Outlook

October 21, 2005

Government snooping: Will doctors get reforms?

Congress is set to breathe new life into a law that, in part at least, civil libertarians and many doctors would rather see go away.

The law is the USA Patriot Act of 2001, passed during the first nervous weeks after 9/11. In enacting it, lawmakers wanted to give agencies like the FBI the tools they needed "to intercept and obstruct terrorism." But current sections of the law, which are set to expire at the end of the year, tread heavily on constitutionally guaranteed civil liberties, critics say.

Of special concern to doctors and others who want to preserve confidentiality is Section 215. This gives the FBI permission to demand doctors' patient records and any other "tangible things" in their offices. Although agents must first get the green light from a special judge, that typically involves little more than certifying that the records they seek are relevant to a terrorism or related investigation.

This June, the AMA's House of Delegates called upon Congress to let Section 215 "sunset as scheduled." Short of that, said the delegates, lawmakers should broaden judicial discretion, put patients who are under investigation on notice, restrict the gag rule, and mandate certain public disclosures by the US Attorney General.

The Senate has incorporated some of these reforms in a reauthorization bill passed this summer. Three key ones stand out: First, the FBI would have to establish a hard link between the records it wants and either a suspected terrorist or someone in contact with or known to him. Second, those served a Section 215 order would have the right to challenge it and the gag rule in court. And third, Section 215 and other sections of the law would be extended for only four years, after which they must be reauthorized or die.

"We're trying to minimize the damage, and the Senate bill at least does that," says Jerome H. Rogoff, chair of the American Psychiatric Association's Corresponding Committee on Confidentiality. Nondoctor groups say much the same thing. "The bill doesn't go as far as we'd like, but it does go a long way toward protecting certain civil liberties," says Nancy Libin, staff counsel at the Center for Democracy and Technology, a Washington, DC-based research and advocacy group.

But even these relatively modest Senate reforms may not be a sure bet. Congress must first reconcile the Senate legislation with a competing House bill, which contains only a few of the checks and balances doctors and others want.

Will the final bill tilt more to the Senate than the House? No one knows for sure, of course, but Libin thinks the unanimity in the Senate compared to the divided House vote is a hopeful sign.

If you'd like to weigh in on Section 215 changes, or any other part of the USA Patriot Act, you'll need to do so before the conference committee acts, which should be soon. Simply contact your representatives and urge them to urge conferees to support the Senate's reforms.