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In war on terror, personal privacy losing

The Atlanta Journal-Constitution
Published on: 04/10/04

WASHINGTON -- As hundreds of thousands of New Year's Eve revelers flocked to Las Vegas last year, most had no idea that the FBI knew their names, the flights they took and the hotels where they were staying.
In an effort to derail an unspecific terrorist threat, the FBI requested hotels and airlines turn over all passenger and guest lists between Dec. 22 and Jan. 1, 2004. The businesses complied, electronically transmitting personal information for 270,000 visitors.
While the FBI contends the move was necessary to ward off apotential terrorist attacks like those on Sept. 11, 2001, privacy advocates see the action as an example of the government intruding on individual privacy.
"Is the world such a different place since 9/11 that we should throw out constitutional protections?" asked David Sobel, general counsel at the Electronic Privacy Information Center, a nonpartisan research center based in Washington. "To say that we are going to examine the activities of everyone to look for something suspicious is a change in the fundamental way our government has behaved in the past."
In an era of companies monitoring employees on the Internet, cameras zooming in at the nation's monuments and data mining, privacy appears at stake, experts say.
From small businesses to the federal courts, institutions are struggling to balance the privacy rights of individuals with the public's right to know and the government's fight against terrorism. The struggle is being played out in hospitals, schools, city council chambers, state houses and Web pages across America.
ACLU: 'Under assault'
Nadine Strossen, president of the American Civil Liberties Union, said individual privacy is "under assault."
Personal privacy is at stake on many fronts, from Florida state prosecutors seizing radio talk show host Rush Limbaugh's medical records to the government collecting data on citizens in the name of homeland security to private companies reading personal employee e-mail, she said.
"In every possible sense, from every level of government as well as from the private sector," privacy is being trampled on, Strossen said.
The ACLU's support of the conservative Limbaugh, an outspoken opponent of the civil liberties organization, also shows the unusual alliances emerging in the privacy debates. Limbaugh is under investigation for obtaining duplicate prescriptions of narcotics from various doctors.
Concerns about privacy are so widespread that several states have created commissions to examine issues ranging from whether to keep court documents on the Internet to what information public colleges should release about student disciplinary records.
On Capitol Hill, a bipartisan group of lawmakers is examining privacy questions.
Republican Rep. Joe Barton of Texas, co-chairman of the Congressional Privacy Caucus, said a balance must be struck between an individual's right to privacy and the government's need to protect the public. "Terrorists do not cherish privacy, but if America is to remain a free society, we must, and American law enforcement agencies have the difficult job of achieving a proper mix of both security and freedom," he said.
Privacy issues gathering attention include:
 The sale of personal information. An industry has emerged of data brokers who provide, for a fee, an individual's divorce and marriage records, lawsuits, old addresses, as well as names, phone numbers, and addresses of relatives and neighbors.
 Employers spying on workers. More than a third of all American employees were being monitored on their computers by their bosses in 2001, according to the Privacy Foundation, a research and education organization affiliated with the University of Denver.
 The proliferation of cameras. In the nation's capital and in other cities, cameras watch people at a variety of public gathering spots. They also nab motorists who speed or run stop signs. New cellphone cameras have led to unusual "peeping Tom" cases in which people have been unknowingly photographed in bathrooms or dressing rooms.
 The sharing of air traveler information. In an effort to weed out terrorists, the federal Transportation Security Administration has asked commercial airlines to hand over information on millions of air travelers. The data eventually will be used to give each passenger a color code that will determine his or her level of security screening.
The potential for "false-positives" frightens civil libertarians, who say that innocent people could be labeled threats. Airlines also are hesitant to share the data, especially after a public backlash against JetBlue last year for sharing passenger itineraries with a company doing work for the Pentagon.
The TSA says privacy will be protected in several ways, including the constant purging of information on passengers who pose no threat. The security agency has hired a privacy officer and promises passengers will have a way to correct inaccurate information.
Abortion records, too
Among the most disturbing developments in the area of privacy is the Justice Department's request for abortion records from hospitals and Planned Parenthood clinics across the country.
In February, government lawyers subpoenaed hundreds of abortion records, saying the files would help them defend a new law banning medical procedures that abortion opponents describe as "partial birth" abortions. Doctors and other health care providers have challenged the law in federal court, saying it prevents them from performing medically necessary procedures.
The Justice Department's demand for the records met strong opposition from abortion rights groups and privacy advocates. Two weeks ago, the government dropped its request for records at six Planned Parenthood clinics after a federal judge in San Francisco ruled the subpoenas intruded on patients' privacy rights. The department is still requesting abortion records from at least a half-dozen hospitals in connection with a similar lawsuit in New York.
Privacy experts said the abortion records request violated the federal Health Insurance Portability and Accountability Act of 1996. The thrust of that law, which took effect last April, was to protect the privacy of medical records and improve the portability of health insurance when someone switches jobs.
But one of the unintended consequences of the legislation, commonly called HIPAA, is that it provides so much protection that hospitals generally no longer reveal the condition of a patient or even verify if a person is a patient.
Unless a patient requests to be included in the hospital directory, the identity is automatically protected from public disclosure. In the event of a terrorist attack, the privacy law could bar hospitals from telling the public how many people are hurt and anything about their condition.
The penalty for violating HIPAA and releasing information is stiff: a $250,000 fine and 10 years in prison.
Such efforts to protect privacy are few and far between, advocates say. Especially in an increasingly digital, post-Sept. 11 world.