The Privacy Act of 1974
Given the much ballyhooed release of a “medical record” by the nation’s top politician not too long ago, not to mention discussions about the neurological disability of a (female) Republican candidate for President that we believe are misplaced, we couldn’t think of a better time to discuss one of the most important pieces of legislation to ever get passed into law. While all of the statutes we have lately discussed are, we argue, vitally important to every American, we think that in a visceral sense, understanding this statute is a very good way to see how, where and why all of the others work (or don’t) both individually and together. It is also a statute that applies to every American regardless of race, gender, sexual preference or disability.
In broad terms, The Privacy Act governs the collection, use and dissemination of personally identifiable information by the federal government. It also requires (with a few specific exceptions) that release of said information by the government may not happen without the specific written consent by said individual. Obviously, this also extends to medical records, even as HIPAA flows from this statute and extends it in a particular arena.
The Act also requires (remember this was immediately after Watergate) that any individual could request any and all government held files and further permits individuals to request amendments to such records if they are incorrect.
Where this statute becomes germaine for our purposes specifically, is that it deals directly with a tangential issue also addressed by HIPAA and the ADA. Specifically, the Privacy Act not only builds on the Constitutionally protected right to privacy, but also creates the ability for individuals (for example) on a government-funded health insurance plan, to be able to demand that medical records accessed by the government be updated and kept current. It also means that individuals on government healthcare have the right to expect that their disabilities (for example) not be used against them when seeking employment.
There are those who might find the argument that disability is as much if not greater a “liability” as race in seeking equal opportunity in America offensive. However just a comparison between the state of the PWD vs. the African-American community (which is statistically about half the size of the PWD community even as it also includes minorities of course) shows that the former is in far worse shape due to discriminatory attitudes and practices that are so ingrained that they are often invisible to those not affected. Starting with (for example) the fact that the federal Department of Labor does not have or even attempt to officially track statistics on the real unemployment rate of this community. Discriminatory attitudes are also on prominent display at the Department of Education, where for example in North Carolina, any “gimp” with an entrepreneurial bent (no matter what kind of disability they have) must take a psychological test before being given grants or loans from the Department of Ed. We understand that ink blots for one are inherently fascinating to headshrinkers if not bureaucrats, but don’t really see how this predicts entrepreneurial ability much less success. This treatment stands in stark contrast to the way the “able-bodied” are treated not only by the Department of Education but all other federal and state agencies. Imagine the outcry if the SBA (for example) implemented a similar across-the-board approach to the average entrepreneur.
Under Constitutional rights to privacy, individuals are supposedly protected by “tort” law to guard against false statements and premises made against them. In the case of the PWD community, where “ability” is frequently dismissed or ignored in favor of focusing on the disability, there are very few remedies and rights that ultimately escape without the shadow of doubt and/or prejudice.
And amidst all the overtones of the current discussions of Obama’s heritage based on his skin color if not his “ability” to get into some of the nation’s top schools and offices, we can’t help but think, what if he had a disability instead of extra melanin in his skin?
- Privacy and Law (deurainfosec.com)
- Will the Government Get Serious on Cloud Security, Data Privacy? (nytimes.com)
- NSA Wrestles With Phone Location Data Tracking (informationweek.com)