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PRIVACY
Submitted
by: The Commission on Social Action of Reform Judaism
BACKGROUND
The
information revolution has benefited society in innumerable
ways. The growth of the Internet, the development and
use of electronic data processing, advanced forms of networking,
and data access for corporations and other institutions
have facilitated an explosion in e-commerce and increased
levels of communication across the globe. The computerization
of patient medical records has brought health care systems
to new levels of efficiency, provided for faster transmission
of patient information between doctors, and facilitated
more effective research by universities and drug companies
into the risks and benefits of competing therapies and
medications. Medical technology and testing also has provided
new insights into our genetic makeup and new hopes for
bringing about cures for our most devastating diseases.
Yet
these same technologies pose serious threats to our personal
privacy. Our personal and business information is flowing
through an ever-expanding number of computer networks
in formats that allow data to be linked, transferred,
shared and sold, too often without our knowledge or consent.
The opportunities for an individual to secure employment,
insurance, and credit, to obtain medical care and to participate
in electronic commerce are endangered by the misuse of
personal information. "Cookies," or unique identifiers
stored on one's computer, are commonly used to track user
interests, often without the individual's consent. Video
surveillance in public places and the Federal Bureau of
Investigation's utilization of the Carnivore program to
surreptitiously monitor individual e-mail communications
are examples of recent governmental intrusions into privacy.
Not surprisingly, polls demonstrate that Americans are
deeply concerned about the intrusion of new technologies
into their personal privacy and favor stronger privacy
safeguards.
In
particular, the public opposes the sale of their personal
medical information. The increased sharing of information
that reveals the identity of individual patients by medical
practitioners, pharmaceutical companies, insurance entities,
and employers has made patients wary of losing their personal
privacy. This information is routinely disclosed to third
parties without patients' consent, and in some instances,
patients' most intimate health histories are being exploited
for advertising and profit. The absence of effective privacy
protection for medical records and genetic information
has reduced the willingness of individuals to seek medical
treatment and to share important personal information
with their physicians. In studies at the National Institutes
of Health, 32% of eligible people declined to take a genetic
test for breast cancer because of concerns about loss
of privacy and the potential for discrimination in health
insurance. Beyond depriving individuals of the opportunity
to receive the best available medical care, these actions
adversely affect genetic research.
The
right of privacy is a fundamental American value that
is recognized in our laws, business practices, professional
obligations, electoral process, customs, and traditions.
Just this past June, the U.S. Supreme Court ruled that
the use of heat sensors to monitor activity in people's
homes without a warrant violates the Fourth Amendment's
prohibition of unreasonable searches and seizures. Previous
court rulings have established a broader right to personal
privacy - most notably, Katz v. U.S. (1967), where the
Supreme Court recognized that under the U.S. Constitution
individuals have a "reasonable expectation of privacy"
against which violations of privacy rights could be measured.
Judaism
teaches us that privacy is a fundamental aspect of the
human condition, the protection of which is a serious
societal and individual responsibility. Our tradition
distinguishes privacy as an essential element of personality,
rather than as only a right of property, and considers
privacy an aspect of one's sanctity as a child of God.
Without this protection, one is stripped of individuality
and selfhood and is effectively dehumanized. In commenting
on the story of Balaam's refusal to curse the children
of Israel, the Talmud tells us, "He saw that the
entrances to their tents were not directly opposite each
other, so that one family did not visually intrude on
the privacy of the other" (Babylonian Talmud, Bava
Batra 60a). Moreover, Deuteronomy (24:10-11) teaches
that: "When you lend your neighbor any manner of
loan, you shall not go into his house to fetch your pledge.
You shall stand outside, and the person to whom you made
the loan shall bring the pledge to you." Eavesdropping,
gossip, and slander are strongly condemned in Jewish teaching,
and unauthorized disclosure of information strictly prohibited.
In the Talmud, Rabbi Ami expelled a scholar from the academy
because he disclosed a report he had received confidentially
twenty-two years earlier. By the eleventh century, the
privacy of mail was absolutely safeguarded by Rabbeinu
Gershom.
Judaism's
regard for the individual and for dignity has made clear
the need for the UAHC and CCAR to speak out on safeguarding
privacy. In 1971 the UAHC urged Congress to enact legislation
to restrict the power of government to collect data on
individuals and to allow citizens to examine their personal
files. In 1976, the CCAR condemned government agencies
that engaged in electronic surveillance, opening mail
and spying, labeling these privacy intrusions as "inimical
both to the … Bill of Rights and to Judaism's teachings."
In 1979, the CCAR first addressed privacy rights in the
nongovernmental arena, when they "deplore[d] corporate
invasions of the individual's right to privacy,"
such as "administering pre-employment tests that
intrude into their financial situation, personal habits,
criminal record … family relationships … electrical
surveillance and personality tests." In 1997, the
UAHC and CCAR expressed support for legislation that would
prohibit health care providers or researchers from disclosing
genetic data concerning an identified individual without
written consent from the individual. The Women of Reform
Judaism has taken particular interest in this issue as
well. Finally, in 1999, the CCAR called for the protection
of previously private information such as medical records,
social security numbers, and credit information, stating,
"It is the right of all individuals to have control
over their personal data."
As
Justice Louis D. Brandeis once wrote, "Privacy is
the most comprehensive of rights and the right most valued
by civilized men." Governmental entities and private
sector agencies should therefore take reasonable and necessary
steps to protect individual privacy rights and ensure
that new technologies are not used as mechanisms for further
intrusions into these basic rights. Efforts to harness
the growth of these technologies and protect against wrongful
dissemination and use of personal information should be
undertaken with the recognition of their benefits, especially
as they relate to medical research and effective law enforcement
operations. Ultimately, the responsibility of protecting
privacy is the obligation of all, particularly the government,
and all citizens must be afforded an equal opportunity
to protect themselves from unwanted and unwarranted intrusions
of privacy and undesirable use of their personal information.
THEREFORE,
the Union of American Hebrew Congregations resolves to:
- Affirm
that privacy is a fundamental human right that must
be afforded to all, regardless of wealth and access
to technology;
- Support
federal, state, and provincial legislation and other
protections providing, in commercial settings, for fair
information practices of notice, consent, access, and
security. These include: the right to access one's own
personal information held by others when that information
was provided to others with a reasonable expectation
of privacy; appropriate notice when such information
is being gathered; limitations on the use and disclosure
of such information; and the opportunity to obtain redress
when information is improperly or incorrectly used or
disclosed;
- Call
for legal restrictions against governmental invasions
of privacy through the use of electronic surveillance
techniques and technologies in cases where a reasonable
expectation of privacy exists, except where an agency
of the government has obtained a warrant to engage in
such activities; and call for clear guidelines as to
how information legitimately collected for specific
purposes may be shared and used;
- Support
legislation to require employers to post notices, in
places generally accessible to employees, of workplace
monitoring and of company policies where applicable,
and to limit the collection and use of data about employees;
- Encourage
the development and promotion of genuine privacy-enhancing
technologies that limit the involuntary or undisclosed
collection of personal information, and ensure that
these mechanisms for protection of individual privacy
rights are accessible to all people;
- Support
enactment and enforcement of regulatory and/or legislative
efforts to:
- Require
entities to obtain written consent from patients before
using or disclosing personal or medical information
that reveals the identity of individual patients or
before disclosing such information to third parties
for marketing, advertising, or other unrelated purposes;
- Prohibit
making the dispensation of medical treatment contingent
upon consent to share information with third parties
for purposes unrelated to treatment or billing;
- Allow
patients the right to inspect their medical records
and require that patients be allowed to add comments
that will be included with the medical records where
the patient believes the factual information in the
record is in error;
- Ensure
that personal health information is properly secured;
and
-
Provide for criminal and civil penalties for entities
that knowingly or with gross negligence violate regulations
regarding the use of patient medical records.
- Ensure
that the records of health care professionals be protected
from use by third parties for marketing, advertising,
and related purposes;
- Reaffirm
our support of legislation that would prohibit health
care providers or researchers from disclosing medical
information that identifies an individual without the
written consent of the individual; and of legislation
that would prohibit insurance companies and their representatives
from engaging in similar practices; and
- Develop,
post, and adhere to privacy policies for the UAHC Web
site and lists and in regard to any information obtained
about members of UAHC congregations, and urge synagogues
and other Reform Movement instrumentalities to enact
similar policies.
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