Search warrants and Senate hearing on medical privacy

[Declan McCullagh]

I'm sitting in a Senate hearing room right now; the topic is medical
privacy. Sen. Patrick Leahy (D-Vermont), an occasional friend of civil
liberties, is speaking: "How is our right of privacy, one of our most
cherised freedoms, going to be protected?"

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.

Yesterday a senior Justice Department official told journalists (in a
background briefing at Main Justice) that requiring police to obtain a
search warrant could derail counter-terrorism efforts. "Imposing a probable
cause standard is something we would vehemently object to," he said. Which
explains why he doesn't vehemently object to the legislation this committee
is considering. The versions of the "medical privacy" bills I'm familiar
with don't include such strict safeguards. We require the FBI to obtain a
search warrant to enter your house or office: why shouldn't we require the
same for medical files?

At yesterday's briefing some of us asked what safeguards are in place to
prevent dragnet fishing by police. For instance, what if agents access a
1,000,000-person database during a medical fraud case and stumble across
someone who's being treated for illegal drugs? Can they prosecute that
person for drug crimes? Yes, they're allowed to but they probably won't. "I
don't see that as being a realistic issue," the Justice Department official
said.

-Declan