Universal health identifier: invasion of privacy or medical advancement?

• Author: Ng, Betty M.

1. INTRODUCTION

   In today's world of constant change, legislation often cannot keep abreast of technological developments,(1) The increasing use of computers to maintain a variety of data, from health information to shopping habits, has raised concerns about the protection of confidential information.(2) President Bill Clinton addressed these concerns in his January 2000 State of the Union address by emphasizing that breakthroughs in science and technology "must be used in ways that reflect our most cherished values. First and foremost, we must safeguard our citizens' privacy."(3)

   In 1996, Congress enacted the Health Insurance Portability and Accountability Act of 1996 ("Portability Act").(4) The Portability Act provides standards for the electronic transmission of health information(5) and the establishment of unique health identifiers to be used throughout the health care industry.(6) Recent technological advances enable medical practitioners to access a centralized database of medical records, thus affecting every individual's privacy rights. This Note will argue that privacy rights will be violated unless the medical industry effectively regulates itself and Congress enacts clear standards regarding access to medical data. Proper guidelines must address the rapidly developing technology facilitating not only the transmission of data, but also access to that information. In this era of globalization, the United States must cooperate with international organizations to create universal standards.

   This Note will also discuss privacy concerns regarding the computerization of medical records and enactment of the Portability Act, which requires a universal health identifier for every "individual, employer, health plan, and health care provider."(7) In order to better clarify the issues involved in having a universal health identifier, Part I will provide background information on the right to privacy. Part II then discusses the concept of a universal identifier. This Note analogizes the potential privacy issues of a universal health identifier to the problems encountered by the use of the Social Security number as an identifier. Part III discusses the Portability Act and the unique health identifier's advantages and disadvantages. Lastly, this Note concludes that although a national centralized computer database of Americans' health information may lead to privacy right violations, it is imperative that the government collaborate with the health and information technology industries to create a system that works to prevent such violations.

2. IS THERE A RIGHT TO PRIVACY?

   1. Background of the General Right to Privacy

      For over a century, scholars have debated the boundaries of the right to privacy. In response to the proliferation of sensational newspaper stories and the invention of the camera in the 1800s, Louis D. Brandeis and Samuel Warren articulated the need for a new cause of action, namely, the invasion of privacy.(8) Since then, the right to privacy has been an evolving concept, rather than an explicitly guaranteed constitutional right.(9) Justice Brandeis wrote in his dissenting opinion in Olmstead v. United States(10) that the Founding Fathers "conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual.... must be deemed a violation of the Fourth Amendment."(11)

      Since Brandeis and Warren, scholars have struggled to establish the parameters of the right to privacy. J2 Some viewed this right as "an expression of one's personality or personhood, focusing upon the right of the individual to define his or her essence as a human being."(13) Others define the right as one "of autonomy - the [individual's] moral freedom ... to engage in his or her own thoughts, actions, and decisions."(14) Yet another group, led by Professor Alan Westin,(15) contends that privacy is the right to determine for oneself whether and how much personal information is communicated to others.(16)

      The Supreme Court has struggled to define the right to privacy, gradually setting parameters for discussions of this right.(17) In an early case, the Court held that wiretapping by federal agents did not violate the Fourth Amendment.(18) Brandeis noted, however, that: "every unjustifiable intrusion by the Government upon the privacy of the individual ... must be deemed a violation of the Fourth Amendment."(19) He warned that scientific progress could potentially lead to greater governmental intrusion into private lives.(20)

      In determining whether an individual's privacy was violated, the Court balanced the individual's privacy interest against the interests of society.(21) The Court found that the right to privacy protects an individual's interests in: (1) avoiding disclosure of personal matters,(22) and (2) independently making important decisions.(23) In the landmark abortion case, Roe v. Wade, the Court found that "only personal rights that can be deemed `fundamental' or `implicit in the concept of ordered liberty,' ... are included in this guarantee of personal privacy."(24) The right to privacy has been found in the First, Fourth and Fifth Amendments, as well as the Fourteenth Amendment's notion of personal liberty.(25)

      In Griswold v. Connecticut,(26) the Supreme Court found that the spirit of the Bill of Rights gives substance to a right to privacy.(27) When deciding whether a particular situation deserves constitutional protection, the Court usually first determines whether there was a legitimate governmental interest in protecting the contested right.(28)

      Two years later, the Court refined the concept of the right to privacy in Katz v. United States.(29) In Katz, the FBI recorded a telephone call placed by the defendant from a public telephone booth.(30) The Court held that a wiretap could violate the Fourth Amendment even though it did not involve a physical trespass onto the area occupied by the defendant.(31) Moreover, the Court proclaimed that constitutional protection must be accorded to a person who justifiably relies upon the privacy of a particular place, be it a home, office, car, or telephone booth.(32)

      In 1973, the Supreme Court found that a woman's right to terminate her pregnancy is protected by the Constitution.(33) Further, the Court required that state regulations limiting those privacy rights be justified by showing a compelling state interest.(34)

      In 1977, the Court examined the right of informational privacy in Whalen v. Roe.(35) This was considered a milestone case in the area of privacy and technology.(36) In Whalen, physicians and patients challenged the constitutionality of New York statutes that required disclosure to a state-controlled databank of the names and addresses of individuals receiving prescriptions for potentially dangerous drugs.(37) The Court upheld the statutes, finding this was a reasonable exercise of the state's police powers.(38) In particular, the Court recognized that the statutes provided specific protections against unauthorized use and disclosure of data.(39) Although the Court did not find constitutional violations in the statutes, the Court recognized the possibility of a constitutional interest in personal information.(40) The Court also acknowledged the dangers of amassing personal information in centralized computer data banks.(41) The government has a legitimate need to collect certain personal data for public purposes, but there is also a duty to avoid unwarranted disclosures, which "arguably has its roots in the Constitution."(42)

   2. Privacy and Tests Involving Medical Information

      The Supreme Court uses a special needs analysis to analyze cases where one's privacy interests are implicated by a search yet there is an important governmental interest involved in the intrusion.(43) To determine whether a search is reasonable under the Fourth Amendment, a court must balance the encroachment on an individual's constitutional right against the advancement of legitimate state goals.(44) There is a general need to show individualized suspicion to find a warrantless search to be reasonable; however, this prerequisite may be unnecessary when special needs are found.(45)

      The Court used the special needs test in a case where a Georgia statute required drug testing of candidates for state office.(46) In another case, the Court used the same analysis to find that a school district may require all student athletes to submit to drug tests, where the results are not shared with law enforcement authorities and the testing is conducted in a relatively non-intrusive manner.(47) The Court contended that governmental benefits from the testing program outweighed the interference with students' privacy interests.(48)

      Privacy is an evolving concept that is to be balanced against the state's legitimate interests. However, does this protection extend to private organizations, such as employers, seeking to intrude on the privacy of employees?

3. BACKGROUND ON MEDICAL INFORMATION AND PRIVACY

   The concept of a universal identifier is not unique to American society. For a long time now, Americans have provided their Social Security numbers ("SSNs") as a unique identifier for many of their activities.(49) David Medeen of the Federal Trade Commission said that "your Social Security number is often the best way to distinguish you from everyone else."(50) Additionally, Medeen claimed that it "may be the one thing that doesn't change with someone as they go through life."(51)

   The SSN is a unique nine-digit number assigned to any legal resident in the United States who completes an application at the Social Security Administration.(52) As a result of the assignment of a unique number for each American, an Internal Revenue Service audit found that the SSN is the nation's most frequently used number for keeping...