Universal Health Identifier: Invasion of Privacy or Medical Advancement?
Ng, Betty M., Rutgers Computer & Technology Law Journal
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.
II. IS THERE A RIGHT TO PRIVACY?
A. 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. …