.
>
>-snip-
>
>>All we need to ensure medical privacy is a return to the right of contract.
>>I pay Dr. Jones for his services and for his agreement to not pass my
>>medical file around to his buddies, or to sell it to advertisers, or to let
>>"counter-terrorism" agents snoop around in his files. Sounds fair to me.
>>
>>(And if he violates this trust, kneecap him in the parking lot....it'll
>>send a message to other contract-breakers.)
>>
>
>Here Tim puts his finger on exactly why we can't depend on contracts to
>preserve our medical privacy.  What if the contract is violated?  You can't
>kneecap the guy (well, you *can*, but then we're talking another penal code
>section), and you can't sue him.  (What are your damages?  If they're
>difficult to calculate or forsee, they aren't recoverable under contract
>law.)
>
>The free market approach won't keep medical records private.  Neither will
>the Constitution.  We need federal legislation to create and protect that
>right.
>
>Jennifer Granick