surveillance

Doctors as Data Entry Clerks for the Government Health Surveillance System

As a practicing physician I have long been frustrated with the Electronic Health Record (EHR) system the federal government required health care practitioners to adopt by 2014 or face economic sanctions. This manifestation of central planning compelled many doctors to scrap electronic record systems already in place because the planners determined they were not used “meaningfully.” They were forced to buy a government-approved electronic health system and conform their decision-making and practice techniques to algorithms the central planners deem “meaningful.”  Other professions and businesses make use of technology to enhance productivity and quality. This happens organically. Electronic programs are designed to fit around the unique needs and goals of the particular enterprise. But in this instance, it works the other way around: health care practitioners need to conform to the needs and goals of the EHR. This disrupts the thinking process, slows productivity, interrupts the patient-doctor relationship, and increases the risk of error. As Twila Brase, RN, PHN ably details in “Big Brother in the Exam Room,” things go downhill from there.

With painstaking, almost overwhelming detail that makes the reader feel the enormous complexity of the administrative state, Ms. Brase, who is president and co-founder of Citizens’ Council for Health Freedom (CCHF), traces the origins and motives that led to Congress passing the Health Information Technology for Economic and Clinical Health (HITECH) Act in 2009. The goal from the outset was for the health care regulatory bureaucracy to collect the private health data of the entire population and use it to create a one-size-fits-all standardization of the way medicine is practiced. This standardization is based upon population models, not individual patients. It uses the EHR design to nudge practitioners into surrendering their judgment to the algorithms and guidelines adopted by the regulators. Along the way, the meaningfully used EHR makes practitioners spend the bulk of their time entering data into forms and clicking boxes, providing the regulators with the data needed to generate further standardization.

Brase provides wide-ranging documentation of the way this “meaningful use” of the EHR has led to medical errors and the replication of false information in patients’ health records. She shows how the planners intend to morph the Electronic Health Record into a Comprehensive Health Record (CHR), through the continual addition of new data categories, delving into the details of lifestyle choices that may arguably relate indirectly to health: from sexual proclivities, to recreational behaviors, to gun ownership, to dietary choices. In effect, a meaningfully used Electronic Health Record is nothing more than a government health surveillance system.  As the old saying goes, “He who pays the piper calls the tune.” If the third party—especially a third party with the monopoly police power of the state—is paying for health care it may demand adherence to lifestyle choices that keep costs down.

All of this data collection and use is made possible by the Orwellian-named Health Insurance Portability and Accountability Act (HIPAA) of 1996.  Most patients think of HIPAA as a guarantee that their health records will remain private and confidential. They think all those “HIPAA Privacy” forms they are signing at their doctor’s office is to insure confidentiality. But, as Brase points out very clearly, HIPAA gives numerous exemptions to confidentiality requirements for the purposes of collecting data and enforcing laws. As Brase puts it, 

 It contains the word privacy, leaving most to believe it is what it says, rather than reading it to see what it really is. A more honest title would be “Notice of Federally Authorized Disclosures for Which Patient Consent Is Not Required.”

Surveillance Tech Still a Concern After Carpenter

Last week the Supreme Court issued its ruling in Carpenter v. United States, with a five-member majority holding that the government’s collection of at least seven days-worth of cell site location information (CSLI) is a Fourth Amendment search. The American Civil Liberties Union’s Nathan Wessler and the rest of Carpenter’s team deserve congratulations; the ruling is a win for privacy advocates and reins in a widely used surveillance method. But while the ruling is welcome it remains narrow, leaving law enforcement with many tools that can be used to uncover intimate details about people’s private lives without a warrant, including persistent aerial surveillance, license plate readers, and facial recognition.

Background 

Timothy Carpenter and others were involved in a string of armed robberies of cell phone stores in Michigan and Ohio in 2010 and 2011. Police arrested four suspects in 2011. One of these suspects identified 15 accomplices and handed over some of their cell phone numbers to the Federal Bureau of Investigation. Carpenter was one of these accomplices.

Prosecutors sought Carpenter’s cell phone records pursuant to the Stored Communications Act. They did not need to demonstrate probable cause (the standard required for a search warrant). Rather, they merely had to demonstrate to judges that they had “specific and articulable facts showing that there are reasonable grounds to believe” that the data they sough were “relevant and material to an ongoing criminal investigation.”

Carpenter’s two wireless carriers, MetroPCS and Sprint, complied with the judges’ orders, producing 12,898 location points over 127 days. Using this information prosecutors were able to charge Carpenter with a number of federal offenses related to the armed robberies. 

Keep Facial Recognition Away From Body Cameras

The Chinese tech giant Alibaba recently invested $600 million in a start-up that specializes in facial and object recognition. Thanks to the investment the start-up, SenseTime, is now the world’s most valuable artificial intelligence start-up. Although such technology undoubtedly has potential when it comes to picking up your morning coffee and easing congestion at metro ticket lines, it has been making news in China because it is playing an increasingly prevalent role in that country’s growing surveillance state. While the Chinese are leaders in surveillance technology innovation, we should keep in mind that facial recognition in the U.S. also poses a unique and significant threat to privacy, and it’s a threat that is not being adequately addressed.

Facial recognition fits in the family tree of biometric investigatory technologies, which determine identity via analysis of unique biological and physical traits. Many are familiar to anyone who watches CSI shows or other fictional portrayals of law enforcement: fingerprint and DNA analysis are a couple of examples.

If law enforcement has access to your fingerprints it’s likely because you volunteered them as part of a job requirement, you’re an immigrant, they were recorded after you were arrested, or they were collected at a crime scene. About 40 percent of fingerprints in the FBI’s fingerprint database are not related to arrests or forensic investigations. The FBI’s DNA database only includes DNA related to criminal arrests or forensic investigations.

Unlike databases for fingerprints and DNA, one of the FBI’s facial recognition services allows agents to search through databases that mostly include information related to law-abiding Americans, with only 8 percent of the facial images in the network being associated with criminal or forensic investigations. This is in part thanks to the fact that the FBI has access to drivers license photos from at least 16 states as well as passport photos from the State Department. All told, this Facial Analysis Comparison and Evaluation services allows the FBI to access more than 411 million facial images. A Georgetown study on facial recognition estimates that about half of American adults can be found in a law enforcement facial recognition network.

This is especially concerning because facial recognition can be used to conduct surveillance. It’s already being used for the purpose in China, and here in the U.S. the law enforcement community seems poised to spread the use of facial recognition without sufficient limitations in place.

ICE Doesn’t Belong in the Intelligence Community

Some officials at Immigration and Customs Enforcement (ICE) are reportedly looking into the agency joining the Intelligence Community (IC). Making ICE, which is responsible to deportations, a member of the IC would be a mistake, putting our civil liberties at risk by giving the agency increased access to vast troves of information not related to immigration enforcement.

ICE officials have been pushing for this change since the Obama administration, but the close relationship between intelligence agencies and immigration enforcement officials is nothing new. Almost one hundred years ago, one of the most notorious set of deportations in American history occurred, thanks in large part to domestic law enforcement acting like a spy agency.

In 1919 followers of the Italian anarchist Luigi Galleani sent mail bombs to dozens of prominent public figures, including Attorney General Mitchell Palmer. Although the wannabe assassins failed to kill any of their intended targets, the bombings sparked the United States’ first “Red Scare.”

A Spying “Reform” That Makes Things Worse

Donald Trump’s whiplash-inducing Twitter comments about the surveillance legislation his administration had just endorsed didn’t stop the House of Representatives from approving a bill to reauthorize the FISA Amendments Act for another six years, but if you watched the floor debate, you might come away thinking civil libertarians won at least a few concessions in the process. Defenders of the statute’s controversial Section 702, which authorizes warrantless surveillance of foreigners’ communications, rejected a proposal to require FBI agents to seek a warrant before querying the vast 702 database for Americans’ communications—a practice critics have dubbed a “backdoor search”—but did accept a narrower warrant requirement for queries conducted for criminal investigations unrelated to national security. Is this, as the bill’s boosters repeatedly insistence, a “compromise” that should provide some small consolation to civil libertarians?

Alas, no. There’s a good reason you won’t find any privacy advocates cheering even a partial victory following Thursday’s vote.  First, as I noted back in October, such a narrow warrant requirement would do almost nothing to prevent abuses of the sort it’s most reasonable to worry about: historical abuses of spying power have nearly all been clothed in invocations of national security.  But it’s worse than that.  The limited warrant requirement in the House bill not only exempts a potpourri of ordinary crimes—among them any involving the risk of death or serious injury, cybersecurity, or offenses against minors—it applies only to what are known as “predicated” or “full” investigations.  

House FISA Reform Battle Enters Final Stage

Last night, the House Rules Committee made in order one alternative to the HPSCI FISA Sec. 702 reauthorization bill, the USA Rights Act. You can view the Rule here

The bill was originally introduced in the Senate by Ron Wyden (D-OR) and Rand Paul (R-KY). You can view a one-pager on the USA Rights Act here.  

Senate Bill Mandates More Border Surveillance

An anonymous source sent an advanced copy of S.1757, otherwise known as the “Building America’s Trust Act,” to Ars Technica. If passed as written, the bill would dramatically expanded surveillance at the border and ports of entry, putting the privacy of immigrants and citizens alike at risk.

The bill, sponsored by Sen. John Cornyn (R-TX) and co-sponsored by six of his Republican colleagues, mandates increased border drone surveillance and the collection of more biometric information, including but not limited to voice prints and facial scans.

The drone provisions of the bill are consistent with President Trump’s campaign rhetoric. During his campaign, he said drones should patrol the border 24/7. Cornyn’s bill doesn’t quite go that far, requiring Customs and Border Protection (CBP) to fly drones at least 24/5.

Drone surveillance at the border isn’t new, nor is it effective. In 2014 the Department of Homeland Security’s Office of Inspector General (OIG) released a report on CBP’s drone operations. It found that the drone program, which includes Predator B drones originally designed for military use, did not achieve expected results and contributed to very few apprehensions of illegal border crossers and marijuana. The report also found that the drone program cost $12,255 per flight hour. In FY2013, CBP’s drones flew for 5,102 hours for a combined cost of around $62.5 million. 

This was a large expense for an inefficient border security tool. Aside from the fiscal costs, the increased use of drones on the border will worsen the militarization of the border, with American citizens being under the ever-snooping eye of border patrol surveillance equipment. In 2013, Americans on the border were already regularly seeing military-grade surveillance tools in the air. From a 2013 New York Times report:

The United States-Mexico border has become a war zone. It is also a transfer station for sophisticated American military technology and weapons. As our country’s foreign wars have begun to wind down, defense contractors look here, on the southern border, to make money.

Lately it has become entirely normal to look up into the Arizona sky and to see Blackhawk helicopters and fixed-wing jets flying by. On a clear day, you can sometimes hear Predator B drones buzzing over the Sonoran border. These drones are equipped with the same kind of “man-hunting” Vehicle and Dismount Exploitation Radar (Vader) that flew over the Dashti Margo desert region in Afghanistan.

CBP drones do not have to be large, military-grade predator drones. Earlier this year I noted that The Department of Homeland Security (DHS), CBP’s parent agency, is interested in small, portable drones outfitted with facial recognition technology.

Facial recognition is also mentioned in S.1757 as part of the bill’s passport screening section, requiring that CBP “utilize facial recognition technology or other biometric technology” to “inspect travelers at United States airports of entry.”

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