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June 14, 2005

Assault On Privacy Rights

Wendy McElroy has an interesting piece up on the erosion of privacy rights in two recent cases. At issue is the contention that, absent specific evidence of wrongdoing, law enforcement officials have the right to access a patient's medical records.

Privacy rests on the assumption that—in the absence of specific evidence of wrongdoing—an individual has a right to shut his or her front door and tell other people (including government) to mind their own business. This is a presumption of innocence. Privacy also assumes an important division between the personal and public spheres, a division that is reflected in Constitutional protections against unreasonable search and seizure. Historically, privacy has stood as a bulwark between individual rights and social control.

Privacy comes into question whenever someone enters certain areas of the public sphere: for example, through filing a criminal charge such as rape. Even then, however, the legal system has evolved traditions to insure that privacy is not excessively violated. These traditions include spousal privilege, a prohibition against ‘fishing expeditions’, and the confidentiality of confessionals and medical records.

These evolved protections are under concerted attack. In general, the attacks are occurring in “gray” areas; new law and precedent is being introduced through complicated cases where it is possible to take contradictory positions depending on the aspect you are examining.

I touched on this issue earlier here in the context of the Phill Klein abortion records controversy, in which the Kansas attorney general requested medical records for females who underwent late-term abortions in an attempt to nail abortion clinics who were offering abortions to girls as young as 10 and 12 as well as to identify the sexual predators who were victimizing these children. Of course this was assailed by the media as an unwarranted attack on a "woman's right to choose".

An assault on privacy, perhaps. But since when was a 10 year-old a "woman"? Does a child have the legal capacity to consent to illegal sex and a subsequent illegal abortion?

Interesting question. And this is a complex issue: it's not as simple as trading security for privacy. It seems to me to be a question of balancing one party's privacy against the legal rights of another in many cases, as when privacy is used as a shield for wrongdoing, or when a minor is involved. It's one thing to give up your security voluntarily. A minor merits protected status (and arguably should) from predatory adults.

Discuss amongst yourselves.

Posted by Cassandra at June 14, 2005 09:50 AM

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Due process. Search warrants, anyone? I wonder how a ten year old girl would even KNOW of an abortion clinic and how to get to one without some sort of adult being involved somewhere along the line.

Posted by: Crckt [TypeKey Profile Page] at June 14, 2005 03:30 PM

Hospitals have to report gunshot victims, no choice. Any many of those are adults. Any child (under 18) should have parental permission. Any child under the age of consent needs to be reported to the police, by definition there has been statutory rape with consent at best. Ain’t that tough, unless the victim and the life of two children is more important than the privacy of a felon. After all, proof of the crime is in the clinic, the only question is “Who?”

Posted by: Xopherman [TypeKey Profile Page] at June 14, 2005 09:32 PM

I am a little torn in these areas. My experience is that overly protective privacy laws simply serve the fraudulent. Also, if the underlying records reflect, on their face, probable criminal conduct, they should probably be turned over. Thus, the gun shot rule.

Posted by: KJ [TypeKey Profile Page] at June 16, 2005 12:10 AM

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