***AFF***
1AC Solvency
DHHS is adequately ensuring private sector compliance with health privacy protection
laws now
Charles Ornstein (senior reporter for ProPublica covering health care and the pharmaceutical industry)
March 20, 2015 “Despite A Wave Of Data Breaches, Fed Says Patient Privacy Isn't Dead”
http://www.npr.org/sections/health-shots/2015/03/20/394116837/despite-a-wave-of-data-breachesfed-says-patient-privacy-isn-t-dead
The task of investigating medical data breaches falls to the Office for Civil Rights, a small agency within
the Department of Health and Human Services. Last month, ProPublica and NPR reported how, as the
number of breaches has increased, the office infrequently uses its authority to fine organizations and
health providers that fail to safeguard patient records. The office's director, Jocelyn Samuels, spoke
Monday to health privacy and security experts gathered in Washington, D.C., for the National HIPAA
Summit, named for the Health Insurance Portability and Accountability Act. After her talk, Samuels sat
down with ProPublica to talk about the current state of health privacy. The conversation has been
edited for length and clarity. Highlights are below; a fuller version is available on ProPublica's website.
To start off with, the Anthem breach is still at the top of mind for so many people. Does this change the
landscape in terms of health data breaches? We won't know until after we have investigated what the
causes of the Anthem breach are or were, or whether there are concerns about HIPAA compliance. But I
think that it illustrates both the increasing risks that exist in the cybersecurity space and the need for
covered entities [health providers and others subject to HIPAA's requirements] to continue to update
and evaluate their risk analyses to ensure that their risk management plans adequately anticipate all of
the kinds of threats they may face. Since HIPAA was passed in 1996, how would you say the state of play
has changed with respect to patient privacy and the security of records? The ability to access electronic
health records is something that we obviously have clarified and expanded over time since HIPAA was
enacted. And I anticipate that we will continue to evaluate the application of HIPAA standards to
emerging issues, whether they are posed by new technology or new forms of risk that aren't being
adequately addressed. From a macro perspective, we are seeing an explosion of new approaches to
delivering health care, to treating patients, to sharing information. And that changes on an exceptionally
rapid basis, and so ensuring that we are providing adequate guidance about how HIPAA applies and
what the standards are in these new environments is something that's a high priority. Some people have
suggested that the notion of patient privacy is sort of outmoded and that you really don't have privacy
anymore. Do you accept that? No. I think that you are talking about some of the most intimate facts
about any individual, whether it is their health condition or their diagnosis or their treatment choices,
and that it is really critical to ensure that they feel confident that that information will be protected
from public disclosure. That's the underlying premise of patient involvement in health care decisionmaking, that they can entrust their providers with this really intimate information knowing that it won't
be misused or inappropriately disclosed. Although there are new threats and cybercriminals get smarter
every day, we have to do our best to keep up and ensure that there are adequate protections in place so
that we can gain the benefits that technology and delivery system reform are promising. Your office has
the ability to issue fines in ways that a lot of federal agencies can't and in denominations that a lot of
federal agencies can't. You've noted that you used them about two dozen times. Is that enough? You
know, each case depends on its facts and I do think that we have been committed to using settlement
agreements and monetary recoveries in situations where we think that the conduct has been egregious
or where we want to create a deterrent or where we feel that the monetary settlement will help to
reinforce the message that we're serious about HIPAA compliance. That said, we are very serious about
HIPAA compliance even in situations where we don't seek monetary settlements or civil money
penalties. And I think if you look at our corrective action plans [agreements in which providers promise
to make changes following a complaint], you will see that those are uniformly robust efforts to ensure
that covered entities and business associates undertake the infrastructure and structural reforms that
are necessary to ensure compliance going forward.
But, emergent public health surveillance models will create invasive privacy violations
and dragnet health data collection by the federal government - Applying strict scrutiny
solves. The plan forces the government to narrowly tailor surveillance to further a
compelling government interest – creates a consent-based model that stems
overreaching medical surveillance
Margaret Hoppin (J.D., New York University School of Law, licensed attorney for the District Court For
The Southern District Of New York) 2012 “OVERLY INTIMATE SURVEILLANCE: WHY EMERGENT PUBLIC
HEALTH SURVEILLANCE PROGRAMS DESERVE STRICT SCRUTINY UNDER THE FOURTEENTH
AMENDMENT” http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-87-6-Hoppin.pdf
C. Strict Scrutiny Should Apply So far, this Note has suggested in part that emergent public health
surveillance programs invade an extremely important personal privacy interest. Courts can and should
recognize that privacy interest as “fundamental” for purposes of the Fourteenth Amendment.
Accordingly, constitutional challenges to emergent public health surveillance should be analyzed under a
strict scrutiny standard.164 Courts can apply a strict scrutiny standard because, contrary to
commentators’ widespread assumption, a deferential standard of review need not apply in the context
of emergent public health surveillance programs. No court has considered the privacy implications of
programs like the A1C Registry,165 and the few relevant precedents leave room to adjust Fourteenth
Amendment analysis as public health surveillance develops (much as courts have adjusted Fourth
Amendment analysis in response to developments in security surveillance).166 Courts should do so for
at least two reasons. First, the personal privacy interest at stake satisfies existing tests for a
“fundamental” right. Second, emergent programs are likely to involve ongoing and increasingly
comprehensive surveillance and analysis of a wide range of personal behaviors. If the interest at stake in
emergent programs is not recognized as “fundamental,” it is difficult to imagine that Fourteenth
Amendment protection would apply at all to personal privacy outside of the subject matter domains
already specifically identified by courts. The precise method for determining that a right is
“fundamental”—and therefore protected under the Due Process Clause of the Fourteenth
Amendment—is somewhat obscure.167 Courts and commentators have suggested that the confusion
arises in part because the Supreme Court employs at least two different tests.168 In Washington v.
Glucksberg, 169 the Supreme Court emphasized the importance of historical practice and national
tradition.170 Since Glucksberg, courts have usually asked whether the purportedly fundamental right is
“deeply rooted in this Nation’s history and tradition”171 to determine whether it is fundamental for the
purposes of the Fourteenth Amendment.172 The first task of a court applying any test is to characterize
the purportedly fundamental interest at stake.173 Emergent public health surveillance programs
present an interesting challenge to doing so, because they employ new and evolving technologies. As a
result, there is not a readily available concept of the privacy interest actually or potentially invaded, or a
consensus about why it is important. What is clear is that the surveillance at issue in emergent public
health surveillance verges on comprehensive in both depth and breadth. Given the methods of
surveillance and the nature of the health conditions likely to be targeted, emergent programs may
involve the lifetime collection of information about the behaviors and habits of millions of people. Such
surveillance invades an area of personal privacy that previously challenged programs did not, and it does
so on an unprecedented scale. In addition, there are some jurisprudential indications that a new—and
constitutionally significant—privacy interest is at stake. Courts are currently grappling with the
implications for Fourth Amendment jurisprudence of both continuous surveillance and sophisticated
data analysis capabilities.174 A number of courts have concluded that continuous government
surveillance of public movements has constitutional significance, even though episodic or shortterm
gathering of the same information does not.175 However, even while affirming that there is an
important difference between the privacy interest invaded by information-gathering that is limited in
duration or frequency, and the privacy interest invaded by the continuous gathering of similar
information, courts have generally not explained what it is.176 Fortunately, a precise definition of the
interest invaded by emergent programs is not required: A fundamental right to personal privacy is
deeply rooted in this country’s history and tradition. A complete account of legal and cultural
protections for personal privacy is far beyond the scope of this paper, but two examples are particularly
worth noting. First, the history of Fourth Amendment jurisprudence demonstrates that the “most sacred
of all areas . . . is the home,” not because “it is a physical structure in which someone chooses to live,”
but because there is a societal consensus that people have “virtually unlimited expectations of privacy
from intrusions” into their homes.177 A cursory review of Supreme Court cases suggests that we protect
the “home” at least in part because it serves as a proxy for personal privacy.178 Scholars have made the
same observation.179 Moreover, robust Fourth Amendment protection of the home is a product of a
deep national commitment to preventing government incursions upon personal privacy that dates to
the founding era.180 Second—and also relevant in the context of emergent public health surveillance
programs—there is a clear history of judicial and legislative protections against nonconsensual
disclosures of medical information.181 Fourth Amendment jurisprudence and commentary on security
surveillance programs identify features of modern government surveillance that (i) raise serious
concerns about the nature of the privacy invasion, and (ii) in some cases have prompted courts to
expand the scope of corresponding constitutional privacy protections. The similar- ities between
emergent public health surveillance and security surveillance provide an additional indication that
emergent programs may necessitate heightened constitutional privacy protections. Recognizing that the
privacy interest at stake is fundamental would trigger strict scrutiny, under which a reviewing court
would inquire whether the challenged surveillance program was narrowly tailored to further a
compelling government interest.182 In one sense, the proposed analysis would not depart from past
practice. Arguably, the public health surveillance programs reviewed by courts to date have not involved
a fundamental privacy interest, due to technological limits on the breadth and depth of surveillance, the
type of information collected, or program design. In particular, most public health surveillance
programs, such as those that involve anonymized or consensual data collection, do not intrude upon a
fundamental privacy right at all. In addition, the strict scrutiny analysis may be satisfied when the
surveillance model at the heart of emergent programs—ongoing, intimate, and individualized
surveillance —targets people with a highly infectious disease in order to prevent the disease from
spreading. The critical question is whether emergent surveillance programs satisfy the narrow tailoring
requirement of a strict scrutiny analysis. Part III describes one approach to finding an answer. III
ESSENTIAL FEATURES OF A STRICT SCRUTINY ANALYSIS In Part A, I argue that a court reviewing an
emergent public health surveillance program under a strict scrutiny standard should focus its narrow
tailoring analysis on the efficacy of the public health interventions enabled by the challenged
surveillance program. Many public health activities would satisfy a stringent efficacy requirement.
However, two kinds of interventions should not: those that are effectively indistinguishable from
surveillance and, in the case of noncontagious, non-exposure related disease, those that are unlikely to
improve the health of the individuals surveilled. In Part B, I analyze the A1C Registry and conclude that it
probably does not survive a narrow tailoring analysis because it likely cannot enable more than de
minimis health improvements for diabetics. I propose several ways the program can be changed to
comport with the proposed Fourteenth Amendment requirements. A. Efficacy of Government
Intervention Strict scrutiny requires that an emergent public health surveillance program that infringes
upon a fundamental right to privacy be narrowly tailored to achieve a compelling government purpose.
Emergent public health surveillance programs would likely survive a strict scrutiny analysis in many
contexts, like serious infectious disease and exposure investigations.183 Assuming that governments
have a compelling interest in combatting widespread and costly chronic conditions, the critical question
is whether a particular emergent public health surveillance program is narrowly tailored to meet that
interest. The principal requirement of a narrow tailoring analysis is that the government intrusion “must
be necessary in order to be justified.”184 The Supreme Court articulates the standard as a requirement
that “the government’s chosen means be ‘the least restrictive alternative’ that would achieve its
goals.”185 In the context of public health programs, asking whether surveillance is “necessary” should
mean—at a minimum—asking whether the surveillance enables the government to improve the public
health. Accordingly, to evaluate the constitutional status of emergent public health surveillance
programs, courts should consider whether those programs enable public health interventions that are
more than minimally effective. Surveillance that targets individuals with non-communicable health
conditions but does not enable interventions that improve the health of the surveilled individuals does
not advance the government’s public health goals. By the same token, emergent public health
surveillance programs are not the “least restrictive alternative” available if equally or more effective
public health measures can be implemented without comprehensive, individually-identified data.186
Under the proposed narrow tailoring analysis, a government would have a compelling interest in
fighting the “obesity epidemic” but an emergent public health surveillance model would be appropriate
only if it enabled interventions that improved health or mitigated risk for the individuals surveilled.187
Historically, there was no need to make explicit an efficacy requirement for public health surveillance
programs, because governments can and have effectively combatted the spread of serious
communicable disease. Quarantine and other restrictions may be draconian, but at least they work.188
As government broadened public health surveillance to include non-infectious disease, it generally did
not engage in extreme invasions of privacy, and it generally conducted anonymous statistical
surveillance only.189 By contrast, emergent public health surveillance, which in many ways replicates
the model deployed to combat infectious diseases like tuberculosis, and which targets diseases that are
not communicable or exposure-related, raises novel constitutional concerns about public health
surveillance. Diabetes is not infectious; neither is obesity, nor are obesityrelated chronic conditions.
There are no individually-targeted interventions that can stop a chronic condition from “spreading.”190
In addition, there is no single action that fixes or dramatically improves the affected individual’s health
status. Instead, secondary prevention (preventing a condition for which one is at risk) and tertiary
prevention (avoiding complications from a condition) both require lifetime effort by the individuals
whose health is at risk.191 For many chronic conditions, that effort is directed to mundane, but
personal, decisions about behavior and lifestyle—what to eat, how much stress to accept in jobs or
personal life, how much to exercise, and what proportion of limited time and energy to devote to health
management. Accordingly, with respect to noncommunicable, non-exposure related health conditions,
two types of government public health activities should not be considered sufficiently effective to justify
the privacy invasion inherent in the emergent public health surveillance model. First, activities that are
essentially surveillance—like tracking diseases over time and evaluating the success of public health
initiatives—provide no direct benefit to the individuals surveilled. Moreover, traditional models of public
health surveillance can support disease tracking and program evaluation.192 Second, government
interventions that target “lifestyle” conditions should be viewed skeptically under an efficacy standard
because—as supporters of the emergent public health model frequently argue—“a person’s own
behavior is often the root cause of [obesity and obesity-related conditions like diabetes].”193 It is
almost a platitude to say that human habits are hard to change, even when the human involved
desperately wants to change them. With respect to diabetes, a comprehensive review of diabetes
research and literature published between 1985 and 2001 revealed that “simply improving the person’s
level of knowledge rarely, if ever, led to the type [of] behavior changes necessary to manage the disease
effectively.”194 The public health and medical communities have not yet found a way to induce the
kinds of behavioral changes needed both to reduce the impact of obesity, diabetes and other chronic
conditions, and to rein in escalating health care costs.195 B. Application: Why the A1C Registry Likely
Fails Strict Scrutiny Most commentators assume that a rational basis standard of review would apply to
New York City’s A1C Registry,196 and accordingly predict that the program would survive a
constitutional challenge.197 However, applying the strict scrutiny analysis outlined in Part A suggests
that the A1C Registry may effect an unconstitutional invasion of privacy. New York City government has
a compelling interest in preventing both diabetes and diabetes-related complications. The problem is
that the A1C’s surveillance model does not enable sufficiently effective interventions.198 The
Department has explained why it believes the A1C Registry is valuable,199 but its explanation is far from
satisfactory. The Department’s public statements suggest that comprehensive, individualized data is the
primary value of the A1C Registry, because it currently enables the government to deliver “feedback”
and may enable the government to deliver useful services.200 In addition, the Department believes the
existing A1C Registry interventions can improve patient health outcomes.201 According to the
Department, “[p]ersonal identifiers are essential to enable both accurate surveillance” and
communication with health care providers about individual patients.202 The Department also
emphasizes the severity of the diabetes “epidemic,” which it argues “warrants an urgent public health
response.”203 The A1C Registry interventions likely do have some value. The patient letters204 inform
by telling people that their blood sugar is poorly managed, by explaining that high blood sugars have
adverse health consequences, and by advising diabetics to get regular medical care.205 However, there
are at least two reasons why informing patients in this manner should not be considered sufficiently
effective to justify the surveillance component of the A1C Registry. First, the City government is not the
best entity to inform diabetics of their health status and its associated risks. One alternative is
community health providers, which have the significant advantages of (i) interacting with patients under
normal conditions of confidentiality and (ideally) trust, and (ii) being far better situated to connect
patients with resources that may help in each individual case.206 More fundamentally, the ravages of
uncontrolled diabetes are common knowledge in the communities most heavily impacted by the
disease, even if the quantified risk level associated with each A1C test result is not.207 Second, the
benefit of an unsolicited letter stating that the recipient is unhealthy seems dubious at best. After all, far
more resourceintensive programs intended to help willing diabetic participants make needed lifestyle
changes have achieved very modest and short-lived success.208 The letters to health care providers
identifying at-risk patients are arguably more valuable. But again, how valuable? Improving the health
outcomes of a diabetic requires at least the following additional steps: (i) the doctor contacts the
patient, (ii) the patient visits the doctor, and (iii) the patient implements the doctor’s recommendations.
The diabetics who testified at the Department’s 2005 hearing strongly contested the utility of provider
letters.209 Increasingly, health care providers also recognize that the principal obstacles to successful
diabetes management are practical, not informational. Accordingly, some experts have called for a new
approach to treating diabetes, which emphasizes identifying and resolving the practical barriers that
prevent each individual diabetic from making needed behavioral changes.210 Easy modifications to the
surveillance component of the A1C Registry surveillance would remove doubt about its constitutional
status. For example, the program could be consent based, like Vermont’s diabetes registry.211 Consent
would remove privacy concerns; in addition, people who opt in to the program are presumably
indicating that they would benefit from reminders about their health status. Alternatively (or
additionally), the A1C Registry could identify patients by community or health center, instead of by
name and personal information. That method would enable city government to direct resources to the
communities that need them most. Advocates of the A1C Registry describe diabetes in New York City as
a public health crisis, a financial crisis, and “a raging epidemic.”212 The rhetoric used by public health
officials legitimately concerned about the physical and financial tolls of chronic disease has been useful
in bringing public attention to the destructive power of conditions that often seem mundane and
undramatic.213 But the rhetoric is also profoundly misleading.214 Those who use the word “epidemic”
argue that diabetes is so like an infectious disease that it should be treated as one.215 But diabetes is
like an infectious disease only in the sense that it is widespread and increasingly prevalent. Unlike
infectious disease, it cannot be “stopped” by government intervention in the lives of people who have
it.216 Proponents also cite the cost of chronic disease and related complications as a justification for
emergent public health surveillance.217 That argument implies, without explaining, that financial
crisis—as opposed to a direct threat to the public health—justifies intimate medical privacy intrusions.
Coupling the rhetoric of “crisis” with a call for government action suggests that government action can
effectively address the crisis. My limited claim here is that the A1C Registry’s model of ongoing,
comprehensive, and individualized surveillance may not enable government interventions that
sufficiently mitigate risk to the City’s diabetics. CONCLUSION Emergent public health surveillance
programs adopt a surveillance model that was developed in the context of infectious disease and apply
it to non-communicable health conditions. But the original justification for the extreme privacy invasions
at the heart of individualized surveillance no longer applies. In addition, the emergent public health
surveillance model shares three features with security surveillance, all of which have been identified as
sources of troubling privacy invasions, and at least one of which is changing Fourth Amendment analysis.
Courts should recognize that diabetes, obesity, and other chronic conditions that threaten the public
health implicate highly personal information, including sensitive medical data and a wide array of
personal behaviors. As a result, ongoing, name-based surveillance of populations with those conditions
effects an extremely intimate privacy invasion. Applying strict scrutiny to emergent public health
surveillance programs would permit those invasions only to the extent necessary to successfully
mitigate the risk from diabetes and other chronic diseases.
The result of a balanced strict scrutiny standard is flexible - privacy regulation and
oversight – federal implementation is key
Jason Kreag (Visiting Assistant Professor, University of Arizona James E. Rogers College of Law) 2015
“GOING LOCAL: THE FRAGMENTATION OF GENETIC SURVEILLANCE”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583957
In addition, where we do have information about local procedures, it is clear that there remains
significant variation in the use of this tool.293 Furthermore, it is also difficult to design an effective
regulatory scheme in this context because the technology itself is evolving and because our
understanding of whether forensic DNA profiles may ultimately be used to predict behavioral traits
remains limited.294 As such, any proposed regulations should be flexible. With these limitations in
mind, this Section outlines five substantive regulations that should be adopted to oversee the use of
local databases. Two scholars have previously proposed regulations that would severely curtail law
enforcement’s use of these databases. For example, Professor Elizabeth Joh has proposed that law
enforcement should be required to obtain a “warrant whenever police seek abandoned DNA from a
targeted person.”295 Professor Wayne Logan has gone further, recommending that the “government
should be barred from using identity evidence secured from a lawful arrestee for any purpose other
than identity verification.”296 The recommendations offered below would not go as far. However, they
would help limit many of the potential negative implications of local databases while at the same time
leaving sufficient room for law enforcement to expand its use of DNA to high-volume crimes. 1.
Requiring Adequate Record Keeping Maintaining adequate and accurate records is crucial to regulating
law enforcement’s use of local databases.297 Agencies using local databases should be required to
record aggregate data regarding the DNA profiles in their databases. This information should include the
percentage of DNA profiles from known individuals versus profiles derived from crime-scene evidence.
Furthermore, the DNA profiles from known individuals should be further disaggregated. For example,
regulations should mandate the collection of information regarding whether the known profiles were
collected by consent, from abandoned biological material, or surreptitiously. Law enforcement should
also be required to collect information regarding the sources of the known DNA profiles. That is, was the
profile generated from a suspect, a victim, a victim’s family member, or a witness? Finally, regulations
should require the collection of data on the age, race, and gender of the individuals whose profiles are in
local databases. In addition to collecting this aggregate data, law enforcement should be required to
track these same categories for each individual officer who collects reference samples. Finally, this data
should be recorded in a manner that makes it readily accessible. If law enforcement is not required to
collect this information, it will be difficult to monitor whether local databases are utilized in a fair
manner and if their burdens are sufficiently distributed.298 This is particularly true because law
enforcement officials have considerable discretion in who they target.299 For example, it would be
important to know if a law enforcement agency only collects abandoned DNA samples from young men
of color. It would also be helpful to know if an individual officer’s practices follow the same pattern.300
Without this information we will not be able to reliably measure the extent of several of the potential
negative consequences identified in Part II. 2. Regulating Consent As is demonstrated in Part I.B., law
enforcement’s use of local databases is dependent on collecting consensual samples from known
individuals. In particular, local databases are different from CODIS because they often include profiles
from people police have identified as suspects or potential future suspects. The reliance on consensual
samples as opposed to legally coerced samples—e.g., from arrestees or convicted individuals— renders
it important for regulations to address under what circumstances law enforcement should be able to
request a consensual sample. Regulations should also help to ensure that consent is voluntary. In the
absence of regulation, law enforcement can approach anyone and request a consensual DNA sample for
inclusion in its local database. Furthermore, no external regulation requires that law enforcement
disclose to the targeted individual its plan to add the profile to the local database. Without regulation,
there are only two things limiting law enforcement’s ability to request a sample from every person
police encounter. First, despite the fact that DNA processing is significantly less expensive than it was
even five years ago, it is still economically prohibitive to develop DNA profiles from everyone willing to
submit samples. Second, and in part motivated by those costs, some agencies have adopted minimal
internal regulations to limit from whom they seek reference samples.301 However, these limitations will
ease as the cost of DNA processing declines. As a result, it is reasonable to consider whether law
enforcement should face limits on seeking consensual DNA samples. Privacy scholars often frame this
question as whether one has a right to be left alone.302 Courts have addressed this issue in regulating
police-citizen encounters. For example, New York courts have identified a common law right that
provides more protection than the Fourth Amendment to limit law enforcement’s ability to initiate
consensual searches. In short, “[b]efore the police may stop a person pursuant to [law enforcement’s]
common law right to inquire there must exist at that moment a founded suspicion that criminal activity
is present.”303 In People v. Hollman, New York’s highest court applied this right in reversing a narcotics
conviction that resulted from narcotics found after a citizen consented to the search of his bag.304 The
court held that the undercover officer did not possess sufficient suspicion even to seek consent to
search the bag.305 Admittedly, the protection offered by Hollman is limited. It would not prevent
officers from seeking consensual DNA samples from individuals for whom police possessed a reason to
stop.306 Furthermore, the Supreme Court’s holding in Whren would seem to permit pretextual stops
designed to give police an opportunity to seek consensual DNA samples.307 However, recognizing a
minimal right to be free from law enforcement’s request for a consensual sample—which is often an
inherently coercive interaction given the imbalance of power between law enforcement and the
target—would limit law enforcement’s discretion to some degree. Independent of whether law
enforcement should be prohibited from seeking consensual DNA samples without limitation, whenever
seeking samples by consent, law enforcement should at least be required to disclose its plans for the
sample. If those plans include adding the profile to law enforcement’s database, then that should be
made clear. Such a requirement would help ensure that the consent was truly voluntary. 3. Prohibiting
the Inclusion of Victim DNA Profiles Regulations should prohibit local law enforcement from including
DNA profiles from victims in local databases. The practice of including victims’ profiles is driven by law
enforcement’s presumption that there is often overlap between crime victims and perpetrators.308
Indeed, many law enforcement officials interviewed during this project repeated variations on the
phrase, “Today’s victim is tomorrow’s perpetrator.” Without questioning the accuracy of this
presumption, there remain many reasons to prohibit law enforcement from including victim profiles in
local databases. Crime victims seek the assistance of law enforcement to remedy the wrong they faced.
In the context of the property crimes that are often the focus of local databases, victims seek to recover
their belongings, to obtain a police report needed to file an insurance claim, or simply to alert law
enforcement that an offender has targeted them so as to help law enforcement identify patterns or
develop leads. In reporting crimes to police, victims voluntarily give up some privacy. Reporting the
crime may mean that law enforcement enters their home, takes a statement from them, talks to other
potential witnesses, and, in some cases, collects a DNA sample for elimination purposes. To the extent
that law enforcement turns the tables on a victim, making the victim the target of law enforcement’s
broader investigative and surveillance activities, they undermine the justification for their initial
intrusion. Collecting DNA samples from victims for inclusion in databases adds a significant cost to what
victims must already bear when reporting a crime. Such a practice requires victims not only to submit to
the immediate invasion of privacy that results from seeking law enforcement’s help, but it also requires
victims to submit to a lifetime of genetic surveillance. This cost will undoubtedly cause some victims to
avoid calling police. Others may reluctantly seek assistance from police, but they will remain dismayed
that they were required to pay a genetic-surveillance tax in exchange for police assistance. 4. Time
Limits for Suspect DNA Profile Retention Regulations should address how long law enforcement is able
to retain DNA profiles in local databases. For example, if police collect a consensual sample from a 22year-old suspect that an officer stopped while walking down the street in a manner that caught the
officer’s attention, that profile should be removed automatically from the database after five or 10 years
if, during that period, the profile had not been matched to a crime-scene DNA profile. Such a regulation
would at least cap what would otherwise have been a lifetime of genetic surveillance for the 22-year-old
for simply appearing suspicious. Given the Supreme Court’s holding in Maryland v. King, in which it
upheld the constitutionality of collecting DNA samples from arrestees,309 the time limit restrictions
could be limited to samples collected from mere suspects, as opposed those arrested or convicted of
crimes.310 5. Monitoring Use Regulations should also require adequate procedures to ensure that
individual officers do not abuse the use of local databases.311 For example, the architect of Palm Bay’s
database emphasized his stern warning that officers not use the database for personal snooping.312 But
stern warnings are not enough. The infrastructure for local databases already includes the ability to
monitor individual users. For example, SmallPond includes a feature called Audit Trail, which produces a
record of every user interaction with the system, including which searches where performed and which
DNA profiles were uploaded.313 Given that this tool is readily available, law enforcement agencies
should be required to utilize it to help ensure against misuse.314 D. Implementing Reforms Despite the
dearth of statutory or constitutional restrictions of local databases,315 there is reason to believe that
the reforms outlined above could be adopted. Legislatures have demonstrated the ability to protect
privacy interests in other settings, most notably demonstrating a remarkable nimbleness in quickly
passing legislation regarding law enforcement’s use of drones.316 Additionally, the Court’s
interpretation of the reach of the Fourth Amendment may evolve.317 Furthermore, the promise of at
least some minimal external regulation is more likely given that some of the early adopters of local
databases have indicated an openness to regulation.318 The most effective way to implement the
reforms recommended in Part III.C. is through federal legislation. Given that federal laws already
regulate law enforcement’s use of genetic surveillance in CODIS, there is precedent for federal
regulation in this space. One obvious challenge to such regulation is ensuring that regulations are
sufficiently flexible to allow law enforcement to continue using local databases while limiting the
external costs discussed in Part II. The reforms offered here are designed to provide that flexibility. A
new federal law could follow the statutory model used for CODIS. For example, current federal law
requires states to certify their compliance with quality standards for DNA processing and with privacy
protections for genetic information in order to qualify for participation in CODIS.319 A new, expanded
law could require that in exchange for participation in CODIS, states certify that local databases in their
jurisdictions follow the five reforms outlined above. There is good reason to expect that such a law
would quickly cause states to comply.320 While local databases are expanding, states still value their
participation in CODIS.321 Such a regulatory structure would also respect the ability of states to adopt
stricter limits on the use of local databases.322 While a federal law would be most effective, there are
other options to achieve some of the benefits of the reforms outlined in Part III.C. For example, each
state could be encouraged to adopt a model statute that includes these reforms. The prospect of quick
action by each state seems considerably less likely to occur without the stick of being excluded from
CODIS that could be a part of federal regulation. However, Alaska, Vermont, and Washington have
demonstrated that some states are capable of regulating local databases. In addition, there are options
aside from legislation. Existing regulatory bodies could promote these reforms as best practices for local
DNA databases. For example, the recently created National Commission on Forensic Science (“NCFS”), a
joint project of the Department of Justice and the National Institute of Standards and Technology
(“NIST”), describes part of its mission as “reduc[ing] fragmentation and improve[ing] federal
coordination of forensic science.”323 Similarly, NIST’s newly-formed Organization of Scientific Area
Committees (“OSACs”) represents another potential source for external regulation.324 Whereas the
NCSF will outline broad policies, the OSACs are designed to adopt specific “standards and guidelines” for
each forensic discipline.325 These organizations, which include national leaders from law enforcement,
practice, and academia, are limited to adopting non-binding recommendations. However, even
recommended procedures could be powerful forces to alter current practices.
Federal government is key – they fund the development and management of local
DNA databases – the plan restricts “its” domestic surveillance
Jason Kreag (Visiting Assistant Professor, University of Arizona James E. Rogers College of Law) 2015
“GOING LOCAL: THE FRAGMENTATION OF GENETIC SURVEILLANCE”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583957
3. Federal Funding Because local, non-CODIS databases are in some ways duplicative of CODIS, it is
reasonable to presume that even if these databases had strong support from law enforcement officials,
their expansion would be limited by cost-conscious local government officials not eager to fund them.
This has not been the case, in part, because some local databases have been supported by federal, not
local funds.65 It is ironic that after allocating such a significant amount of money to develop CODIS,66
the federal government is funding non-CODIS databases that are at least potential rivals to the CODIS
network.67 More importantly, federal funding has allowed local agencies to bypass the local budget
process and the limitations it imposes on other law enforcement surveillance techniques.68 The primary
source of federal funding for local DNA databases are the federal forfeiture laws that return money to
local law enforcement officials in exchange for their participation in federal task forces.69 These laws
allow the Department of Justice to share the proceeds of the seized property with local agencies that
“participated directly in the seizure or forfeiture of the property.”70 Local law enforcement agencies
have come to depend on this revenue stream,71 and it has been crucial to the evolution of local DNA
databases. For example, resources from federal forfeiture laws fully fund the local database in Bensalem
Township,72 and local officials view this as a reliable source of funds for the foreseeable future.73
Without this revenue stream, it is unlikely that local databases would have developed as quickly as they
have.
1AC Advantage – Health Surveillance
The public is highly conscious of health privacy issues - but the pressure for access will
be enormous – it is the historical cornerstone of doctor-patient confidentiality
Alan Rubel (University of Wisconsin Law School Assistant Professor , Ph.D., Department of Philosophy,
University of Wisconsin-Madison; J.D., magna cum laude) 2014 “Privacy, Surveillance, and Autonomy”
p. 312
Introduction We all like at least some privacy, and there isn't much dispute that privacy in health and
medical information matters. This is for a variety reasons. One is that support for privacy protections is
strong; public opinion research consistently indicates that persons care deeply about health privacy.
Another is that health privacy has significant historical roots, dating back to the provisions for
physician—patient confidentiality in the Hippocratic Oath. The popular appeal and historical protections
for health privacy make sense because privacy implicates important interests. Information about a
person's health can be used to deny that person employment, financial, or other opportunities; and
learning about a person's medical condition may lead others to define or view that person
disproportionately in light of that condition. Accordingly, there are a variety of legal protections for
health information privacy. In the U.S., these include the Health Insurance Portability and Accountability
Act, the Genetic Information Nondiscrimination Act, and the Common Rule covering certain human
subjects research. But the sheer usefulness of health information creates enormous pressure for access.
Information about disease incidence aids in protecting public health; information about the behavior of
patients is useful in providing care; information about drug prescribing and use can help in enforcing
drugs laws; and many kinds of health information can serve as data for research. Health information can
also be important for democratic governance: Health information may be relevant in determining
candidates' fitness for public office, and government transparency may require that people have access
to information about government-provided health services, even where that information contains
individually identifiable information.
Health surveillance expansion will be perceived - that will shatter trust and result in
disengagement from the health care system
Brase 13 (Twila Brase. President Citizen’s Council for Health Freedom. “Patient Privacy and Public
Trust: How Health Surveillance Systems Are Undermining Both.” August 2013. P. 7.
http://www.cchfreedom.org/pr/50%20States%20Databases%20Full%20Report.pdf)//EMerz
Furthermore, in the future, health officials may use a patient’s private data to restrict certain access to
care if medical records indicate a persistent unwillingness to submit to government-endorsed
vaccinations, a history of unhealthy behaviors or ongoing engagement in unhealthy lifestyles, such as
smoking, drug use, overeating, or a failure to exercise. For example, the Patient Protection and
Affordable Care Act of 2010 (“Obamacare”) requires federal officials to gather outcomes data “from
employers who provide employees with access to wellness programs.”254 As the public learns about
government patient tracking and health surveillance, hospitals and clinics may be seen as intrusive
arms of the government’s data collection process rather than caring and trusted institutions. Thus,
government health surveillance through state and federal reporting mandates threatens to diminish
patient trust and violates the freedom and privacy rights of all Americans. As government lays hold of
the most private of individual data, patients may also lose access to the full realm of private medical
choices. Their willingness to engage with the health care system may be limited by their unwillingness to
give up their privacy rights. A 1999 study found 15 percent of Americans already engaged in privacyprotecting behaviors that compromise their access to timely and accurate medical care.2
Privacy protective behavior will wreck the entire medical system – the result if
epistemologically and methodologically bankrupt medical decision-making – faulty
data destroys the integrity of all medical research
Goldman, from the College of Physicians and Surgeons, Columbia University, November 1998 – (Janlori,
“Protecting Privacy To Improve Health Care”, published in HealthAffairs volume 17 number 6)//roetlin
In many ways, the
relationship between people and their doctors bears the greatest burden in the health
privacy debate; this relationship is the “hot spot,” the originating point on the health information
continuum. In this setting people are routinely asked to disclose detailed, sensitive information about themselves and their family
members.4 They are beginning to understand, however, that the open-ende waivers for disclosure signed by patients as a condition of
treatment and payment leave them vulnerable to a wide array of uses and reuses of their health information. In reaction, people
are
developing “privacy-protective” behavior to shield themselves from what they consider to be harmful
and intrusive uses of their health information. To protect their privacy, patients may pay out-of-pocket for medical
care, “doctor-hop” to avoid having all of their health information entrusted to one provider, withhold
information, lie, or even avoid care altogether.5 The consequences of such “privacy-protective” behavior are significant:(1)
The patient may receive poor-quality care, risking undetected and untreated conditions. (2) The doctor’s
abilities to diagnose and treat accurately are jeopardized by a lack of complete and reliable information
from the patient. (3) A doctor may skew diagnosis or treatment codes on claim forms, may keep separate
records for internal uses only, or may send on incomplete information for claims processing, to
encourage a patient to communicate more fully. (4) The integrity of the data flowing out of the doctor’s
office may be undermined. The information the patient provides, as well as the resulting diagnosis and
treatment, may be incomplete, inaccurate, and not fully representative of the patient’s care or health
status. Ultimately, if doctors and other health care providers are receiving incomplete, inaccurate
information from patients, the data they disclose for payment, research, public health reporting,
outcomes analysis, and other purposes will carry the same vulnerabilities. In essence, information that
lacks integrity at the front end will lack integrity and reliability as it moves through the health care
system.
Our solvency claim is reverse causal
Pritts 13 (Joy L. Pritt. “The Importance and Value of Protecting the Privacy of Health Information: The
Roles of the HIPAA Privacy Rule and the Common Rule in Health Research.” 2013. P. 6-8.
http://iom.nationalacademies.org/~/media/Files/Activity%20Files/Research/HIPAAandResearch/PrittsPr
ivacyFinalDraftweb.ashx)//EMerz
If privacy is essentially having or being in a relatively personal space, it is difficult to think of an area
more private than an individual’s health or medical information. Medical records can include some of
the most intimate details about a person’s life. They document a patient’s physical and mental health,
and can include information on social behaviors, personal relationships and financial status. It is hardly
surprising that when surveyed, people consistently report that they are concerned about protecting the
privacy and confidentiality of such personal information. In one recent survey, 67% of respondents said
they were concerned about the privacy of their medical records, with ethnic and racial minorities
showing the greatest concern. When presented the possibility that there would be a nationwide system
of electronic medical records, 70% of respondents were concerned that sensitive personal medicalrecord information might be leaked because of weak data security, 69% expressed concern that there
could be more sharing of medical information without the patient's knowledge and 69% were
concerned that strong enough data security will not be installed in the new computer system. People
have identified being in control of who could get information about them; being able to share
confidential matters with someone they trust; and controlling what information is collected about them
as three of the facets of privacy that were most important to them.39 Half of the respondents in a
recent survey believed that “[P]atients have lost all control today over how their medical records are
obtained and used by organizations outside the direct patient health care such as life insurers,
employers, and government health agencies.” These public opinions about the “privacy” of health
information reflect in a very real way the practical importance of privacy to members of the public. They
desire control over and security and confidentiality of their health information. They want to know who
is using their information and why. A significant portion of Americans are concerned enough about the
privacy of their health information that they take matters into their own hands. In response to a recent
California HealthCare Foundation survey, one out of eight respondents reported that they had engaged
in a behavior intended to protect his or her privacy, including taking such actions as avoiding their
regular doctor, asking their doctor not to record their health information or to “fudge” a diagnosis,
paying out of pocket so as not to file an insurance claim and even avoiding care altogether.41 In very
functional terms, adequately protecting the privacy of health information can help remedy these
concerns and, hopefully, reduce this behavior. Ensuring privacy can promote more effective
communication between physician and patient, which is essential for quality of care, enhanced
autonomy, and preventing economic harm, embarrassment and discrimination.42 A number of studies
suggest that the relative strength of confidentiality protections can play an important role in people’s
decisions whether to seek or forgo treatment, particularly with respect to mental health and substance
abuse. The willingness of a person to make self-disclosures necessary to such mental health and
substance abuse treatment may decrease as the perceived negative consequences of a breach of
confidentiality increase.44 Privacy or confidentiality is particularly important to adolescents who seek
health care. When adolescents perceive that health services are not confidential, they report that they
are less likely to seek care, particularly for reproductive health matters or substance abuse. These
studies show that protecting the privacy of health information is essential to ensuring that individuals
will obtain quality care. Protecting privacy is also seen by some as enhancing data quality for research
and quality improvement initiatives. When individuals avoid health care or engage in other privacy
protective behaviors, such as withholding information or doctor shopping, inaccurate and incomplete
data is entered into the health care system. This data, which is subsequently used for research, public
health reporting, and outcomes analysis carries with it the same vulnerabilities. Ensuring individuals that
the privacy and confidentiality of health information will be protected should reduce these behaviors
and result in more complete and accurate data for these research, public health and quality purposes.
Protecting the confidentiality of health information also protects against the perceived and real
potential for economic harm resulting from discrimination in health insurance and employment. Polls
consistently show that people are most concerned about insurers and employers accessing their health
information without their permission. This concern arises from fears about employer and insurer
discrimination. Concerns about employer discrimination based on health information, in particular,
increased 16% between 1999 and 2005 with 52% of respondents in the later survey expressing concern
that their information might be seen by an employer and used to limit job opportunities. Reports of
major employers such as Wal-Mart basing their hiring decisions on the health of applicants appear to
justify these concerns. Studies focusing on genetic information show that individuals go to great lengths
to keep their genetic information private and out of the hands of their insurers and employers. Even
health care providers are affected by these concerns. In a survey of cancer-genetics specialists, more
than half indicated that they would pay out of pocket rather than bill their insurance companies for
genetic testing, for fear of genetic discrimination. While surveys do not reveal a significant percentage of
individuals who have experienced such discrimination, geneticists have reported that approximately 550
individuals were refused employment, fired or denied life insurance based on their genetic constitution.
In addition, studies in the United Kingdom suggested that while insurers in that country do not have a
full grasp on the meaning of genetic information and do not assess or act in accord with the actuarial
risks presented by the information. There is, therefore, some legitimate basis to individuals’ concerns
about potential economic harm and the need to protect the privacy of their genetic information. In
addition to these utilitarian reasons for protecting privacy, some privacy scholars emphasize the value of
protecting the privacy of health information in its own right, seeing it as a fundamental human right.53
They believe that respecting privacy (and autonomy) is a form of recognition of the attributes that give
humans their moral uniqueness. Thus, there are a variety of reasons, both concrete and perceived,
functional and philosophical, for placing a high value on protecting the privacy, confidentiality and
security of health information.
We control the determining factor – high quality clinical trials are a pre-requisite to
ANY quality research
Sean Tunis (Centers for Medicare & Medicaid Services, Baltimore, Md) Daniel Stryer (Agency for
Healthcare Research and Quality, Rockville, Md) and Carolyn Clancy (Agency for Healthcare Research
and Quality, Rockville, Md) 2003 “Practical Clinical Trials”
http://umassmed.edu/uploadedFiles/QHS/Content/Tunis%20article1.pdf
The production of high-quality clinical trials will increase significantly when health care decision makers
decide to consistently base their decisions on high-quality evidence. Research sponsors (public and
private) will be motivated to provide the type of clinical research required by decision makers. Payers
and purchasers can clearly indicate to the drug and device industry that favorable coverage and
payment decisions will be expedited by reliable evidence from PCTs. In particular, manufacturers will be
motivated to perform head-to-head comparative trials if these are required to justify payments higher
than the existing less expensive alternatives. Physicians and medical professional organizations can also
increase the degree to which care of individual patients and professional society clinical policy are
guided by attention to reliable evidence. Patients and their advocacy organizations have a critical stake
in the quality of clinical research. The fundamental premise of improving health care through informed
patient choice cannot be realized if unreliable evidence is used to inform patients. Patient advocacy
organizations should become more insistent on the production of highquality evidence and work with
research funders to increase support for PCTs. These groups could also facilitate the research by
encouraging patients, physicians, and health care organizations to participate in clinical trials in those
situations for which current evidence is uncertain. Many years and lives could have been saved had
advocates worked to ensure the rapid completion of clinical trials on bone marrow transplantation for
breast cancer, instead of putting pressure on state and federal policymakers to force payers to cover this
procedure when supportive high-quality data were lacking.58
Its vital for developing any effective new drugs
Norrgard 8 – PhD, Department of Human Genetics at Virginia Commonwealth University
(Karen, “Human Subjects and Diagnostic Genetic Testing,” Nature Education 1(1):82)
There is a vital need for human subjects in research related to drug development, but can we properly
balance the welfare of human research subjects with the need for experimental data? Medical and
psychological studies involving human subjects remain a critical factor in advancing our scientific
knowledge. Despite historical episodes of tragically unethical treatment of humans in the name of
medical science, such as the Tuskegee study, the need for human subjects in biomedical research is vital
for the development of any new drug. But how can we balance the welfare of human research subjects
with the need for valuable data from human experimentation? Several solutions to this conundrum have
been proposed, but none is without its flaws. Learning from the Tuskegee Study Sadly, there is a long
history of the unethical treatment of human subjects in various types of medical and biological research.
For example, one of the most notorious clinical studies of all time was initiated in 1932, with the goal of
tracking the progression of untreated syphilis infection. At the time, treatments for syphilis included
highly toxic mercury, bismuth, and arsenic-containing compounds of questionable effectiveness. The
study was a collaboration between the Tuskegee Institute and the U.S. Public Health Service in Alabama,
and was intended to determine the progression of the disease, the effectiveness of treatments at
different stages, and modes of disease transmission. Doctors recruited 399 black men thought to have
syphilis, as well as 201 healthy black men as controls. Study participants were kept unaware of their
diagnosis of syphilis but, in return for participating in the study, the men were promised free medical
treatment if they tested positive, rides to the clinic, meals, and burial insurance in case of death. The
initial aim of the Tuskegee Study of Untreated Syphilis in the Negro Male, as it was known, was perfectly
legitimate: to gather medical knowledge. However, during the mid-1940s, when penicillin had been
shown to be a highly safe and effective cure for syphilis infection, the researchers did not abandon the
study, but continued to subject their unwitting participants to painful complications and death due to
syphilis infection until 1972, when a story about the study appeared in the national press. Public outcry
caused an abrupt end to this research, followed by the filing of a class action lawsuit against the U.S.
government on behalf of the survivors. In spite of the ethical dilemmas associated with the use of
human subjects, no new drugs could ever be developed without thorough human testing to
demonstrate their effectiveness; this process of testing is known as a clinical trial. Clinical trials occur at
the end of the incredibly lengthy and expensive process of drug discovery. Only one of about every
5,000 screened substances that are originally synthesized or identified from natural products makes it
through the clinical trial process and is approved as a new medicine (Pritchard, 2003).
Only new research can keep up with disease evolution
Cangelosi 5 – Prof of Environmental and Occupational Health Sciences and Adjunct Prof of
Epidemiology and of Global Health at the University of Washington, PhD in Microbiology from UC Davis
(Gerard A., Nancy E. Freitag, PhD, Prof in the Dept of Microbiology and Immunology at the University of
Illinois Chicago School of Medicine, and Merry R. Buckley, Ph.D. in environmental microbiology at
Michigan State University, “From Outside to Inside: Environmental Microorganisms as Human
Pathogens,” http://academy.asm.org/index.php/environmental-microbiology-ecology-evolution/553from-outside-to-inside-environmental-microorganisms-as-human-pathogens)
The key difference between environmental pathogens and other human pathogens is their ability to
survive and thrive outside the host. Their widespread occurrence in the environment makes them
difficult to monitor and control. Inroads have been made to understand the persistence of these
organisms in the environment, the reservoirs they inhabit, the ways they exchange virulence factors,
and their diversity, but a great deal more research is needed. By grouping together phylogenetically
diverse organisms under the umbrella of "environmental pathogens," it is hoped that the topic can gain
the critical mass needed for sustained progress. ¶ Colloquium participants examined other research
needs for the field, including the diagnostic and environmental technologies that will be necessary for
taking the next steps. It was agreed that because of the complex nature of studying organisms that can
exist in the environment and in human hosts, work in this area is best carried out in an interdisciplinary
fashion with coordinated input from medical, molecular, and environmental microbiologists, specialists
in host responses, epidemiologists, ecologists, environmental engineers, and public health experts. The
development of improved diagnostic techniques is critical for accurate assessment of health risks and
potential human or animal population impact associated with environmental pathogens. ¶ If the
impacts of these diseases are to be effectively controlled, the techniques used to monitor and control
infections by environmental pathogens—including interventions, exposure controls, drugs, and
vaccines— require improvement. The processes surrounding drug and vaccine development must be
tailored to the special problem of environmental pathogens, which often strike small numbers of
individuals or individuals in less developed areas of the world and, therefore, offer less potential for
drug development profit than more common diseases. A challenge exists, therefore, in meeting the
need for targeted, specific interventions, including development of drugs and vaccines for infections by
environmental agents, in the face of a lack of financial incentive for development of these tools.
Trust key to medical research advances
Jacobs, 5 – MD; Boston University professor of medicine [Alice, director of Cardiac Catheterization
Laboratory and Interventional Cardiology, "Rebuilding an Enduring Trust in Medicine," Circulation, 2005,
circ.ahajournals.org/content/111/25/3494.full#xref-ref-3-1,]
To be sure, we will learn about the emerging science and clinical practice of cardiovascular disease over the next four days. But there is an
internal disease of the heart that confronts us as scientists, as physicians, and as healthcare professionals. It is a
threat to us all—insidious and pervasive—and one that we unknowingly may spread. This threat is one of the most critical
issues facing our profession today. How we address this problem will shape the future of medical care.¶ This issue is the
erosion of trust.¶ Lack of trust is a barrier between our intellectual renewal and our ability to deliver this
new knowledge to our research labs, to our offices, to the bedside of our patients, and to the public. Trust is a vital,
unseen, and essential element in diagnosis, treatment, and healing. So it is fundamental that we understand what it is, why it’s
important in medicine, its recent decline, and what we can all do to rebuild trust in our profession. Trust is intrinsic to the relationship between
citizens around the world and the institutions that serve their needs: government, education, business, religion, and, most certainly, medicine.¶
Albert Einstein recognized the importance of trust when he said, “Every kind of peaceful cooperation among men is primarily based on mutual
trust.”1 In our time, trust has been broken, abused, misplaced, and violated. The media have been replete with commentaries, citing stories of
negligence, corruption, and betrayal by individuals and groups in the public and private sectors, from governments to corporations, from
educational institutions to the Olympic Organizing Committee. These all are front-page news. Perhaps the most extreme example is terrorism,
in which strangers use acts of violence to shatter trust and splinter society in an ongoing assault on our shared reverence for human life.¶
Unfortunately, we are not immune in our own sphere of cardiovascular medicine. The physician-investigator conflicts of interest concerning
enrollment of patients in clinical trials, the focus on medical and nursing errors, the high-profile medical malpractice cases, the mandate to
control the cost of health care in ways that may not be aligned with the best interest of the patient—all of these undermine trust in our
profession. At this time, when more and more public and private institutions have fallen in public esteem, restoring trust in the healthcare
professions will require that we understand the importance of trust and the implications of its absence.¶ Trust is intuitive confidence and a
sense of comfort that comes from the belief that we can rely on an individual or organization to perform competently, responsibly, and in a
manner considerate of our interests.2 It is dynamic, it is fragile, and it is vulnerable. Trust can be damaged, but it can be repaired and restored.
It is praised where it is evident and acknowledged in every profession. Yet it is very difficult to define and quantify.¶ Trust is easier to
understand than to measure. For us, trust may be particularly difficult to embrace because it is not a science. Few instruments have been
designed to allow us to evaluate it with any scientific rigor. Yet, trust
is inherent to our profession, precisely because patients
turn to us in their most vulnerable moments, for knowledge about their health and disease. We know trust
when we experience it: when we advise patients in need of highly technical procedures that are associated with
increased risk or when we return from being away to learn that our patient who became ill waited for us to make a decision and to discuss
their concerns, despite being surrounded by competent colleagues acting on our behalf.¶ Many thought leaders in the medical field
understand the importance of trust.3 When asked whether the public health system could be overrun by
public panic over SARS and bioterrorism, C enters for D isease C ontrol and Prevention Director Julie Gerberding replied,
“You can manage people if they trust you. We’ve put a great deal of effort into improving state and local
communications and scaled up our own public affairs capacity…we’re building credibility, competence and trust.”4¶ Former
H ealth and H uman S ervices Secretary Donna Shalala also recognized the importance of trust when she said, “If
we are to keep testing new med icine s and new approaches to curing disease, we cannot compromise the
trust and willingness of patients to participate in clinical trials.”5¶ These seemingly intuitive concepts of the importance
of trust in 21st century medicine actually have little foundation in our medical heritage. In fact, a review of the early history of medicine is
astonishingly devoid of medical ethics. Even the Codes and Principles of Ethics of the American Medical Association, founded in 1847, required
patients to place total trust in their physician’s judgment, to obey promptly, and to “entertain a just and enduring sense of value of the services
rendered.”6 Such a bold assertion of the authority of the physician and the gratitude of the patient seems unimaginable today.¶ It was not until
the early 1920s that role models such as Boston’s Richard Cabot linked patient-centered medical ethics with the best that scientific medicine
had to offer,6 and Frances Weld Peabody, the first Director of the Thorndike Memorial Laboratory at the Boston City Hospital, crystallized the
ethical obligation of the physician to his patient in his essay “The Care of the Patient.”7 In one particularly insightful passage, Peabody captures
the essence of the two elements of the physician’s ethical obligation: He must know his professional business and he must trouble to know the
patient well enough to draw conclusions, jointly with the patient, as to what actions are indeed in the patient’s best interest. He states: “The
treatment of a disease may be entirely impersonal: The
care of the patient must be completely personal. The significance
between physician and patient cannot be too strongly emphasized, for in
an extraordinarily large number of cases both diagnosis and treatment are directly dependent on it.”
Truly, as Peabody said, “The secret to the care of the patient…is in caring for the patient.”7¶ This concept that links the quality of
the physician-patient relationship to health outcomes has indeed stood the test of time. Trust has been
shown to be important in its own right. It is essential to patients, in their willingness to seek care, their
willingness to reveal sensitive information, their willingness to submit to treatment, and their willingness
to follow recommendations. They must be willing for us to be able.\
of the intimate personal relationship
A new outbreak can emerge at any time and have unimpeded virulence – it’s only a
question of when
[Roger Highfield director of external affairs at the Science Museum Group “Ebola Shows the World Is
Primed for the Perfect Microbial Storm” 8/13 14]
The deadly outbreak of Ebola, the largest in recorded history, comes as little surprise to scientists. In the light of recent
research, expect to see more global public health emergencies, faster spreading scourges and more novel
diseases. True enough, modern technology has brought us a range of extraordinary tools, from diagnostics to drugs to global, instantaneous communications.
But the relentless rise of modern civilisation has also made the possibility of a pandemic greater than at
any time in history. Emerging diseases that have devastating effects internationally, with millions
infected and billions spent, are all foreseeable consequences of changes in the way we live our lives. This is not simply the price of our success in
dominating the planet and its ecosystems but, importantly, of allowing so many of the planet's human inhabitants to live in poverty. The Ebola
emergency reminds us that we now have the conditions for a perfect microbial storm. Most human
infectious diseases originated in animals and, as human populations and their road networks expand, as we clear more land for
agriculture, hunt for wildlife and trade more animals, they are coming into contact with more animal
diseases, explains Angela McLean of Oxford University's Institute for Emerging Infections. Meanwhile, we are increasingly farming vast numbers of domestic
animals that can provide reservoirs for existing bugs and fertile breeding grounds for new ones. There are also unprecedented
opportunities for rapid spread, thanks to air travel, as in the current Ebola outbreak. The role of wild animals in
the origin of novel diseases was laid bare in 2008 when Peter Daszak, now president of the EcoHealth Alliance, Kate Jones of the Institute of Zoology and University
College London, and colleagues from Columbia University, New York, analysed 335 emerging diseases from 1940 to 2004. Maps which correlated disease with
human population density, rainfall and wildlife biodiversity revealed that disease
emergence events have roughly quadrupled
over the past 50 years. Some 60% of the diseases spread from animals to humans – such diseases are called zoo-noses – and the majority of
those came from wild creatures. The HIV/AIDS pandemic started from human contact with chimps and sooty mangabey monkeys; recent outbreaks of SARS (Severe
acute respiratory syndrome) originated in Chinese bats; CJD (Creutzfeldt-Jakob disease) in cattle; and MERS (Middle East Respiratory Syndrome) to camels. The Zaïre
subtype of the Ebola virus responsible for human outbreaks in Gabon and the Republic of the Congo was linked to the handling of the carcasses of great apes that in
turn had been infected by fruit bats. The global map of emerging disease revealed the hotspots span sub-Saharan Africa, India and China, with smaller spots in
Europe, and North and South America. They tend not to be in the richer countries in the North that can afford surveillance but in relatively impoverished areas such
as the tropics, a region rich in wildlife species and under increasing human pressure, and in dense human populations, where one would expect them to take hold
more easily. The risks are now worse than suggested in their 2008 study, says co-author Marc Levy, deputy director of the Center for International Earth Science
Information Network at Columbia University in New York. They had assumed populations would fall faster than they have. Moreover, political violence and
instability has "led to refugee flows and deliberate incursions into wild areas where rebels find timber, wildlife and minerals to finance their activities. In the case of
Ebola, we have also seen that it is
difficult to deal with effectively when public trust in a government is low". In 2010,
another study also involving Jones and Daszak, showed that species losses in ecosystems spur rises in pathogens as we intrude into areas of high biodiversity. This is
significant because current extinction
rates are estimated at 100 to 1,000 times higher than in past epochs, and are projected to increase at
least a thousand times more in the next 50 years.
Medical innovation solves antibiotic resistance
O’Neill 15 – Syndicate @ Guardian
(Jim, “A call to antimicrobial arms,” February, The Guardian,
http://www.theguardian.com/business/2015/feb/10/a-call-to-antimicrobial-arms)
Resistant infections already claim
more than 700,000 lives a year. Unless action is taken, antimicrobial resistance will kill 10 million people
a year by 2050 – more than the number of people who currently die from cancer. It will also have a cumulative cost of at least $100tn, more than 1.5 times today’s
annual global GDP. We are not doing nearly enough to combat this danger. The world urgently needs new drugs
to replace the antibiotics, anti-malarial regimes, antiretroviral Aids and HIV medications, and tuberculosis treatments that are losing effectiveness. But we
do not invest enough in research and development. It is critical that we find new sources of funding to support the academic
researchers and small companies whose discoveries are laying the foundations for tomorrow’s medicines. That is why I
In December, I reported the first findings of the Review on Antimicrobial Resistance, which I chair. The news wasn’t good:
am calling on international donors – philanthropic and governmental alike – to work with the Review on Antimicrobial Resistance to create a new fund to support R&D in this important area.
The fund will provide grants for blue-sky science and act as a non-profit incubator for promising discoveries. Over the coming months, the Review will be working out the details of how such a
fund could operate effectively. The problem is straightforward: as valuable as scientific breakthroughs may be, it takes a lot of work to turn them into marketable drugs. And, because
antibiotics generally produce low – and sometimes even negative – returns on investment for the pharmaceutical makers that develop them, many companies and venture capital funds steer
clear. The Review is studying ways to align financial incentives for developing new antimicrobial drugs more closely with these medicines’ true social value. But
time is of the
essence. New drugs take decades to discover and develop. Even if we were to fix every problem in the development pipeline today, it would be at least another 10 years before the first
new antibiotics became commercially available. In the coming months, the Review will make recommendations regarding market incentives for developing new antibiotics and searching for
potential alternatives – such as vaccines – to the use of these drugs in agriculture. The Review will also highlight innovative approaches to addressing resistance. In its most recent paper, the
Review has identified specific measures that could provide
creation of the
a starting point for the fight against antimicrobial resistance. The first is the
innovation fund to support early research. In addition to providing money for efforts to develop new drugs, the fund should encourage research into diagnostic tools,
basic research is where
surveillance methods, techniques to slow the development of resistance, and social and economic studies of consumer behavior. This kind of
medical innovation starts, and the sums involved need not be huge to make a significant difference. We should also invest more in the
people who will solve the problem. Evidence seems to show that young scientists and doctors are reluctant to enter fields related to antimicrobial resistance. We need to
nurture the next generation of academics, scientists, hospital workers, and pharmaceutical technicians.
The impact is extinction
Engelhardt 8 – PhD, MD, Professor of Philosophy @ Rice
(Hugo, “Innovation and the Pharmaceutical Industry: Critical Reflections on the Virtues of Profit,”
EBrary)
The volume opens with Engelhardt's examination of the central place of the market, especially in liberal,
secular, pluralist, limited democracies. As is argued, the market and the pursuit of profit have their
central place by default and because of their cardinal benefits. First, the market is a cardinal place for
peaceable cooperation in the face of moral disagreement. As Engelhardt argues, when moral strangers
meet, the market, along with limited democracies and contracts, offers one of their major means for
morally authoritative collaboration. Even when persons cannot agree about anything else, they can at
least agree to buy and sell goods and services. This essay explores why the market and the pursuit of
profit are not only a default mechanism for collaboration in a world marked by intractable moral
controversy and diversity; it is also indispensable if one is interested in securing human survival and in
decreasing morbidity and mortality risks. If the allure of profit drives innovation in the pharmaceutical
and medical-device industry, then one should be concerned with any policies that limit profit in these
industries as compared to others. Any attempt to curtail profit will likely lead not only to slower
advances in the ability to lower morbidity and mortality risks, but it may as well threaten the capacity of
humans to adapt to new microbial (such as multi-drug-resistant tuberculosis) and other threats. Critical
concerns for policies that limit the profitability of the pharmaceutical and medical-device industries
should also include a re-assessment of easily acquired, poorly grounded, and large liability judg-ments
against the manufacturers of pharmaceuticals and medical devices. These concerns should also include a
critical regard of policies that would limit profits through the breach of patents by developing countries.
Such limitations will encourage virtuous stewards of invest-ment capital to avoid investing in the cure of
diseases found primarily in such countries. The very character of human finitude places money, market
and profit as central elements in the project of improving the human condition.
1AC Advantage – Genetic Surveillance
States are circumventing status quo federal precedent and statutory law – huge
expansion of genetic surveillance is coming now – oversight, regulations, and limiting
federal budgetary authority are key
Jason Kreag (Visiting Assistant Professor, University of Arizona James E. Rogers College of Law) 2015
“GOING LOCAL: THE FRAGMENTATION OF GENETIC SURVEILLANCE”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583957
The past five years have seen a dramatic, and until now wholly unexamined, splintering of genetic
surveillance by law enforcement. Investigators have shifted from using the FBI’s centralized, national
DNA database network to a growing number of unregulated local databases.1 These databases operate
outside the federal laws and rules that govern law enforcement’s use of the FBI’s national DNA database
network. As a result of this regulatory void, police departments have pushed the boundaries of genetic
surveillance, using this tool in ways not previously permitted.2 The aggressive use of local databases has
helped police to increase clearance rates and decrease crime rates.3 But the story is not all positive. The
expansion of this surveillance tool at the local level has unleashed significant negative forces that
threaten privacy and dignity interests, exacerbate racial inequities in the criminal justice system, and
undermine the legitimacy of law enforcement. This Article analyzes these costs and proposes reforms to
minimize them while preserving law enforcement’s ability to use this tool on the local level. The Article
is the first full-scale examination of these unregulated, local DNA databases. It is supported by original
qualitative empirical research based on interviews with law enforcement officials, prosecutors, and
representatives from the major firms developing these local databases. This Article makes three claims.
First, cutting-edge genetic surveillance issues are playing out on the local level, free from federal
regulation and, often, in the absence of state or local laws.4 Second, this Article responds to Professor
Rachel Harmon’s challenge to scholars to help law enforcement establish “harm-efficient policing”
practices by identifying and measuring external harms generated by policing that are not captured by
law enforcement’s narrow focus on solving crime.5 In this sense, this Article is a case study in regulating
law enforcement’s use of rapidly evolving surveillance technology. Third, contrary to the proposals of
many scholars who have advocated for the devolution of power to the local level in the criminal justice
system,6 this Article urges that national standards are needed to address the costs of genetic
surveillance. The expansion of locally-controlled DNA databases follows two decades of federal
oversight of law enforcement’s use of genetic surveillance. Since 1994, when Congress authorized the
creation of a national network of DNA databases commonly referred to as CODIS,7 the FBI has overseen
what has become one of the largest genetic surveillance tools in the world.8 CODIS includes DNA
profiles from over 12.9 million known individuals and from over 565,000 crime scene samples.9 It has
been built with millions of dollars in federal funding,10 and law enforcement officials and politicians
routinely support its expansion.11 CODIS has survived every legal challenge it has faced.12 And it has
delivered many law enforcement victories.13 Nonetheless, many local agencies have turned away from
CODIS to set up their own local databases.14 Despite the emergence of local databases as a core
investigative tool, scholars and courts have not focused on their creation or use.15 This is in stark
contrast to the comprehensive attention paid to CODIS.16 This Article seeks to shift scholarly attention
from CODIS to these local databases. The analysis of local databases usually amounts to a paragraph or a
few sentences in a larger critique of CODIS, in which the commentator either pans their use, labeling
them "rogue" databases, or notes their promise as a new tool that can reduce crime, lock up offenders
who would have otherwise escaped detection, and generally revolutionize policing. This paltry coverage
contrasts with the buzz local databases have received in other circles. The topic has received significant
attention in police trade publications,17 and early adopters have offered unvarnished praise.18
Proponents of local databases argue that freedom from CODIS’s regulations allows police to maximize
the potential of genetic surveillance to solve crime. This belief has led several early adopters to become
evangelists for local databases, recruiting other police departments to create their own databases.19
These proponents herald local databases as a solution to an assortment of policing challenges, arguing
that they increase clearance rates while using fewer resources than other investigative methods; deter
criminal activity; decrease the opportunity for latent biases and negative stereotypes to affect policing
decisions; and strengthen the public’s perception of the police.20 No doubt, this list of positive
attributes is what the Supreme Court envisioned when it concluded that DNA “has the potential to
significantly improve both the criminal justice system and police investigative practices.”21 It is true that
law enforcement’s use of local databases has the potential to yield positive outcomes,22 but these
benefits must be weighed against the negative effects of expanded use. The external harms of local
databases arise from the gulf between how law enforcement is permitted to use CODIS and the wild
west of genetic surveillance practices currently permitted with local databases.23 For example, like
CODIS, local databases include genetic profiles from convicted individuals and arrestees. However, they
also often include genetic profiles of suspects (including juvenile suspects), witnesses, crime victims,
family members of victims, and citizens who responded to police DNA dragnets, which sometimes follow
violent, unsolved crimes. Furthermore, local agencies are free to search these databases however they
see fit, unconstrained by the regulations Congress adopted when it authorized CODIS24 and the
additional regulations the FBI promulgated for CODIS.25 As a result, local databases amplify some of the
same external harms generated by CODIS while simultaneously generating new ones. These harms
include exacerbating racial inequities, threatening privacy and dignity interests, and undermining the
legitimacy of law enforcement. While local databases have the potential to mitigate some of the racial
inequities in the criminal justice system by replacing police reliance on intuition and hunches with more
reliable investigative leads based on DNA evidence,26 local databases increase distributional inequities
because local police have total discretion about who to target for inclusion in these databases. This has
resulted in police seeking out the “usual suspects”—poor people of color—to secure DNA samples for
these databases.27 These databases threaten privacy and dignity interests in several ways. With respect
to privacy, they increase surveillance on innocent, lawabiding citizens, expand the use of familial DNA
searching, and have the potential to limit self-expression and self-determination for targeted
individuals.28 Furthermore, they impose dignity costs in the short- and longterm. There is the
immediate indignity and stigma associated with being stopped by police in public to provide a DNA
sample.29 And there is the long-term dignity cost when these stops communicate that someone needs
to be watched—not because he was arrested or convicted, but based on law enforcement’s belief that
he will be a future criminal. Collectively, these costs carry the potential to undermine the legitimacy of
law enforcement.30 As local agencies circumvented the federal regulations that govern CODIS by
creating their own databases, legislatures and courts have remained aloof, allowing these databases to
evolve with little oversight. However, the external costs generated by local databases demonstrate the
need for regulation; the current reliance on self-regulation is not sufficient. Law enforcement’s success
is commonly measured by a narrow focus on crime rates and clearance rates. As a result, police chiefs
lack incentives to identify and measure external costs of surveillance practices.31 Current external
regulations of genetic surveillance are also insufficient. The vast majority of local databases operate
outside of federal and state statutory regulations.32 Furthermore, these databases operate largely
beyond the reach of the Fourth Amendment because of their extensive reliance on obtaining DNA
samples by consent or from abandoned DNA.33 This freedom from regulation was welcomed by early
adopters of local databases. It was a driving force behind their creation.34 However, even proponents of
local databases recognize the value in embracing some external regulations.35 This Article offers five
modest yet effective proposals for reform.36 First, the Article calls for a robust mandatory recordkeeping scheme designed to minimize the potential for local databases to diminish privacy and dignity
interests and to exacerbate existing racial inequities in the criminal justice system. This requirement will
largely monitor the inputs of local databases—e.g., what profiles are included, from whom were they
collected, and in what manner were they secured. Second, the Article proposes that law enforcement
must have some minimal level of suspicion before seeking consensual DNA samples from people who
cannot be compelled to provide DNA samples—i.e., people other than arrestees and convicted
individuals—and that, when seeking consensual DNA samples, law enforcement must clearly disclose its
intent to add the resulting profile to its local database. This will curb law enforcement’s ability to
populate local databases with the “usual suspects,” a practice that will result in a disproportionate
number of profiles from people of color and other demographic minorities. Third, the Article calls for
prohibiting the inclusion of DNA profiles from victims. This will limit the crime-solving power of local
databases because the line between victims and perpetrators often shifts over time. Nevertheless, it will
help to ensure that victims do not have to pay a genetic surveillance tax in exchange for police
assistance. Fourth, the Article proposes a time limit for retaining DNA profiles from suspects to counter
the negative implications of the necessarily over-inclusive nature of local databases and to minimize the
privacy costs they inflict.37 Finally, the Article proposes comprehensive monitoring of local databases,
including tracking what searches are performed in order to monitor outputs and to deter deliberate
misuse. If reforms are not adopted, the negative effects of local databases will remain unchecked.
Future empirical work will be needed to accurately measure these external costs, but it is certainly
possible that they will outweigh the immediate crime-solving power of local databases. If that turns out
to be the case, two options remain for regulating local databases. First, states could follow Vermont’s
lead and abolish all non-CODIS databases.38 Second, states could take the opposite approach and
pursue population-wide databases. The latter option at least would address some of the negative
externalities of local databases by more fairly distributing the burdens of genetic surveillance across the
population. Having outlined its path in detail, the Article proceeds as follows. Part I sets the landscape,
documenting the fragmentation of genetic surveillance and explaining its causes. These causes include
law enforcement’s perception that CODIS is over-regulated, advancements in forensic DNA processing
combined with decreasing costs, federal funding that has allowed agencies to bypass local political and
budgetary processes, and a nascent genetic surveillance-industrial complex. After describing the
expansion of local databases, Part I provides a detailed description of the operations of the local
databases in Palm Bay, Florida; Bensalem Township, Pennsylvania; and the state of Arizona. This Section
fills a large hole in our collective knowledge of law enforcement’s use of genetic surveillance. Part II
identifies and examines the implications of the expansion of local databases, including analyzing their
external costs. This analysis is particularly important because the issues raised by local databases do not
map directly onto those raised by CODIS. This critique sets the stage for Part III, which identifies five
reforms for local databases and explains how these reforms can be implemented.
Emergent health surveillance models are creeping into genetics and DNA databases –
the federal government will wildly repurpose databases and push to make them
comprehensive – genetic surveillance society coming soon
Candice Roman-Santos (Corporate Counsel and Manager, Healthcare Compliance at Nevro, Associate,
Enterprise Regulatory Law Group, Juris Doctor, Certificate in Health Law & Policy, Health Law at
University of California, Hastings College of Law) 2011 “Concerns Associated with Expanding DNA
Databases” 2 Hastings Sci. & Tech. L. J. 267 http://hstlj.org/articles/concerns-associated-withexpanding-dna-databases/
VIII. Privacy Implications of DNA Privacy is not threatened by the means of obtaining DNA samples, but
rather the information inherent in DNA and the individual’s lack of control over such information.[cliii]
There are few subject areas more personal and more likely to implicate privacy interests than that of an
individual’s health or genetic make-up.[cliv] The concern is that as the uses for and access to the DNA
database increases, the threat to privacy also increases.[clv] DNA samples have been analogized to
medical information stored on a computer disk because both can be “read” by the application of
technology.[clvi] Though medical information may be strongly correlated with particular diseases, DNA
is inherently linked to one person (except in the case of identical twins).[clvii] An individual’s medical
information may change over the course of his or her lifetime (e.g., people being diagnosed with
diabetes, asthma, high cholesterol, or heart disease well into adulthood), but with the exception of
mutations, DNA does not change over time.[clviii] An individual’s medical information may have
implications for others (e.g., a virus infection has implications for others as the infected person may get
others sick), just as DNA has implications for individuals other than the person from whom the
information was derived.[clix] However, the implications of medical information are not as serious as
those of DNA, which involve invading the privacy of a person’s family when no family member is guilty of
any wrongdoing. Close relatives such as parents, siblings and children share about fifty percent of each
other’s genetic variants and STR lengths, and more distant relatives such as uncles, aunts, nephews,
nieces, grandparents, grandchildren, and half-siblings share about twenty-five percent of each other’s
DNA variants.[clx] Thus, using partial matches to identify potential suspects radically expands the power
and purpose of DNA databases, implicating a number of people who may have nothing to do with the
original crime. There are substantial differences between DNA profiles and ordinary fingerprints and it
trivializes DNA to call a DNA profile a genetic fingerprint.[clxi] Fingerprints are two-dimensional
representations of the physical attributes of fingertips and provide no information about a person other
than identity.[clxii] In addition to providing an individual’s identity, DNA can also provide medical
characteristics, physical attributes, who the individual may be related to, and other personal information
that, in the wrong hands, can perpetuate discriminatory practices.[clxiii] Whereas a latent fingerprint
provides a fixed amount of information, all of which is used by the forensic scientist, a DNA sample
provides a wealth of information and the forensic scientist has substantial control over the amount of
information to be obtained from the sample.[clxiv] DNA is more probative than fingerprints because
unlike fingerprints which establish that a suspect was present at a location and does not automatically
imply guilt, it is more difficult to advance innocent reasons for the presence of DNA in the form of bodily
fluids.[clxv] These differences are relevant to how DNA databases should be used and maintained,
especially considering the privacy concerns unique to DNA. Proponents of DNA databases claim that
DNA profiles consist merely of “junk DNA” that is incapable of revealing information about an
individual’s genetic make-up or health.[clxvi] However, a British team has discovered that the standard
DNA profile contains a subtle signature which can be linked to a person’s susceptibility to type 1
diabetes.[clxvii] This research was buried in an academic paper, did not comment on the implications for
forensic science, and has been overlooked by the forensic and legal communities.[clxviii] DNA forensic
testing relies on the principle that DNA profiles are only useful for identification, which is how people
justify storing DNA profiles on law enforcement computers because they do not infringe anyone’s
medical privacy.[clxix] Sir Alec Jeffreys was a member of the research team that made this discovery,
and he predicted that “further troubling links between DNA fingerprints and disease will emerge as
scientists probe the completed draft of the human genome.”[clxx] The U.S. has failed to employ
comprehensive privacy regulations that would prevent the government from sharing DNA profiles in a
DNA database with other groups, such as insurance companies, employers, or academia.[clxxi] DNA
database statutes can be grouped into broad categories based on authorized uses of both DNA profiles
and raw DNA samples: 1) statutes that allow access to DNA for non-law enforcement purposes, 2)
statutes that allow access to DNA information to public officials other than law enforcement, 3) statutes
that allow law enforcement to use DNA evidence for purposes other than identification, and 4) statutes
that do not require expungement of DNA records upon reversal.[clxxii] Some state laws, such as
Massachusetts, Louisiana and North Carolina, include a vague, open-ended authorization that allows the
database to be used for “other humanitarian purposes.” [clxxiii] Alabama’s statute explicitly authorizes
the creation and use of a DNA population statistical database “to provide data relative to the causation,
detection and prevention of disease or disability,” as well as to assist in educational or medical
research.[clxxiv] Mississippi’s law authorizes the Mississippi Crime Laboratory to determine any
restrictions, and Utah’s law provides insurance companies, psychologists, and other third parties with
access to information in the state DNA database.[clxxv] Some argue that creating a whole-population
database is logical because a larger database is more useful than a smaller one, and it has the added
effect of purging racial bias from the system, thereby avoiding criticisms of discrimination that result
from selective sampling of the population.[clxxvi] However, this alone is insufficient to justify a wholepopulation database, and for many the critical factor is not merely the creation of a whole-population
database of genetic profiles, but the retention of all of the DNA samples used to generate the genetic
profiles. The potential for the government to use the DNA samples for a purpose not originally
conceived of at the time that the DNA sample was obtained is frightening. The problem of function
creep will be explored in the next section. The United States, Germany, and other countries have been
guilty of implementing national programs in the name of eugenics that clearly violated human
rights.[clxxvii] The eugenics movement lost credibility after the rise of Nazism in the 1930s, but reemerged as a scientific endeavor and social issue following the advent of biotechnology in the
1970s.[clxxviii] Science fiction literature and movies have dealt with the issue of “new eugenics” – the
use of technology to make directed changes to human evolution.[clxxix] These works convey the danger
that the ability to manipulate an individual’s genetic makeup will result in removing physical and
behavioral traits not desired by society as a whole.[clxxx] The movie GATTACA is an example projecting,
from current knowledge and technology, a world where the new eugenics is a reality.[clxxxi] If
researchers are able to access the DNA profiles or DNA samples accumulated pursuant to a DNA
database statute, they will inevitably try to identify the genes responsible for particular traits.
Thousands of citizens would essentially be contributing to this future reality without their knowledge or
consent. This reality is not as far off as some may think. President George W. Bush enacted the Newborn
Screening Lives Act in April 2008, which mandates the screening of the DNA of all newborn babies in the
U.S., and sections of the bill make it clear that the DNA may be retained and later used in genetic
experiments and tests.[clxxxii] In addition, all 50 states now routinely provide the results of such tests to
the Department of Homeland Security.[clxxxiii] The National Conference of State Legislatures has
created a list of the various statutes or regulatory provisions by state under which newborns’ DNA is
being collected.[clxxxiv] IX. Function Creep State and federal DNA database statutes include no
provisions for destroying DNA samples once a DNA profile for inclusion in CODIS has been
generated.[clxxxv] Proponents of forensic DNA testing claim that retaining DNA samples is necessary
because science and technology is constantly improving and these samples may yield more information
in the future.[clxxxvi] Paul Ferrara, Director of Virginia’s DNA program, additionally claims that retaining
DNA samples is necessary so that agencies can rerun DNA profiles to verify cold hits before notifying law
enforcement agencies to further investigate, and that agencies encounter many different situations
requiring consultation with original database samples.[clxxxvii] The term function creep refers to the
“operationally driven use of the existing resource for new purposes not envisaged when the resource
was established,” which is “made possible by technological innovation and lack of inhibiting measures”
like public opposition or legislation.[clxxxviii] Historically, databases that were created in the U.S. for a
discrete purpose were eventually assigned new functions and purposes.[clxxxix] The government began
issuing drivers licenses in the name of public safety, and yet the average adult American citizen now has
more direct dealings with government through licensing and regulation of the automobile than through
any other single public activity.[cxc] Eventually, states began earning millions of dollars per year from
selling drivers’ personal information to direct marketers, charities, political campaigns and various
commercial interests.[cxci] An unintended consequence of this practice was the real threat to public
safety. In some instances, abuse of drivers’ personal information lead to murders.[cxcii] Congress
reacted by passing the Drivers Privacy Protection Act, which effectively prohibits the disclosure of
personal information obtained in connection with a motor vehicle record for unauthorized uses unless
the individual waives his or her right to privacy.[cxciii] The U.S. Supreme Court upheld the
constitutionality of the Drivers Privacy Protection Act, reasoning that it is a proper exercise of Congress’
authority to regulate interstate commerce under the Commerce Clause and does not violate principles
of federalism contained in the Tenth Amendment.[cxciv] The government introduced social security
numbers (SSNs) to track individuals’ accounts within the Social Security Program in 1935.[cxcv] Executive
Order 9397, issued in 1943, expanded its use by requiring federal agencies to use SSNs exclusively
whenever a new identification system for individuals needed to be created.[cxcvi] Eventually, the
Internal Revenue Service adopted the SSN as its official taxpayer identification number and the
Department of Defense began using SSNs to identify Armed Forces personnel. [cxcvii] Then during the
1970s, the Bank Records and Foreign Transactions Act required all financial institutions to obtain the
SSNs of all of their customers, the Privacy Act authorized local governments to use SSNs, and the Tax
Reform Act authorized registration authorities of a state or local tax, welfare, driver’s license, or motor
vehicle registration to use SSNs to establish identities.[cxcviii] Finally, in 1987, the Social Security
Administration began automatically issuing SSNs to newborns when the birth was registered by the
State, and currently all 50 states, plus Washington D.C. and Puerto Rico, participate in this
program.[cxcix] Once intended to track individuals’ accounts within the Social Security Program, SSNs
have become a universal identifier for individuals within the U.S. The U.S. Constitution expressly states
that “an enumeration shall be made within three Years after the first Meeting of the Congress of the
United States, and within every subsequent Term of ten Years in such Manner as they shall by Law
direct.”[cc] Census records are a constitutional requirement used to allocate congressional seats,
electoral votes and government program funding. Though the Constitution only requires a head count, a
substantial amount of data is collected during a census.[cci] More and more detailed information has
been gathered over the years, including data on race/ancestry, health, housing, and transportation.[ccii]
After the Japanese Attack on Pearl Harbor, census records were used to facilitate the internment of
Japanese-Americans.[cciii] Presently, however, census data cannot be used for any purpose other than
its intended statistical purposes, and no federal agency is allowed to access census reports.[cciv] The
Texas Tribune recently published a story about how the Department of State Health Services in Texas
turned over newborn DNA samples to an Armed Forces lab “to build a national and, someday,
international mitochondrial DNA registry.”[ccv] However, the newborn blood samples were stored
without parental consent and records uncovered government efforts to limit the public’s knowledge of
the state newborn blood program.[ccvi] Parents sued officials over these actions, but the state settled
the case quickly before anything could be revealed in the discovery phase.[ccvii] As of 2004, the
Department of Defense (“DOD”) had collected three million biological samples from service personnel
“for the stated purpose of identifying remains or body parts of a soldier killed on duty.”[ccviii] However,
samples are retained for fifty years, which greatly exceeds the subjects’ time with the military. Further
compounding the issue, the DOD has refused to establish regulations to guard against third parties
accessing the accumulated biological samples.[ccix] It is not hard to foresee pressures mounting to use
these biological samples for purposes other than identifying soldiers killed on duty, such as identifying
criminal suspects and medical research.[ccx] Although there is a Fourth Amendment concern associated
with obtaining DNA samples, the Fourth Amendment applies only to government action and is
inapplicable to private parties who do not act as agents of the government.[ccxi] This doctrine, however,
does not preclude the possibility that law enforcement may be able to access existing repositories of
DNA from cooperative private hospitals or laboratories, provided that the government had no
involvement in how the DNA was originally obtained and that the state is not engaging in any search or
seizure in acquiring DNA in this way.[ccxii] The National Bioethics Advisory Commission estimated that
as of 1998, more than 282 million human biological specimens were collected and stored in the U.S. for
research studies, newborn screening tests, organ banks, blood banks, forensic DNA databases, and for
other purposes, which increases at a rate of 20 million samples per year.[ccxiii] The issue lies in the fact
that an individual undergoing diagnostic tests or donating samples for clinical or research purposes has a
reasonable expectation of privacy that their test results and DNA will not be shared with a non-medical
third party without his or her consent.[ccxiv] Function creep has already begun with DNA databases as
law enforcement has expanded DNA collection to include new categories of people.[ccxv] Examples of
future uses of DNA databases include research to increase understanding of patterns of criminal
behavior, research to correlate genetic variation with disposition to certain behaviors, and creation of a
universal database by combining all existing databases to facilitate data sharing.[ccxvi] X. Conclusion
DNA database statutes provide inadequate privacy protections. There is a lack of national oversight, no
uniform quality control process of obtaining DNA samples and maintaining DNA databases, and there is
no consistency regarding who may access DNA databases and for what reasons. DNA is a useful crimefighting tool, but its potential makes it likely to be abused. Because DNA databases already exist, it is
hard to imagine that their viability will diminish in the future. Therefore, leaders must work to ensure
that all DNA profiles and DNA samples are used for the limited purpose for which they were collected,
and advocates should push for the eventual destruction of all DNA samples once DNA profiles have been
generated so that no one will be tempted to use them for purposes that go beyond forensic
identification. The way cold hit statistics are used to determine guilt or innocence in litigation is another
area of potential abuse. Increasingly, convictions are relying on DNA evidence alone. Moreover, when
the DNA evidence is a partial match on less than 13 loci, the risk of injustice is greater, as evidenced by
the report of Arizona’s DNA database in 2005. It is frightening that most people are blinded by a belief
that DNA is the panacea of crime detection and do not recognize the potential threat to privacy and
other civil liberties. Researchers should be provided with access to the genetic profiles within CODIS
after all of the personal identifiers have been removed so that they can conduct independent scientific
scrutiny to ensure the scientific integrity of DNA forensic science. The NDNAD in the UK is even more
controversial than the DNA databases in the U.S. Despite negative media coverage and successful legal
challenges to DNA collection and retention practices, British leaders are forging ahead with the hope of
one day expanding the database to cover the entire UK population. Given the history of eugenics and
discrimination in the U.S. and abroad and the atrocities that have befallen millions of innocent human
beings, everyone should be aware of and fear the dangers associated with becoming a genetic
surveillance society. If people are not vocal in opposing current DNA database practices, the only people
who will be shaping the future of how DNA is used are those with a political agenda who are not as
concerned with individual privacy and the ethics of their actions. As science and technology continue to
advance, visions of a brave new world that are the substance of science fiction movies like GATTACA
may no longer be a distant reality.
Racial biases have been routinely documented in study after study – genetic
surveillance codifies a new Jim Crow database that results in a new wave of
biopolitical eugenics
Dorothy Roberts (Kirkland & Ellis Professor, Northwestern University School of Law; faculty fellow,
Institute for Policy Research) 2011 “Collateral Consequences, Genetic Surveillance, and the New
Biopolitics of Race” 54 Howard L.J. 567 2010-2011, HeinOnline
II. THE COST OF SURVEILLANCE Government DNA data banking began as a targeted procedure to assist
law enforcement in identifying perpetrators of a narrow set of crimes.51 It has expanded into a form of
state surveillance that ensnares innocent people or petty offenders who have done little or nothing to
warrant the collateral intrusion into their private lives. Databanks no longer detect suspects-they create
suspects from an ever-growing list of categories. Even so, the public shows little alarm about the
massive retention of genetic information because the balance between protecting individual privacy and
keeping the streets safe seems to fall in favor of more law enforcement. DNA profiling is a far more
precise and objective method of identifying suspects compared to less sophisticated law enforcement
techniques, such as eyewitness identification or smudge fingerprints found at a crime scene.o Far from
feeling threatened by this gigantic storehouse of genetic data, many Americans see it as a surefire way
of catching criminals and ensuring that only guilty people are convicted of crimes.61 Storing an innocent
person's DNA seems a small price for such a great public good. The countless cases where DNA data
banking either yielded no benefit or produced erroneous identifications received little attention from
the media. Moreover, the public does not hear from the thousands of innocent people whose DNA was
seized and stored against their will. Although DNA testing has shed light on the injustice of false
convictions, it cannot solve the underlying problems that lead innocent people to be convicted in the
first place. Most wrongful convictions result from deep biases in the criminal justice system that make
poor, minority defendants vulnerable to police abuse, misidentification, and inadequate representation.
62 False confessions coerced by the police are one of the main causes of wrongful convictions.
According to the Innocence Project, "In about [twenty-five] percent of DNA exoneration cases, innocent
defendants made incriminating statements, delivered outright confessions or pled guilty."64 Coerced
false confessions were a factor in fifteen of thirty-three exonerations won by the Center on Wrongful
Convictions.65 It makes no sense to correct a problem created by law enforcement's abuse of power by
handing over even more authority to law enforcement in the form of DNA collection. The way to reduce
wrongful convictions is to remove the biases based on race and class that corrupt our criminal justice
system. Extending the reach of state surveillance does just the opposite. Besides, contrary to the public's
belief that DNA evidence is infallible, there have been numerous cases of errors in the handling and
analysis of DNA that have led to false accusations and convictions of innocent people.6 6 These
weaknesses in the state's use of DNA data banking as a tool for reducing crime make it harder to justify
the resulting breach of individual privacy. Society recognizes that the government violates its civil
liberties if it taps our telephones or secretly searches our homes without court permission. 7 Collecting
and storing our DNA is also a serious intrusion into our private lives because DNA is a part of the body;
taking it without consent violates our bodily integrity. In addition to this material aspect, DNA contains
sensitive personal information that can be used to identify our family members and us, can be matched
with other private records, including medical files. 8 Society tolerates the state forcibly extracting highly
personal data from people convicted of serious crimes because these offenders have a diminished right
to privacy as a result of their antisocial conduct. 9 But as the categories of people who are compelled to
submit DNA broaden, it becomes less clear why the state should have so much power over them. Once
compelled DNA collection goes beyond murderers, rapists, and armed robbers, law enforcement's need
for a sus- pect's DNA lessens and the right to retain control over their private information
strengthens.70 Although people convicted of heinous crimes may forfeit their claim to privacy, there is
no such justification for seizing genetic samples from someone who has, say, forged a check. State
agents should be required to obtain informed consent to take or test DNA from anyone who has not
been convicted of a serious crime. Although U.S. courts have been slow to recognize this threat to civil
liberties," in 2008, the European Court of Human Rights unanimously held that the United Kingdom's
storage of DNA for purposes of criminal investigation infringed privacy rights protected by Article 8 of
the European Convention.72 The European Court was especially troubled by the indefinite retention of
genetic information taken from children and adults who were never convicted of a crime,73 stigmatizing
them as if they were convicted criminals. This equation of the innocent and the guilty disregards the
presumption of innocence accorded to citizens in a democracy. Massive government collection of DNA
transforms the relationship between citizens and their government in ways that contradict basic
democratic principles.74 Government becomes the watchdog of citizens instead of the other way
around. Although they are guilty of no wrongdoing, huge segments of the population are perpetually
under suspicion. Citizens can no longer rely on the state to safeguard their privacy by forgetting their
past behavior because evidence about them is stored forever. The state has the authority to take
citizens' private property-in this case, their genetic information-without due process. 76 Those are
features of a totalitarian state, not a liberal democracy. III. JIM CROW DATABASES These privacy
violations are exacerbated by the racial inequities that plague every part of the U.S. criminal justice
system. The most stunning aspect of this injustice is the mass incarceration of African American men."
Radical changes in crime control, drug, and sentencing policies over the last thirty years produced an
explosion in the U.S. prison population from three hundred thousand to two million inmates."
Additionally, the United States has the highest rate of incarceration in the world at a magnitude
unprecedented in the history of Western democracies.79 The gap between black and white
incarceration rates has increased along with rising inmate numbers.o Black men are eight times as likely
as white men to be behind bars.8 ' One in nine black men aged twenty to thirty-four is in prison or in
jail.82 In fact, most people sentenced to prison today are black. In her 2010 book, The New Jim Crow,
legal scholar Michelle Alexander demonstrates that black incarceration functions like a modern-day Jim
Crow caste system because it "permanently locks a huge percentage of the African American community
out of the mainstream society and economy," replicating the subjugated status of blacks that prevailed
before the civil rights revolution.8 4 The targeted imprisonment of black men is translated into the
disproportionate storage of their genetic profiles in state and federal databases. We can look to the
United Kingdom to gauge the likely racial impact of our own federal database now that it has surpassed
theirs in size. Their database reveals that 40% of all black men and 77% of black men aged fifteen to
thirty-five, compared with only 6% of white men, were estimated to have genetic profiles in the UK
national DNA database in 2006.8 Also in 2006, Stanford bioethicist Hank Greely estimated that at least
40% of the genetic profiles in the U.S. federal database were from African Americans, although they
make up only 13% of the national population. 86 Sheldon Krimsky and Tania Simoncelli arrive at a similar
estimate in which 41 % to 49% of CODIS profiles are from African Americans." The extension of DNA
collection by the federal government and a number of states to people who are only arrested-as
opposed to charged or convicted-brings many more whites into the system, but it is also on its way to
creating a nearly universal database for urban black men.88 These men are arrested so routinely that
upwards of 90% would be included in databases if the collection policy is strictly enforced.8 9 In April
2010, Arizona Governor Jan Brewer signed a controversial law giving police broad authority to detain
anyone suspected of being in the country illegally.90 This law is held up as a model for immigration
enforcement policy in other states.91 When combined with congressional authorization of DNA
sampling from all federal detainees,92 these immigration laws will cause the number of Latino profiles
in CODIS and state databases to skyrocket. Police routinely consider race in their decision to stop and
detain an individual.93 A New York Times/CBS News Poll conducted in July 2008 asked: "Have you ever
felt you were stopped by the police just because of your race or ethnic background?" 94 Sixty-six
percent of black men said yes, compared to only 9% of white men.95 The United States Supreme Court
has authorized police to use race in determining whether there is reasonable cause to suspect someone
is involved in crime. 96 Michelle Alexander calls the Court's license to discriminate the "dirty little secret
of policing." 97 In recent decades, a conservative Supreme Court has eroded the Warren Court's
protections against police abuse in ways that promote the arrest of blacks and Latinos-relaxing, for
example, the standard for reasonable suspicion- and has blocked legal channels for challenging racial
bias on the part of law enforcement." There is overwhelming evidence that police officers stop motorists
on the basis of race for minor traffic violations, such as failure to signal a lane change, often as a pretext
to search the vehicle for drugs.99 One of the first confirmations of this was a 1992 Orlando Sentinel
study of police videotapes that discovered that, while blacks and Latinos represented only 5% of drivers
on the Florida interstate highway, they comprised nearly 70% of drivers pulled over by police and more
than 80% of those drivers whose cars were searched." A study of police stops on the New Jersey
Turnpike similarly found that, although only 15% of all motorists were minorities, 42% of all stops and
73% of all arrests were of black drivers.1ox In Maryland, only 21% of drivers along a stretch of 1-95
outside of Baltimore were African Americans, Asians, or Latinos, but these groups made up nearly 80%
of those who were stopped and searched.o 2 Likewise, an Illinois state police drug interdiction program,
known as Operation Valkyrie, targeted a disproportionate number of Latinos, who comprised less than
8% of the Illinois population but 30% of the drivers stopped by drug interdiction officers for petty traffic
offenses.os Police officers also make drug arrests in a racially biased manner. Although whites use drugs
in greater numbers than blacks, blacks are far more likely to be arrested for drug offenses-and,
therefore, far more likely to end up in genetic databases. 104 The latest National Survey on Drug Use
and Health, released in February 2010, confirms that young blacks aged eighteen to twenty-five years
old are less likely to use illegal drugs than the national average.os Yet, black men are twelve times more
likely than white men to be sent to prison on drug charges." This staggering racial disparity results in
part from the deliberate decision of police departments to target their drug enforcement efforts on
urban and inner-city neighborhoods where people of color live. Indeed, the increase in both the prison
population and its racial disparity in recent decades are largely attributable to aggressive street-level
enforcement of the drug laws and harsh sentencing of drug offenders. 0 7 A crusade of marijuana
arrests in New York City in the last decade provides a shocking illustration. 0 Since 1997, the New York
Police Department ("NYPD") has arrested 430,000 people for possessing tiny amounts of marijuana,
usually carried in their pockets." o' In 2008 alone, the NYPD arrested and jailed 40,300 people for the
infraction."f0 Even more alarming is the extreme racial bias shown in whom the police target for arrest.
Although U.S. government studies consistently show that young whites smoke marijuana at the highest
rates, white New Yorkers are the least likely of any group to be arrested."1 ' In 2008, whites made up
over 35% of the city's population but less than 10% of the people arrested for marijuana possession. 112
Instead, the NYPD has concentrated arrests on young blacks and Latinos. Police arrested blacks and
Latinos for marijuana possession at seven and four times the rate of whites, respectively."13 The racist
marijuana policing strategy is based on the routine police practice of stopping, frisking, and intimidating
young blacks and Latinos. According to Harry Levine, the City University of New York sociologist who
exposed the arrest campaign, "In 2008, the NYPD made more than half a million recorded stop and frisks
and an unknown number of unrecorded stops, disproportionately in black, Latino and low-income
neighborhoods."1 14 Although New York City is the "marijuana arrest capital of the world," other cities
like Atlanta, Baltimore, Denver, Houston, Los Angeles, Philadelphia, and Phoenix are also arresting and
jailing huge numbers of blacks and Latinos for marijuana possession.1 1 5 The widespread arrests of
young blacks and Latinos for marijuana possession and other petty offenses, such as truancy,
skateboarding, and playing loud music, have devastating consequences. A first-time offender who
pleads guilty to felony marijuana possession has a permanent criminal record that can block him or her
from getting a student loan, a job, a professional license, food stamps, welfare benefits, or public
housing.' Even if they avoid prison on a first offense, those who are arrested a second time risk a harsh
sentence for being a repeat offender."17 In addition to harsh sentencing, a lifetime of genetic
surveillance can now be added to the long list of collateral consequences created by discriminatory
arrests. IV. RACIAL HARMS Racial disparities in DNA databanks make communities of color the most
vulnerable to state surveillance and suspicion."' The disproportionate odds faced by blacks and Latinos
of having their DNA extracted and stored will, in turn, intensify the racial disparities that already exist in
the criminal justice system. People whose DNA is in criminal databases have a greater chance of being
matched to crime scene evidence. While a guilty person may have no right to complain, that is no
excuse for unfairly placing certain racial groups at greater risk of detection. Blacks and Latinos have
greater odds of being ge- netically profiled largely because of discriminatory police practices.119
Moreover, people whose profiles are entered in DNA databases become subject to a host of errors that
can lead to being falsely accused of a crime. As the federal government and a growing number of states
extend the scope of DNA collection to innocent people, they are imposing this unmerited risk primarily
on minorities. The problem is not only that all of these harms are placed disproportionately on people of
color, but also that the dangers of state databanks are multiplied when applied to blacks and Latinos
because these groups are already at a disadvantage when they encounter the criminal justice system.
Blacks and Latinos have fewer resources than whites to challenge abuses and mistakes by law
enforcement officers and forensic analysts.120 They are stereotyped as criminals before any DNA
evidence is produced, making them more vulnerable to the myth of DNA infallibility.121 "The
experience of being mistaken for a criminal is almost a rite of passage for African-American men," writes
journalist Brent Staples.122 One of the main tests applied by a disturbing number of Americans to
distinguish law-abiding from lawless people is their race. Many, if not most, Americans believe that black
people are prone to violence and make race-based assessments of the danger posed by strangers they
encounter. 23 One of the most telling reflections of the presumption of black criminality is biased
reporting of crime by white victims and eyewitnesses.124 Psychological studies show a substantially
greater rate of error in cross-racial identifications when the witness is white and the suspect is black. 25
White witnesses disproportionately misidentify blacks because they expect to see black criminals.126
According to Cornell legal scholar Sheri Lynn Johnson, "This expectation is so strong that whites may
observe an interracial scene in which a white person is the aggressor, yet remember the black person as
the aggressor."127 In numerous carefully staged experiments, social psychologists have documented
how people's quick judgments about the criminal acts of others are influenced by implicit bias-positive
or negative preferences for a social category, such as race or gender, based on unconscious stereotypes
and attitudes that people do not even realize they hold.' 28 Whites who are trying to figure out a
blurred object on a computer screen can identify it as a weapon faster after they are exposed to a black
face.129 Exposure to a white face has the opposite effect.130 Research participants playing a video
game that simulates encounters with armed and unarmed targets react faster and are more likely to
shoot when the target is black.' The implicit association between blacks and crime is so powerful that it
supersedes reality; it predisposes whites to see black people as criminals. Most wrongful convictions
occurred after witnesses misidentified the defendant.132 Databanks filled with DNA extracted from
guilty and innocent black men alike will enforce and magnify the very stereotypes of black criminality
that lead to so many wrongful convictions in the first place. Collecting DNA from huge numbers of
African Americans who are merely arrested, with no proof of wrongdoing, embeds the sordid myth of
black criminality into state policy. As databanks swell with DNA from black people who are arrested or
convicted on petty offenses and as their relatives also come under suspicion in states with familial
searching, the government effectively treats every black person in many communities as a criminal
suspect. It seemingly also legitimizes the myth that blacks have a genetic propensity to commit crime. In
2010, Florida State University criminologist Kevin Beaver published a widely reported study claiming to
show that young men with the low-activity form of the monoamine oxidase A ("MAOA") gene-dubbed
by the press as the "warrior gene"-were more likely to join gangs than those who had the high-activity
version of the MAOA gene.'33 He concluded that "male carriers of low MAOA activity alleles are at risk
for becoming a gang member and, once a gang member, are at risk for using weapons in a fight."' 34 The
public, who already implicitly associates blacks with violence, may link research claiming that genes
cause gangbanging and aggression to the disproportionate incarceration of African Americans along
with the disproportionate banking of African Americans' genetic profiles, to reach the false conclusion
that blacks are more likely to possess these crimeproducing traits-or even that most blacks actually
possess them. Americans will become even more indifferent to racial injustice in law enforcement if
they are convinced that black people belong behind bars because of their genetic predilection to crime.
CONCLUSION Despite the racial harms of DNA data banking, civil rights advocacy groups have done little
to challenge the threat posed by government genetic surveillance. Their silence stems from a tension
surrounding DNA testing. Although it is serving an unjust criminal justice system, DNA technology is also
responsible for one of the biggest successes in criminal justice reform. As of 2010, more than half (151
out of 254) post-conviction DNA exonerations involved African Americans.1' There could not be a better
public-relations campaign for DNA than the compelling stories of falsely imprisoned people released
after DNA testing. As criminologist Simon Cole notes, "At first glance, post-conviction DNA exonerations
appear to be a powerful example of the use of technoscience to offset social inequality."' 36 Civil rights
organizations that may have ordinarily opposed the expansion of DNA databanks because of their
intrusion into communities of color instead embrace DNA technology as a result of its ability to
exonerate victims of the system. However, while it appears DNA databanks would decrease mass
incarceration, this Article has argued that DNA databanks are actually more likely to intensify it and its
collateral consequences. Champions for racial justice who support expanded DNA databanks or are
silent about them should not make the mistake of embracing DNA technology without analyzing its full
role in the criminal justice system.' 7 Although DNA testing can correct injustices when used narrowly to
confirm a suspect's guilt or innocence, the massive genetic surveillance we are witnessing threatens to
reinforce the racial roots of the very injustices that need to be corrected. Wrongful convictions are a
symptom of our Jim Crow system of criminal justice, which is systematically biased against blacks and
Latinos. 38 Creating a Jim Crow database filled with their genetic profiles only intensifies this travesty of
justice, adding yet another collateral consequence of criminal injustice and fortifying a dangerous
biopolitics of race.
Racism makes all forms of violence inevitable, it must be rejected in every instance.
Memmi 2k - MEMMI Professor Emeritus of Sociology @ Unv. Of Paris Albert-; RACISM, translated by
Steve Martinot, pp.163-165
The struggle against racism will be long, difficult, without intermission, without remission, probably
never achieved, yet for this very reason, it is a struggle to be undertaken without surcease and without
concessions. One cannot be indulgent toward racism. One cannot even let the monster in the house,
especially not in a mask. To give it merely a foothold means to augment the bestial part in us and in
other people which is to diminish what is human. To accept the racist universe to the slightest degree
is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. It is
to agree that the outsider will always be a possible victim (and which [person] man is not [themself] himself an outsider relative to someone
else?). Racism illustrates in sum, the inevitable negativity of the condition of the dominated; that is it illuminates in a certain sense the entire
The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues
to the ultimate passage from animality to humanity. In that sense, we cannot fail to rise to the racist
challenge. However, it remains true that one’s moral conduct only emerges from a choice: one has to want it. It is a choice among other
human condition.
choices, and always debatable in its foundations and its consequences. Let us say, broadly speaking, that the choice to conduct oneself
morally is the condition for the establishment of a human order for which racism is the very negation. This is almost a redundancy. One
cannot found a moral order, let alone a legislative order, on racism because racism signifies the exclusion of the
other and his or her subjection to violence and domination. From an ethical point of view, if one can deploy a little religious
language, racism is “the truly capital sin.”fn22 It is not an accident that almost all of humanity’s spiritual traditions counsel respect
for the weak, for orphans, widows, or strangers. It is not just a question of theoretical counsel respect for the weak, for orphans, widows or
strangers. It is not just a question of theoretical morality and disinterested commandments. Such unanimity in the safeguarding of the other
suggests the real utility of such sentiments. All things considered, we
have an interest in banishing injustice, because
injustice engenders violence and death. Of course, this is debatable. There are those who think that if one is strong enough,
the assault on and oppression of others is permissible. But no one is ever sure of remaining the strongest. One day, perhaps, the roles will be
reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter to treat others
with respect so that they treat you with respect. “Recall,” says the bible, “that you were once a stranger in Egypt,” which means both that you
ought to respect the stranger because you were a stranger yourself and that you risk becoming once again someday. It is an ethical and a
practical appeal – indeed, it is a contract, however implicit it might be. In
short, the refusal of racism is the condition for
all theoretical and practical morality. Because, in the end, the ethical choice commands the political
choice. A just society must be a society accepted by all. If this contractual principle is not accepted,
then only conflict, violence, and destruction will be our lot. If it is accepted, we can hope someday to live in peace.
True, it is a wager, but the stakes are irresistible.
1AC Impact Framing
Their impacts are a function of neuroscientific biases and heuristics – reject their risk
framing – war, terrorism, and mass political conflict wont happen and wont escalate
Rauch 03/2015 (Jonathan Rauch, senior fellow at the Brookings Institution, contributing editor of National Journal and
The Atlantic. “Be Not Afraid,” published in the March 2015 issue of The Atlantic
http://www.theatlantic.com/magazine/archive/2015/03/be-not-afraid/384965/)
It often befalls presidents to be most criticized in office for what later turn out to have been their particular strengths. Disparaged at the time as
simplemindedness, timidity, and slickness, Ronald Reagan’s firmness, George H. W. Bush’s caution, and Bill Clinton’s adaptability look in
hindsight like features, not bugs. (Unfortunately, George W. Bush’s bugs still look like bugs.) President Obama catches flak for his supposed
underreaction to crises in the Middle East, Ukraine, and elsewhere. Instead of leading, the professorial president lectures the American public
not to be so darned worried. “If you watch the nightly news, it feels like the world is falling apart,” he said last August. “I promise you things
are much less dangerous now than they were 20 years ago, 25 years ago, or 30 years ago. This is not something that is
comparable to the challenges we faced during the Cold War.” Blame social media, he tells us, for shoving so much upsetting stuff in our faces.
Naturally, Obama’s pontifications draw protests. “I strongly disagree with the president’s assertion last night that America is safer,” said
Senator John McCain. “By no objective measurement is America safer.” Danger abounds! In 2012, General Martin Dempsey, the chairman of
the Joint Chiefs of Staff, pronounced the world “more dangerous than it has ever been.” That was before the Islamic State, or ISIS, took over
swaths of Iraq. Senator Lindsey Graham has warned that failure to defeat ISIS “will open the gates of hell to spill out on the world.” Obama
appears to have his doubts: a few months after Chuck Hagel, then the defense secretary, pronounced ISIS an “imminent” threat, not just to the
United States but “to every stabilized country on Earth,” Obama sacked him. The American people deserve to hear complex, multifaceted
debates about any number of complex, multifaceted matters. This is not one of them. Obama is simply right. The
alarmists are simply
wrong. America is safer than it has ever been and very likely safer than any country has ever been, a fact that politicians and
the public are curiously reluctant to believe. Danger is a broad category. In principle, it includes everything from workplace accidents and
natural disasters to infectious diseases and pollution. In pretty much all of those categories, we’re doing well, although we have much work to
do. For present purposes, however, let’s limit ourselves to threats in the usual political sense: malevolent violence against Americans. The
Historically, warfare has been the biggest violent killer of
humans. According to Steven Pinker, the author of The Better Angels of Our Nature: Why Violence Has Declined, today is probably the
most peaceful time in human history. By the numbers, he writes, “the world was a far more dangerous
place” in the 1960s, ’70s, and ’80s. According to the Uppsala Conflict Data Program, armed conflicts have declined by
almost 40 percent since right after the end of the Cold War. “Today,” write Micah Zenko and Michael A. Cohen in Foreign Affairs,
“wars tend to be low-intensity conflicts that, on average, kill about 90 percent fewer people than did violent
struggles in the 1950s.” War between major nation-states has dwindled to the verge of extinction. In the
context of human evolution, this is an astounding development. Of course, the world remains turbulent, but most of today’s military
conflict, as in Syria right now, takes the form of civil war rather than war between nations, and implicates
American interests but not American lives (unless America enters the fighting). The United States faces no
plausible military invader or attacker. All we are really talking about, when we discuss threats from Iran
or North Korea or ISIS, is whether our margin of safety should be very large or even larger. “No great
power in world history comes close to enjoying the traditional state security that the United States does
today,” writes Stephanie Rugolo in A Dangerous World? Threat Perception and U.S. National Security, a new collection of essays from the
major menaces here would be warfare, crime, and terrorism.
Cato Institute. Here at home, criminal violence is, as ever, a serious problem. But its reduction over the past couple of decades is one of the
great success stories of our time. The violent-crime rate (which excludes homicides) has declined by more than 70 percent since the early
1990s. The homicide rate has declined by half, and in 2011 it reached the lowest level since 1963. According to the National Crime Victimization
Survey, between 1995 and 2010 the rate of rape and sexual assault fell from five per 1,000 females to two. And how do Americans
celebrate this extraordinary success? By denying it. Every year Gallup asks whether crime has gone up or down since the previous
year. Every year, rain or shine, the public insists, usually by overwhelming margins (63 percent to 21 percent in 2014), that crime has risen.
“Most Americans Unaware of Big Crime Drop Since 1990s,” announced the Pew Research Center in 2013; only 10 percent of those surveyed
knew that gun crimes had gone down since the 1990s. Criminologists say that many people get angry when told that crime is decreasing.
Perception is even more skewed where terrorism is concerned. “Terror-ism Worries Largely Unchanged,” ran another
Pew headline, also in 2013. That year, 58 percent of the public was worried about another terrorist attack in the
United States,
a rate not all that much lower in October 2001, immediately after the 9/11 attacks, when 71 percent of
the public was worried. A few months ago, perhaps influenced by ISIS’s atrocities, a large plurality of respondents told NBC
News/Wall Street Journal pollsters that the country is less safe than it was before 9/11. Reality, once again, tells
us otherwise. State-sponsored international terrorism, writes the intelligence analyst Paul R. Pillar in Cato’s A Dangerous
World?, “is today only a shadow of what it was in the 1970s and 1980s.” As for the risk posed by terrorism inside the
United States, to characterize it as trivial would be very generous. Americans are about four times as likely
to drown in their bathtub as they are to die in a terrorist attack. John Mueller of Ohio State University and Mark G.
Stewart of Australia’s University of Newcastle estimate the odds of such deaths at one in 950,000 and one in 3.5 million,
respectively. Surely we can at least agree to worry about a nuclear Iran, or nuclear terrorism, or ISIS? All are
indeed worrisome, but Mueller persuasively argues that none merits the alarm it begets. Since Nagasaki in 1945, the
few countries that have obtained nuclear weapons—including dangerous rogue states like Mao’s China, the Iran
of its day—have consistently found them militarily and diplomatically useless, except as ego boosters and
perhaps as defensive weapons to forestall attack. The odds of terrorists’ obtaining and deploying nuclear weapons
are much lower than most people appreciate, for a host of technical and political reasons. ISIS, meanwhile, is
an unusually vicious and destabilizing actor in a region that is full of them, but its menace has been almost entirely local. (In this
issue’s cover story, Graeme Wood examines this threat, and the appropriate response, in detail.) Pinker, a psychologist at Harvard, mused in a
recent speech about Americans’ odd refusal to appreciate their security. The bad news for Obama, if Pinker is correct, is that presidential
palaver will have no effect, because people
are hardwired to overreact to threats, real or perceived. In today’s world,
social systems keep us safer than our forebears could ever have imagined, overreaction is
maladaptive: it is often more disruptive and damaging than whatever provoked it. In the world we evolved for,
where intricate
however, humans needed to be hyperalert. Something rustling in the bush was more likely to be a predator or an enemy than a friend with glad
tidings. Moreover, Pinker says, people
are biased to overestimate the likelihood of the sorts of events that stand
out in our memory, as violence and mayhem do, and as peace and quiet do not. Add alarmism’s
usefulness to politicians and pressure groups, and you have a standing order for overreaction—always, not
just now. Still, now is special. Given how safe we are, and how frightened people nonetheless feel, it seems unlikely that
Americans’ threat perception has ever before been quite as distorted as it is today. Never have so many feared so little,
so much. In an era of overreaction, a president who lectures the public about its insecurities, instead of pandering to its fears, necessarily
seems impolitic, out of touch, tone-deaf, pedantic, negligent, complacent—choose your adjective. For precisely that reason, we can be grateful
his instinct is to underreact. Historians will thank him, even if we don’t, for his steadfastness in the face of unprecedented safety.
“Miscalculation” and “escalation” are not things – warfare and conflicts will not go
nuclear
Quinlan ‘9 (Sir Michael Quinlan, Former Permanent Under-Secretary of State UK Ministry of Defense,
Thinking About Nuclear Weapons: Principles, Problems, Prospects, p. 63-69, The book reflects the
author's experience across more than forty years in assessing and forming policy about nuclear
weapons, mostly at senior levels close to the centre both of British governmental decision-making and
of NATO's development of plans and deployments, with much interaction also with comparable levels of
United States activity in the Pentagon and the State department, 2009)
There have certainly been, across the decades since 1945, many known accidents involving nuclear
weapons, from transporters skidding off roads to bomber aircraft crashing with or accidentally dropping
the weapons they carried (in past days when such carriage was a frequent feature of readiness
arrangements it no longer is). A few of these accidents may have released into the nearby environment
highly toxic material. None however has entailed a nuclear detonation. Some commentators suggest
that this reflects bizarrely good fortune amid such massive activity and deployment over so many years.
A more rational deduction from the facts of this long experience would however be that the probability
of any accident triggering a nuclear explosion is extremely low. It might be further nested that the
mechanisms needed to set of such an explosion are technically demanding, and that in a large number
of ways the past sixty years have seen extensive improvements in safety arrangements for both the
design and the handling of weapons. It is undoubtedly possible to see respects in which, after the cold
war, some of the factors bearing upon risk may be new or more adverse; but some are now plainly less
so. The years which the world has come through entirely without accidental or unauthorized detonation
have included early decades in which knowledge was sketchier, precautions were less developed, and
weapon designs were less ultra-safe than they later became, as well as substantial periods in which
weapon numbers were larger, deployments immure widespread arid diverse, movements more
frequent, and several aspects of doctrine and readiness arrangements more tense. Similar
considerations apply to the hypothesis of nuclear war being mistakenly triggered by false alarm. Critics
again point to the fact, as it is understood, of numerous occasions when initial steps in alert sequences
for US nuclear forces were embarked upon, or at least called for, by indicators mistaken or
misconstrued. In none of these instances, it is accepted, did matters get at all near to nuclear launch—
extraordinary good fortune again, critics have suggested. But the rival and more logical inference from
hundreds of events stretching over sixty years of experience presents itself once more: that the
probability of initial misinterpretation leading far towards mistaken launch is remote. Precisely because
any nuclear weapon processor recognizes the vast gravity of any launch, release sequences have many
steps, and human decision is repeatedly interposed as well as capping the sequences. To convey that
because a first step was prompted the world somehow came close to accidental nuclear war is wild
hyperbole, rather like asserting, when a tennis champion has lost his opening service game, that he was
nearly beaten in straight sets. History anyway scarcely offers any ready example of major war started by
accident even before the nuclear revolution imposed an order-of-magnitude increase of caution.
It was occasionally conjectured that nuclear war might be triggered by the real but accidental or
unauthorized launch of a strategic nuclear-weapon delivery system in the direction of a potential adversary. No such launch is known to have occurred in over sixty years. The probability of it is therefore very
low. But even if it did happen, the further hypothesis of its initiating a general nuclear exchange is far-fetched. It
fails to consider the real situation of decision-makers, as pages 63-4 have brought out. The notion that cosmic
holocaust might be mistakenly precipitated in this way belongs to science fiction. One special form of
miscalculation appeared sporadically in the speculations of academic commentators, though it was
scarcely ever to be encountered—at least so far as my own observation went—in the utterances of practical
planners within government. This is the idea that nuclear war might be erroneously triggered, or erroneously widened, through a
state under attack misreading either what sort of attack it was being subjected to, or where the attack came from. The postulated
misreading of the nature of the attack referred in particular to the hypothesis that if a delivery system—normally a
missile—that was known to be capable of carrying either a nuclear or a conventional warhead was launched
in a conventional role, the target country might, on detecting the launch through its earlywarning
systems, misconstrue the mission as an imminent nuclear strike and immediately unleash a nuclear
counter-strike of its own. This conjecture was voiced, for example, as a criticism of the proposals for giving the US Trident SLBM, long
associated with nuclear missions, a capability to deliver conventional warheads. Whatever the merit of those proposals (it is not explored here),
it is hard to regard this particular apprehension as having any real-life credibility. The flight time of a
ballistic missile would not exceed about thirty minutes, and that of a cruise missile a few hours, before
arrival on target made its character—conventional or nuclear—unmistakable. No government will need,
and no non-lunatic government could wish, to lake within so short a span of time a step as enormous
and irrevocable as the execution of a nuclear strike On the basis of early-warning information alone without knowing the
true nature of the incoming attack. The
speculation tends moreover to be expressed without reference either to
any realistic political or conflict-related context thought to render the episode plausible, or to the
manifest interest of the launching country, should there be any risk of doubt, in ensuring—by explicit
communication if necessary—that there was no misinterpretation of its conventionally armed launch. It
may be objected to this analysis that in the cold war the two opposing superpowers had concepts of launch-on-warning. That seems to be true,
at least in the sense that successive US administrations declined to rule out such an option and indeed included in their contingency plans both
this and the possibility of launch-under-attack (that is launch after some strikes had been suffered and while the sequence of them was
evidently continuing). The Soviet Union was not likely to have had more relaxed practices. But the colossal gravity of activating any such
arrangements must always have been recognized. It could have been contemplated only in circumstances where the entire political context
made a pre-emptive attack by the adversary plainly a serious and imminent possibility, and where moreover the available information
unmistakably indicated that a massive assault with hundreds or thousands of missiles was on the way. That was a scenario wholly unlike that
implicit in the supposition that a conventional missile attack might be briefly mistaken for a nuclear one. The
other sort of
misunderstanding conjectured—that of misreading the source of attack—envisaged, typically, that SLBMs launched
by France or the United Kingdom might erroneously be supposed to be coming from US submarines, and so might initiate a superpower
exchange which the United States did not in fact intend. (An occasional variant on this was the notion that 'triggering' in this way might actually
be an element in deliberate French or UK deterrent concepts. There was never any truth in this guess in relation to the United Kingdom, and
French thinking is unlikely to have been different.) The
unreality in this category of conjecture lay in the implication
that such a scenario could develop without the US government making the most determined efforts to
ensure that Soviet (or now Russian) leaders knew that the United States was not responsible for the attack,
and with those leaders for their part resorting, on unproven suspicion, to action that was virtually
certain to provoke nuclear counter-action from the United States. There used occasionally to be another speculation,
that if the Soviet Union suffered heavy nuclear strikes known to come from France or the United Kingdom, it might judge its interests to be best
served by ensuring that the United States did not remain an unscathed bystander.
But even if that were somehow thought
marginally less implausible, it would have been a different matter from misinterpretation of the initial
strike. As was noted earlier in this chapter, the arrangements under which nuclear-weapon inventories are now managed are in several
important respects already much less open to concern than they were during much of the cold war. Worries voiced more recently
sometimes relate to 'cyber-attack'—hostile interference, whether by states or by other actors such as terrorists, with information
systems used in the control of armouries. It is highly unlikely, though details are (again understandably) not made public,
that regular reviews of control arrangements are oblivious to any such risks. Perceptions of them do however
reinforce the already-strong case that whatever arrangements still remain in place for continuous high readiness to launch nuclear action at
short notice should be abandoned. Chapter 13 returns to this.
Structural violence outweighs
Scheper-Hughes and Bourgois, 4 – professor of anthropology and Cal-Berkeley; professor of
anthropology at University of Pennsylvennia (Nancy and Philippe, “Introduction: Making Sense of
Violence, in Violence in War and Peace,” 2004, pg. 19-22) //RGP
This large and at first sight “messy” Part VII is central to this anthology’s thesis. It encompasses everything from the routinized, bureaucratized,
and utterly banal violence of children dying of hunger and maternal despair in Northeast Brazil (Scheper-Hughes, Chapter 33) to elderly African
Americans dying of heat stroke in Mayor Daly’s version of US apartheid in Chicago’s South Side (Klinenberg, Chapter 38) to the racialized class
hatred expressed by British Victorians in their olfactory disgust of the “smelly” working classes (Orwell, Chapter 36). In these readings violence
is located in the symbolic and social structures that overdetermine and allow the criminalized drug addictions, interpersonal bloodshed, and
racially patterned incarcerations that characterize the US “inner city” to be normalized (Bourgois, Chapter 37 and Wacquant, Chapter 39).
Violence also takes the form of class, racial, political self-hatred and adolescent self-destruction (Quesada,
Chapter 35), as well as of useless (i.e. preventable), rawly embodied physical suffering, and death (Farmer, Chapter 34). Absolutely
central to our approach is a blurring of categories and distinctions between wartime and peacetime
violence. Close attention to the “little” violences produced in the structures, habituses, and mentalites of
everyday life shifts our attention to pathologies of class, race, and gender inequalities. More important, it
interrupts the voyeuristic tendencies of “violence studies” that risk publicly humiliating the powerless who are often forced into complicity with
social and individual pathologies of power because suffering is often a solvent of human integrity and dignity. Thus, in this anthology we
are
positing a violence continuum comprised of a multitude of “small wars and invisible genocides” (see also
Scheper- Hughes 1996; 1997; 2000b) conducted in the normative social spaces of public schools, clinics, emergency rooms,
hospital wards, nursing homes, courtrooms, public registry offices, prisons, detention centers, and public morgues. The violence
continuum also refers to the ease with which humans are capable of reducing the socially vulnerable
into expendable nonpersons and assuming the license - even the duty - to kill, maim, or soul-murder. We realize that in referring to a
violence and a genocide continuum we are flying in the face of a tradition of genocide studies that argues for the absolute uniqueness of the
Jewish Holocaust and for vigilance with respect to restricted purist use of the term genocide itself (see Kuper 1985; Chaulk 1999; Fein 1990;
Chorbajian 1999). But we hold an opposing and alternative view that, to the contrary, it is
absolutely necessary to make just
such existential leaps in purposefully linking violent acts in normal times to those of abnormal times.
Hence the title of our volume: Violence in War and in Peace. If (as we concede) there is a moral risk in overextending the concept of “genocide”
into spaces and corners of everyday life where we might not ordinarily think to find it (and there is), an even greater risk lies in failing to
sensitize ourselves, in misrecognizing protogenocidal practices and sentiments daily enacted as normative behavior by “ordinary” good-enough
citizens. Peacetime crimes, such as prison construction sold as economic development to impoverished communities in the mountains and
deserts of California, or the evolution of the criminal industrial complex into the latest peculiar institution for managing race relations in the
United States (Waquant, Chapter 39), constitute the “small wars and invisible genocides” to which we refer. This applies to African American
and Latino youth mortality statistics in Oakland, California, Baltimore, Washington DC, and New York City. These
are “invisible”
genocides not because they are secreted away or hidden from view, but quite the opposite. As Wittgenstein
observed, the things that are hardest to perceive are those which are right before our eyes and therefore
taken for granted. In this regard, Bourdieu’s partial and unfinished theory of violence (see Chapters 32 and 42) as well as his concept of
misrecognition is crucial to our task. By including the normative everyday forms of violence hidden in the minutiae of “normal” social practices in the architecture of homes, in gender relations, in communal work, in the exchange of gifts, and so forth - Bourdieu forces us to reconsider
the broader meanings and status of violence, especially the links between the violence of everyday life and explicit political terror and state
repression, Similarly, Basaglia’s notion of “peacetime crimes” - crimini di pace - imagines a direct relationship between wartime and peacetime
violence. Peacetime crimes suggests the possibility that war crimes are merely ordinary, everyday crimes of public consent applied systematically and dramatically in the extreme context of war. Consider the parallel uses of rape during peacetime and wartime, or the family
resemblances between the legalized violence of US immigration and naturalization border raids on “illegal aliens” versus the US governmentengineered genocide in 1938, known as the Cherokee “Trail of Tears.” Peacetime crimes suggests that everyday forms of state violence make a
certain kind of domestic peace possible. Internal “stability” is purchased with the currency of peacetime crimes, many of which take the form
of professionally applied “strangle-holds.” Everyday forms of state violence during peacetime make a certain kind of domestic “peace” possible.
It is an easy-to-identify peacetime crime that is usually maintained as a public secret by the government and by a scared or apathetic populace.
Most subtly, but no less politically or structurally, the phenomenal growth in the United States of a new military, postindustrial prison industrial
complex has taken place in the absence of broad-based opposition, let alone collective acts of civil disobedience. The public consensus is based
primarily on a new mobilization of an old fear of the mob, the mugger, the rapist, the Black man, the undeserving poor. How many public
executions of mentally deficient prisoners in the United States are needed to make life feel more secure for the affluent? What can it possibly
mean when incarceration becomes the “normative” socializing experience for ethnic minority youth in a society, i.e., over 33 percent of young
African American men (Prison Watch 2002). In the end it
is essential that we recognize the existence of a genocidal
capacity among otherwise good-enough humans and that we need to exercise a defensive
hypervigilance to the less dramatic, permitted, and even rewarded everyday acts of violence that render
participation in genocidal acts and policies possible (under adverse political or economic conditions), perhaps more easily than we would like to
recognize. Under the violence continuum we include, therefore, all expressions of radical social exclusion, dehumanization, depersonal- ization,
pseudospeciation, and reification which normalize atrocious behavior and violence toward others. A constant self-mobilization for alarm, a
state of constant hyperarousal is, perhaps, a reasonable response to Benjamin’s view of late modern history as a chronic “state of emergency”
(Taussig, Chapter 31). We are trying to recover here the classic anagogic thinking that enabled Erving Goffman, Jules Henry, C. Wright Mills, and
Franco Basaglia among other mid-twentieth-century radically critical thinkers, to perceive the symbolic and structural relations, i.e., between
inmates and patients, between concentration camps, prisons, mental hospitals, nursing homes, and other “total institutions.” Making that
decisive move to recognize the continuum of violence allows us to see the capacity and the willingness - if not enthusiasm - of ordinary people,
the practical technicians of the social consensus, to enforce genocidal-like crimes against categories of rubbish people. There is no primary
impulse out of which mass
violence and genocide are born, it is ingrained in the common sense of everyday
social life.
The mad, the differently abled, the mentally vulnerable have often fallen into this category of the unworthy living, as have the
very old and infirm, the sick-poor, and, of course, the despised racial, religious, sexual, and ethnic groups of the moment. Erik Erikson referred
to “pseudo- speciation” as the human tendency to classify some individuals or social groups as less than fully human - a prerequisite to
genocide and one that is carefully honed during the unremark- able peacetimes that precede the sudden, “seemingly unintelligible” outbreaks
of mass violence. Collective denial and misrecognition are prerequisites for mass violence and genocide. But so
are formal bureaucratic structures and professional roles. The practical technicians of everyday violence in the backlands of Northeast Brazil
(Scheper-Hughes, Chapter 33), for example, include the clinic doctors who prescribe powerful tranquilizers to fretful and frightfully hungry
babies, the Catholic priests who celebrate the death of “angel-babies,” and the municipal bureaucrats who dispense free baby coffins but no
food to hungry families. Everyday violence encompasses the implicit, legitimate, and routinized forms of violence inherent in particular social,
economic, and political formations. It is close to what Bourdieu (1977, 1996) means by “symbolic violence,” the violence that is often “nusrecognized” for something else, usually something good. Everyday violence is similar to what Taussig (1989) calls “terror as usual.” All these
terms are meant to reveal a public secret - the hidden links between violence in war and violence in peace, and between war crimes and
“peace-time crimes.” Bourdieu (1977) finds domination and violence in the least likely places - in courtship and marriage, in the exchange of
gifts, in systems of classification, in style, art, and culinary taste- the various uses of culture. Violence, Bourdieu insists, is everywhere in social
practice. It is misrecognized because its very everydayness and its familiarity render it invisible. Lacan identifies “rneconnaissance” as the
prerequisite of the social. The exploitation of bachelor sons, robbing them of autonomy, independence, and progeny, within the structures of
family farming in the European countryside that Bourdieu escaped is a case in point (Bourdieu, Chapter 42; see also Scheper-Hughes, 2000b;
Favret-Saada, 1989). Following Gramsci, Foucault, Sartre, Arendt, and other modern theorists of power-vio- lence, Bourdieu treats direct
aggression and physical violence as a crude, uneconomical mode of domination; it is less efficient and, according to Arendt (1969), it is certainly
less legitimate. While power and symbolic domination are not to be equated with violence - and Arendt argues persuasively that violence is to
be understood as a failure of power - violence, as we are presenting it here, is more than simply the expression of illegitimate physical force
against a person or group of persons. Rather, we need to understand violence as encompassing all forms of “controlling processes” (Nader
1997b) that assault basic human freedoms and individual or collective survival. Our task is to recognize these gray zones of violence which are,
by definition, not obvious. Once again, the point of bringing into the discourses on genocide everyday, normative experiences of reification,
depersonalization, institutional confinement, and acceptable death is to help answer the question: What
makes mass violence and
genocide possible? In this volume we are suggesting that mass violence is part of a continuum, and that it is socially incremental
and often experienced by perpetrators, collaborators, bystanders - and even by victims themselves - as expected,
routine, even justified. The preparations for mass killing can be found in social sentiments and institutions from the family, to schools,
churches, hospitals, and the military. They harbor the early “warning signs” (Charney 1991), the “priming” (as Hinton, ed.,
2002 calls it), or the “genocidal continuum” (as we call it) that push social consensus toward devaluing certain forms of
human life and lifeways from the refusal of social support and humane care to vulnerable “social
parasites” (the nursing home elderly, “welfare queens,” undocumented immigrants, drug addicts) to the militarization of
everyday life (super-maximum-security prisons, capital punishment; the technologies of heightened personal security, including the house
gun and gated communities; and reversed feelings of victimization).
1AC Plan
The United States Federal Government should apply strict scrutiny to federally funded
public health surveillance programs.
***Solvency***
Solvency – Informed Consent
Breach notifications fulfill informed consent – increases trust
Pritts 13 (Joy L. Pritt. “The Importance and Value of Protecting the Privacy of Health Information: The
Roles of the HIPAA Privacy Rule and the Common Rule in Health Research.” 2013. P. 9-10.
http://iom.nationalacademies.org/~/media/Files/Activity%20Files/Research/HIPAAandResearch/PrittsPr
ivacyFinalDraftweb.ashx)//EMerz
Under the principles of fair information practices, patients should be given notice, in plain language, of
the information practices of those who generate and maintain their health information. The notice
should inform patients how information will be used and to whom it will be disclosed. Notices can also
serve to bolster trust between health care providers and patients to the extent they remove the
element of surprise about the use and disclosure of health information. Although there seems to be
little dispute that the principle of providing a notice of information practice is a sound one, only a few
states require health care providers to Under accepted principles of fair information practices, those
who maintain identifiable health information should have in place appropriate safeguards to protect
unauthorized use or disclosure of the information. These safeguards identify the means by which a
provider protects the confidentiality of health information. A few states such as California, Florida and
Washington have statutorily required providers to undertake security measures to ensure that health
information is used and disclosed properly. Florida, for example, requires those who maintain medical
records to develop and implement policies, standards, and procedures to protect the confidentiality and
security of the medical record, and to train their employees in these policies, standards, and procedures.
Solvency – Data Deletion
Congress should delete DNA databases- not doing so enforces the panopticon
McNeal 13 (Gregory S. McNeal. Associate Professor of Law and Public Policy at Pepperdine University.
“Congress Should Act To Protect DNA From Genetic Surveillance.” June 3, 2013.
http://www.forbes.com/sites/gregorymcneal/2013/06/03/congress-should-act-to-protect-dna-fromgenetic-surveillance/)//EMerz
It’s time for innocent people to open their mouths for royal inspection and DNA collection by agents of
the government. That is the likely consequence of the Supreme Court’s opinion in Maryland v. King, at
least in the view of Justice Scalia who believes that innocent people wrongfully arrested may now have
their DNA collected and permanently stored in a national database. To protect the genetic information
of innocent arrestees, Congress should take a cue from our royal forebears and adopt legislation similar
to that which the U.K. adopted in May of 2012. In today’s opinion in Maryland v. King, the Court
authorized the collection of DNA from anyone arrested for a “serious crime.” While the majority claimed
to limit its holding to “serious crimes,” there was no articulated Constitutional principle to limit its
judgment, suggesting to the dissenters (Scalia, Ginsburg, Sotomayor and Kagan) that “[w]hen there
comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and
quite rightly) say, ‘We can find no significant difference between this case and King.’” As a consequences
of this judgment, they continued, “your DNA can be taken and entered into a national DNA database if
you are ever arrested, rightly or wrongly, and for whatever reason.” The opinion thus narrowed the
difference between an innocent arrestee and convicted criminal, with innocent arrestees bearing the
brunt of the narrowing. Convicted criminals can already have their DNA collected as a consequence of
their conviction, thus the Supreme Court’s opinion extending the collection of DNA to arrestees will
have its biggest impact on those who have been acquitted of the crime for which they were arrested. In
the dissent’s words, “this Act manages to burden uniquely the sole group for whom the Fourth
Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s
accusations.” If you’re arrested by the police for a crime they may swab your mouth for DNA, and if it
turns out they made a mistake and arrested the wrong person, you’ll be released but your DNA may
(subject to local policies) sit indefinitely in a government database somewhere. In the eyes of the dissent
there is nothing to stop the police from creating a policy that DNA will be collected for every arrest, or
perhaps even collected for every government interaction. As Noah Feldman has observed, the possible
future use of DNA might be one of bureaucratic identification. Is it implausible to think that in a decade
the government may ask for a drivers license, registration and a DNA sample at a traffic stop? After all,
the police need to ensure that the person handing over their identification is the person depicted on the
drivers license, and DNA is far more accurate than an outdated drivers license photograph. So what can
Congress do to protect innocent people while still ensuring DNA can be used to solve crimes? Why not
take a cue from Europe and automatically delete the DNA of innocent persons from government
databases. In 2008, the European Court of Human Rights handed down its opinion in the Case of S. and
Marper v. UK. In the opinion the ECHR found that blanket and indiscriminate retention of “fingerprints,
cellular samples and DNA profiles of persons suspected but not convicted of offenses…fails to strike a
fair balance between the competing public and private interests.” Such indefinite retention of innocent
persons data is in the ECHR’s words an “interference with the applicants’ right to respect for private life
and cannot be regarded as necessary in a democratic society.” Following the decision the UK passed the
Protection of Freedoms Act which required the removal of innocent persons DNA from government
databases, prohibited the storage of DNA from people arrested and charged but not convicted of a
minor offense, and imposed a three-year limit on the storage of DNA for people charged, but not
convicted, of a serious offense. Thus, the opinion and the Protection of Freedoms Act, shifted the U.K.’s
approach from one of automatic indefinite retention (with a right to request deletion similar to the U.S.
expungement policy) to one of automatic deletion after a period of time. Congress should follow the
U.K.’s lead and pass legislation to protect innocent people. Such legislation should should require that
the government delete DNA records of arrestees who are not charged with crimes or who are acquitted
of minor offenses. Second, for serious offenses (which Congress will need to define), the legislation
should require that the government delete the DNA records of persons who are charged with but not
convicted of serious offenses (perhaps after 3-5 years). For those concerned about the impact of such a
decision on national security, Congress could implement procedures to allow for the continued
retention of DNA information about suspects in ongoing national security investigations, subject to
regular certification by the Secretary of Homeland Security or Attorney General. Some people concerned
about crime prevention may not be troubled by the Supreme Court’s opinion, likening it to fingerprints.
But DNA is far more revealing than a fingerprint, it gives the government ethnic and familial information
and as technology advances may enable far more intrusive tracking and analytical capabilities. Collecting
DNA in government databases will no doubt have the beneficial effect of solving more crimes, but as the
dissent notes “so would the taking of DNA samples from anyone who flies on an airplane, applies for a
driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is
wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager
to open their mouths for royal inspection.” Congress should act to protect innocent people from the
collection and storage of their genetic information.
Solvency – Breach Notification
Breach notification as a legal oversight to surveillance is an effective regulatory
strategy- it deters future surveillance
Terry 14 (Nicolas P. Terry. “Big Data Proxies and Health Privacy Exceptionalism.” 2014. P. 11-13
https://www.ftc.gov/system/files/documents/public_comments/2014/01/00004-89091.pdf)//EMerz
In contrast, the FTC rule applicable to non-HIPAA PHR vendors relies on the somewhat “older” approach
to “breach,” whereby “[u]nauthorized acquisition will be presumed to include unauthorized access to
unsecured PHR identifiable health information” absent “reliable evidence showing that there has not
been, or could not reasonably have been, unauthorized acquisition of such information.”63 Not only do
somewhat different rules apply to breach notification regarding essentially similar EMR or PHR data, but
security breaches regarding health data in the hands of custodians who are neither HIPAA entities nor
PHR vendors generally do not require breach notification. Specifically, this regulatory gap works in favor
of big data custodians of non-HIPAA (medically inflected) health data or “laundered” HIPAA data. A
sufficiently serious breach in the face of poor security practices or technology might trigger an FTC
inquiry.64 Such eventuality aside the only possible regulatory model would be state law breach
notification. As already noted few state laws include health information within their definitions of
protected data, though there are exceptions such as the Californian law. Breach notification as a data
protection model is deserving of some criticism. It is only triggered when, necessarily, data protection
has failed, and it is a somewhat immature data protection model that likely will need additional
calibration as we analyze its underregulation or over-regulation tendencies. For example, to the extent
that more experience tells us that we may be over-regulating some types of minor breaches it might be
sensible to allow for an apologyplus-purchase of insurance defense or safe harbor. Notwithstanding,
HITECH’s version seems to have some value. First, as clearly intended by the statute, 68 the “Wall of
Shame” website acts as a strong deterrence system.69 As more data is collected about the porousness
of our health care providers’ systems, a simple web listing could evolve into a more robust and useful
ranking model across privacy and security dimensions, as (for example) with the quality/safety-based
Hospital Compare. 70 Second, the notification system has become an important part of OCR
enforcement as the agency relies on breach notifications to initiate privacy and security rule
enforcement. On balance, breach notification has strengthened its fellow downstream protection
models – HIPAA confidentiality and security. First, the HITECH Act’s breach notification model includes
a public “shaming” deterrent designed to improve compliance with the HIPAA rules.72 Second, and
obviously, notifying HHS of a substantial breach invites investigation by OCR. Overall (and likely this was
an unintended consequence) breach notification is an endorsement of health privacy exceptionalism
with its regulatory model applying to very narrow slices of health data custodians (HIPAA, PHR and
“others”). However, the narrowness of its definition and its quintessential downstream data protection
model confirm its irrelevance in any search for a federal privacy response to big data’s growing hold on
medically inflected data.
Solvency - Courts/Scrutiny Key
Centralized federal action is key – providing uniform guidance is key to prevent policy
fragmentation – key to prevent over- and under-reactions by the government
Azarchs 14 (Timothy Azarchs, Articles Editor, University of Pennsylvania Journal of Constitutional Law,
Volume 16. J.D. Candidate, 2014, University of Pennsylvania Law School; B.A., 2011, Bard
College.)(“INFORMATIONAL PRIVACY: LESSONS FROM ACROSS THE ATLANTIC”, JOURNAL OF
CONSTITUTIONAL LAW, Vol. 16:3, Feb. 2014)//ASMITH
Even if we accept that these holes should be filled, it would not necessarily be clear that the federal
judiciary should be the one to fill them. The most obvious problem is one of democratic legitimacy: if
there is no constitutional basis for the right, then the federal courts have no authority to impose a
remedy. This may be why the Court has been so reluctant to make a definitive decision on the existence
of a right. To step forward and acknowledge a right would be to risk judicial overreach, yet, at the same
time, to step back would be to re-verse three decades of jurisprudence in the lower courts and deny a
right that may be desirable to protect.97 Another problem with common law privacy protections is that,
developing on a case-by-case basis, they would be less transparent and coherent than a comprehensive
legislative effort.98 This is particularly true when there is no clear principle guiding the decisions as to
what should be protected and what should be sufficient justification.99 Without guiding principles,
judges are left to their own value judg-ments rather than uniform philosophical principles or
democratically agreed-upon consensus. Furthermore, there is little basis on which to predict what
activity will be deemed a violation until after a court has decided, leaving little guidance ex ante as to
when an action should not be taken, when a right needs vindicating, and when a suit is frivo-lous.100
These critiques apply with equal force to the current state of affairs, however, where the Supreme Court
hypothesizes about a right to informational privacy while the lower courts continue to feel their way in
the dark towards disparate ends.101 It is therefore not a reason for the Court to maintain its current
course. While the legislature may have more democratic legitimacy and greater ex ante perspective
from which to develop a cohesive frame- work, leaving the decisions on privacy rights to the political
process as opposed to the judiciary is problematic from another perspective. One of the primary
purposes of a constitution is to prevent the will of the majority from oppressing the minority—why else
constrain the power of a democratically elected legislature?102 There is admittedly no clear minority
group disfavored by a lack of privacy protections. There are undoubtedly some kinds of information
each of us may consider worth protecting, and the legislatures may eventually re-spond to that desire.
However, legislative action is not always effective at protecting dis-favored minority groups.103 The
majority may wish to oust these out-siders, or it may simply lack the motivation to overcome the inertia
of the legislative process. For instance, it might be easier to pass a law that allowed the government to
collect information about immi-grants—ostensibly because they are more likely to be terrorists or drug
runners—than to pass a law that protects homosexuals from dis-closure of their sexual orientations. The
right to privacy is funda-mentally a minority protection, allowing a sphere of autonomous de-cisionmaking and freedom from the fear of the majority’s ridicule of one’s personal choices. To lay the burden
of protecting this right at the feet of the majority suffers from the same problems as asking the majority
to decide whether one might engage in consensual homo-sexual relations or join the communist
party.104 Recognition by the courts that informational privacy is an important right with constitu-tional
dimensions could help ensure that the courts will scrutinize such infringements, whether affirmatively
enacted by the legislature or committed by the executive in the absence of legislative protec-tions. The
idea that so important a right can exist on so shaky a ground–or indeed not exist at all—is fundamentally
problematic. In addition, these gaps in legislative protections for the right to privacy have persisted for a
very long time, and it is not altogether clear that the gears are turning to close them now.105 Even if
legisla-tive clarity is preferable to judicial clarity, one clear answer from the Supreme Court is preferable
to twelve vague ones from the circuits. The current uncertainty has several detrimental effects. First, insofar as there is a “correct” answer to the question, a circuit split im-plies that one side or the other is
“incorrect.” Either constitutional rights are being underenforced in jurisdictions that improperly nar-row
the right, or nonexistent rights are being enforced in jurisdic-tions that improperly broaden it. Second,
this assumed, but unconfirmed, right leaves the lower courts, government actors, and potential
claimants with little guid-ance. As Justice Scalia suggested in his concurrence in NASA v. Nel-son, this
encourages an endless stream of hopeful plaintiffs to flood the courts with claims that are different on
one or another dimension from decided cases because they have no grounds on which to de-termine
whether those differences are relevant.106 A vague right may therefore result in even more litigation
than a broad but clear one. Another possibility is that, for fear of prosecution, government agencies will
be unwilling to cross a boundary whose location is un-certain and will be deterred from beneficial
policies that approach but do not step over that boundary.107 The question should be set-tled, one way
or the other, and the Supreme Court may be the only institution that can settle it.
Government specification on justifications for patient surveillance need to be
reformed in order to protect privacy
Mariner 07 (WENDY K.MARINER, Professor of Health Law, Bioethics and Human Rights, Boston
University School of Public Health; Professor of Law, Boston University School of Law; Professor of SocioMedical Sciences, Boston University School of Medicine. J.D., Columbia University School of Law; LL.M,
New York University School of Law; M.P.H., Harvard School of Public Health.)(“MISSION CREEP: PUBLIC
HEALTH SURVEILLANCE AND MEDICAL PRIVACY”, BOSTON UNIVERSITY LAW REVIEW, Vol. 87:347,
2007)//ASMITH
In contrast to the broad, future-oriented ideas of public health they embrace, first generation cases like
Whalen sometimes treat patient privacy as narrow and concrete. Under this approach, highly
speculative benefits could be accepted as legitimate reasons to override patient consent. At the same
time, costs to the patient must often be both probable and substantial, often in the form of financial
loss, in order to weigh in the balance. Even if public health goals are more specifically identified, the
definition of privacy in one’s medical information may also require more precision in order to achieve
meaningful balance. Like public health, the concept of privacy can be fraught with ambiguity and
possibilities for expansion. Privacy is often understood to mean an individual’s right to control access to
information about herself.175 Yet the literature contains ample acknowledgement that this is hardly
sufficient to explain the many, sometimes contradictory, facets of privacy, much less its exceptions.176
Certainly the Supreme Court has yet to define the whole of its scope and limits. Even in the absence of
consensus on the overall concept, however, it is still both possible and defensible to treat personal
medical information privacy as a specific aspect of privacy for the purpose of examining when that
information is justifiably subject to involuntary disclosure – and re-disclosure – to government. The
analysis of the concept of privacy for purposes of public health surveillance should be limited to
information, from whatever source, about an identifiable individual’s health status, medical care,
genetic characteristics, personal behavior, or exposure to health risks. The Supreme Court has referred
to information privacy in part as “‘the individual interest in avoiding disclosure of personal matters.’”177
This “disclosure” can take several forms. The first and most commonly thought of is disclosure to the
public, in the form of deliberate or negligent publication of personal facts to society at large. This is the
type of injury that impelled Warren and Brandeis to argue for a right to privacy.178 However, it is
probably the least likely harm to individuals whose information is reported to a public health
surveillance program. The second form of disclosure, and the primary focus of this discussion, is the
compulsory revelation or transmission to a government agency. As emphasized by several judges in the
abortion cases discussed above, this form of disclosure is more accurately characterized as a possible
invasion of privacy, because, metaphorically at least, the government forces its way into one’s personal
space to extract information that a person wishes to keep secret. This form of disclosure/invasion takes
place at each level of surveillance. While concern for deliberate or negligent revelations to the public at
large may exist with respect to any collection of information, including information voluntarily disclosed,
it is likely that the core concern of information privacy is with invasions of privacy in which the
government obtains personal information without consent.179 The concept of privacy attached to one’s
personal information seems to include, at its essence, a sense of autonomy and self-determination – not
just physical control over papers or computer files. Unlike other forms of property, the information has
value because of what it reveals about a person.180 Personal information is thus an aspect of the
human being; it involves one’s identity and dignity.181 Loss of personal information can seem as much a
violation of a person’s dignity as a physical invasion of the body. In this respect, privacy protects one’s
sense of self. When government has the power to take that personal knowledge, it invades that sense of
self. This may be why the violation of privacy often provokes feelings of outrage, even when the facts
acquired are not embarrassing. An invasion of privacy violates one’s dignity, even if it fails to produce
economic injury. Yet courts have failed to frame this aspect of privacy as a cognizable cause of action.
Even though not everyone would agree on what types of information would be embarrassing if
revealed, the central issue is whether that choice is theirs to make. If we conclude that the information
should be revealed because a majority of people don’t care, we dispense with the principle that
everyone has prima facie control over the choice of revelation. That is not an especially persuasive
argument against requiring consent, and it fails to consider whether revelation should be a matter of
personal or social choice. Even where there is a persuasive argument for social choice, the question
remains whether that choice should be made through legislation or by some other more stringent
mechanism, such as obtaining a warrant based on probable cause.
Court clarification on health and privacy laws are necessary in order to protect privacy
Mariner 07 (WENDY K.MARINER, Professor of Health Law, Bioethics and Human Rights, Boston
University School of Public Health; Professor of Law, Boston University School of Law; Professor of SocioMedical Sciences, Boston University School of Medicine. J.D., Columbia University School of Law; LL.M,
New York University School of Law; M.P.H., Harvard School of Public Health.)(“MISSION CREEP: PUBLIC
HEALTH SURVEILLANCE AND MEDICAL PRIVACY”, BOSTON UNIVERSITY LAW REVIEW, Vol. 87:347,
2007)//ASMITH
The central question is whether there is a right of privacy that prevents the government from obtaining
medical information about an individual to be used for various public health surveillance purposes
without first obtaining the individual’s consent. States adopt reporting laws, of course, because most
recognize common law, if not statutory, rights of privacy and confidentiality in medical information,
which forbid physicians from disclosing patient information and records without consent.127
Additionally, federal courts of appeal have recognized Fourteenth Amendment protection for a person’s
privacy interest in personal medical information and from involuntary disclosure to state and federal
agencies.128 Unfortunately, this extensive body of case law provides little guidance for determining the
justifications for mandatory reporting laws. Such laws have rarely received judicial review. The few U.S.
Supreme Court decisions that have addressed the subject have granted state legislatures substantial,
but not unlimited, deference. But the Court has yet to consider the constitutionality of modern public
health surveillance systems – specifically those that compel disclosure of personally identifiable medical
information to allow deduplication and ensure that such data are accurate enough to be used for
research and budget analyses. Indeed, the Court’s decisions have rarely analyzed the actual use of the
data to be collected, referring to it generally as intended to prevent disease or promote public health. In
light of recent challenges to the use of personal medical information for other purposes,129 however, it
is unlikely that such surveillance programs will remain under the radar forever. In Whalen v. Roe,130 the
Supreme Court upheld a state law requiring any physician who prescribed a Schedule II controlled
substance to submit a copy of the prescription to the New York State Department of Health.131 The
petitioners had challenged the law’s requirement that patients’ names and addresses be collected and
retained by the state, arguing that it violated their right to privacy as protected by the Fourteenth
Amendment.132 The law was intended to prevent the diversion of drugs into “unlawful channels,”
specifically by preventing individuals from obtaining controlled substances from more than one
physician or using stolen or altered prescriptions, preventing pharmacists from refilling dangerous
prescriptions, and preventing physicians from over-prescribing.133 If prevention failed, the records
would enable investigators to identify – and possibly prosecute – those who were breaking the law. Not
surprisingly, the Court found that the goal was reasonable,134 and that the prescription system “could
reasonably be expected to have a deterrent effect on potential violators as well as to aid in the
detection or investigation of specific instances of apparent abuse.”135 The Court noted that the
reporting requirement was not “meaningfully distinguishable from a host of other unpleasant invasions
of privacy that are associated with many facets of health care,”136 comparing it to “reporting
requirements relating to venereal disease, child abuse, injuries caused by deadly weapons, and
certifications of fetal death.”137
A stricter level scrutiny protects privacy rights and prevents government inefficiencies
due to excessive numbers of privacy cases
Azarchs 14 (Timothy Azarchs, Articles Editor, University of Pennsylvania Journal of Constitutional Law,
Volume 16. J.D. Candidate, 2014, University of Pennsylvania Law School; B.A., 2011, Bard
College.)(“INFORMATIONAL PRIVACY: LESSONS FROM ACROSS THE ATLANTIC”, JOURNAL OF
CONSTITUTIONAL LAW, Vol. 16:3, Feb. 2014)//ASMITH
The urgency of this intuitive need for protection is reinforced by the fact that state law remedies do not
cover the full range of privacy issues, not even in the cases of government executive action.86
Defamation claims may only be leveled when disclosed information is false: not when the information is
true, not when the government collects private information without disclosing it, and not when the First
Amendment is implicated and no malice is shown.87 In most states, an action exists for publication of a
private fact, but only if there has been disclosure of “highly offensive” matters to a wide audience: not
when the disclosure is merely private but not highly offensive, or when the audience is a small but
important group such as a person’s spouse, parents, or employer.88 Nor does it exist in the fourteen
states that do not have this cause of action.89 Finally, there is a remedy for intentional infliction of
emotional distress, but this reaches only the most “extreme and outrageous” disclosures, and even
then, only when the disclosure is at least reckless.90 Thus, a case in which a police officer needlessly
discloses a person’s HIV status, causing that person’s entire family to be ostracized, would likely not be
cognizable under any state law remedy because the information was true, disclosed only to a small
audience—who later told the press—and likely not outrageous enough to be intentional infliction of
emotional distress.91 Similarly, a case in which a boy commits suicide after the police threaten to tell his
grandfather that he is a homosexual would be unlikely to fall under any of these state law torts.92 There
is some question whether the gaps left by this patchwork of state law privacy protections should be
closed. Ingrid Schüpbach Mar-tin argues that they should not be closed because the law should favor
free dissemination of information over privacy.93 In other words, she believes that society would be a
better place if everyone came out of the closet and had a frank discussion about their lifestyle. She
worries that allowing someone to sue for disclosure of their sexual orientation officially acknowledges
that that status is shameful and embar-rassing.94 Martin may be right that society would be a better
place if everyone came out of the closet. But to force individuals to disclose their sexual identity for our
own betterment—to force them to sacrifice their privacy and suffer the real if unfortunate costs that
might attend that sacrifice—may ask too much. Martin further argues that closing the gaps left by state
tort law and allowing challenges to potentially unconstitutional lawmaking could produce excessive
litigation against government agents that impede their efficiency.95 The thought that closing the gaps
would produce substantially more cases than have already been dealt with over the last three decades
hardly seems plausible, however. In the majority of circuits, the courts have accepted some level of
protection for informational privacy rights already and must hear cases on these issues even where
those protections are limited to “fundamental” rights protected by the decisional line of privacy.96
There may even be less litigation when clear standards deter frivolous suits and a recognized, defined
right reduces the incidence of violation. While such a right may cause a police officer to pause and
consider whether dis-closure of a particular piece of information collected in his or her investigation
implicates a privacy right, the potential harm to the fact-finding process can be minimized by an
appropriately deferential level of scrutiny, and the mitigating benefits to privacy rights may be
worthwhile.
Solvency – Fed Key
Federal laws control state action
Gostin 2k (Lawrence O. Gostin, JD, LLD, Georgetown/Johns Hopkins University Program in Law and
Public Health, Washington, DC, and Baltimore)(“ Public Health Law in a New Century”, 2000 American
Medical Association, JAMA, June 14, 2000—Vol 283, No. 22)//ASMITH
No inquiry is more important to public health law than understanding the role of government in the
constitutional design. If public health law principally addresses government’s assurance of the
conditions for the population’s health, then what activities must government undertake? The question is
complex, requiring an assessment of duty, authority, and limits. In addition, this query raises a corollary
question: Which government is to act? Some of the most divisive disputes in public health are among
the federal government, the states, and localities about which government has the power to intervene.
The Constitution allocates power among the federal government and the states (federalism) and limits
that power (to protect individual liberties). In the realm of public health, the Constitution acts as both a
fountain and a levee; it originates the flow of power to preserve the public health, and it curbs that
power to protect individual freedoms. Federalism functions as a sorting device for determining which
government (federal, state, or local) may legitimately respond to a public health threat. Often, federal,
state, and local governments exercise public health powers concurrently. Where conflicts among the
levels of government arise, however, federal laws preempt or supercede state actions, and state actions
may preempt local laws.
States must conform to federal regulatory standards
Gostin 2k (Lawrence O. Gostin, JD, LLD, Georgetown/Johns Hopkins University Program in Law and
Public Health, Washington, DC, and Baltimore)(“ Public Health Law in a New Century”, 2000 American
Medical Association, JAMA, June 14, 2000—Vol 283, No. 22)//ASMITH
In theory, the United States is a government of limited, defined powers. In reality, political and judicial
expansion of national powers allows the federal government considerable authority to act in the
interests of public health and safety. The federal government has a number of powers at its disposal to
prevent injury and disease and promote the population’s health. The most important public health
powers are the powers to tax, spend, and regulate interstate commerce. The powers to tax and spend
are important because they enable the government to raise revenue and to allocate re- sources for the
public’s health. Resource allocation, of course, can be highly contentious as evidenced by contemporary
debates about spending money from the tobacco settlement. The taxing power also provides a powerful
means to regulate, both directly and indirectly, private activities that endanger health. Tax relief
provides incentives for private activities that government views as advantageous to public health (eg,
employer-sponsored health care). Taxation also regulates private behavior by economically penalizing
risk-taking activities (eg, taxes on tobacco and alcoholic beverages). Similarly, the spending power does
not merely provide Congress with independent authority to allocate resources for the public good; it
also allows Congress to set conditions on the receipt of funds.2 The need for federal public health funds
effectively induces state conformance with federal regulatory standards. Congress uses conditional
spending to induce states to conform to federal standards in numerous public health contexts, including
Medicaid and Medicare, occupational health, and highway safety. Of all the provisions bestowing
federal public health power, none is more important than Article 1, §8 of the Constitution, which grants
Congress the power to “regulate Commerce . . . among the several States.” Practically speaking, the
power to regulate commerce has enabled the national government to invade traditional realms of state
authority including environmental protection, occupational health, food and drug purity, and safe
drinking water. The Court’s modern construction of the power to regulate commerce has been
described as plenary or all-embracing, and has been exerted to affect virtually every aspect of social
life.3
Constitutional protections and heightened scrutiny maintains rights and dictate lower
courts actions
Azarchs 14 (Timothy Azarchs, Articles Editor, University of Pennsylvania Journal of Constitutional Law,
Volume 16. J.D. Candidate, 2014, University of Pennsylvania Law School; B.A., 2011, Bard
College.)(“INFORMATIONAL PRIVACY: LESSONS FROM ACROSS THE ATLANTIC”, JOURNAL OF
CONSTITUTIONAL LAW, Vol. 16:3, Feb. 2014)//ASMITH
The Supreme Court has left many unanswered questions. It has not decided whether a right to
informational privacy exists; it has not decided what might constitute an infringement upon such a right;
and it has not decided what level of scrutiny might be applied to such an infringement. Therefore, the
lower courts have each gone their separate ways. Some courts have followed Justice Potter Stewart’s
concurrence in Whalen, Justice Antonin Scalia’s in NASA, and the ma-jority opinion in Paul v. Davis,
finding a restricted or nonexistent right.73 Others have created a broader sphere of protection, from
medical information to anything with a legitimate expectation of pri-vacy, but nevertheless disagree on
the level of scrutiny to be applied when a right is infringed.74 The majority, however, have ruled in favor
of a relatively broad right and some form of heightened scrutiny.75 The courts that refuse to find a
constitutional right protecting in-formational privacy typically express two lines of reasoning. The first is
that no such right has any support in the text of the Constitution, and it is inappropriate to create that
right judicially.76 The second is that an informational privacy right would be implicated in nearly eve- ry
action of the government. Forcing the government to justify intru-sions and asking the courts to hear
those justifications would be a burden too great to bear: the courts can hear only so many cases, and
every minute a government agent spends defending his actions in court is a minute spent not
performing his other duties.77 The perceived danger is that creating so broad a right would force courts
to provide limited protection against individual infringements.78 Greater scrutiny means that statutes
must be more narrowly tailored and government actions must have greater countervailing interests
before they are justified, potentially forcing the government to use less efficient means to accomplish its
goals. Demanding narrower tai-loring and greater justifications may be particularly difficult when the
judicial branch has so little textual support for making such burden-some demands. Those courts that
have accepted a broad right have typically simp-ly cited Whalen and the Supreme Court’s other privacy
decisions and announced tests.79 The tests may reflect what Mary D. Fan refers to as the “creepiness
emotional meter.”80 The gist of this concept is that there is an intuitive sense that the government
should not be able to demand or divulge private information without good reason.81 Cer-tain actions
taken by government officials or legislatures can and do step beyond the pale, so there must be some
constitutional protec-tions when they do.82 The idea that a sex tape taken as evidence of extortion
could be passed around the precinct for the viewing pleas-ure of the officers,83 or that humiliating
details of a rape—details that the victim had not even told her husband—could be released at a press
conference without public purpose,84 is so viscerally horrifying to the courts that it seems intuitively
impossible that no constitutional right exists to prevent such behavior.85
Although state and federal governments have authority over health legislation,
federal action is uniquely key- state action is inconsistent and stalls legal process
Evans 13 (Barbara J. Evans. Professor of Law; Co-director, Health Law & Policy Institute; Director,
Center on Biotechnology & Law, University of Houston Law Center, Yale Law School; M.S., Ph.D. Stanford
University; Post-doctoral Fellow, The University of Texas M.D. Anderson Cancer Center. “Institutional
Competence to Balance Privacy and Competing Values: The Forgotten Third Prong of HIPAA Preemption
Analysis.” P. 1185-1188. http://lawreview.law.ucdavis.edu/issues/46/4/Articles/46-4_Evans.pdf)//EMerz
Congress and state legislatures throughout our nation’s history have possessed the power to order
actions to promote the public’s health. In the modern context, this includes the power to authorize
programs that require the use of people’s health data and biospecimens. Shortly after Platt’s data were
reported to the FDA and Institute of Medicine,40 Congress took such action in the Food and Drug
Administration Amendments Act of 2007,41 which authorizes pharmacoepidemiological42 studies of
postmarket drug safety using data for one hundred million Americans.43 Congress also called for largescale informational studies in the comparative effectiveness provisions of the Patient Protection and
Affordable Care Act of 2010.44 Public health legislation (both state and federal) authorizing studies of
people’s health data and biospecimens is likely to be a recurring feature of the twenty-first century legal
landscape. There is great concern that privacy laws may thwart the objectives of these types of public
health statutes. The HIPAA statute focused primarily on insurance and healthcare fraud issues, but it
also expanded federal regulation of medical privacy and data security. The Administrative Simplification
provisions in Subtitle F of Title II of HIPAA45 required the Secretary of the U.S. Department of Health &
Human Services (HHS) to develop a group of interrelated regulations.46 Authority to develop Standards
for the Privacy of Individually Identifiable Health Information (the “Privacy Rule”47) appears in section
264 of HIPAA, which is codified as a note to 42 U.S.C. § 1320d-2. The main text of § 1320d-2 authorizes
HHS to develop various other regulations such as the Transactions Rule48 published in August 2000, the
Security Rule49 promulgated in 2003, and standards for unique patient identifying numbers which
proved controversial and encountered delays.50 HIPAA deposited a new layer of federal regulations
onto a field already densely covered with state law.51 When healthcare providers and insurers initially
began to comply with the HIPAA Privacy Rule in 2003-2004, there already was a “patch quilt” of state
privacy statutes as well as a large body of common law, such as evidentiary privileges that protect
medical communications and tort causes of action for privacy violations. In an excellent recent study,
John W. Hill et al. explain how daunting this state-by-state patchwork has become.56 They argue that it
threatens to obstruct the development of large, interoperable health data systems.57 Interoperable
data networks that muster data for tens or hundreds of millions of persons are, of course, a critical
infrastructure for the types of large-scale public health surveillance and investigations58 described in
recent legislation.59 Not all public health studies require nationally-scaled data infrastructures, but a
number of very promising approaches do. Thus, maintaining state-by-state privacy requirements has
the potential to stall important public health initiatives by impeding access to data and biospecimens.
State reforms can only ever be patchwork --- they don’t apply once the information
leaves the physician’s possession
Goldman, from the College of Physicians and Surgeons, Columbia University, November 1998 – (Janlori,
“Protecting Privacy To Improve Health Care”, published in HealthAffairs volume 17 number 6)//roetlin
In the absence of federal health privacy legislation, a number of states have moved to enact such legislation. In the past year alone more
than 250 bills with medical privacy provisions were introduced in the states. More than thirty-two of these bills
became law.22 However, there is little consistency to the state laws in this area. Many states “impose on physicians the duty
to maintain the confidentiality of medical records,” but such protection may no longer apply after the
records leave the physician’s possession (for example, to process a claim).23 State laws also may only address
specific medical conditions, instead of the medical record as a whole. Virtually every state, for instance, has some
form of special protection for communicable diseases.24 States have more recently enacted laws to protect the confidentiality of genetic test
results.25 Other state laws address a specific activity. A recent Minnesota law, for example, requires that a patient’s consent be obtained
before his or her medical records are used in research.26 The
end result is what many have called a “patch- work” of
protections at the state level.
State law patchwork doesn’t provide enough protection
Pritts 13 (Joy L. Pritts JD is a lawyer who practices in Washington DC and earned her degree at Georgetown Univeristy. “Altered States:
State Health Privacy Laws and the Impact of the Federal Health Privacy Rule”
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1047&context=yjhple)///CW
Medical records contain some of the most intimate details about an¶ individual that can be found in a single place. Health information privacy¶
is based on the principle that individuals should be able to exercise control¶ over this intimate information, both by having full knowledge
about what¶ information is contained in the records and by being able to control who¶ has access to the information. Because professional
ethical requirements¶ do not adequately protect health information in today's complex health¶ care
system, we have increasingly turned to the law as a source of¶ protection.¶ Until the recent promulgation of the Federal
Health Privacy Rule,'¶ states have been the primary regulators of health information through¶ their
constitutions, common law, and statutory provisions. Although all¶ three of these legal sources remain important, recent
focus has been on¶ the enactment of detailed health privacy statutes that apply the fair¶ information practice
principles to health information. However, for the¶ most part states have adopted these principles in a fairly haphazard
fashion¶ resulting in a patchwork of legal protections both within and between¶ states.¶ The recently issued
Federal Health Privacy Rule has effectively evened¶ out some of this discrepancy by establishing a federal floor of
privacy¶ protections based on fair information practices. The Federal Rule,¶ however, does not afford adequate protection
of health information¶ because it has limited applicability and areas of lax protection. Because the¶ Federal Rule only preempts
conflicting, less protective state laws, there is¶ still room for states to protect their own citizens by retaining or
enacting¶ health privacy protections that mirror and improve upon those in the¶ Federal Health Privacy
Rule
Only federal standards can solve – states fail
Andrea Wilson (Senior Business Practices Analyst at The Methodist Hospital System, Houston, TX)
2009 “MISSING THE MARK: THE PUBLIC HEALTH EXCEPTION TO THE HIPAA PRIVACY RULE AND ITS
IMPACT ON SURVEILLANCE ACTIVITY” 9 HOUS. J. HEALTH L & POL’Y 131-156,
https://www.law.uh.edu/hjhlp/Issues/Vol_91/Wilson.pdf
State law, however, is so widely varied in terms of privacy protections currently in place124 that “some
public health officials support federal preemption, claiming that uniformity is necessary and that federal
law should provide strong patient protection.”125 How much privacy an individual has depends largely
on his state of residence, and “the legal protection of health privacy is uneven, not simply across state
lines, but within them.”126 Though state control is an advantageous approach, weak federal guidelines
do a disservice to the nation’s population: Independent evolution of state law has produced
considerable variation and inconsistency. Variability, of course, can be a strength in a federal system of
government, allowing state experimentation with complex issues. Variability in surveillance and privacy
protection, however, creates problems in an increasingly mobile society in which disease outbreaks may
erupt rapidly in several states, requiring systematic and consistent collection of comparable data
sets.127 Due to this incongruent accumulation of legislation, the privacy an individual enjoys in one
state may be entirely altered if he moves to another state or simply crosses state lines to seek medical
treatment.128 Thus, there is an identifiable need for a raising of the “floor” in the public health
exception The exception in its current form provides only ambiguous terms and no guidance as to the
use of PHI once in the possession of public health authorities. Model rules for privacy protection and the
suggestions for amendment discussed in this paper will have little to no impact if not uniformly adopted
and implemented in every jurisdiction. As one scholar noted, “When the law is comprehensive and wellconsidered, it can provide substantial protections.”129 However, when it “fail[s] to provide clear criteria
and useful sanctions,” it has the potential to “hamper public health work in a variety of ways.”130 In
order to ensure that basic privacy protections are uniform in every state, regulations for justification,
access, and disclosure must be added to the HIPAA public health exception as standardized national
criteria in the form of a “single, strong federal law.”131 There has been some suggestion that HHS
lacked the authority needed to implement such regulations at the time of drafting the original Rule.132
Accordingly, Congressional authorization may be necessary before clearer guidelines for public health
agencies could be promulgated. “Despite the virtues of state privacy laws, the public is calling for
Congress to take action. The ‘patchwork system’ of state privacy laws does not afford comprehensive
privacy protection, and so Congress must provide additional protection through comprehensive federal
legislation.”133 State law preemption for privacy regulations should remain the standard for PHI
disclosures. However, the only way to ensure the privacy of personal medical records in the hands of
public health authorities is to strengthen the existing regulations. Without further standards at the
national level, the individual is left with incomplete and inadequate protections, and public health
officials will continue to encounter reluctance when soliciting PHI.
The plan is key to prevent privacy protective behavior while still allowing for the
flexibility to respond quickly to immediate threats
Gostin and Hodge 2002 (Lawrence O. Gostin (Professor at Georgetown University Law Center) and
James G. Hodge Jr. (Professor at Arizona State University). “Personal Privacy and Common Goods: A
Framework for Balancing Under the National Health Information Privacy Rule.” 2002.
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1086&context=facpub)//EMerz
National privacy safeguards are needed because of the proliferation of and access to health records
resulting from the ongoing shift from paper to electronic records within the national health information
infrastructure. The increasing potential to use or reveal sensitive health data raises concerns about
privacy violations. Health information can include intimate details about the patient's mental and
physical health as well as social behaviors, personal relationships, and financial status.4 Polling data
have consistently shown that Americans are concerned about the privacy of their medical data.5 Over
80% of respondents in one survey suggested they had "lost all control over their personal information."6
In another national survey, 78% of respondents felt it is very important that medical records be kept
confidential. 7 Yet, there are multiple justifications for sharing health data to accomplish various
communal interests. Sharing data may be necessary to achieve important health purposes (e.g., health
research and public health) or for non-health-related purposes (e.g., the administration of justice and
law enforcement). We (and others) have previously suggested that health information privacy laws
should carefully balance the need for individual privacy with the benefits of using health data for the
common good.8 For many, protecting the rights of individuals to control how their identifiable health
data are accessed, used, or disclosed is the ultimate goal of national health information privacy
standards. Individual interests in privacy, however, should not be regarded as absolute. Some
disclosures of health data without specific informed consent are ethically appropriate and legally
authorized, such as requirements to report infectious diseases to state health departments and the duty
to warn persons at significant risk of harm. The national privacy standards set a "floor" for protections
that, DHHS suggests, "balance[s] the needs of the individual with the needs of the society."" Reaching
this balance, however, is precarious. In some cases, the common good to be achieved is not worth the
infringement of privacy. In other circumstances, the need for data may be sufficiently strong to
outweigh the individual's claim to autonomy and privacy. Privacy laws at the federal, state, and local
levels are fragmented and inconsistent, and do not reflect any coherent formula for balancing. In
particular, the national privacy rule does not always achieve a fair and reasonable allocation of benefits
and burdens for patients and the community. We suggest rules for balancing private and public interests
that go beyond the traditional conception of individual autonomy as a dominating factor. Rather than
seeing autonomy as a "trump card" that always prevails, our framework values both privacy and
common goods, without a priori favoring either. We instead seek to maximize privacy interests where
they matter most to the individual and maximize communal interests where they are likely to achieve
the greatest public good. Thus, where the potential for public benefit is high and the risk of harm to
individuals is low, we suggest that public entities should have discretion to use data for important public
purposes. Individuals should not be permitted to veto the sharing of personal information irrespective of
the potential benefit to the public. Privacy rules should not be so arduous and inflexible that they
significantly impede, for example, health services research or surveillance necessary to promote the
public's health. Provided that the data are used only for the public good (e.g., research or public health),
and the potential for harmful disclosures are negligible, there are good reasons for permitting data
sharing. If the data, however, are disclosed in ways that are unlikely to achieve a strong public benefit,
and the personal risks are high, individual interests in autonomy should prevail. For example, if health
care professionals disclose personal health data to family, friends, neighbors, employers, or insurers, the
public benefits to be achieved may not be worth the cost in personal privacy. Such disclosures can cause
stigma and embarrassment. Disclosure to employers or insurers (e.g., health, life, or disability) can result
in discrimination. These kinds of unauthorized disclosures can lead to a loss of patient trust in health
care professionals. Individuals may be reluctant to seek medical treatment for some conditions (e.g.,
HIV/AIDS, other sexually transmitted conditions, or genetic diseases) or to disclose important
information to health professionals. 12 Consequently, for these kinds of disclosures where the public
benefits are negligible and individual privacy risks are high, the law should strictly prohibit the release of
information without the patient's consent. The framework for balancing we offer attempts to maximize
individual and communal interests in the handling of identifiable health data. Acquisition, use, or
disclosure of health information that can lead to harm would be subject to strict privacy protections.
Correspondingly, acquisition, use, or disclosure of health information for important public purposes
would be permitted provided that (1) uses are restricted to the purposes for which the data are
collected, and (2) subsequent disclosures for other purposes are prohibited without individual
authorization. This framework defends autonomy when individual interests are high and public interests
are low. We recognize that adherence to this balancing test will entail a certain diminution of autonomy.
However, it will be worth the cost in terms of the benefits that everyone will achieve in living in a society
that values the communal goods offered by research, public health, and other public enterprises.
***Advantages***
Privacy Protection Low - General
No expansive genetic privacy jurisprudence now
Scherr 13 (Albert E. Scherr. Professor of Law, University of New Hampshire. “Genetic Privacy & the
Fourth Amendment: Unregulated Surreptitious DNA Harvesting.” 2013. P. 448.
http://georgialawreview.org/wp-content/uploads/2015/02/Download-PDF-V47-I2-Scherr.pdf)//EMerz
The nature and scope of the Fourth Amendment’s protection against an intrusion on genetic privacy is
not readily apparent from the text. It guarantees that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .
. . .” The prohibition reads like one against intrusions on an individual’s physical privacy by the
government—be it real property, bodily integrity, other physical items—and makes no explicit mention
of more intangible conceptions of privacy. The Fourth Amendment also says nothing about security from
intrusions into out-of-body DNA left in a public place, just as it says nothing about intrusions involving a
host of other modern technologies like a GPS, public surveillance cameras, or various kinds of
technological eavesdropping. Each involves a type of technology that the Framers had not
contemplated. Each intrudes on more than purely property- or place-based privacy. Historically, the
Supreme Court’s Fourth Amendment jurisprudence reflected a relatively narrow and somewhat rigid,
legalistic focus on property and place in defining the extent of Fourth Amendment privacy.84 Without a
physical invasion, or a search of a person, papers, or tangible material effects, no Fourth Amendment
violation occurs.85 In this conception, privacy “was tied very closely to notions of property rights.
Current government surveillance is expanding rapidly without patient knowledge
Brase 13 (Twila Brase. President Citizen’s Council for Health Freedom. “Patient Privacy and Public
Trust: How Health Surveillance Systems Are Undermining Both.” August 2013. P. 1-2.
http://www.cchfreedom.org/pr/50%20States%20Databases%20Full%20Report.pdf)//EMerz
With funding primarily from Congress, state health departments have created a multitude of
government patient-tracking systems. Increasingly, these systems are being linked together, creating
individual health profiles and lifelong records. The emergence of computerized medical records—and
the federal requirement that physicians, hospitals and other health care professionals have
interoperable electronic medical records or be penalized in 2015—has accelerated and facilitated
government access to private patient data.1 2 Often without consent, patient data is collected from
doctors, hospitals, and clinics – in some cases annually for lifelong monitoring. But while most assume
that patient privacy rights are protected by patient consent requirements, government health
surveillance is characterized by a surprising lack of patient consent and little to no public awareness or
discussion of the growing databases and registries. Even worse, the government seizure of data often
happens at a time and in a place when individuals are in a vulnerable state—at the clinic or in the
hospital. Today, state government agencies collect illness, injury, hospitalization, diagnostic, medication,
genetic, birth and death data on individual citizens. This collection and connection of private medical
records data occurs often without patient consent or knowledge—and sometimes without specific
authority in state law. These state collections of personal information include, but are not limited to, the
following conditions or test results, which may exist in databases, registries or biobanks. States vary
greatly in their collection of data. Although all states have one or more of the following collections of
data, not every state maintains all of these collections. This private data is not only routinely collected
without patient consent, it is increasingly being linked together for analysis, research and tracking. For
example, as part of its application for a federal Title V Maternal and Child Block Grant, Kansas reports:
“Kansas Maternal and Child Health (MCH) is building data infrastructure, epidemiological capacity, and
products of analysis in order to carry out core public health assessment functions. We continue to
improve Kansas MCH data capacity by: 1) improving data linkages between birth records and other data
sets such as infant death certificates, Medicaid eligibility and/ or paid claims files, WIC eligibility files,
and new born [sic] metabolic screening files; 2) improving access to hospital discharge data, Youth Risk
Behavior Survey (YRBS) data, Birth Defects Surveillance System (BDSS) data, Pregnancy Risk Assessment
Monitoring System (PRAM) data, and Children and Youth with Special Health Care Needs (CYSHCN)
program data…”6 Furthermore, the amount of government health surveillance just keeps growing. The
U.S. Centers for Disease Control and Prevention (CDC) recently created the National Public Health
Surveillance/Biosurveillance Registry for Human Health (NPHSB Registry), which they describe as, “a
comprehensive electronic catalog of over 280 CDC public health surveillance and biosurveillance assets
related to human health. Launched in December 2012, the Registry provides information to foster
collaboration among surveillance subject matter experts, and provides critical information about CDC’s
surveillance capabilities to decision-makers as they address a wide range of public health preparedness
and response issues that depend on effective coordination. ... The registry is currently located on CDC’s
intranet and available only to members of the CDC community.
Physician-public trust has declined substantially; the US need a solution now
Blendon, Benson, and Hero 14 (Robert J. Blendon, Sc.D., John M. Benson, M.A., and Joachim O.
Hero, M.P.H., “Public Trust in Physicians — U.S. Medicine in International Perspective”, from the
Department of Health Policy and Management, Harvard School of Public Health, Boston (R.J.B., J.M.B.);
and the Program in Health Policy, Harvard University, Cambridge, MA ( J.O.H.).The New England Journal
of Medicine, 371;17, nejm.org, October 23, 2014)//ASMITH
The U.S. health care reform process is entering a new phase, its emphasis shifting from expanding health
coverage to improving our systems for delivering patient care. One emerging question is what role the
medical profession and its leaders will play in shaping future national health care policies that affect
decision making about patient care. Research suggests that for physicians to play a substantial role in
such decision making, there has to be a relatively high level of public trust in the profession’s views and
leadership. But an examination of U.S. public opinion data over time and of recent comparative data on
public trust in physicians as a group in 29 industrialized countries raises a note of caution about
physicians’ potential role and influence with the U.S. public. In a project supported by the Robert Wood
Johnson Foundation and the National Institute of Mental Health, we reviewed historical polling data on
public trust in U.S. physicians and medical leaders from 1966 through 2014, as well as a 29-country
survey conducted from March 2011 through April 2013 as part of the International Social Survey
Programme (ISSP), a cross-national collaboration among universities and independent research
institutions (ISSP 2011– 2013) (see box for poll information). We found that, as has been previously
reported, public trust in the leaders of the U.S. medical profession has declined sharply over the past
half century. In 1966, nearly three fourths (73%) of Americans said they had great confidence in the
leaders of the medical profession. In 2012, only 34% expressed this view (Harris 1966–2012). But
simultaneously, trust in physicians’ integrity has remained high. More than two thirds of the public
(69%) rate the honesty and ethical standards of physicians as a group as “very high” or “high” (Gallup
2013). Our review of numerous analyses of public-opinion data about public trust in institutions and
professions suggests that the decline in trust is probably attributable to broad cultural changes in the
United States, as well as rising concerns about medical leaders’ responses to major national problems
affecting the U.S. health care system.1,2 Today, public confidence in the U.S. health care system is low,
with only 23% expressing a great deal or quite a lot of confidence in the system (Gallup 2014). We
believe that the medical profession and its leaders are seen as a contributing factor. This phenomenon
does not affect physicians in many other countries. Indeed, the level of public trust in physicians as a
group in the United States ranks near the bottom of trust levels in the 29 industrialized countries
surveyed by the ISSP. Yet closer examination of these comparisons reveals findings similar to those of
previous U.S. surveys: individual patients’ satisfaction with the medical care they received during their
most recent physician visit does not reflect the decline in overall trust. Rather, the United States ranks
high on this measure of satisfaction. Indeed, the United States is unique among the surveyed countries
in that it ranks near the bottom in the public’s trust in the country’s physicians but near the top in
patients’ satisfaction with their own medical treatment. The United States is tied for 24th place in terms
of the proportion of adults who agree with the statement, “All things considered, doctors in [your
country] can be trusted.” About 6 in10 U.S. adults (58%) agree with this statement, as compared with
more than three fourths in Switzerland (83%), Denmark (79%), the Netherlands (78%), and Britain (76%)
(ISSP 2011–2013) (see table). Part of the difference may be related to the lack of a universal health care
system in the United States. However, the countries near the top of the international trust rankings and
those near the bottom have varied coverage systems, so the absence of a universal system seems
unlikely to be the dominant factor. By contrast, the United States ranks third in terms of the proportion
of adults who say they were completely or very satisfied with the medical treatment they received at
their last physician visit (56%). Of the 10 countries that rank lowest in public trust in their countries’
physicians, all but the United States also rank 19th or lower in patients’ satisfaction with their own
medical care. The United States also differs from most other countries in that U.S. adults from lowincome families (defined as families with incomes in the lowest third in each country, which meant
having an annual income of less than $30,000 in the United States) are significantly less trusting of
physicians and less satisfied with their own medical care than adults not from low-income families. Less
than half (47%) of low-income Americans surveyed agreed that U.S. doctors can be trusted —
significantly less than the 63% of non–low-income Americans who expressed that view. Low-income
Americans were also less likely than non–low income Americans (48% vs. 59%) to be completely or very
satisfied with their treatment at their last physician visit (ISSP 2011–2013) (see the Supplementary
Appendix, available with the full text of this article at NEJM.org). Although non–low-income Americans
expressed greater trust in physicians than their low-income counterparts did, when responses were
analyzed by income group, the United States still ranked 22nd in trust among the 29 countries. On the
flip side, although low-income Americans were less likely than non–low income Americans to report
being completely or very satisfied with their own care, the United States still ranked seventh in
satisfaction among low-income adults (ISSP 2011–2013). The same pattern is seen in subpopulations
defined by age or sex. Americans 65 years of age or older were significantly more likely than younger
Americans to agree that U.S. physicians can be trusted (69% vs. 55%), and U.S. men were significantly
more likely than U.S. women to think so (63% vs. 54%). However, the United States ranked lower in
terms of trust in the profession than most other countries among both men (21st) and people 65 years
of age or older (22nd) (ISSP 2011–2013). In drawing lessons from these international comparisons, it’s
important to recognize that the structures in which physicians can influence health policy vary among
countries. We believe that the U.S. political process, with its extensive media coverage, tends to make
physician advocacy seem more contentious than it seems in many other countries. Moreover, the U.S.
medical profession, unlike many of its counterparts, does not share in the management of the health
system with government officials but instead must exert its influence from outside government through
various private medical organizations. Some other countries’ systems have more formal structures
through which physician leaders may bargain and negotiate with the government over such issues as
payment, professional autonomy, and quality of care.3 Moreover, in terms of health policy
recommendations, the U.S. medical profession is split among multiple specialty organizations, which
may endorse competing policies. Nevertheless, because the United States is such an outlier, with high
patient satisfaction and low overall trust, we believe that the American public’s trust in physicians as a
group can be increased if the medical profession and its leaders deliberately take visible stands favoring
policies that would improve the nation’s health and health care, even if doing so might be
disadvantageous to some physicians. 4,5 In particular, polls show that Americans see high costs as the
most important problem with the U.S. health care system (RWJF/HSPH 2011), and nearly two thirds of
the public (65%) believes these costs are a very serious problem for the country (NPR/RWJF/HSPH
2012). To regain public trust, we believe that physician groups will have to take firm positions on the
best way to solve this problem. In addition, to improve trust among low-income Americans, physician
leaders could become more visibly associated with efforts to improve the health and financial and care
arrangements for low-income people. If the medical profession and its leaders cannot raise the level of
public trust, they’re likely to find that many policy decisions affecting patient care will be made by
others, without consideration of their perspective.
Privacy Protection Low – Judicial Guidance
Lack of clear court ruling on HIPAA surveillance limitations results in confusion- that
can justify more surveillance
Evans 13 (Barbara J. Evans. Professor of Law; Co-director, Health Law & Policy Institute; Director,
Center on Biotechnology & Law, University of Houston Law Center, Yale Law School; M.S., Ph.D. Stanford
University; Post-doctoral Fellow, The University of Texas M.D. Anderson Cancer Center. “Institutional
Competence to Balance Privacy and Competing Values: The Forgotten Third Prong of HIPAA Preemption
Analysis.” P. 1180-1183. http://lawreview.law.ucdavis.edu/issues/46/4/Articles/46-4_Evans.pdf)//EMerz
The HIPAA statute was enacted on August 21, 1996 and recently marked its sixteenth anniversary. In
those sixteen years, no court has ever decided a case that posed a HIPAA preemption question in the
context of public health surveillance and investigations. In their fascinating survey of 113 HIPAA
preemption cases litigated through the fall of 2006, Sara Rosenbaum et al. did not find any case in which
the underlying controversy involved access to data or tissue resources to use in such activities. A more
recent search of all state and federal cases decided between 1996 and July 2012 found only two HIPAA
related cases that ever cited 42 U.S.C. § 1320d-7(b),17 the provision that defines the enumerated public
health activities and affords them special protection. The two cases that cited § 1320d-7(b) had nothing
to do with public health surveillance or investigations. Those whom this provision aims to help —
members of the medical and public health communities seeking access to data and tissue resources to
improve the public’s health — perhaps have a negative perception of lawyers and are reluctant to turn
to courts to clarify confusion about the law. As a consequence, rumor rather than valid statutory
interpretation has informed much of the debate about HIPAA preemption and public health access to
data. Discussions of HIPAA preemption often rely heavily on secondary sources of literature and, less
frequently, on regulations, but almost never consult the relevant statutes. For example, the Institute of
Medicine, a highly respected advisory body that typically produces rigorous, peer-reviewed analyses of
policy issues affecting biomedical research, discussed HIPAA preemption in a recent report without once
citing the preemption provisions of the HIPAA statute. Beliefs about HIPAA preemption are circulated
and recirculated in the secondary literature and eventually attain the status of well-settled rumor. Even
among law scholars, the HIPAA preemption provisions have attracted little interest.
Whalen fails – lack of guidance
Wilson 7 (Jessica, Juris Doctor at Duke University, “Protecting Privacy Absent a
Constitutional Right: A Plausible Solution to Safeguarding Medical Records,” January
2007, Washingtion University in St. Louis)//JL
Whalen v. Roe provided little guidance for lower courts dealing with medical privacy issues. Regarding the first of
the Court’s dual privacy interests, “the individual interest in avoiding disclosure of personal matters,” Whalen left unclear what
constituted a violation of the right, and failed to establish what type of constitutional treatment the
courts were to use when assessing it.58 Unlike the Court’s second privacy interest in “independence in making certain kinds of important
decisions,” which had been fleshed out by several previous Supreme Court decisions59 including Roe v. Wade60 and Paul v. Davis,61 there
was no clear legal precedent for a privacy interest in nondisclosure of personal matters.62
Lower courts fail – outdated and inconsistent
Hoppin 12 (Margaret, J.D. at New York University School of Law, “Overly Intimate
Surveillance: Why Emergent Public Health Surveillance Programs Deserve Strict Scrutiny
Under The Fourteenth Amendment,” December 2012, NYU Law Review, Hein
Online)//JL
Emergent
surveillance programs intrude upon a pri-vacy interest that courts should recognize as
fundamental for
the Fourteenth Amendment
emergent programs should be reviewed under a
strict scrutiny
The Supreme Court recognized the Fourteenth
protects an interest in not
disclosing private health information
However, the Supreme Court has never explained the contours of that right.
lower court opinions that address the constitutionality of government public
health surveillance programs are sparse, outdated, and inconsistent
they have upheld public
health surveillance programs against privacy
public health
purposes of
standard.64
. Accordingly,
has
that
Amendment
to the govern-ment.65
66 Moreover,
. In general,
challenges, after applying rational basis review or a deferential balancing test.67
Precedents are outdated and too easily distinguishable
Hoppin 12 (Margaret, J.D. at New York University School of Law, “Overly Intimate
Surveillance: Why Emergent Public Health Surveillance Programs Deserve Strict Scrutiny
Under The Fourteenth Amendment,” December 2012, NYU Law Review, Hein
Online)//JL
existing Fourteenth Amendment privacy protections that apply to government public health surveillance pro-grams. Those protections are
widely understood to be limited, and—to the extent the question has been addressed—scholars assume similarly limited protection
would apply to emergent programs.68 That assumption is unwarranted: The relevant precedents are
inconsistent, outdated, and address readily distinguishable surveillance models. Moreover, several courts and judges have suggested
This Subpart describes
that develop-ments in public health surveillance could or should trigger more rig-orous scrutiny.
Genetic Surveillance – Expanding Now
Local DNA databases are rapidly expanding now
Jason Kreag (Visiting Assistant Professor, University of Arizona James E. Rogers College of Law) 2015
“GOING LOCAL: THE FRAGMENTATION OF GENETIC SURVEILLANCE”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583957
I. THE EXPANSION OF LOCAL DNA DATABASES The expansion of local DNA databases comes on the
heels of a deep and sustained commitment from Congress to build a national network of DNA databases
overseen by the FBI. In a flurry of legislation beginning in 1994, Congress authorized the creation and
expansion of that network, which is called the Combined DNA Index System (“CODIS”).39 Under the
CODIS umbrella, the FBI created a three-tiered hierarchy of databases made up of the National DNA
Index System (“NDIS”), the State DNA Index System (“SDIS”), and the Local DNA Index System
(“LDIS”).40 Congress designated the FBI to regulate CODIS, and the FBI designed protocols to integrate
the three levels into a unified whole.41 In the decade after authorizing CODIS, Congress passed several
laws to expand the CODIS network.42 Yet, despite this expansion, local law enforcement agencies have
increasingly sought to create their own, non-CODIS DNA databases. This Part analyzes what caused this
shift. It then provides a description of the local databases in Palm Bay, Florida; Bensalem Township,
Pennsylvania; and the state of Arizona. A. Fragmentation of Genetic Surveillance While the FBI continues
to exert significant control over law enforcement’s use of DNA databases, its grip is weakening as a
result of the expansion of local databases. This fragmentation, which leaves local agencies increasingly
in control of the use of genetic surveillance, is the result of several factors. They include: 1) restrictions
in the CODIS regulations, which, according to many local law enforcement officials, limit law
enforcement’s ability to take full advantage of DNA databases to solve crime;43 2) advances in DNA
technology—allowing for quicker processing and the analysis of extremely small biological samples—
that have coincided with reduced costs; 3) federal funding that allows local law enforcement officials to
bypass the local budget process; and 4) private firms interested in expanding the use of forensic DNA
analysis. 1. CODIS Limitations Early adopters of local DNA databases have pointed to two reasons why
CODIS does not adequately meet their needs. First, they argue that the CODIS authorizing statute and
the FBI’s regulations for its use are too restrictive, preventing law enforcement from performing certain
searches and from including DNA profiles from certain individuals in CODIS.44 Second, they argue that
because much of CODIS’s growth is the result of adding DNA profiles from known violent offenders who
are often serving lengthy prison sentences, CODIS remains an ineffective crime-solving tool. The FBI has
adopted an extensive regulatory scheme for CODIS,45 and it regularly audits participating public crime
laboratories to ensure compliance.46 These regulations are designed to ensure the database is reliable
and secured.47 For example, the FBI will only allow the inclusion and search of DNA profiles if the
profiles were processed by public DNA laboratories that are a part of the CODIS network.48 Second,
federal regulations prohibit inclusion in CODIS of many types of partial DNA profiles,49 and limit law
enforcement’s ability to compare a partial profile to the other profiles in CODIS.50 Third, the process of
confirming a match in CODIS can take up to one month,51 and this is in addition to the six to 12 months
often needed for the actual DNA processing at CODIS-participating laboratories.52 Fourth, federal
regulations require the removal of profiles from CODIS if a convicted offender’s conviction is
overturned, or, in the case of an arrestee, if the charges are dismissed.53 Finally, as a result of its
emphasis on building a database of convicted offenders and arrestees, the FBI’s regulations prohibit the
inclusion of DNA profiles from individuals, including suspects, who provide law enforcement consensual
DNA samples.54 Local DNA databases are not required to comply with any of these federal regulations.
For example, they are free to include consensual DNA samples from people deemed merely suspicious,
victims, victims’ family members, and witnesses. These consensual samples have driven the growth of
local databases.55 Local DNA databases are also built with DNA processing from private laboratories.56
Furthermore, local law enforcement is free to set its own protocols for including and searching partial
DNA profiles in their databases and for expunging DNA records.57
Genetic surveillance spills over into other areas of privacy – lack of privacy protections
snowballs into acceptance of even more intrusive pratices
Jason Kreag (Visiting Assistant Professor, University of Arizona James E. Rogers College of Law) 2015
“GOING LOCAL: THE FRAGMENTATION OF GENETIC SURVEILLANCE”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583957
The expansion of local DNA databases also brings into sharper focus the fears many privacy advocates
raised about CODIS. In short, they feared that once the FBI’s DNA database was created, it would be too
tempting for law enforcement to limit its use, causing the tool to evolve to reach deeper into our
lives.216 CODIS’s growth demonstrates the merit of these fears. CODIS expanded from an initial focus
on collecting profiles from offenders convicted of certain violent crimes, to all felony offenders, and now
to arrestees.217 Similarly, after first prohibiting familial searches, CODIS now permits them in certain
circumstances.218 These advocates also fear what might come next when technology allows us to glean
even more information from an individual’s DNA sample. They are particularly fearful of the possibility
that law enforcement might use genetic samples to attempt to identify a genetic predisposition to
crime.219 Finally, the expansion of local databases will contribute further to the erosion of privacy
protections to the extent that people come to expect increased surveillance. Fourth Amendment privacy
protection is linked to society’s reasonable expectations of privacy.220 As many have noted, this
standard is fluid, but it has historically moved in the direction of society accepting lesser privacy
protections. Law enforcement’s expansion of genetic surveillance has contributed to this trend, and the
trend will continue as it becomes routine for even small agencies to build local databases.
FBI is increasing surveillance—disproportionately affects minorities
Moore 9 (Soloman, reporter for the New York Times, “F.B.I. and States Vastly Expand DNA Databases”
http://www.nytimes.com/2009/04/19/us/19DNA.html?_r=0 4/18/09 JM)
Law enforcement officials are vastly expanding their collection of DNA to include millions more people
who have been arrested or detained but not yet convicted. The move, intended to help solve more
crimes, is raising concerns about the privacy of petty offenders and people who are presumed innocent.
Until now, the federal government genetically tracked only convicts. But starting this month, the
Federal Bureau of Investigation will join 15 states that collect DNA samples from those awaiting trial and
will collect DNA from detained immigrants — the vanguard of a growing class of genetic registrants. The
F.B.I., with a DNA database of 6.7 million profiles, expects to accelerate its growth rate from 80,000 new
entries a year to 1.2 million by 2012 — a 15-fold increase. F.B.I. officials say they expect DNA processing
backlogs — which now stand at more than 500,000 cases — to increase. Law enforcement officials say
that expanding the DNA databanks to include legally innocent people will help solve more violent
crimes. They point out that DNA has helped convict thousands of criminals and has exonerated more
than 200 wrongfully convicted people. But criminal justice experts cite Fourth Amendment privacy
concerns and worry that the nation is becoming a genetic surveillance society. “DNA databases were
built initially to deal with violent sexual crimes and homicides — a very limited number of crimes,” said
Harry Levine, a professor of sociology at City University of New York who studies policing trends. “Over
time more and more crimes of decreasing severity have been added to the database. Cops and
prosecutors like it because it gives everybody more information and creates a new suspect pool.” Courts
have generally upheld laws authorizing compulsory collection of DNA from convicts and ex-convicts
under supervised release, on the grounds that criminal acts diminish privacy rights. DNA extraction upon
arrest potentially erodes that argument, a recent Congressional study found. “Courts have not fully
considered legal implications of recent extensions of DNA-collection to people whom the government
has arrested but not tried or convicted,” the report said. Minors are required to provide DNA samples
in 35 states upon conviction, and in some states upon arrest. Three juvenile suspects in November filed
the only current constitutional challenge against taking DNA at the time of arrest. The judge temporarily
stopped DNA collection from the three youths, and the case is continuing. Sixteen states now take DNA
from some who have been found guilty of misdemeanors. As more police agencies take DNA for a
greater variety of lesser and suspected crimes, civil rights advocates say the government’s power is
becoming too broadly applied. “What we object to — and what the Constitution prohibits — is the
indiscriminate taking of DNA for things like writing an insufficient funds check, shoplifting, drug
convictions,” said Michael Risher, a lawyer for the American Civil Liberties Union. This year, California
began taking DNA upon arrest and expects to nearly double the growth rate of its database, to 390,000
profiles a year from 200,000. One of those was Brian Roberts, 29, who was awaiting trial for
methamphetamine possession. Inside the Twin Towers Correctional Facility in Los Angeles last month,
Mr. Roberts let a sheriff’s deputy swab the inside of his cheek. Mr. Roberts’s DNA will be translated into
a numerical sequence at the F.B.I.’s DNA database, the largest in the world. The system will search for
matches between Mr. Roberts’s DNA and other profiles every Monday, from now into the indeterminate
future — until one day, perhaps decades hence, Mr. Roberts might leave a drop of blood or semen at
some crime scene. Law enforcement officials say that DNA extraction upon arrest is no different than
fingerprinting at routine bookings and that states purge profiles after people are cleared of suspicion. In
practice, defense lawyers say this is a laborious process that often involves a court order. (The F.B.I. says
it has never received a request to purge a profile from its database.) When DNA is taken in error,
expunging a profile can be just as difficult. In Pennsylvania, Ellyn Sapper, a Philadelphia public defender,
has spent weeks trying to expunge the profile taken erroneously of a 14-year-old boy guilty of assault
and bicycle theft. “I’m going to have to get a judge’s order to make sure that all references to his DNA
are gone,” she said. The police say that the potential hazards of genetic surveillance are worth it
because it solves crimes and because DNA is more accurate than other physical evidence. “I’ve watched
women go from mug-book to mug-book looking for the man who raped her,” said Mitch Morrissey, the
Denver district attorney and an advocate for more expansive DNA sampling. “It saves women’s lives.”
Mr. Morrissey pointed to Britain, which has fewer privacy protections than the United States and has
been taking DNA upon arrest for years. It has a population of 61 million — and 4.5 million DNA profiles.
“About 8 percent of the people commit about 70 percent of your crimes, so if you can get the majority
of that community, you don’t have to do more than that,” he said. In the United States, 8 percent of the
population would be roughly 24 million people. Britain may provide a window into America’s genetic
surveillance future: As of March 2008, 857,000 people in the British database, or about one-fifth, have
no current criminal record. In December, the European Court of Human Rights ruled that Britain violated
international law by collecting DNA profiles from innocent people, including children as young as 10.
Critics are also disturbed by the demographics of DNA databases. Again Britain is instructive. According
to a House of Commons report, 27 percent of black people and 42 percent of black males are
genetically registered, compared with 6 percent of white people. As in Britain, expanding genetic
sampling in the United States could exacerbate racial disparities in the criminal justice system,
according to Hank Greely, a Stanford University Law School professor who studies the intersection of
genetics, policing and race. Mr. Greely estimated that African-Americans, who are about 12 percent of
the national population, make up 40 percent of the DNA profiles in the federal database, reflective of
their prison population. He also expects Latinos, who are about 13 percent of the population and
committed 40 percent of last year’s federal offenses — nearly half of them immigration crimes — to
dominate DNA databases. Enforcement officials contend that DNA is blind to race. Federal profiles
include little more information than the DNA sequence and the referring police agency. Subjects’ names
are usually kept by investigators. Rock Harmon, a former prosecutor for Alameda County, Calif., and an
adviser to crime laboratories, said DNA demographics reflected the criminal population. Even if an
innocent man’s DNA was included in a genetic database, he said, it would come to nothing without a
crime scene sample to match it. “If you haven’t done anything wrong, you have nothing to fear,” he said.
Status quo federal courts and legislation allow for exceptionalism
Terry 14 (Nicolas P. Terry. “Big Data Proxies and Health Privacy Exceptionalism.” 2014. P. 19-21
https://www.ftc.gov/system/files/documents/public_comments/2014/01/00004-89091.pdf)//EMerz
While the ethical basis (autonomy) for exceptional protection for health privacy is robust, a strong legal basis for health privacy exceptionalism
is harder to articulate. The
US Constitution is silent on the issue although the decisional privacy cases do
recognize limited penumbral privacy claims.169 Whalen v. Roe did articulate the duality of informational
and decisional privacy in a case that, broadly at least, concerned health privacy. Yet Justice Stevens’
broadest pro-privacy statement in Whalen failed to articulate any exceptional treatment of health
information. Of course, in Jaffee v. Redmond, the same Justice did recognize a broad federal common law psychotherapist privilege rooted
in confidence and trust, yet it was hardly exceptional as it was analogized to the spousal and attorney-client
privileges. More recently, the Supreme Court, while restraining some aspects of the surveillance state, generally has favored
data liquidity over data protection. Outside of the health-related HIPAA, the Genetic Information Nondiscrimination Act of 2008
(GINA)176 and a few other narrow sector-specific statutes like GLBA, most federal privacy law is quite general in its reach. For example, the
Privacy Act of 1974, while applicable to health care data collected by the federal government, does not seem to apply exceptionally.177 The
same can be said of federal scrutiny of the privacy standards of private, non-health care entities. In this
general space the FTC asserts two types of claims under Section 5(a) of the Federal Trade Commission Act: “unfair or deceptive
acts or practices in or affecting commerce.” Thus, with regard to privacy, an unfair business practice case
might be brought against a business for, say, failing to have adequate security, while a deceptive or
misleading claim might apply to a business that, say, failed to comply with its own stated privacy policy.
The FTC will leave most health care privacy cases to the HHS Office of Civil Rights although it has asserted its jurisdiction in cases involving nonHIPAA entities. For example, In the Matter of CBR Systems, Inc., the FTC entered into a settlement with a provider of umbilical cord blood and
umbilical cord tissue-banking services. The proceeding related to the theft of unencrypted computer drives exposing the health information of
almost 300,000 of the bank’s customers. There
has been little Congressional consideration of the implications of
health privacy exceptionalism or, for that matter, its absence. A rare exception was at the 1999 hearings on GLBA. When
it became apparent that health insurers would be covered by the proposed legislation a provision was added with the intent to protect health
data. However, that provision would have had the unintended consequence of opening up health data to broad opt-out sharing among
financial institutions with attendant secondary use risks. Organizations
such as the American Medical Association and
the American Psychiatric Association (APA) strongly voiced their concerns, and the provision was dropped from the
final bill. The APA’s Dr. Richard Harding argued before the House of Representatives, “[i]t is critically important to recognize the difference
between medical records privacy and financial privacy,” so making the case for health privacy exceptionalism: [T]he damages from breaches of
medical records privacy are of a different nature. Medical
records information can include information on heart
disease, terminal illness, domestic violence, and other women's health issues, psychiatric treatment,
alcoholism and drug abuse, sexually transmitted diseases and even adultery . . . . These disclosures can
jeopardize our careers, our friendships, and even our marriages. And if such disclosures occur, there are
truly few meaningful remedies. Seeking redress will simply lead to further dissemination of the highly
private information that the patient wished to keep secret . . . . Just a few months later this model of health privacy
exceptionalism was confirmed when President Clinton introduced the first version of the HIPAA privacy rule. 185 The rhetoric of exceptionalism
was clear. As the President noted, the purpose of the regulation was “to protect the sanctity of medical records,” and it represented “an
Today the federal commitment to
health privacy exceptionalism seems strong. Of course there were a couple of bumps in the road as the Bush Administration
unprecedented step toward putting Americans back in control of their own medical records.”
replaced the original Clinton Administration requirement of patient consent to disclosure for treatment, payment or health care operations
(TPO) purposes with the more permissive statement that “[a] covered entity may obtain consent of the individual to use or disclose protected
health information to carry out treatment, payment or health care operations.”188 On the other hand the Bush Administration seemed to
endorse health privacy exceptionalism when it championed the Genetic
Information Nondiscrimination Act. GINA, signed
into law by President Bush in May 2008, broadly prohibits discrimination by employers and health
insurers based upon genetic information. It does so primarily by using an upstream data protection
model whereby would-be data custodians are prohibited from collecting genetic information. Two
recent federal government reports that have recommended the strengthening of data protection both
recognize health privacy exceptionalism. Unfortunately, in doing so they may drive the unintended
consequence of keeping strong, upstream protections out of the health care space. First, the White House
report Consumer Data Privacy in a Networked World, while calling for Congress to enact legislation that
includes an impressive Consumer Privacy Bill of Rights rotating around “Fair Information Practice Principles” (FIPPs),
limits that request “to commercial sectors that are not subject to existing Federal data privacy laws.”191
Second, the FTC’s Protecting Consumer Privacy in an Era of Rapid Change, which calls for privacy by design and best privacy practices, expresses
its sensitivity to burdens introduced by “overlapping or duplicative requirements on conduct that is already regulated” but more positively
suggests the potential for the FIPPs framework to provide “an important baseline for entities that are not subject to sector-specific laws like
HIPAA or GLBA.” 193 Their considerable promise aside, neither
report has led to legislation. And with the political
classes closing ranks over the Big Data-tainted NSA spying controversy, a privacy law reform proposal
does not seem likely to emerge from either the White House or Congress.
Genome surveillance is easier than ever now- low costs and accessibility in recent
years- this makes surveillance more frequent
McEwen et al 13 (Jean E. McEwen, Ethical, Legal, and Social Implications Program, Division of
Genomics and Society, National Human Genome Research Institute, National Institutes of Health,Ethical,
Legal, and Social Implications Program, Division of Genomics and Society, National Human Genome
Research Institute, National Institutes of Health. Joy T. Boyer, Senior Program Analyst, and Kathie Y.
Sun, Program Analyst. “Evolving Approaches to the Ethical Management of Genomic Data.” February 28,
2013. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3665610/)//EMerz
Plummeting sequencing costs, along with ongoing advances in bioinformatics, now make it possible to
generate an enormous volume of genomic data about vast numbers of people. Depending on the cost
calculation method used, the cost of sequencing the first human genome was somewhere around $300
million (see: http://www.genome.gov/10002192); today, it is less than $8,000 (see:
http://www.genome.gov/sequencingcosts), and prospects for the “$1,000 genome” and even cheaper
genomes are within sight [4]. Data from genome-wide association studies (GWAS), from whole genome
and whole exome scans, and from other high-throughput technologies are proliferating [5, 6]. Although
the ethical challenges associated with the management of information have always been present in the
field, the greater comprehensiveness and informativeness of today’s genomic data now makes these
challenges even greater, as was recently recognized in a report by the Presidential Commission for the
Study of Bioethical Issues [7]. First, unlike targeted genetic data of 20–30 years ago, or even the more
comprehensive (but often not very informative) SNP data of 10 years ago, the whole exome and whole
genome sequence data now being generated will eventually be able to reveal many of a person’s
specific health risks - even if the data emerge from research or diagnosis related to a specific condition
[8]. The growing informational richness of genomic data not only facilitates the range of questions it can
be mined to help answer, but magnifies its potential for misuse. Second, because of its
comprehensiveness, genomic information – even when stripped of traditional identifiers – has, at least
in some sense, the potential to re-identify the individual from whom it was obtained [8]. This
characteristic, coupled with the data’s overall richness, amplifies concerns about who should be able to
have – and control -access to it. Until recently, it was thought that re-identifying a sample or data from
which traditional identifiers had been removed required a reference sample or data from the same
person available for comparison [9], However, we now know that it is possible, in some cases, to identify
the source of a sample or data by consulting genetic genealogy databases (readily available on the
Internet) that link Y chromosome short tandem repeat (STR) data to particular surnames, and then
combining that information with other publicly available data (e.g., information about age, state of
residence, or facts contained in obituaries) [10]. Although the actual extent of this previously underappreciated risk is still unknown, the risk will almost certainly grow in the future, as more people are
sequenced and as the genetic genealogy industry grows. Indeed, the Advance Notice of Proposed
Rulemaking (ANPRN), a pending set of revisions to the Common Rule (the regulations that apply to all
U.S. federally funded research conducted with human subjects) explicitly recognizes the potential for reidentification inherent in all genomic data (see: http://www.gpo.gov/fdsys/pkg/FR-2011-0726/html/2011-18792.htm). Finally, the complexity and frequently uncertain meaning of the information
being generated today through whole genome analyses, compared to the more limited (and thus often
more easily interpreted) information typically derived through earlier, more targeted genetic tests,
enhances the possibility that the information, if shared, will be misunderstood [8]. This is creating new
challenges for researchers and clinicians, who must increasingly decide which, if any, individual findings
they should offer to return to those whose samples they have analyzed [11, 12]. Incidental findings
(findings unrelated to the disorder that initially motivated the research or testing) are inevitable – not
merely possible - in GWAS and in whole genome and whole exome scans, and as will be discussed later,
these present particular challenges [8, 13–16]. Although concerns about the ethical management of
research and clinical data are by no means new to the field, the transition over the past 20 years from a
narrowly “genetic” orientation to today’s much more comprehensive “genomic” one has been
accompanied by shifts in the way the information is being conceptualized and managed. It is thus useful
to step back and review systematically the events that have steered the course of these developments
and the new challenges emerging as a result.
Technology is lowering the cost of mass health data sharing – huge momentum for
genomics coming
McEwen et al 13 (Jean E. McEwen, Ethical, Legal, and Social Implications Program, Division of
Genomics and Society, National Human Genome Research Institute, National Institutes of Health,Ethical,
Legal, and Social Implications Program, Division of Genomics and Society, National Human Genome
Research Institute, National Institutes of Health. Joy T. Boyer, Senior Program Analyst, and Kathie Y.
Sun, Program Analyst. “Evolving Approaches to the Ethical Management of Genomic Data.” February 28,
2013. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3665610/)//EMerz
The field of genomics has long been distinguished by steadfast adherence to the principle of broad data
release. This commitment, first enshrined in the 1996 “Bermuda Principles” and subsequently
reaffirmed, is aimed at maximizing the pace of research and ultimately, its benefit to society [27]. As
targeted genetic research began to give way to research with a more genomic focus, the expectations
regarding broad data sharing - and rules to enforce them - were gradually extended to apply not only to
the data produced in large, community resource projects, but to genomic data more generally. The
introduction of SNP chips and the development of improved statistical methods in the early 2000s,
which suddenly made studies of common, complex conditions more tractable, contributed to this trend
[28]. GWAS of common disease accelerated in the 2000s and quickly overshadowed the previous focus
on single gene disorders. To be adequately powered, however, such studies typically required larger
sample sizes (or datasets) than any single researcher could amass. This circumstance, along with
improvements in informatics technology that made it cheaper and easier to share large amounts of
data, provided further momentum for sharing, and set the stage for the 2008 adoption of the NIH GWAS
Data Access Policy. That policy requires the deposition of summary-level information and aggregate
genotype data in the open access portion of the NIH Database of Genotypes and Phenotypes (dbGaP),
and the deposition of individual-level data (genotypes and phenotypes) in the controlled access portion
of the database (see: http://grants.nih.gov/grants/guide/notice-files/NOT-OD-07-088.html). Under the
policy, controlled access data are made available to any qualified researcher following review and
approval by an NIH Data Access Committee (DAC) [29]. Two other developments occurring in the late
2000s helped further “pave the way” for expanded data sharing by (at least temporarily) helping to quell
lingering concerns of some institutional review board (IRB) members about the associated risks. One
development was the enactment of the Genetic Information Nondiscrimination Act (GINA) (see:
http://www.eeoc.gov/laws/statutes/gina.cfm), which was initially greeted, at least by some, with
optimism that it would “put to rest” public worries about possible misuses of genomic information, thus
making protocols that relied on the use of shared data or incorporated plans for broad data sharing
more ethically acceptable [30]. The second was the issuance by the Office of Human Research
Protections (OHRP) of guidance reaffirming a previously-stated position that research using only deidentified materials falls outside the definition of “human subjects research” and thus outside the
protections outlined in the Common Rule (see http://www.hhs.gov/ohrp/policy/cdebiol.html). This
guidance provided some (again, at least temporary) reassurance to IRBs that protocols involving the use
of de-identified, archived samples or data, without re-consent, rested on firm ethical (or, at least
regulatory) footing. It also bolstered the confidence of institutional officials charged with certifying the
appropriateness of the data generated by investigators at their institutions for deposition into dbGaP.
The trend toward broader sharing of data has been accompanied by a trend toward broader sharing of
samples, often through large biorepositories [31]. The new sequencing technologies make it possible to
conduct genomic studies with much smaller quantities of material, increasing researchers’ willingness to
share more of the valuable sample resources they have acquired.
Genetic surveillance industrial complex entrenching itself now – constitutional and
legislative protections are weak
Jason Kreag (Visiting Assistant Professor, University of Arizona James E. Rogers College of Law) 2015
“GOING LOCAL: THE FRAGMENTATION OF GENETIC SURVEILLANCE”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583957
II. IMPLICATIONS OF THE EXPANDED USE OF LOCAL DNA DATABASES The results from Palm Bay and
Bensalem demonstrate that local databases have the potential to be a powerful law enforcement tool.
Indeed, Director Harran concluded that local databases are “the best thing to come to law enforcement
since fingerprints,”150 and Palm Bay claims that its database prevented $6 million worth of property
crime.151 Given the reduction in property crime and the increased clearance rates credited to local
databases, it may appear difficult to question law enforcement’s enthusiasm, particularly when the
Supreme Court recently blessed the expansion of DNA databases in Maryland v. King. 152 However, in
addition to the promise of more efficient crime-solving, local databases carry the potential for serious
negative implications that have not been fully considered by law enforcement. This Part discusses the
forces that will help to solidify local databases as an accepted surveillance tool, categorizes and analyzes
the potential negative effects of these databases, and sets the stage for reforms proposed in Part III A.
Entrenching Local DNA Databases There are powerful external forces helping to ensure that once local
databases are adopted, they quickly become routine surveillance tools. This Section focuses on three of
these external forces: 1) current Fourth Amendment doctrine, which allows law enforcement to tap into
the everexpanding pool of personal information collected and stored by private companies; 2) a nascent
genetic surveillance-industrial complex; and 3) growing public acceptance of law enforcement’s use of
genetic surveillance techniques Current Fourth Amendment doctrine—in particular the principles of the
third-party doctrine153—allows law enforcement to benefit from the vast amount of information the
public voluntarily shares with private companies.154 This has led some scholars to conclude that law
enforcement will respond by altering their surveillance practices. Professor Paul Ohm predicts that “[a]s
the surveillance society expands, the police will learn to rely more on the products of private
surveillance, and will shift their time, energy, and money away from traditional self-help policing,
becoming passive consumers rather than active producers of surveillance.”155 Professor Ohm’s instincts
are correct about certain types of surveillance activities. It seems likely that police will be inclined to use
information amassed by private sources, decreasing the need for law enforcement to conduct
duplicative surveillance. However, not all information sought by law enforcement is captured in the
private sector. Specifically, genetic surveillance is one area where law enforcement will continue to be
producers, as opposed to consumers, of surveillance. Whereas Google, Facebook, and other companies
will feed law enforcement’s desire for digital surveillance, the expansion of local databases
demonstrates that law enforcement will be the driver of collecting and analyzing genetic evidence. In
addition, local law enforcement’s use of genetic surveillance will be shaped by corporate interests.156
Corporate interests have played a role in the development of local DNA databases since their
inception.157 The first local DNA database was designed jointly by a private DNA lab and the Palm Bay
Police Department.158 And private firms are integral to the continued expansion of these databases.
Large firms, such as Bode Technology and Orchid Cellmark, view local law enforcement databases as
potential revenue streams, particularly because they promise to promote the use of DNA beyond violent
crimes (sexual assaults and homicides) to property crimes.159 These firms see a business opportunity in
processing the evidence swabs collected from property crimes. Indeed, in marketing their products, they
trumpet the studies that have highlighted DNA’s promise for solving these crimes.160 Similarly, smaller
firms have also sought to benefit from and to drive the expansion of local databases. These include
SmallPond and IntegenX.161 These companies have been consistent participants in law enforcement
conferences in the last several years,162 and they have sought meetings with local agencies to pitch
their products. Furthermore, IntegenX offers to help potential buyers secure grants to purchase its
products.163 The influence of private firms on policing techniques is not new and is certainly not unique
to genetic surveillance.164 However, it is important to recognize that these private interests will
influence the expansion, use, and long-term viability of this surveillance tool. And because these private
interests have evolved simultaneously with local law enforcement’s push to enter the genetic
surveillance space, the prospect of a genetic surveillance industrial complex further entrenching the
practice of local databases seems likely. Finally, the very use of these databases will also contribute to
the public’s acceptance of them. Even those with only a casual understanding of surveillance techniques
accept without question law enforcement’s ability to collect personal information—including
photographs, fingerprints, addresses, etc.—for investigative databases. Furthermore, because CODIS has
been around for 20 years, there is widespread understanding that law enforcement collects DNA
profiles from at least some segments of the population. Thus, local databases are not a completely new
surveillance tool. This incremental evolution of law enforcement investigative databases in general, and
DNA databases in particular, will help to solidify local databases as a tolerated, if not accepted, law
enforcement tool.165
Doctor-Patient Trust - Uniqueness
Doctor trust is collapsing now
Harding 14 - Contributing Writer @LiveScience
(Anne, “Americans' Trust in Doctors Is Falling,” October, http://www.livescience.com/48407-americanstrust-doctors-falling.html]
Americans' trust in the medical profession has plummeted in recent years, and lags well behind public
attitudes toward doctors in many other countries, according to a new report. That lack of trust comes
from how Americans' perceive doctors' motivations, said
34 percent of
U.S. adults polled in 2012 said they had "great confidence in the leaders of the medical profession,"
down from 76 percent in 1966
¶
Robert Blendon, a professor of health policy and political analysis at the Harvard School of Public Health in Boston and co-author
of the new report. While physician leaders elsewhere in the world often take public stands on key health and medical issues, Americans perceive the medical profession as looking out for itself, not advocating for public health, he said.¶ Just
, according to the report.¶ And a survey of people in 29 countries found the United States ranked 24th in public trust of doctors. Just 58 percent of Americans surveyed said they "strongly agreed" or
"agreed" with the statement that "doctors in your country can be trusted," versus 83 percent of people who said the same in t op-ranked Switzerland, and 79 percent in runner-up Denmark.¶ Only Chileans, Bulgarians, Russians and Poles were less trusting of the medical profession,
the researchers analyzed dozens of opinion
polls looking at the public's trust in doctors. The findings indicate that, these days, Americans see
physicians as just another interest group among many, Blendon said. "What's driving [trust levels] down
is that physicians in the U.S., as groups and leaders, are not seen as
advocates for health and
health care
according to the report, which is published in the Oct. 23 issue of the New England Journal of Medicine. [7 Absolutely Evil Medical Experiments]¶ For the study,
¶
broad public
issues," Blendon told Live Science. "In the U.S., they're seen more as a group concerned with their own professional problems and economic issues."
Robust survey of a broad range of indicators proves
Bynum & Porter, 13
W. F. Bynum, Roy Porter, British historian noted for his prolific work on the history of medicine, former
director of the Wellcome Institute for the History of Medicine at University College, LondonRoutledge,
Jun 20, 2013, “Companion Encyclopedia of the History of Medicine” 794-795, accessed online via Google
Books
One of the great ironies of the social history of medicine is that, at the ¶ supreme moment of achieving
this therapeutic power, the crown of glory was ¶ snatched from the doctor's head. In the last quarter of
the twentieth century, ¶ as an ever-broader stream of antibacterial, anti-inflammatory and antineoplas- ¶
tic medications became available, patients became increasingly alienated from ¶ the former 'demigods in
white'. Recent statistics illustrate these changes. For ¶ example, rising numbers Of malpractice suits
point to growing alienation: one ¶ half of all surgeons in Florida had been sued for malpractice within the
¶ period 1975—80, and the better trained the surgeons were, the greater the ¶ number of suits.23
Between and 1985, claims per 100 physicians in the ¶ United States as a whole more than doubled.
Some specialities were exceed- ¶ ingly vulnerable: over the five-year period 1976—81, claims against
obste- ¶ u-icians tripled. The average claim itself climbed from 98,000 in 1975 to almost $100,000 in
1988.2' Ch. 69 Medicine and the law; Ch. History of ¶ ethics) ¶ Second, patients responded to their
perception Of physicians' coolness ¶ and lack of interest with a lack Of loyalty. Several different
American polls ¶ commissioned in the mid-1980s found that two-thirds of all patients would ¶ be willing
to 'change their provider in an attempt to find more satisfactory ¶ medical care'.2S One contrasts this
high volatility with patients in the days ¶ before the Second World War who, with their families, would
often develop ¶ lifelong attachments to the same family doctor. ¶ The whole persona of the 'family
doctor', the elderly pipe-puffing figure ¶ present both at birth and death, is now disappearing, both in
fact and in the ¶ minds of patients. In the United States in 1988, only slightly more than one ¶ doctor in
ten was in 'general family practice'.26 Nor were American patients ¶ particularly interested in the advice
of their physicians: the percentage of ¶ patients willing to use the family doctor as a source of 'local
health care ¶ information' declined from 46 per cent in 1984 to 21 per cent in 1989.27 ¶ How did families
select which hospital to attend? More than 50 per cent of ¶ patients polled in 1989 said that 'they or
their family have the most influence ¶ in selection of a hospital' — as opposed to listening to the doctor
— up from ¶ 40 per cent in previous years." (Non-American readers will recall that private ¶ American
hospitals compete for patients.) ¶ This alienation from the doctor—patient relationship has diminished
the ¶ public's former hero-worship of the doctor. According to a Gallup poll in ¶ 1989, 26 per cent of
patients said they respected doctors less now than ten ¶ years ago (14 per cent said more). And of those
who respected doctors less, ¶ 26 per cent said, 'they (the doctors) are in it for the money'. Seventeen per
¶ cent claimed that doctors 'lack rapport and concern'.29
Best data proves trust is sinking
Blendon et. al, 10-23-‘14
Robert J. Blendon, Sc.D., John M. Benson, M.A., and Joachim O. Hero, M.P.H., The New England Journal of Medicine, October 23, 2014, “Public Trust in Physicians —
U.S. Medicine in International Perspective” http://pnhp.org/blog/2014/10/24/improving-trust-in-the-profession/
Research suggests that for physicians to play a substantial role in such decision making, there has to be a
relatively high level of public trust in the profession’s views and leadership. But an examination of U.S.
public-opinion data over time and of recent comparative data on public trust in physicians as a group in 29 industrialized
countries raises a note of caution about physicians’ potential role and influence with the U.S. public.¶ In a
project supported by the Robert Wood Johnson Foundation and the National Institute of Mental Health,
we reviewed historical polling data on public trust in U.S. physicians and medical leaders from 1966
through 2014, as well as a 29-country survey conducted from March 2011 through April 2013 as part of the International Social Survey Programme (ISSP),
a cross-national collaboration among universities and independent research institutions.¶ In 1966, nearly
three fourths (73%) of Americans said they had great confidence in the leaders of the medical profession. In 2012,
only 34% expressed this view. But simultaneously, trust in physicians’ integrity has remained high. More than two thirds of the public (69%) rate the honesty and
ethical standards of physicians as a group as “very high” or “high” (Gallup 2013).¶ Today, public confidence in the U.S. health care system is low,
with only 23% expressing a great deal or quite a lot of confidence in the system. We believe that the medical
profession and its leaders are seen as a contributing factor.
Longitudinal studies establish US doctor-patient relationships are amongst the worst
in the world
Collins, 10-23-‘14
Sam P.K. Collins is a health reporter for ThinkProgress, OCTOBER 23, 2014, Think Progress, “Americans
Don’t Trust The Medical Profession” http://thinkprogress.org/health/2014/10/23/3583625/americansskeptical-doctors/
Americans count among the least trusting of the medical profession, according to an international
health care survey. The findings, which appeared in a recent issue of the New England Journal of
Medicine, show significant levels of suspicion of doctors, especially among those who make less than
$30,000 annually.¶ Researchers studied public health polls dating back four decades, including one
conducted by a consortium of universities between 2011 and 2013 during which people in 29 countries
answered survey questions. In that poll, 58 percent of Americans said they trust the medical profession,
placing the United States in 24th place with Croatia.¶ “It fits with decades of data on the American
public’s trust in institutions, in general,” Michael Gusmano, a scholar at the Hastings Center, a Garrison,
N.Y.-based research institute that focuses on health care, told WebMD.
Doctor-Patient Trust – Privacy Key
Increased health care privacy is key to doctor-patient trust
Greenspun 15 (Harry Greenspun M.D. is the director of the Deloitte Center for Health Solutions, “Earning Patient Trust Crucial to
Health Care Reform” 4/27/15 http://deloitte.wsj.com/cio/2015/04/27/earning-patient-trust-crucial-to-healthcare-reform/)///CW
Maintaining privacy in health care used to be relatively straightforward. As a physician, I was bound by doctorpatient confidentiality. This gave my patients the confidence that they could share with me intensely personal
information. Security focused on limiting access to paper charts. Breaches typically involved only a handful of individuals. ¶ Now, in an
era of electronic health records (EHR) and clinical data shaken. From lapses in protocols to sophisticated
cyber attacks, the public is confronted with exposure on a massive scale warehouses, consumers’
confidence in the security of their data continues to be. The value of health care data on the black market is
even beginning to exceed that of financial data, as scammers and hackers can use information about
individuals’ physical characteristics to steal identities. The information that comes with a person’s medical identity is also more
difficult to move back into the private realm once it leaks to the public. ¶ Some of this news could not come at a worse time. The future of health care depends on
secure flow of information. Nearly every major delivery reform, from value-based care and population health to personalized medicine and use of real-world
evidence, relies on data and the willingness of those who have it to share it. The ability to better serve individuals depends on the health care industry’s ability to
view its data in aggregate.¶ Compounding the problem is the awareness that our overall privacy–not just health privacy–is slowly eroding. A casual glance at online
ads reveals how quickly your consumer data gets shared, but technology has taken us well beyond that. Last year, while participating in a conference on privacy in
Abu Dhabi, one of the speakers asked, “Who knows you’re here?” The list grew rapidly: my office, the airline, customs and immigration, the hotel, the taxi company,
the coffee shop, my cellphone carrier, the conference center, and the owners of the literally thousands of security cameras I’d passed during my trip. Add notes to
family and friends along with followers on social media, and it was clear that the record of my trip had been broadly dispersed.¶ As we sit on the cusp of the era of
big data in health care, there are several important things to consider:¶ Health
data concerns are different. While the loss of financial
disclosure of certain medical
information can be devastating with far-reaching consequences. In addition, breaches and misuse can introduce
inaccuracies into a medical record, potentially impacting patient safety.¶ Privacy preferences fall along a continuum and vary even within individuals
information can be distressing, the impact can usually be mitigated and consumer liability is often limited. By contrast,
depending on the topic. While many consumers may freely share certain health information for clinical research, on social media, and with disease-specific
websites, they fiercely protect other personal health data. As we strive to gather more data to advance health care, the
tension between the need
for individual privacy and knowledge for the greater good is only going to increase.¶ The industry has a
communication challenge. Do your own survey and ask some friends, “What are the risks of having your medical information stored electronically?” Once they have
talked your ear off about identity theft, discrimination, and even extortion, ask them, “What
are the benefits?” Having done this many
times myself, I’ve found that few have a compelling answer. While we have invested heavily in EHRs and health information
exchange, we have done little to educate the public whose data may be at risk.
Perception of information collection crushes patient trust
Appari and Johnson 10, ( Ajit, Eric, Tuck School of Business, “Information security and privacy in
healthcare: current state of research,” Dartmouth, 4, 2010,
http://www.ists.dartmouth.edu/library/501.pdf)//IB
A significant
body of research has examined the perception of privacy concerns from the viewpoint of a
special class of patients, including mental health patients, seekers of HIV testing and adolescents. In a recent
survey of past research on healthcare confidentiality, Sankar et al. (2003) make four overarching conclusions. First, patients
strongly believe that their information should be shared only with people involved in their care. Second,
patients do identify with the need of information sharing among physicians, though HIV patients are less
likely to approve sharing of their health information. Third, many patients who agree to information
sharing among physicians reject the notion of releasing information to third parties, including employers
and family members. Lastly, the majority of patients who have undergone genetic testing believe that
patients should bear the responsibility of revealing test results to other at-risk family members. This
extensive body of research has primarily focused on the use of identifiable or potentially identifiable information by others
outside of immediate health providers, such as employers, families and third parties (Sankar et al., 2003). However, very limited research has
examined patients’ perceptions of sharing anonymised health records (perhaps with the exception of more
recent studies that
examine patients’ perceptions about consent for data use (Bansal et al., 2007; Campbell et al., 2007)). Bansal et al. (2007)
developed a set of constructs based on utility theory and prospect theory as antecedents of trust formation and
privacy concern that impact users’ personal disposition to disclose their health information to online
health websites. In particular, they reported that users’ current health status, personality traits, culture, and prior experience with
websites and online privacy invasions play a major role in users’ trust in the health website and their degree of privacy
concerns. On the other hand, in a mail-based survey with adult patients in England, Campbell et al. (2007) found that about 28–35% of patients
are neutral to their health information – such as age, gender, ethnicity, reason for treatment, medical history, personal habits impacting health,
type of treatment obtained, side effects of treatment – being used by physicians for other purpose. Only about 5–21% of patients, however,
expected to be asked for permission to use their information by their physicians. Similarly, only about 10% of the patients expected to be asked
for permission if their doctors used their health information for a wide variety of purposes, including combining data with other patients’ data
to provide better information to future patients, sharing treatment outcomes with other physicians, teaching medical professionals and writing
research articles about diseases and treatments.
Patient-physician trust is critical to provide companies with access to healthcare and
information
Muller et al 14 (Evamaria Muller, Jordis M. Zill, Jorg Dirmaier, Martin Harter, Isabelle Scholl,
University Medical Center Hamburg-Eppendorf, Department of Medical Psychology, Hamburg,
Germany)(“Assessment of Trust in Physician: A Systematic Review of Measures”, September 10, 2014,
PLoS ONE 9(9): e106844. doi:10. 1371/journal.pone.0106844)//ASMITH
Patient-centeredness has gained importance in research, health policy and clinical practice. Trust is
considered a central factor in determining a positive patient-physician relationship [1–3], which is an
important dimension of patient-centeredness [4]. Trust in the context of healthcare has received increasing attention in the
last two decades [5]. This is partly due to the voice of concerns about the effects of organizational changes in the healthcare system on
patients’ trust in their healthcare professionals, healthcare institutions and the healthcare system itself [6,7].
Patients’ trust has a
particularly delicate notion, as patients who are ill and may have to face high risks regarding their health
find themselves in an extremely vulnerable situation. Reliance on patients’ individual physicians and the
healthcare system is often inevitable [6,8]. The patient-physician relationship is characterized by a knowledge and power
imbalance in which patients depend on the physicians’ expertise and execution of treatments to solve their health problems [6,8,9]. Hence,
trust in physician plays an important role and has been studied extensively. Trust in physician can be defined as the patient’s optimistic
acceptance of a vulnerable situation and the belief that the physician will care for the patient’s interests [2]. Empirical
studies have
revealed that patients’ trust in physician is associated with patient satisfaction [10], continuity of care
[11] and adherence to treatment [12]. Trust in physician facilitates access to healthcare, disclosure of
relevant information and thereby supports accurate and timely diagnosis to be made [8]. Trust in
physician is also associated with self-reported health improvement [13] and patients’ self-reported
ability to manage their chronic disease [14]. As the body of work increases, the question of how to measure trust in physician
gains importance. The validity of empirical findings is fundamentally dependent on the quality of the measures in use. Therefore, the selection
of a measure should be carefully considered and based on the measure’s psychometric properties. Some studies addressed the quality of trust
in physician measures [5,7,15], but no systematic review on trust in physician measures and their psychometric properties has been published
to date. A thorough overview and comparison of different validated measures is needed a) to facilitate the choice of an appropriate instrument
in accordance with the individual research purpose, b) to identify research gaps and needs for further psychometric testing of instruments and
c) to inspire new measurement developments, if necessary. Thus, the aims of this systematic review of measures on trust in the physician are 1)
to identify existing psychometrically tested measures of trust in physician, 2) to determine the methodological quality of the studies that report
on psychometric properties of measures, and 3) to evaluate the quality of identified measures based on their psychometric properties.
Privacy and trust between doctors and pacients are critical to successful medicine
practices
Glen and Montieth 14 (Tasha Glenn, ChronoRecord Association, Inc., Fullerton, CA & Scott
Monteith, Michigan State University College of Human Medicine, Traverse City Campus)(“Privacy in the
Digital World: Medical and Health Data Outside of HIPAA Protections, 14 September 2014, Curr
Psychiatry Rep,16:494 DOI 10.1007/s11920-014-0494-4)//ASMITH
Trust between doctor and patient is fundamental to the practice of medicine. A patientmust trust the
physician sufficiently to share personal details that may be stressful, embarrassing, or potentially
damaging. A physician must trust that a patient is sharing enough information to make an accurate
diagnosis, and that a patient is able to give informed consent about treatments that may pose significant
risks. Trust in psychiatrists may be more important to patients with mental disorders than to patients
with other serious illnesses [1]. An essential component of the trust between doctor and patient is
privacy. Over two thousand years ago, Hippocrates emphasized the importance of privacy, and the
practice of medicine has recognized and valued the importance of privacy ever since. Privacy of medical
data is regulated by federal and state laws but primarily HIPAA. HIPAA regulates patient data that is
collected by providers and their business associates in relation to treatment, payment or healthcare
operations. Most privacy discussions relate to concerns about HIPAA, such as the relative ease of reidentification of deidentified data [2, 3]. This review will focus on the medical and health data that are
increasingly being collected outside of HIPAA protections. Medical and health data outside of HIPAA can
be volunteered by consumers directly, observed by corporations recording consumer actions, and
inferred by calculated models [4]. The rapidly expanding stores of data collected outside of HIPAA are
encroaching on the traditional doctor patient relationship and eroding medical privacy
Patient-Doctor relations key to medical efficiency
Appari and Johnson 10, ( Ajit, Eric, Tuck School of Business, “Information security and privacy in
healthcare: current state of research,” Dartmouth, 4, 2010,
http://www.ists.dartmouth.edu/library/501.pdf)//IB
Privacy is viewed as a key governing principle of the patient–physician relationship. Patients are required
to share information with their physicians to facilitate correct diagnosis and treatment, and to avoid adverse
drug interactions. However, patients may refuse to divulge important information in cases of health problems such
as psychiatric behaviour and HIV, as their disclosure may lead to social stigma and discrimination (Applebaum,
2002). Over time, a patient’s medical record accumulates significant personal information including identification, history of medical diagnosis,
digital renderings of medical images, treatments, medication history, dietary habits, sexual preference, genetic information, psychological
profiles, employment history, income and physicians’ subjective assessments of personality and mental state (Mercuri, 2004). Figure 1 shows a
typical information flow in the healthcare sector. Patient
health records serve a range of purposes apart from
diagnosis and treatment provision. For example, information could be used to improve efficiency within
the healthcare system, drive public policy development and administration, and in the conduct of
medical research (Hodge, 2003). A patient’s medical records are also shared with payer organisations (e.g., private insurance or
Medicare/Medicaid) to justify payment of services rendered. Healthcare providers also use records to manage their operations and improve
service quality. Furthermore, providers may share health information through Regional Health Information Organisations (RHIOs) to facilitate
care services.
Public doesn’t perceive gains from health surveillance
Andrea Wilson (Senior Business Practices Analyst at The Methodist Hospital System, Houston, TX)
2009 “MISSING THE MARK: THE PUBLIC HEALTH EXCEPTION TO THE HIPAA PRIVACY RULE AND ITS
IMPACT ON SURVEILLANCE ACTIVITY” 9 HOUS. J. HEALTH L & POL’Y 131-156,
https://www.law.uh.edu/hjhlp/Issues/Vol_91/Wilson.pdf
Public health officials have always faced obstacles in the collection of data needed for evaluating public
health concerns and developing effective policy. 42 Agencies frequently suffer from a lack of funding at
the state level, resulting in a loss of personnel for surveillance efforts. 43 Public health law aims to
improve the health of the population as a whole by implementing policies, which require the
cooperation of individual members of society. 44 However, citizens rarely see direct personal benefits
from public health efforts because these activities are designed for aggregate well-being, as opposed to
medical treatment which focuses on the individual patient. 45 The public does not perceive substantia l
gain from surveillance, though it can clearly see that such activities require an inquiry into personal
medical histories. 46 As a result, patients and their health care providers are reluctant to release private
information. 47 Thus, there was cognizable difficulty in gathering needed surveillance data before the
promulgation of HIPAA, and despite HHS’s attempts to broaden the means by which public health
authorities could access this information, the terms of the regulations have exacerbated the problem.
Doctor-Patient Trust – Key to Medical Treatment
Doctor-patient trust is key to effective medical treatment
Leng 13 (Shirie Leng MD is an anesthesiologist, “How can doctors and patients regain trust in each other?” 8/3/13
http://www.kevinmd.com/blog/2013/08/doctors-patients-regain-trust.html)///CW
The Mayo Clinic Proceedings came out with a study that shows that many of the treatments that doctors once swore by are useless or worse.¶
The New York Times did a piece on it and the commentary contained a great deal of doctor-bashing. So of course I opened my big mouth and
pointed this doctor hatred out. The comment I got back was this: “It’s not hatred, it’s fear.”¶ Wow. If
people are starting to fear
physicians then we’ve got a real problem. Trust has always been the basis of the doctor-patient
relationship. If you can’t trust us then we might as well go back to the days of charlatans and quacks. I know, some
people are going to say we’re all quacks anyway but those folks had shoddy upbringing. If you can’t trust us then we’re done. If you can’t
trust us then our relationship becomes adversarial: you against me. If you can’t trust us, you won’t tell us things, you won’t
do what we say, you will constantly be doubting our motives. And vice versa. Actually, now that I think of it, the doctorpatient relationship becomes basically teenager-parent.¶ The literature on doctor-patient trust suggests that a patient’s
health or recovery depend in part on the doctor-patient relationship. Judith Hall, a researcher at Northeastern University, wrote with colleague
Debra Roter,¶ Once the patient and physician are brought together, they enter a relationship predicated on the expectations each olds for the
conduct of the other. The relationship thus formed has substantial implications for how the curing and caring process will be accomplished and
the extent to which needs and expectations will be met, satisfaction achieved, and health restored. (Doctors Talking with Patients/Patients
Talking with Doctors)¶ Trust has many components. It is based partly on compatible communication styles. The Journal of General Internal
Medicine points to the patient’s assessment of the physician’s communication, level of interpersonal treatment, and knowledge of the patient.
In these times of short visits, short-tempered doctors and patients, and fragmented treatment, all those factors are in jeopardy. Patient
dissatisfaction implies poor trust. Race and gender of both patient and doctor has an impact. Patients who genuinely like their doctors tend to
trust them more.¶ In the 1950s it was thought that the basis of physician trust is the understanding that doctors treat everyone equally. The
media has made sure we all know this is not true, and this has to do with economics and geography as well as regional differences in standard
of care. That old-fashioned trust of the physician resulted in a paternalistic approach to medicine with the resulting backlash by the autonomy
movement. The basic function of the doctor, to diagnose and treat, has been called into question by the Mayo Clinic article as well as a number
of other stories such as over-prescribing, doctors taking money from drug companies, the guy who performed illegal and unsanitary abortions,
doctors turning down medicaid patients, etc. Doctors
trust patients less too. Part of the reason doctors don’t follow
the latest recommendations is fear of litigation, especially if they don’t do something.
Lack of mandated privacy results in less overall information and decreased trust in the
medical system
Goldman, from the College of Physicians and Surgeons, Columbia University, November 1998 – (Janlori,
“Protecting Privacy To Improve Health Care”, published in HealthAffairs volume 17 number 6)//roetlin
Insufficient attention has been paid to date to the role that privacy and confidentiality play in the health
care setting. There is no comprehensive federal law to protect the privacy of people’s health records, and
state laws are scattered and inconsistent. Although the American Medical Association (AMA) and other provider groups have long considered
confidentiality a key component of preserving the doctor/patient relationship, others view patient privacy as a barrier or a stumbling block to
achieving health care–related goals. There
is a fear that protecting privacy will clog the free flow of health
information and make less information available for out- comes analysis, research, and other public health activities.2 Ultimately,
however, the converse is true: Without trust that the personal, sensitive information that they share
with their doctors will be handled with some degree of confidentiality, patients will not fully participate
in their own health care. In the absence of such trust, patients will be reluctant to accurately and honestly
disclose personal information, or they may avoid seeking care altogether for fear of suffering negative
consequences, such as embarrassment, stigma, and discrimination.
The plan is key to sustained participation in medical research studies
Weir and Olick 4 (Robert, PhD and Professor Emeritus of Pediatrics at the University of
Iowa; Robert, Associate Professor of Bioethics and Humanities at SUNY Upstate Medical
University, “The Stored Tissue Issue: Biomedical Research, Ethics, and Law in the Era of
Genomic Medicine,” 2004, Oxford university Press, p. 179)//JL
The state of the law
governing genetic privacy and the risks of genetic discrimination are relevant to biomedical
research in at least three significant ways. First, though investigators are not obligated to quote chapter and verse about existing law,
fulfilling the duty of confidentiality and making accurate representations about the bounds of this promise require a basic
familiarity with the legal terrain. Second, the legal landscape necessarily informs IRB judgments whether the
research protocol poses minimal risk and the shaping of informed consent requirements. Last, as observed elsewhere, concerns
about privacy and discrimination may play a pivotal role in a potential participant’s willingness to enroll in
a research study.
Trust is essential to doctor-patient relationships and quality health care
Russo 13 (Nicholas J. Russo is a 2012 honors graduate of the MBS program at TCMC. Before attending
TCMC, he received a Bachelor of Science degree in technological systems management engineering and
biology from Stony Brook University in New York. He plans to continue his education in medicine.)(“In
medicine, doctor-patient trust vital”, February 18, 2013, The Scranton-Times Tribune, http://thetimestribune.com/news/health-science/in-medicine-doctor-patient-trust-vital-1.1445937)//ASMITH
Amos was an Amish patient treated for pneumonia with penicillin injections by Dr. Henry. On the final
day of his regimen, Dr. Henry told Amos that he did not have a bill prepared and asked him to return
another day. Amos replied by writing a blank check. Dr. Henry refused the blank check, explaining that
he would be able to write in any amount he wished. Amos replied without hesitation: "I trusted you with
my life. I do not see why I cannot trust you with my money." This story from the book "Patients Are a
Virtue," by Henry S. Wentz, demonstrates that trust is an essential component of the doctor-patient
relationship. The sanctity of this relationship is the very essence of quality health care and is the basis
for patient satisfaction and positive outcomes. Studies show that patients feel strongly that trust should
be the No. 1 factor when it comes to choosing the "right" physician for you. A recent study published in
the Internal Journal of Medical Education demonstrated that better patient outcomes and compliance
with treatment increase when doctors are trusted and more proactive in involving patients in their own
health care. Patients agreed they trusted their doctors more when extra time was spent explaining a
procedure and treatment. These patients were more likely to get regular checkups and medical tests
and take their medications properly. They were also more likely to follow a healthy lifestyle, including
diet and exercise, and control diseases such as blood pressure and diabetes. Trusting your physician
plays a much larger role than you might imagine when making medically informed decisions. Dr. Janet
Townsend, founding chairwoman of the department of family, community and rural health at the
Commonwealth Medical College, believes that establishing a foundation of trust with patients and their
loved ones is the basis for delivering quality health care. "People need to trust you as a doctor and know
that you are truly here for them," she said. Dr. Townsend's experiences have taught her that there is no
simple equation for establishing trust, but it is a powerful tool for improving patient outcomes. Dr. Mark
White, an educator and community health researcher at TCMC, takes great pride in his Physician and
Society course for first-year medical students. He believes that trust is an integral part of the doctor-
patient relationship; it is the root of passionate, patient-centered medicine, something he emphasizes in
his curriculum. In fact, doctor-patient relationships may be improving. A recent MSNBC report presented
a compelling argument that the traditional "authoritative attitude" of some doctors with their patients is
rapidly becoming a thing of the past. More and more patients are taking responsibility for their health
education, and trust may be the key underlying factor that allows this open communication and better
patient treatment. Today's doctor-patient relationship is one in which both parties are more equal than
ever, which allows both to be rewarded for establishing lasting relationships built on trust. New
partnership In Northeast Pennsylvania, our communities are grounded in trust. On a regular basis,
senior citizens come to my office for a consultation, and the first question they ask me is, "Who is your
father, Paul?" This is followed by, "Was Al your uncle?" "Are you related to Mike?" While I was not sure
of the importance of these questions early in my career, I have come to realize that patients were just
trying to make a connection with me. They wanted to know if they could "trust" me. Nick Russo, a
recent graduate of the Commonwealth Medical College's Master of Biomedical Sciences program,
presents new research that supports their instincts: Patients who trust their health care provider have
better outcomes; the doctor-patient relationship matters.
Lack of doctor-patient trust causes lack of information communication and prevents
effective treatment
Goold and Lipkin 99 (Susan Dorr Goold, MD, MHSA, MA, Received from the Division of General
Medicine, University of Michigan Medical Center, Ann Arbor, Mich. AND Mack Lipkin, Jr., MD, New York
University Medical Center, New York)(“The Doctor–Patient Relationship: Challenges, Opportunities, and
Strategies”, J Gen Intern Med. 1999 Jan; 14(Suppl 1): S26–S33. doi: 10.1046/j.15251497.1999.00267.x)//ASMITH
The relationship between doctors and their patients has received philosophical, sociological, and literary
attention since Hippocrates, and is the subject of some 8,000 articles, monographs, chapters, and books
in the modern medical literature. A robust science of the doctor–patient encounter and relationship can
guide decision making in health care plans. We know much about the average doctor's skills and
knowledge in this area, and how to teach doctors to relate more effectively and efficiently.11, 12 We
will first review data about the importance of the doctor–patient relationship and the medical
encounter, then discuss moral features. We describe problems that exist and are said to exist, we
promulgate principles for safeguarding what is good and improving that which requires remediation,
and we finish with a brief discussion of practical ways that the doctor–patient relationship can be
enhanced in managed care. The medical interview is the major medium of health care. Most of the
medical encounter is spent in discussion between practitioner and patient. The interview has three
functions and 14 structural elements (Table 1).13 The three functions are gathering information,
developing and maintaining a therapeutic relationship, and communicating information.14 These three
functions inextricably interact. For example, a patient who does not trust or like the practitioner will not
disclose complete information efficiently. A patient who is anxious will not comprehend information
clearly. The relationship therefore directly determines the quality and completeness of information
elicited and understood. It is the major influence on practitioner and patient satisfaction and thereby
contributes to practice maintenance and prevention of practitioner burnout and turnover, and is the
major determinant of compliance.15 Increasing data suggest that patients activated in the medical
encounter to ask questions and to participate in their care do better biologically, in quality of life, and
have higher satisfaction.16 Effective use of the structural elements of the interview also affect the
therapeutic relationship and important outcomes such as biological and psychosocial quality of life,
compliance, and satisfaction. Effective use gives patients a sense that they have been heard and allowed
to express their major concerns,17 as well as respect,18 caring,19 empathy, self-disclosure, positive
regard, congruence, and understanding,20 and allows patients to express and reflect their feelings21
and relate their stories in their own words.22 Interestingly, actual time spent together is less critical
than the perception by patients that they are the focus of the time and that they are accurately heard.
Other aspects important to the relationship include eliciting patients' own explanations of their
illness,23, 24 giving patients information,25, 26 and involving patients in developing a treatment plan.27
(For an overview of this area of research, see Putnam and Lipkin, 1995.28)
Doctor-Patient Trust – Privacy Protection Behavior
Strong widespread support for public health information privacy – the aff is key to
avoid action to avoid discrimination
Rubel 12 (Alan Rubel. Ph.D., Department of Philosophy, University of Wisconsin-Madison; J.D., magna
cum laude, University of Wisconsin Law School Assistant Professor. “Justifying Public Health
Surveillance: Basic Interests, Unreasonable Exercise, and Privacy.” 2012. P. 14-15.
https://kiej.georgetown.edu/home_files/22.1.rubel.pdf)//EMerz
There is, however, a question as to whether privacy is an important enough good that it is a basic
interest. In some contexts it may be. Privacy is best understood as a three-part relation between a
person, some domain of information, and some other person, persons, or entity. Any discussion of
interests in, claims regarding, or rights to privacy should therefore specify who the privacy holder is,
what information is at issue, and who the other parties are that can learn that information (Rubel 2011).
Privacy in some information with respect to some entities would very likely rise to the level of a basic
interest. Consider privacy regarding how one votes with respect to the state, privacy regarding one’s
intellectual habits with respect to the state, and privacy regarding sexual orientation, genetic
predispositions, aspirations and fears, and one’s naked body with respect to the general public. In the
public health context, the privacy at issue is generally privacy regarding one’s medical information with
respect to certain government actors. If we assume that no information conveyed will be disclosed to
other agencies and to entities not already involved in a person’s health care, it is difficult to see a basic
interest at work. At least this is true in most cases; below I address some particular contexts in which
medical privacy may rise to the level of a basic interest. But the first premise states that claims to
privacy in health information are based on deep personal interests. By this I mean that they are based
on interests that are more weighty than (mere) personal interests but not sufficiently weighty to be
considered basic. One reason is that health information privacy is important to many persons’
conceptions of the good. As I have already noted, the desire for health information privacy is strong,
widespread, and resilient. Moreover, there is no reason to think such a desire is based on a misplaced
fear or a mistake about facts. Many people are concerned about receiving ill treatment or being
discriminated against on the basis of health information. The possibility of having their health
information disclosed may lead people to avoid care, which is generally detrimental to their health
and hence interests regardless of their particular conceptions of the good. Health privacy also
implicates autonomy and dignitary interests, regardless of whether there is a chance of ill treatment,
discrimination, or care avoidance (Bloustein 1964; Reiman 1976; Benn 1971; DeCew 1997). Some people
may wish not to have their identities shaped by information about their health and so may want to
control who views them in terms of their health conditions and who views them without such
information.12 A further reason that claims to health privacy are based on deep interests has to do with
a sense of fair terms of social cooperation. Given the widespread desire for privacy generally and health
information privacy in particular, any mandatory diminution of that privacy by state actors should be
justifiable in terms that the subject of the information gathering could agree to as fair in light of others’
reasonable conceptions of the good. Certainly some information collection is justifiable in this way:
keeping track of motor vehicles and drivers’ licenses in order to assure only qualified drivers are on the
roads and that they are using nonstolen vehicles is surely justified in such a way. But not all health
information collection can be so justified. Where collection of health information does not redound to
the benefit of the subject of the information, and where any health benefits to others are tenuous,
small, or attainable in other ways, it would be difficult to justify the collection as fair to the persons
whose conception of the good includes (or relies on) health information privacy.13 Finally, there is an
important liberty interest at stake in health information privacy. Boudewijn de Bruin has recently
made the case that privacy losses both limit persons’ freedom to act in certain ways and decrease those
same persons’ knowledge about their freedom. If others have information about a person, they may use
that information in a way that affects that person’s ability to act. So, a data breach might give a bank
officer information that would lead her to reject a person’s loan application on the ground that she’s
receiving, say, cancer treatment (2010). Moreover, de Bruin points out that the value of freedom stems
from knowing that we possess it: uncertainty about the effects of information breaches undermines a
person’s ability to act. Relatedly, there is an autonomy interest in understanding such effects, since
information collected for public health can often be used to delimit a person’s opportunities.
Information about tuberculosis may be used to quarantine or isolate people; information about HIV
status is used to punish people who have sex without disclosing their status; information about HIV
affects persons’ ability to travel and immigrate; information about vaccination affects whether people
can enroll in schools; information about body weight has been proposed as a basis for an insurance
surcharge for diabetics (Lacey 2011); and so forth. More importantly, the effects of the information may
not be known at the time it is collected. We do not know how information will be used in the future. For
these reasons health privacy with respect to state actors is best understood as a deep, personal (and
nonbasic) interest. It is worth emphasizing that at this point I am outlining a condition for justifying
surveillance and arguing that it is justified to restrict a claim based on a deep personal interest where
exercising that claim unreasonably threatens basic interests. A fortiori, it would be justified to restrict a
claim based on a nondeep personal interest. Now, in some cases privacy regarding one’s health with
respect to state actors may implicate basic interests. As noted, TB (especially TB that is multidrug
resistant or extensively drug resistant) may be grounds for quarantine or isolation (42 USC 264; 42 CFR
70, 71). Freedom of movement would seem to be a basic interest. So, at least in some cases, privacy
with respect to state actors, in conjunction with laws enabling further actions based on that
surveillance, implicates basic interests. In such cases, we are not confronted with conflicts between the
basic interests of some individuals and the less weighty personal interests of others but with conflicts
between basic interests. Subordinating some basic interests for the sake of other basic interests can be
justified by appeal to the number or magnitude of basic interests at stake, such that if enough others’
interest in not contracting a disease that is likely to cause serious illness or death is strongly enough
implicated, it can be justified to surveil others and to quarantine or isolate some. That does not entail
that only aggregated interests matter, just that some degree of aggregation of basic interests can
provide sufficient justification for subordinating of basic interests of others.1
Fears of privacy breaches causes withholding of patient data, inconsistent care, and
lack of care coordination
Glen and Montieth 14 (Tasha Glenn, ChronoRecord Association, Inc., Fullerton, CA & Scott
Monteith, Michigan State University College of Human Medicine, Traverse City Campus)(“Privacy in the
Digital World: Medical and Health Data Outside of HIPAA Protections, 14 September 2014, Curr
Psychiatry Rep,16:494 DOI 10.1007/s11920-014-0494-4)//ASMITH
Although the public routinely gives away most personal information, medical privacy remains uniquely
important to most, as underscored by the very existence of HIPAA and HITECH. The use of technology in
medicine is widely supported but concern remains about the security of the medical information that is
protected by HIPAA, such as in EMR, as summarized in Table 2. In a study of psychiatric outpatients
almost 90 % had concerns about confidentiality with the use of EMR, such as unauthorized access within
a university healthcare system, inappropriate use of information, and stigmatization [126]. There are
serious consequences when patients fear their privacy is at risk. Patients may become selective about
the information they provide, offering an incomplete or misleading description of their condition. In
recent surveys, a substantial number of people said they would withhold data from their physician due
to privacy concerns related to technology, as shown in Table 3. Patients who are worried about privacy
are also less likely to seek care or return for follow-up treatment, or may seek care outside of their
provider network undermining the benefits of care coordination [126, 128]. Much of the general public
is unaware of the large amount of medical and health data being amassed outside of HIPAA
confidentiality protections. As the public becomes more informed about the secondary market for
health data, concern about privacy and security of all medical data is likely to increase. This, in turn, may
dissuade more people from seeking help or revealing the information to physicians. This is of particular
concern to psychiatry, since patients with mental disorders are more likely to withhold information from
their doctors than patients with other serious illnesses [1].
Electronic health records prevent effective data integration and are subject to data
errors
Hoffman and Podgurski 13 (Sharona Hoffman, the Edgar A. Hahn Professor of Law and Professor of
Bioethics and the Co-Director of the Law-Medicine Center at Case Western Reserve University School of
Law and Andy Podgurski, a Professor of Electrical Engineering and Computer Science at Case Western
Reserve University)(“Big Bad Data: Law, Public Health, and Biomedical Databases”, Journal of law,
medicine & ethics, public health law conference: practical approaches to critical challenges • spring
2013, Case Western Reserve University)//ASMITH *EHR = Electronic Health Record
The proliferation of available data is generating much excitement in the public health community.
However, this enthusiasm must be tempered by recognition of the potential limitations of EHR data.
EHRs often contain data entry errors, in part because they can increase physicians’ documentation
burden. Busy clinicians sometimes type quickly and invert numbers, place information in the wrong
patient’s record, click on incorrect menu items, or copy and paste narrative from prior visits without
carefully editing and updating it.8 Much of the information in EHRs is coded using not only the
International Classification of Diseases (ICD- 9) but also customized lists incorporated into EHR products,
and coding can introduce further errors. Codes may be confusing, misleading or too general to indicate
the specifics of patients’ conditions.9 Furthermore, EHRs may not accommodate detailed and nuanced
natural language notes about patients’ medical histories and diagnostic findings.10 Commentators have
noted that providers collect data for clinical and billing purposes rather than for public health reasons.
Thus, EHR content is not always wellsuited for public health uses. Furthermore, clinicians may have
incentives to “upcode” in order to maximize charges, and this practice can systematically compromise
the accuracy of many records.11 The menus and lists built into EHR systems may facilitate upcoding by
suggesting items for which physicians should bill and making it easy to click boxes for charge purposes.
In some instances, EHRs are incomplete, lacking essential information such as treatment outcomes.
Patients who receive medication from their doctors often do not report whether the therapy was
effective. The absence of return visits may mean that the patients were cured, but it could also indicate
that they failed to improve or deteriorated and decided to visit different doctors or specialists.12 In
addition, patient records are often fragmented. A patient may see multiple doctors in different facilities,
and if these practices do not have interoperable EHR systems, pieces of the individual’s record will be
scattered in different locations. Such fragmentation can hinder surveillance and research efforts
because the patient’s medical history cannot easily be put together into a comprehensive whole.13 EHR
vendors are making slow progress towards achieving interoperability, the ability of two or more systems
to exchange information and to operate in a coordinated fashion. In 2010 only 19% of hospitals
exchanged patient data with providers outside their own system.14 Vendors may have little incentive to
produce interoperable systems because interoperability might make it harder to market products as
distinctive and easier for clinicians to switch to different EHR products if they are dissatisfied with the
ones they purchased. The lack of interoperability in EHR systems can also impede data harmonization.
Different systems may use different terminology to mean the same thing or the same terminology to
mean different things. For example, the abbreviation “MS” can mean “mitral stenosis,” “multiple
sclerosis,” morphine sulfate,” or “magnesium sulfate.”15 If the term’s meaning is not clear from the
context, then analysts may not be able to interpret it correctly.
Health information privacy prevents privacy protective behavior
Alan Rubel (University of Wisconsin Law School Assistant Professor , Ph.D., Department of Philosophy,
University of Wisconsin-Madison; J.D., magna cum laude) 2014 “Privacy, Surveillance, and Autonomy”
p. 312
One possibility is that privacy protections are justified by the potential negative effects of information
disclosure on persons' welfare. For example, a lack of privacy may under- mine persons' healthcare:
Where individuals worry about privacy regarding their medical information, they are likely to engage in
"privacy protective" behaviors, such as lying to their care providers, seeing multiple providers, using
different pharmacies, not participat- ing in research, and paying in cash rather than using insurance
(Goldman 1998: 49; California Healthcare Foundation 2010: 20). Likewise, privacy may increase or
protect one's opportunities. Information about a person's health status, medical history, or genetic
attributes may undermine her employment prospects, insurance eligibility, financial back- ing,
promotion potential, or opportunities for positions of responsibility. Privacy may also protect people
from stigma. Some may believe that aspects of a person's health and med- ical status reflect negatively
on that person (for example, sexually transmitted infections, mental illnesses, some chronic diseases).
Hence, where others learn that one has such a condition, she may lose some degree of social esteem.
Doctor-Patient Trust – Drug Resistance
Mis-diagnosis from lack of patient trust makes solving drug resistance impossible
Stein et al. 6/25, (Uri Obolski, Gideon Y. Stein, Lilach Hadany, PLOS Computational Biology, University
of New South Wales, “Antibiotic Restriction Might Facilitate the Emergence of Multi-drug Resistance,”
June 25, 2015, http://journals.plos.org/ploscompbiol/article?id=10.1371/journal.pcbi.1004340)//IB
Antibiotic resistance management is one of the
most pressing public health issues challenging modern medicine [1].
Resistance frequency is continually rising in abundant pathogenic bacteria [2,3], entailing higher risk for patients and
increased economic costs [4,5]. Especially perilous are infections of multi-drug resistant (MDR) bacteria, which can lead
to higher rates of inadequate treatment and mortality [6–8], and at times are resistant to almost all available antibiotics
[9,10]. Even drugs of last resort, with relatively low prescription rate, are revealed to have increasing resistance
frequencies [11,12]. The increase in antibiotic resistance frequencies is a consequence of microbial evolution and adaptation, induced
by vast anthropogenic antibiotic consumption and dissemination [13]. This arms-race hinges on two main forces, acting at
opposite directions: resistance acquisition and spread in bacterial populations, and new antibiotic production [14]. Seeing
that rates of new antibiotics' production are steadily decreasing [15] (although efforts are made to motivate the
development of new antibiotics [16,17]), we are left to consider measures to impede the emergence of new resistant, and particularly MDR,
bacteria. Reducing
superfluous antibiotic usage, both in human consumption and veterinary usage, is
currently considered the prominent course of action [18,19]. Albeit the benefit of reducing overall superfluous antibiotic
usage is easy to justify and seems to have almost no drawbacks; restricting specific antimicrobial agents involves a compromise between
increasing resistance to a drug saved for the most acute scenarios, versus increasing
the probability of correct treatment.
The rationale of restricting specific drugs is an evolutionary one. The use of a certain antibiotic exerts selective
pressure on microbes to acquire resistance to that antibiotic. However, restricting an antibiotic does not amount to
complete avoidance of its usage, as it will still be used against infections resistant to all other antibiotics [20]. Thus an increase in the frequency
of bacteria resistant to the common antibiotics might result in increased usage of the restricted antibiotic as well.
Medical efficiency is key to solving drug-resistance
Cobey el al. 15, (Gabriel G. Perron, R. Fredrik Inglis, Pleuni S. Pennings and Sarah Cobey, Evolutionary
Applications, “Fighting microbial drug resistance: a primer on the role of evolutionary biology in public
health,” 23 MAR 2015, http://onlinelibrary.wiley.com/doi/10.1111/eva.12254/full)//IB
Given the seemingly unavoidable nature of antibiotic resistance, evolutionary biologists
have a large role to play in microbial
resistance management. A better understanding of resistance evolution could not only help extend the use of
antibiotics but could also help identify future antibiotics and strategies that may be more successful (Bush et al. 2011).
For example, models based on community ecology could uncover how resistance is influenced by competition, migration,
and environmental conditions. This direction is especially important given the accumulating evidences for the
contribution of resistance genes already present in nature to the evolution of novel traits (Martinez 2012;
Wellington et al. 2013). Evolutionary biologists can further understanding of fitness costs of resistance in many ways. This
issue contains several articles on this topic, from the distributions of fitness costs in experimental populations (Melnyk et al. 2015) and the
costs’ associations with their genetic basis (Vogwill and MacLean 2015), to the relationship between costs of resistance and strain backgrounds
in different environments (Hall et al. 2015) and the pleiotropic effect of resistance mutation in the presence of multiple antibiotics (Schenk et
is crucial to predict the distribution and persistence of antibiotic-resistant bacteria.
More generally, understanding the evolutionary and community ecology of drug resistance is essential
for successful long-term management of antibiotic-resistant infections. The introduction of penicillin helped cure
al. 2015). This information
infections caused by Streptococcus but potentially enabled other bacteria, such as S. aureus, to fill the vacant niche (Levy and Marshall 2004).
More recently, multiple-antibiotic-resistant
bacteria such as Clostridium difficile have spread in hospitals around the
world, most often infecting patients treated with antibiotics. Other opportunistic pathogens that can evolve multidrug
resistance, such as Pseudomonas aeruginosa and Acinetobacter baumannii, have increased in frequency in hospitals (Chen et al.
2008; Giske et al. 2008). Future treatment strategies should consider how host microbial communities affect
patients’ resistance to infections (Lemon et al. 2012). The study of social interactions in microbes also shows great promises.
Excreted proteins can act as public goods (Griffin et al. 2004), meaning that extracellular resistance mechanisms can contribute to the
protection of whole communities (Dugatkin et al. 2005). Such effects can maintain resistance plasmids in experimental
populations of bacteria (Yurtsev et al. 2013) and confer protection to unrelated bacteria species (Perlin et al. 2009). Applying principles of social
evolution could
lead to new treatments (Boyle et al. 2013). For example, antivirulence drugs are an especially
promising method to control bacterial infections. Rather than trying to kill bacteria, these drugs modulate social
interactions between microbes, selecting for less virulent variants (Brown et al. 2009; Ross-Gillespie et al. 2014). For more
discussion of the role of evolutionary biology in managing antibiotic resistance in human medicine and agriculture, refer to Baquero et al.
(2015) and Chang et al. (2015), respectively.
Bacteria resistance increasing, its only a matter of time before Omni-resistant bacteria
are here
Cobey el al. 15, (Gabriel G. Perron, R. Fredrik Inglis, Pleuni S. Pennings and Sarah Cobey, Evolutionary
Applications, “Fighting microbial drug resistance: a primer on the role of evolutionary biology in public
health,” 23 MAR 2015, http://onlinelibrary.wiley.com/doi/10.1111/eva.12254/full)//IB
Shortly after the discovery of penicillin, Abraham et al. (1941) demonstrated that cultures of Staphylococcus
aureus could be made resistant by continuous subculture in the presence of the antibiotic in vitro. Because of the large
mutation supply rate in some bacterial populations, the evolution of microbial resistance via random mutations is
often seen experimentally or during clinical treatment (MacLean et al. 2010a). The first signs of de novo antibiotic resistance of clinical
relevance were observed in Mycobacterium tuberculosis soon after the introduction of streptomycin in infected patients (Crofton and
Mitchison 1948; Youmans and Williston 1948). It was later found that resistance most often arose from mutations in the ribosomal proteins,
the cellular target of the antibiotics (Gillespie 2002). De novo evolution of resistance is often caused by either a modification of the antibiotic's
cellular target (Spratt 1994) or by increased expression of certain genes, such as those coding for efflux pumps. Expression may change due to
mutations in expression pathways (Ahmetagic and Pemberton 2011; Suzuki et al. 2014) or gene amplification (Sandegren and Andersson 2009;
Sun et al. 2009a). Modification of
cellular targets is especially common when the genes encoding the targets are
large, increasing the likelihood of spontaneous beneficial mutations affecting the target (MacLean et al.
2010a). Resistance mutations due to increased expression of cellular machinery tend to confer resistance to multiple
antibiotics, especially for efflux pumps, and can be difficult to identify (Suzuki et al. 2014). High-throughput sequencing now makes it
possible to track the evolution of resistance during single infections and to identify possible interactions between resistance mutations and
other traits (Lieberman et al. 2011). Because the evolution of resistance depends greatly on the mutation supply rate
(i.e., the combined effect of population size and mutation rate), mechanisms that increase the mutation rate are likely to increase the rate of
resistance evolution as well. Many
mutations, especially those affecting the fidelity of DNA replication and repair, can cause
hypermutability (Denamur and Matic 2006). Even though deleterious mutations usually outnumber beneficial mutations, an increased
rate of mutation may promote adaptation in stressful environments, where fluctuating selective pressures favor phenotypic
change (Taddei et al. 1997; Tanaka et al. 2003). For this reason, mutator populations of bacteria are often associated with
antibiotic resistance (Björkman et al. 2000; Chopra et al. 2003; Oliver et al. 2004; Macía et al. 2005; Daurel et al. 2007; Henrichfreise et
al. 2007). Interestingly, some antibiotics have mutagenic properties and therefore increase the mutation rate of
bacteria (Iyer and Szybalski 1958, 1959; Kohanski et al. 2010; Gutierrez et al. 2013). The mutagenic effect of different antibiotics is mainly
associated with the induction of the SOS response, which is caused by oxidative stress and DNA damage (Radman 1975; Friedberg et al. 2002).
Rapid adaptation to new environments In many infections, the emergence of antibiotic resistance involves the action of
specialized traits that were already present in the environmental populations of bacteria. Soon after the discovery of penicillin, Abraham and
Chain (1940) described an instance of such rapid adaptation when they observed an enzyme capable of inhibiting the activity of penicillin.
Following the introduction of penicillin in London's hospitals, resistant strains of S. aureus repeatedly appeared and caused
treatment failure (Barber 1947). The penicillin-resistant strains, most often harboring penicillinase activity, quickly
outnumbered penicillin-sensitive strains in most hospitals, and penicillin ceased being the drug of choice to treat the bacterium
(Barber and Rozwadowska-Dowzenko 1948; Nichols and Needham 1949; Rountree and Thomson 1949). The story repeated itself
countless times with resistance emerging in hospitals following the introduction of each new antibiotic. For example, aminoglycoside
kinases, a large group of enzymes modifying the structure of aminoglycoside antibiotics, were discovered after the introduction of
streptomycin, the first antibiotic discovered through a directed search for an antimicrobial (Davies 1994). Efflux pumps, one of the last major
groups of resistance genes to be discovered, were first associated with tetracycline resistance in the 1970s (Ball et al. 1980; McMurry et al.
1980). Soon after, other efflux mechanisms in a variety of organisms were found that conferred resistance to different antibiotics. Efflux pumps
remain one of the most common forms of antimicrobial resistance (Poole 2005). Over the past sixty years of research, multiple variants of each
resistance mechanism group have been described. Multidrug-resistant
bacteria first emerged in European hospitals. As early
as 1952, it was reported that most infectious staphylococcal strains were resistant to penicillin and tetracycline (Rountree and Thomson
1949; Clarke et al. 1952; Lowbury et al. 1952; Kirby and Ahern 1953). Today, it is estimated that between 20% and 80% of healthcareassociated infections worldwide result from multiple drug-resistant bacterial infections (Levy and Marshall
2004). Horizontal gene transfer The rapid evolution of drug resistance, and multidrug resistance in particular, highlights the
important role of horizontal gene transfer in microbial evolution (Ochman et al. 2000). Unlike meiotic sex in eukaryotes,
genetic exchange of DNA fragments in bacteria is unidirectional and independent of reproduction (Redfield 2001; Vos 2009). Genetic material,
including drug-resistant genes, can spread from one bacterium to another through plasmids, bacteriophages, and
transposons [for a comprehensive review, see Thomas and Nielsen (2005)]. Although many of these mobile genetic elements can in theory
evolve somewhat independently from other genes (e.g., as selfish genetic elements), many carry traits that benefit their hosts (Rankin et al.
2011). In fact, many of the most common resistance
genes found in hospitals today are encoded on small plasmids that
can be exchanged among different bacterial strains and species (Bennett 2008). In bacteria, chromosomal genes can also be transferred
via homologous recombination or transformation, the uptake of naked DNA in the environment (Vos 2009). Transformation is believed to have
enabled the evolution of penicillin-resistant Streptococcus pneumoniae, an important pathogenic bacterium, through the acquisition of genes
from Streptococcus viridans, a naturally occurring penicillin-resistant bacterium (Spratt 1994). Transformation
can also promote
multidrug resistance, especially in the presence of standing genetic diversity (Perron et al. 2012). The capacity of microbes to acquire
resistance genes from their surroundings highlights the potentially important role of environmental reservoirs in the
spread of resistance across ecological niches (Perron et al. 2008a; Forsberg et al. 2012; Finley et al. 2013).
Global disease resistance is increasing rapidly – the ability to treat diseases is close to
collapsing – ending modern medicine
Fukuda 14 - Assistant Director-General Health Security, World Health Organization
(Keiji, “Antimicrobial resistance: global report on surveillance 2014” April,
http://www.who.int/iris/bitstream/10665/112642/1/9789241564748_eng.pdf?ua=1)
Antimicrobial resistance (AMR) within a wide range of infectious agents is a growing public health
threat of broad concern to countries and multiple sectors. Increasingly, governments around the world¶
are beginning to pay attention to a problem so serious that it threatens the achievements of modern¶
medicine. A post-antibiotic era—in which common infections and minor injuries can kill—far from being
an apocalyptic fantasy, is instead a very real possibility for the 21st century.¶ Determining the scope of
the problem is essential for formulating and monitoring an effective response to AMR. This WHO report,
produced in collaboration with Member States and other partners, provides as accurate a picture as is
presently possible of the magnitude of AMR and the current state of surveillance globally. The report
focuses on antibacterial resistance (ABR) in common bacterial pathogens. Why? There is a major gap in
knowledge about the magnitude of this problem and such information is needed to guide urgent public
health actions. ABR is complex and multidimensional. It involves a range of resistance mechanisms
affecting an ever-widening range of bacteria, most of which can cause a wide spectrum of diseases in
humans and animals.¶ One important finding of the report, which will serve as a baseline to measure
future progress, is that there are many gaps in information on pathogens of major public health
importance. In addition, surveillance of ABR generally is neither coordinated nor harmonized,
compromising the ability to assess and monitor the situation.¶ Nonetheless, the report makes a clear
case that resistance to common bacteria has reached alarming levels in many parts of the world
indicating that many of the available treatment options for common infections in some settings are
becoming ineffective. Furthermore, systematic reviews of the scientific evidence show that ABR has a
negative impact on outcomes for patients and health-care expenditures.
Doctor-Patient Trust – Bioterror
Trust solves bioterror response compliance and disease
Glass 2 - Dept. of Epidemiology, Johns Hopkins University Bloomberg School of Public Health
(Thomas, Bioterrorism and the People: How to Vaccinate a City against Panic Clin Infect Dis. (2002) 34
(2): 217-223)
The public will not take the pill if it does not trust the doctor. Stopping a disease outbreak will require
that public health professionals and government leaders carefully nurture the general population's trust
and confidence in the institutions of public health and government and their actions, especially if largescale disease containment measures are necessary. After a bioterrorist attack, public trust could be a
fragile asset, yet it is essential. The issue of trust bears significantly on 2 critical aspects of the medical
and public health response to bioterrorism: (1) the choice of strategies for effective communication with
the public, and (2) the processes for debating, as a society, some of the more ethically complex
dimensions of disease containment. Although there is a tendency to view the media as an impediment
to emergency response, a bioterrorist attack would necessitate a close working relationship between
the media, decision-makers, and those involved in response operations. Given the speed with which
news reports circulate today, and given the importance of the media in shaping public responses, health
departments and hospitals would need to be responsive to media requests for information [28, 44]. An
important step toward maintaining an effective, nonadversarial relationship with the press is to have
more routine interactions with reporters, producers, and editorial boards before periods of crisis. During
an emergency, health professionals could then build on their relationship with the media to effectively
disseminate an accurate account of events, provide vital disease control information, and communicate
the rationale and justification for the necessary medical and public health responses. Mass media
outlets can get vital information to the largest numbers of people the most quickly. However, the mass
media and the Internet are not sufficient. Additional communication strategies would be critical to
enlisting the public as partners in implementing epidemic controls. Multilingual materials and culturally
relevant messages that are endorsed and delivered by persons who have local respect and authority can
help ensure that control measures are successfully disseminated to all sectors of a diverse community
[6, 45]. Direct personal contact has the most significant effect on a person's willingness to trust and act
on health-related information [17, 45]. Public outreach strategies of health departments and emergency
services should include interpersonal exchanges of information—for example, town meetings and public
workshops. On the other hand, the realities of an outbreak of a disease that is propagated by person-toperson transmission would require alternatives to such public meetings. Under those circumstances,
means of remote communication (e.g., “telephone trees,” Internet-based communications, and
newsletters) would be important alternatives.
Continual research solves and deters bioterror
Chyba 4 - Co-Director of the Center for International Security and Cooperation (CISAC), Stanford
Institute for International Studies, and an Associate Professor at Stanford University
[Christopher & Alex Greninger, “Biotechnology and Bioterrorism: An Unprecedented World” Survival,
46:2, Summer 2004, http://iis-db.stanford.edu/pubs/20722/Chyba_2004.pdf]
In the absence of a comprehensive and effective system of global review of potential highconsequence research, we are instead trapped in a kind of offence–defence arms race. Even as
legitimate biomedical researchers develop defences against biological pathogens, bad actors could in
turn engineer countermeasures in a kind of directed version of the way natural pathogens evolve
resistance to anti-microbial drugs. The mousepox case provides a harbinger of what is to come: just
as the United States was stockpiling 300m doses of smallpox vaccine as a defence against a terrorist
smallpox attack, experimental modification of the mousepox virus showed how the vaccine could
possibly be circumvented. The United States is now funding research on antiviral drugs and other
ways of combating smallpox that might be effective against the engineered organism. Yet there are
indications that smallpox can be made resistant to one of the few known antiviral drugs. The future
has the appearance of an eternal arms race of measures and countermeasures. The ‘arms race’
metaphor should be used with caution; it too is in danger of calling up misleading analogies to the
nuclear arms race of the Cold War. First, the biological arms race is an offence–defence race , rather
than a competition between offensive means. Under the BWC, only defensive research is
legitimate. But more fundamentally, the driver of de facto offensive capabilities in this arms race is
not primarily a particular adversary, but rather the ongoing global advance of microbiological and
biomedical research. Defensive measures are in a race with nefarious applicationsof basic research,
much of which is itself undertaken for protection against natural disease. In a sense, we are in an
arms race with ourselves. It is hard to see how this arms race is stable – an offence granted
comparable resources would seem to be necessarily favoured. As with ballistic missile defence,
particular defensive measures may be defeated by offensive countermeasures. In the biological case,
implementing defensive measures will require not only research but drug development and
distribution plans. Offensive measures need not exercise this care, although fortunately they will
likely face comparative resource constraints (especially if not associated with a state programme),
and may find that some approaches (for example, to confer antibiotic resistance) have the
simultaneous effect of inadvertently reducing a pathogen’s virulence. The defence must always
guard against committing the fallacy of the last move, whereas the offence may embrace the view
of the Irish Republican Army after it failed to assassinate the British cabinet in the 1984 Brighton
bombing: ‘Today we were unlucky, but remember we have only to be lucky once – you will have to
be lucky always’.40 At the very least, the defence will have to be vigilant and collectively smarter than
the offence. The only way for the defence to win convincingly in the biological arms race would seem
to be to succeed in discovering and implementing certain de facto last-move defences, at least on an
organism-by-organism basis. Perhaps there are defences, or a web of defences, that will prove too
difficult for any plausible non-state actor to engineer around. Whether such defences exist is unclear
at this time, but their exploration should be a long-term research goal of US biodefence efforts.
Progress might also have an important impact on international public health. One of the ‘Grand
Challenges’ identified by the Bill and Melinda Gates Foundation in its $200m initiative to improve
global health calls for the discovery of drugs that minimise the emergence of drug resistance – a
kind of ‘last move’ defence against the evolutionary countermeasures of natural microbes.41
Should a collection of such defensive moves prove possible, bioterrorism might ultimately succumb to a
kind of globalised dissuasion by denial :42 non-state groups would calculate that they could not hope to
achieve dramatic results through biological programmes and would choose to direct their efforts
elsewhere.
Doctor-Patient Trust – Medical Research
Doctor-patient trust is key to human participation in medical research
Miller, 1
Frances H. Miller*, * Professor of Law, Boston University School of Law; Professor of Public Health,
Boston University School of Public Health; Professor of Health Care Management, Boston University
School of Management, Boston University Law Review, April, 2001, 81 B.U.L. Rev. 423, “SYMPOSIUM
TRUST RELATIONSHIPS PART 1 OF 2: TRUSTING DOCTORS: TRICKY BUSINESS WHEN IT COMES TO
CLINICAL RESEARCH” Lexis
Trust is the sine qua non for public support of medical research. Clinical investigations inevitably subject
human participants to the risk of harm in order to produce scientific results designed to advance the
social good. n92 Research subjects must trust that those risks have been limited to an irreducible
minimum, and that the potential consequences of their participation have been completely explained to
them, before they assume the status of experimental animals. n93 Without that trust, societal support
for human participation in clinical trials will simply vanish - or ought to. Civilized society's deeply-rooted
ethical and legal traditions of respect for the autonomy of human beings demands [*440] no less. n94
Human participation is the bedrock of life-science innovation---trust is key
NCEHR 13 - National Council on Ethics in Human Research, national organization mandated to advance
the protection and well-being of human participants in research and to foster high ethical standards for
the conduct of research involving humans.
(http://www.ncehr-cnerh.org/)
Innovation in many areas of science depends on the use of human volunteers as research subjects.The
involvement of human participants is not confined to bio medical science, but extends to many areas of
social sciences and humanities. In Canada and elsewhere, research on humans fulfils many functions –
the creation of new knowledge, the formation of new social and economic policy, and the development
of innovative new products and processes for human health, education and social development. The
research enterprise is viewed by many in the public and private sectors as a driver of economic and
social development, innovation, and national prosperity. A sub-sector of this research enterprise,
research with humans, depends on the willingness of individuals, organizations, collectivities and
communities to become engaged in research in the social, behavioural, natural, and medical and health
sciences. It is essential that the public trust on which the participation of volunteer subjects depends be
maintained and increased.
Doctor Patient Trust – Medical Innovation
Trust solves frivolous lawsuits
Roter 6 – Professor @ JHU
(Debra, “The Patient-Physician Relationship and its Implications for Malpractice Litigation,” J. Health
Care L. & Pol'y 304)
The current review does not bring forward any new ideas; the link between malpractice litigation and
the power of communication to support or undermine the doctor-patient relationship is widely
recognized by patients and physicians alike. As noted in a New York Times essay on medical malpractice:
[P]atients who like their doctors don't sue, no matter what their lawyer says. Our efforts in medical
schools to turn out skilled yet empathetic physicians who communicate clearly and who can put
themselves in their patients' shoes is critical to stemming the malpractice crisis. Patients sue when their
feelings are ignored or when they are angered by lack of genuine concern for their welfare. . . . Though it
provides no guarantee, a sound physician-patient relationship is a powerful antidote to frivolous
lawsuits." Relationships matter to both patients and physicians and the relationship itself may be the
most powerful antidote to the malpractice crisis that medicine can provide.
Frivolous litigation collapses medical innovation
Curley 14 – member of the Healthcare Fraud and Abuse practice group of Bass, Berry & Sims PLC and a
former assistant U.S. attorney and civil chief at the U.S. Attorney’s Office for the Middle District of
Tennessee in Nashville.
(Matthew, “Balance needed in fighting health-care fraud,” The Tennessean,
http://www.tennessean.com/story/opinion/contributors/2014/11/15/balance-needed-fighting-healthcare-fraud/18988193/)
It is important for government regulators to understand that even the most frivolous whistleblower
lawsuits can result in lengthy and expensive investigations and business disruptions. Dollars and time
devoted to responding to such lawsuits and investigations are diverted from patient care and
innovation at a time when health-care providers are facing historic changes from health-care reform
and tremendous downward pressure on the payments they receive.
High litigation costs collapse medical innovation
Robert 14 – Headaches & Migraines Expert, citing Connell, MD, OB/GYN and former FDA advisory
panel chairperson
(Teri, “Are Frivolous Lawsuits Driving Up Healthcare Costs?,”
http://headaches.about.com/cs/advocacy/a/lamus_cala.htm)
Dr. Elizabeth Connell is an OB/GYN and former FDA advisory panel chairperson. She has joined the Sick
of Lawsuits Campaign as Senior Counselor. Dr. Connell has been involved in lawsuit abuse issues for
years and wants Americans to know how frivolous lawsuits threaten our healthcare system by driving up
costs, jeopardizing medical innovation, limiting access to healthcare and making doctors afraid to
practice medicine. "I am fed-up with the shameless tactics of some personal injury lawyers and the outof-control litigation that endangers our access to healthcare," Dr. Connell said. "I am very pleased to be
part of the Sick of Lawsuits campaign and to help to inform Americans about how lawsuit abuse
threatens our entire healthcare system." In a recent press release, stated the following "Lawsuit Abuse
Facts: " According to a recent Towers Perrin study, the U.S. tort liability system cost each U.S. citizen
$721 in 2001 ($205 billion total). More than 40 percent of doctors reported avoiding prescribing
appropriate medication because they knew the drug might be involved in litigation. Personal injury
lawyers walk away with 30-50 percent of any jury award to the plaintiff, plus an additional percentage of
the award to cover expenses. Since its widely used cholesterol-lowering drug Baycol was withdrawn
from the market, Bayer is facing more than 8,000 lawsuits. The New York Times notes that at least 6,000
of those lawsuits, however, are being filed by people who did not suffer any side effects whatsoever.
Their web site state these "Fast Facts - Symptoms of Lawsuit Abuse:" Lawsuit abuse affects all Americans
on different levels. 80% of Americans say personal injury attorneys take too much of their clients'
winnings. 76% of Americans believe medical liability lawsuits threaten access to quality healthcare for
families. 74% of Americans describe medical liability issue as crisis or major problem. By 61% to 22%
margin, Americans say lawsuits against doctors result in wealthy lawyers rather than improved quality of
care for patients. Lawsuit costs passed on to consumers add up to nearly $721 per year for every person
in America today. Because of litigation fears, 79% of doctors said they had ordered more tests than they
would based only on professional judgment of what is medically needed. It takes at least a year to
resolve most lawsuits, and delays of three to five years are not uncommon. Unfortunately, injured
people with legitimate claims can wait years before their cases go to trial. An estimated $50 billion per
year is spent on unnecessary test procedures designed only to guard doctors and hospitals against
malpractice claims. Almost half of the money spent by physician insurers goes towards defending cases
that ultimately are closed without compensation paid to the claimant.
Doctor-patient trust is key to medical research---applies even to research projects not
done by the doctor
NIH 7
(Ethical Obligation Towards Research Subjects, Mens Sana Monogr. 2007 Jan-Dec; 5(1): 107–112, doi:
10.4103/0973-1229.32153)
An issue of major concern is protection of the interests of research subjects. The reason why patients
agree to become research subjects is not only for personal medical benefit but, as an extension, to
benefit the rest of the patient population and also advance medical research. These areas are hardly
served if research data is doctored or concealed, as can happen to protect industry interests or if
industry solely decides the terms and conditions of research contracts. The ethical obligations of
investigators to protect the rights and interests of research participants have been articulated
repeatedly (National Commission for the Protection of Human Subjects of Biomedical and Behavioral
Research, 1979; Declaration of Helsinki, 1964, updated 2004). Moreover, although informing subjects
about risks and benefits empowers them to protect their interests and their rights as decision makers, it
is equally the case that patients expect and trust guidance given by their doctors on whether or not to
participate in research, which therefore puts added responsibility on researchers to ensure protection of
the rights and interests of their research subjects: It is widely assumed that informing prospective
subjects about the risks and possible benefits of research not only protects their rights as autonomous
decision makers, but also empowers them to protect their own interests. Yet interviews with patientsubjects conducted under the auspices of the Advisory Committee on Human Radiation Experiments
suggest this is not always the case. Patient-subjects often trust their physician to guide them through
decisions on research participation. Clinicians, investigators and IRBs must assure that such trust is not
misplaced (Kass et al., 1996). The case of trust is often much more so in countries like India where
patient trust may land them in various exploitative situations. Trust is the fragile foundation of
contemporary research (Kass et al, 1996). Since it is fragile, it needs careful handling. Scientific research
is especially prone to manipulation as the temptation to utilise one's power over trusting subjects has a
great opportunity to get misused. Science, we know, offers great powers, without the necessary
obligation to utilise it responsibly. This is its greatest drawback. Scientific research involving human
subjects can be the most tragic example of this truism. Processes inbuilt into research protocols that
protect against exploitation need faithful implementation.
Doctor-Patient Trust - A2 Data Breaches Inevitable
HHS final rule regulation implementing HITECH/HIPAA reform ushers in a new era of
compliance – cleans up data breaches and solves private sector data breaches
Daniel Solove (the John Marshall Harlan Research Professor of Law at George Washington University
Law School, the founder of TeachPrivacy, a privacy/data security training company, and a senior policy
advisor at Hogan Lovells) 2013 “HIPAA Turns 10: Analyzing the Past, Present, and Future Impact”
file:///C:/Users/Jordan%20Foley/Downloads/HIPAA%20Turns%2010%20Analyzing%20the%20Past%20Present%20and%20Future%20Impact.pdf
In January 2013, after years of industry anticipation, HHS issued the final regulation implementing the
HITECH Act’s HIPAA modifications. According to OCR Director Leon Rodriguez, the rule “marks the most
sweeping changes to the HIPAA Privacy and Security Rules since they were first implemented.” One of
the most notable changes was expanding HIPAA to be directly applicable to business associates.
Subcontractors of business associates receiving or processing PHI were also deemed to be “business
associates.” Previously, business associates were governed by their contract with a covered entity, but
after HITECH’s HIPAA modification, they are now subject to HIPAA sanctions and enforcement. “Moving
to hold business associates to the same high standard as covered entities is a huge step in the direction
to protect patient privacy,” Lucci says. This is because more than 20 percent of all the breaches reported
on the HHS website “known as the ‘wall of shame’” are caused by business associates, she says. “This
equates to over 12 million patients who have had their information at risk due to an organization
outside of the healthcare organization itself,” Lucci says. The changes made by the HITECH Act to HIPAA
will usher in a new level of compliance, according to Rebecca Herold, a longtime information security
and privacy expert and CEO of The Privacy Professor. Herold notes that when many covered entities saw
no sanctions were being applied for non-compliance by OCR, many “became much less concerned with
implementing the Security Rule requirements” and “have not updated any of their privacy polices since
they were first established back in 2002 or 2003.” Business associates were generally not concerned
with HIPAA beyond simply having the business associate agreement in place, she says. However, today
many in the healthcare industry are beginning to realize the importance and seriousness of HIPAA
compliance.
Doctor-Patient Trust - A2 Research Turn
Privacy key to trust – the aff wont hinder research
Deborah Peel (M.D. psychiatrist and president of the Patient Privacy Rights Foundation) April 2006
“Privacy and health research can co-exist” http://www.govhealthit.com/news/peel-privacy-and-healthresearch-can-co-exist
Some health care professionals are concerned that medical privacy is hindering health care research.
Nothing could be further from the truth. As a practicing psychiatrist, I would like nothing more than
research that looks longitudinally at thousands of people with depression to learn what medications are
best for treating someone after 10 to 15 years. Studies that track thousands of people over many years
will be one of the greatest benefits of having a national electronic medical record system. But that kind
of research does not require knowledge of patients' names. The vast majority of legitimate research can
be conducted using aggregated data that doesn't include patients' names, addresses or Social Security
numbers. To protect our medical privacy, technology now provides the tools to segment our most
sensitive medical information. It also allows the sharing of aggregated health information for research to
improve health care. Privacy and research can benefit from technology. It's not an either/or proposition.
If we are smart and we care about sound scientific medical practices, we will build patient-controlled
access to medical records into the network. That will ensure that information in the electronic medical
record is accurate and reliable. Why? If people believe they do not have medical privacy, they will lie
about their medical illnesses or omit mentioning critical tests and details rather than have the
information flow to any number of health-related businesses. Such firms are allowed under the Health
Insurance Portability and Accountability Act (HIPAA) to receive medical information about patients
without their knowledge and consent. How can that be? Our existing federal privacy law is toothless.
The federal government amended HIPAA in 2003, allowing more than 600,000 types of businesses and
millions of their business associates to access medical records without patient consent for the
"treatment, payment and operations of health-care related activities." To argue that medical privacy will
result in higher costs and obstruct research is simply wrong. How can anything possibly be private with
this type of loophole? Americans need and want the benefits that can come from lifelong, electronic
medical records that allow the gathering and sharing of anonymous medical data to improve health care
for all. But Americans must have medical privacy protections to trust a high-tech national health system.
There's no reason we can't have both.
Anton Vedder, Colette Cuijpers, Petroula
Security of databases and communications is a quintessential precondition for trust
in electronic services, including e-health services. While user trust is already considered
essential for online commercial transactions,31 building user trust in e-health services
is deemed extra important as users may fear unwarranted access to sensitive personal
information or vulnerability to identity theft or online fraud—risks that do not arise as
easily in comparable traditional offline practices, at least not to the same degree.32
The factors mentioned so far have been shown to be important for users’ trust in
online services in general, and can therefore be expected to be important for patients’
trust in e-health as well. In addition, for caregivers, trust in the reliability of data, data
exchange and communication is reported to be of high importance.33 Means for establishing
reliability are of course to be found in the creation of possibilities for checking
correctness and correction of information, for example through transparency and
simplicity, and security safeguards in databases and communications. For health professionals,
reliable authentication methods are also extremely important in order to
guarantee that a patient is who she suggests she is and that the data introduced are really
hers.
This brings us to data protection regulation as a precondition for user trust. According
to the WHO report cited in the introduction, privacy and trust in a healthcare context
are intrinsically linked. The relationship between the patient and the healthcare provider
Medical Research – Antibiotic Resistance
Antibiotic resistance threatens extinction—UK National Threat list
Sample 1/23/13, PhD in biomedical materials from Queen Mary's, University of London, worked at the
Institute of Physics as a journal editor (Ian, “Antibiotic-resistant diseases pose 'apocalyptic' threat, top
expert says”, The Guardian, http://www.theguardian.com/society/2013/jan/23/antibiotic-resistantdiseases-apocalyptic-threat)AM
Britain's most senior medical adviser has warned MPs that the rise in drug-resistant diseases could
trigger a national emergency comparable to a catastrophic terrorist attack, pandemic flu or major
coastal flooding. Dame Sally Davies, the chief medical officer, said the threat from infections that are
resistant to frontline antibiotics was so serious that the issue should be added to the government's
national risk register of civil emergencies. She described what she called an "apocalyptic scenario"
where people going for simple operations in 20 years' time die of routine infections "because we have
run out of antibiotics". The register was established in 2008 to advise the public and businesses on
national emergencies that Britain could face in the next five years. The highest priority risks on the latest
register include a deadly flu outbreak, catastrophic terrorist attacks, and major flooding on the scale of
1953, the last occasion on which a national emergency was declared in the UK. Speaking to MPs on the
Commons science and technology committee, Davies said she would ask the Cabinet Office to add
antibiotic resistance to the national risk register in the light of an annual report on infectious disease she
will publish in March. Davies declined to elaborate on the report, but said its publication would coincide
with a government strategy to promote more responsible use of antibiotics among doctors and the
clinical professions. "We need to get our act together in this country," she told the committee. She told
the Guardian: ""There are few public health issues of potentially greater importance for society than
antibiotic resistance. It means we are at increasing risk of developing infections that cannot be treated –
but resistance can be managed. "That is why we will be publishing a new cross-government strategy and
action plan to tackle this issue in early spring."
Antibiotic development cannot keep pace with superbugs
Sample 1/23/13, PhD in biomedical materials from Queen Mary's, University of London, worked at the
Institute of Physics as a journal editor (Ian, “Antibiotic-resistant diseases pose 'apocalyptic' threat, top
expert says”, The Guardian, http://www.theguardian.com/society/2013/jan/23/antibiotic-resistantdiseases-apocalyptic-threat)AM
The issue of drug resistance is as old as antibiotics themselves, and arises when drugs knock out
susceptible infections, leaving hardier, resilient strains behind. The survivors then multiply, and over
time can become unstoppable with frontline medicines. Some of the best known are so-called hospital
superbugs such as MRSA that are at the root of outbreaks among patients. "In the past, most people
haven't worried because we've always had new antibiotics to turn to," said Alan Johnson, consultant
clinical scientist at the Health Protection Agency. "What has changed is that the development pipeline is
running dry. We don't have new antibiotics that we can rely on in the immediate future or in the longer
term." Changes in modern medicine have exacerbated the problem by making patients more susceptible
to infections. For example, cancer treatments weaken the immune system, and the use of catheters
increases the chances of bugs entering the bloodstream. "We are becoming increasingly reliant on
antibiotics in a whole range of areas of medicine. If we don't have new antibiotics to deal with the
problems of resistance we see, we are going to be in serious trouble," Johnson added. The supply of new
antibiotics has dried up for several reasons, but a major one is that drugs companies see greater profits
in medicines that treat chronic conditions, such as heart disease, which patients must take for years or
even decades. "There is a broken market model for making new antibiotics," Davies told the MPs. Davies
has met senior officials at the World Health Organisation and her counterparts in other countries to
develop a strategy to tackle antibiotic resistance globally.
Antibiotic resistance bacteria is rapidly proliferating
Sample 1/23/13, PhD in biomedical materials from Queen Mary's, University of London, worked at the
Institute of Physics as a journal editor (Ian, “Antibiotic-resistant diseases pose 'apocalyptic' threat, top
expert says”, The Guardian, http://www.theguardian.com/society/2013/jan/23/antibiotic-resistantdiseases-apocalyptic-threat)AM
Drug resistance is emerging in diseases across the board. Davies said 80% of gonorrhea was now
resistant to the frontline antibiotic tetracycline, and infections were rising in young and middle-aged
people. Multi-drug resistant TB was also a major threat, she said. Another worrying trend is the rise in
infections that are resistant to powerful antibiotics called carbapenems, which doctors rely on to tackle
the most serious infections. Resistant bugs carry a gene variant that allows them to destroy the drug.
What concerns some scientists is that the gene variant can spread freely between different kinds of
bacteria, said Johnson. Bacteria resistant to carbapenems were first detected in the UK in 2003, when
three cases were reported. The numbers remained low until 2007, but have since leapt to 333 in 2010,
with 217 cases in the first six months of 2011, according to the latest figures from the HPA.
Antimicrobial resistance mounting in the squo
Alford 5/1/14, PhD in life sciences from the University of Warwick and science communicator with a
focus on infectious diseases and HIV (Justine, “Antibiotic Resistance Now A Global Threat According To
Latest WHO Report”, IFL Science, http://www.iflscience.com/health-and-medicine/antibiotic-resistancenow-global-threat-according-latest-who-report)AM
The World Health Organization (WHO) has issued a report that serves as a stark wake-up call to the
growing worldwide problem of antimicrobial resistance. The report highlights the need for a concerted
effort from both governments and society as a whole to tackle this ongoing issue which poses a “global
health security threat.” Antimicrobial resistance (AMR) occurs when organisms such as bacteria and
viruses evolve mechanisms to evade therapeutic agents, for example antibiotics, rendering them
ineffective. We’re all familiar with the “hospital superbug” MRSA (methicillin-resistant Staphylococcus
aureus), but that just scratches the surface on this now incredibly widespread problem. Not only does
AMR make infections more difficult to treat, it also means that relatively minor injuries and common
infections have the potential to become life threatening. If we don’t step up our game, the
achievements of modern medicine are seriously at stake. In order to compile this report, the WHO
gathered and analyzed surveillance data from 114 countries which detailed resistance rates amongst
common disease causing pathogens. Amongst the findings was the worrying fact that the bacterial
species K. pneumoniae, which commonly causes infections in hospitals and the community, is becoming
increasingly resistant to last resort antibiotics, and drug resistance was found in every region surveyed.
Other bacterial species demonstrating both widespread and high levels of drug resistance were E. coli
and S. aureus, which can cause urinary tract infections and blood stream infections. Around 20% of
tuberculosis cases were also found to have multidrug-resistant TB. The report also highlighted increasing
resistance to antiviral drugs by both influenza viruses and HIV. In particular, they found that drug
resistant HIV strains were being increasingly transmitted since between 10-17% of HIV infected patients
in certain countries that had never received treatment were already resistant to at least one
antiretroviral drug. Antibiotic resistance is on the rise because of overuse and misuse of antibiotics both
in medicine and agriculture. Not finishing the course of antibiotics and prescribing antibiotics when they
are not needed both encourage the emergence of resistance. There is therefore a dire need for the
development of novel antibiotics before the current ones become useless, meaning that common
infections risk becoming fatal. Hopefully this report will spur countries to come together to formulate a
global plan to prevent this ominous situation from worsening, and may also serve to monitor future
progress.
Medical Research – Life Sciences Leadership
Medical innovation is key to life-sciences leadership
Atkinson 12 – PhD in City and Regional Planning, The Information Technology and Innovation
Foundation and United for Medical Research
(Robert, “Leadership in Decline,” http://www2.itif.org/2012-leadership-in-decline.pdf)
Advances in life sciences—including pharmaceuticals, biotechnology, and medical devices—were a
major driver of global economic growth in the second half of the twentieth century. Since World War II,
the United States has stood firmly at the forefront of the life sciences revolution, with this leadership
built upon a solid commitment to robust and sustained federal investment in biomedical research and
development (R&D), channeled primarily through the National Institutes of Health (NIH). This public
investment laid the foundation for the development of scores of breakthrough pharmaceutical drugs and
therapies—from personalized gene therapies to synthetic skin to cures for certain types of cancer—and
has catalyzed the development of a globally competitive, high-wage life sciences industry in the United
States. Today, the U.S. life sciences industry supports more than 7 million jobs and contributes $69 billion
annually to U.S. gross domestic product (GDP).1 But U.S. leadership in the global life sciences industry is
today under threat on two fronts. First, federal investment in biomedical research through NIH has
decreased, both in inflation-adjusted dollars and as a share of GDP, nearly every year since 2003. Put
simply, the United States is not sustaining the historically strong investment in biomedical research that
once propelled it to global life sciences leadership. At the same time, global competition has intensified,
as a growing number of countries, including China, Germany, India, Singapore, Sweden, the United
Kingdom, and others have recognized that life sciences represents a high-wage, highgrowth industry and
have taken measures seeking to wrest life sciences leadership from the United States. These nations
have not only significantly expanded their financial support for biomedical research, they have also
implemented a range of policies designed to enhance their biomedical innovation ecosystems, such as
tax incentives through “patent boxes,” regulatory reforms to speed drug approvals, and immigration and
education policies designed to attract and to educate the best life sciences talent. As this report
demonstrates, in an increasing number of indicators—from trade balances in pharmaceuticals to shares
of global pharmaceutical-industry output—such policies and investments have enabled several
countries’ life sciences industries to become competitive with that of the United States. China, for
example, has identified biotechnology as one of seven key strategic and emerging (SEI) pillar industries
and has pledged to invest $308.5 billion in biotechnology over the next five years. This means that, if
current trends in biomedical research investment continue, the U.S. government’s investment in life
sciences research over the ensuing half-decade is likely to be barely half that of China’s in current dollars,
and roughly one-quarter of China’s level as a share of GDP. And China already has more gene sequencing
capacity than the entire United States and about one-third of total global capacity. Other countries are
also investing more in biomedical research relative to the sizes of their economies. When it comes to
government funding for pharmaceutical industry-performed research, Korea’s government provides
seven times more funding as a share of GDP than does the United States, while Singapore and Taiwan
provide five and three times as much, respectively. France and the United Kingdom also provide more, as
shares of their economies.2
Life-sciences leadership is key to tacit diplomacy---solves multiple existential risks
Benson 14 - professor of microbiology in the Department of Molecular and Cell Biology at the
University of Connecticut and a Jefferson Science Fellow.
(David, “Tacit Diplomacy in Life Sciences,” Science and Diplomacy,
http://www.sciencediplomacy.org/perspective/2014/tacit-diplomacy-in-life-sciences)
Although some life science advances have generated worry in diplomatic circles, scientists using the
technologies and conducting the research are far more likely to embrace new advances as they emerge,
usually, but not always, without controversy. So what accounts for the different attitudes, and what
might be done to reconcile the positive progression of science with diplomatic and security concerns?
This article highlights the roles played by the unprecedented rise of international collaborations in
scientific communities, the internationalization of science education, and the attendant slow but steady
adoption of norms of behavior. These roles together knit a kind of “tacit diplomacy” that helps to
mitigate concerns about advances in the life sciences. Diplomacy can involve scientific issues in diverse
ways. For example, scientific cooperation can help to change a diplomatic relationship, or enhance the
economic trade and/or security of the United States (or another country).1 Science also informs the
diplomatic processes related to, for example, securing arms control, mitigating climate change,
improving food security, or reducing illegal trade in endangered species.2, 3 Tacit diplomacy in science
governs how the global community of scientists interacts via understood, but generally unstated,
behavioral norms. Absent this foundation, science diplomacy cannot work optimally or sustainably. Tacit
diplomacy in science governs how the global community of scientists interacts via understood, but
generally unstated, behavioral norms. Most scientists recognize the set of norms that are tacitly
assumed to operate in collaborative science and in the communication of scientific knowledge. The
InterAcademy Council, an organization of national academies from countries around the world, lists
seven values or norms that characterize successful scientific interactions: honesty, fairness, objectivity,
reliability, skepticism, accountability, and openness.4 Tacit diplomacy among scientists assumes that
these norms are at least nominally in place, unless proven otherwise, with the result being the evolution
of that elusive, bilateral human behavior of mutual trust. The outcome of tacit diplomacy is that
scientists interacting with colleagues from very different countries and cultures can achieve common
goals. The power of tacit diplomacy derives from its implementation in international scientific
interactions that globally number in the millions each year. Such interactions range from formal
collaborations to less formal points of contact via email, video conference, or telephone, at international
and national conferences and meetings and invited seminars. In the aggregate these contacts
strengthen norms at an interpersonal level, for example in faculty-advisor–student or colleague–
colleague relationships rather than government-to-government relationships. Importantly, such
behavioral norms spread along with the migration of technology and scientific understandings. Tacit
diplomacy cannot be imposed by international and national organizations or by governments that often
desire to manage or “do something” about the risks of misuse or the spread of scientific advances that
are of concern. Such management is often expressed in top-down notions of oversight (regulations),
education (e.g., research integrity or biosecurity training), awareness-raising exercises, and written
codes of conduct. While each of these notions has local utility, they are of questionable effect in dealing
with broader underlying issues that are primarily ethical in nature.5 A number of global trends have
promoted the spread of tacit diplomacy and are of considerably broader significance than management
tools when it comes to garnering adherence to norms. Some trends can also erode tacit diplomacy in
science. Both need to be understood to increase awareness and consideration in diplomatic arenas.
Global Trends that Promote Tacit Diplomacy Trends that promote tacit diplomacy in the life sciences
generally coincide with those in all of science and technology (S&T). Some are well-known contributors
to globalization in general: the Internet lubricating collaborations, expanding information access, and
facilitating research investment globally; greater ease of air travel allowing scientists to develop
collaborations at meetings, use large shared facilities, and study overseas; and the expanding use of
English, in particular the near universal acceptance of English as the common language of science.6 A
more specific trend that reflects and promotes the internationalization of science is the steady increase
in global research and development funding. From 1996 to 2011, global funding, life sciences included,
increased nearly two and one-half times worldwide in real dollars, with the recognition that S&T is key
to innovation and economic growth.7 Increased funding has allowed developing countries with
emerging economies to aggressively seek international partners for developing science while building
their own infrastructure and programs. For these countries to succeed, adherence to norms and
development of trust are essential. There has been a dramatic increase in collaboration reflected by
internationally coauthored articles. For example, the proportion of S&T publications from the United
States having international coauthors rose from 7 percent in 1986 to 29 percent in 2010.8 Open-access
scientific journals and still-evolving policies in the large publishing houses lower barriers to collaborative
publication between scientists in developing and developed countries, creating a more integrated global
science community.9 An increasing number of undergraduate and graduate students are seeking higher
quality training outside their home country.10 For example, Brazil’s Science without Borders program
has the goal of sending one hundred thousand students to study abroad by 2015. In 2012, foreign
students received about 34 percent of all science and engineering doctorates awarded in the United
States,11 an increase from about 15 percent in 1977.12 PhD programs have also proliferated in Asian
countries, such as China, Singapore, and Australia, catering to students from less-developed countries.
Returning students bring new technologies, fresh scientific perspectives and patterns of normative
scientific behaviors that facilitate science diplomacy. Returning students bring new technologies, fresh
scientific perspectives and patterns of normative scientific behaviors that facilitate science diplomacy.
Finally, solutions to global challenges increasingly require pollination across disciplinary borders of basic
and applied life sciences, social science, and engineering.13, 14, 15 Issues involving emerging infectious
diseases, climate change, food security, fisheries management, for example, touch multiple countries
and scientific disciplines. Diplomatic efforts aimed at their resolution proceed more effectively from a
foundation of trust built by tacit diplomacy developed among scientists across appropriate disciplines.
Medical Research – Hegemony Impact
Medical research is key to hegemony
Martinez-Lopez 4 – MPH, MD, commander of the U.S. Army Medical Research and Materiel
Command
(Lester, “Biotechnology Enablers for the Soldier System of Systems,” Biotechnology Revolution)
The Army has historically recognized that the individual soldier, the critical element of operational
success, is an integral component of weapons, transportation, and other hardware systems and that
military hardware (and software) must be designed with human factors in mind. Today, we think of the
soldier as a system; taken together with his or her equipment, the soldier is a system of systems. This
more holistic approach encompasses not only the human-system interface, but also the full range of
biological, environmental, and occupational factors that can affect a soldier’s health and performance.
Soldiers today face more environments and threats than the soldiers of yesteryear, and we anticipate
that the challenges will continue to increase. To maximize a soldier’s performance and prevent disease
and injury in this changing operational setting, the U.S. Army is pursuing research, development, and
engineering to transform the individual soldier into a fully protected and integrated Soldier System of
Systems. Biotechnology-based strategies are key to achieving this goal.¶ Challenges¶ Soldiering
remains a dangerous business, involving a wide variety of threats to health and performance. To protect
the soldier, we must counter traditional threats from ballistics weapons, as well as from chemical and
biological weapons. However, we often overlook the fact that the majority of casualties have historically
resulted not from enemy weapons, but from diseases (especially infectious diseases), non-battlerelated injuries, and stress. For example, in the Vietnam War, 83 percent of all hospital admissions were
for disease and non-battle injuries. A traditional rule of thumb is that there is one combat-stress
casualty for every three physical casualties.¶ It is also important to recognize the unique features of the
military environment that adversely affect human performance without directly causing casualties. If
performance degradation is severe enough, however, missions can be compromised, which can lead to
serious consequences, including casualties. The soldier’s occupational environment is extremely
stressful, both physically and mentally. Work is conducted outdoors in all types of weather and at all
altitudes. The workload continues around the clock and is subject to sudden, rapid changes in intensity.
Soldiers are required to remain attentive and vigilant and process increasing amounts of information
very quickly.¶ In the future, even greater demands will be made upon soldiers. Future operational
concepts call for highly mobile forces enabled by increasingly sophisticated weapon and information
systems. Currently, the military must be able to deploy one division (10,000 to 18,000 troops) into an
operational theater on 120 hours notice and five divisions within 30 days. The soldier of the future must
be physically ready to deploy on a moment’s notice; upon arrival, he or she must be ready to fight,
anywhere in the world. Soldiers may also be required to change rapidly from humanitarian to
peacekeeping to warfighting roles (as in Iraq). These requirements will make substantial cognitive,
perceptual, and emotional demands on soldiers. Highly mobile operations will also increase the
dispersion and isolation of small units and individual soldiers, changing the way support services, such as
medical support, are delivered and making it imperative that soldiers remain fit and healthy. Future
soldiers will have to be capable of going without sleep or resupply for extended periods of time and
more reliant on self- or buddy-aid in the event of illness or injury.¶ The Soldier System of Systems¶ The
Soldier System of Systems is a multi-tiered strategy in which the soldier and his or her weapon and
support systems are considered as a unified system that encompasses the full range of medical and
nonmedical systems for protecting and enhancing the soldier’s health and performance. This strategy
consists of three levels of defense: Protection; Surveillance; and Intervention. Protection is subdivided into the three categories: Individual Force Health Protection; Individual Force Protection; and
Force Protection.¶ Role of Biotechnology¶ The key to realizing the Soldier System of Systems is biotechnology. In 2001, the U.S. Army commissioned a National Research Council (NRC) committee, the Committee on Opportunities
in Biotechnology for Future Army Applications, chaired by NAE member Michael R. Ladisch of Purdue University, to accomplish the following goals:¶ Examine trends in the bioscience and engineering industries, including small
business involvement and university and other institutional research activities in biology, biomimetics, and related areas.¶ Determine whether trends in research, technology transfer, and commercialization could be used to
predict advances likely to be useful for the Army through 2025. ¶ Identify the bioscience and engineering technologies with the most potential for Army applications, based on affordability and the likelihood of leveraging
commercial research and development.¶ Identify critical barriers to the development of biotechnologies with strong potential for Army applications, especially barriers that could be surmounted by appropriate investments in
science and technology.¶ Recommend research initiatives that could help the Army exploit promising developments in biotechnologies and engineering. ¶ The results of the NRC study published in 2003 identified 20 prospective
applications for Army investment over the short term, midterm, and long term. ¶ Biotechnology in the Army¶ Based on the recommendations of the NRC Committee and internal assessments of technology readiness and soldiers’
needs, the Army is currently investing in several broad areas that cut across multiple technology applications. The Army’s intramural biotechnology effort is being conducted at facilities that fall under the U.S. Army Medical
Research and Materiel Command (USAMRMC) and the U.S. Army Research, Development and Engineering Command (RDECOM). USAMRMC focuses on medical and human performance applications; RDECOM focuses on
nonmedical systems applications. Extramural basic research is being coordinated by the Army Research Office (ARO), based in Research Triangle Park, North Carolina. ARO oversees two major collaborative ventures with academia
that are focused on biotechnology enablers: the Institute of Collaborative Biotechnologies, which includes the University of California at Santa Barbara, California Institute of Technology, and Massachusetts Institute of Technology
(MIT), to provide the Army with core competencies and expertise; and the Institute of Nanotechnologies, a $50-million research collaboration between the Army and MIT. The remainder of this article highlights examples of
biotechnology-based systems being developed for the Soldier System of Systems. ¶ Vaccine-Based Protection against Endemic Diseases and Biological Agents¶ Current efforts to develop improved vaccines for Individual Force
Health Protection are focused on molecular recognition and vaccine design and construction. In addition to potentially protecting against diseases for which little or no protection is currently available, molecular biology-based
vaccines are expected to avoid causing some of the side effects commonly associated with traditional vaccines, which are based on whole killed or attenuated live organisms. DNA-based vaccines are being developed by the U.S.
Army for several diseases, including dengue fever, malaria, and Hantaan virus, and for biowarfare agents, including anthrax, botulinum neurotoxins C through G, and staphylococcal enterotoxins A and B. Genetic and genomic
technologies have shifted research and development efforts away from whole pathogens to specific viral or bacterial components that confer long-term immunity in those who survive infection. Army-sponsored vaccine research is
currently being conducted at the U.S. Army Medical Research Institute of Infectious Diseases (USAMRIID), the Walter Reed Army Institute of Research (WRAIR), and the U.S. Naval Medical Research Center (USNMRC).¶ As an
example of the current state of the art, DNA vaccines are being developed at USAMRIID to protect against hantaviruses, which cause hemorrhagic fever with renal syndrome (HFRS) or hantavirus pulmonary syndrome (HPS). Both
HFRS and HPS are acute febrile illnesses that are lethal in 5 to 15 percent and 40 to 50 percent of victims, respectively. DNA sequences that code for specific hantavirus genes have been inserted into nonpathogenic viral vectors,
precipitated onto gold microbeads, and injected into the skin of test animals with a needleless gene gun (Hooper et al., 2001). Hamsters injected with the vaccine were protected against challenge infection, and rhesus monkeys
produced antibodies that neutralized virus particles. Hamsters injected with monkey serum as much as five days after viral challenge were protected from developing HPS (Custer et al., 2003).¶ Existing methodologies are
continually being refined for more rapid identification of the immune-response-producing components of pathogens, the isolation of genes that code for these components, and large-quantity production of component-coding
genes. Rapidly formulated DNA vaccines that are effective against multiple strains of the same organism or combinations of multiple organisms can render the soldier of the future resilient against threats posed by emerging
diseases and genetically engineered biowarfare agents.¶ Drug-Based Protection against Endemic Diseases and Biological Threat Agents¶ Non-vaccine-based efforts in Individual Force Health Protection are based on molecular
recognition and drug design and testing. The Army is currently focusing on preventive and therapeutic drugs for malaria, a disease for which vaccine-based approaches have not been effective. To ensure that the Soldier System of
Systems includes protection against this common tropical disease, the Army is pursuing both vaccine-based and non-vaccine-based strategies. The recent completion of the malaria parasite genome sequence (Gardner et al., 2002)
has opened the search to the full spectrum of gene-based drug discovery, coupled with more conventional biotechnological, pharmacological, and medicinal methods of drug optimization.¶ Drugs could also be potentially tailored
to specific subpopulations to improve safety and increase effectiveness. When a large number of individuals receive identical doses of the same drug, their responses and side effects vary greatly. These differences are attributed to
presumed variabilities in drug-metabolizing enzymes, receptor subtypes, and other genetic factors. Pharmacogenomic and toxicogenomic profiling can facilitate the identification of subpopulations of individuals for whom a given
drug is less effective or more toxic. In some cases, differences may be correctable by introducing minor changes into the chemical structure of the drug.¶ Monitoring of Physiological Status¶ To further Surveillance and Intervention
through the identification of impending degradations in physical or cognitive performance and improved casualty assessment, the Army is investing in molecular recognition technologies. Current prototypes of monitoring systems
of physiological status are based on electrical or mechanical sensing of measures of physical activity, heart rate, temperature, and other parameters. A goal for the future is the detection of biomolecules in perspiration or other
accessible body fluids that correlate with a soldier’s potential to execute a mission. This could be accomplished through biosensors for physiological surveillance or casualty diagnosis integrated into soldier ensembles. ¶ At present,
little is known about which, if any, secreted biomolecules are appropriate for sensing. The molecules being investigated include proteins, such as growth factors, metabolites, such as glucose or lactate, and stress hormones, such as
cortisol. With proteomics, researchers can profile the expression of all proteins in a tissue and identify patterns and relationships among them under specific performance environments. ¶ Investigators at the Natick Soldier Center
are attempting to identify performance-relevant markers and develop additional types of biosensors. An example of the latter is a project at Georgetown University, cosponsored by the Army and the Defense Advanced Research
Projects Agency, that has resulted in the development of a biofluidic chip that extracts molecules, such as glucose, that do not usually diffuse across skin, from subepidermal interstitial fluid. ¶ Protection against Environmental
Injury¶ As part of Individual Force Health Protection and Intervention, genomic detection and drug design and testing technologies are being pursued for protection against environmental injuries. Genomic methodologies are
being used to identify molecular regulators that enhance a soldier’s adaptation to environmental stressors, such as extreme heat, cold, and altitude, and biomarkers that predict increased or decreased susceptibility to
environmental injuries. Investigators at the U.S. Army Research Institute of Environmental Medicine have characterized gene-expression patterns in peripheral blood mononuclear cells (PBMCs) isolated from soldiers who exhibit
signs and symptoms of exertional heat injury (Sonna et al., 2004), as well as PBMCs isolated from health volunteers and then exposed to heat or cold under controlled conditions in the laboratory (Sonna et al., 2002a,b). They have
also characterized changes in cultured human liver cells exposed to low oxygen tensions to mimick high altitude (Sonna et al., 2003). More than 50 proteins are affected by heat stress; fewer than 20 are affected by cold; and more
than 380 are affected by hypoxia. Novel approaches being considered for preventing environmental injuries include nutritional supplements and smart suits with sensing capabilities. ¶ Host-Based Detection and Diagnosis of
Exposure to Chemical and Biological Hazards¶ Army investment in genomic detection, molecular recognition, and molecular toxicology is funding the development of host-based detection systems in support of Individual Force
Health Protection and Surveillance. A fundamental concept in toxicology is the dose-toxicity relationship, in which the adverse effects elicited by a toxic substance are dependent on the level of exposure to the toxic substance.
Exposure levels too low to cause outwardly observable changes in health often cause changes at the molecular level. By detecting molecular changes in the soldier before observable signs and symptoms of toxicity appear, it
becomes possible to prevent further exposure and initiate a protective or intervention-based strategy to avert or ameliorate adverse events. ¶ DNA microarray technology is being used at the U.S. Army Center for Environmental
Health Research, the Edgewood Chemical and Biological Center (ECBC), and WRAIR to identify genetic markers of response to different classes of toxic hazards and long-term changes in gene expression following asymptomatic,
low-level exposures to chemical warfare agents. An interesting finding is that male and female rats show different alterations in gene expression following whole-body inhalational exposures to low doses of sarin vapor (Sekowski et
al., 2002).¶ DNA microarray technology is also being used at USAMRIID and WRAIR to assess immune system responses to a variety of biological agents. The expression patterns of isolated PBMCs exposed to biological agents in
the laboratory setting support discrimination of agents that include bacteria (e.g., anthrax, plague, and brucella), toxins (e.g., staphylococcal enterotoxin B, cholera toxin, and botulinum neurotoxin A), and viruses (e.g., Venezuelan
equine encephalitis and dengue fever) (Das et al., 2002). Furthermore, PBMCs isolated from nonhuman primates exposed to anthrax in vivo reveal patterns of gene expression that correlate with the impending onset of symptoms.
The latter approach could be beneficial for detecting exposures to genetically modified organisms that cannot be detected by pathogen-based methods.¶ Hazard-Based Detection and Diagnosis of Exposure to Biological Hazards¶
Another element of Individual Force Health Protection and Surveillance is the combination of molecular recognition and bioderived electronic and photonic materials to detect pathogenic organisms in the environment.
Investigators at the Natick Soldier Center are leveraging the electrical conduction and optical properties of polymers that have been complexed with single-stranded DNA or RNA to form sensitive gene chip biosensors. When the
nucleic acid of a pathogenic organism hybridizes to a complexed nucleic acid probe, the properties of the polymers change. Investigators are also developing peptide-based receptors that bind selectively to pathogenic bacteria.
Investigators at ECBC are working on peptide-based receptors that bind toxins, such as ricin and staphylococcal enterotoxin B, and on designing and fabricating a DNA/RNA microarray capable of detecting and identifying pathogens
down to the level of different strains. These technologies can also be used for monitoring food and water for contamination. ¶ Catalytic Inactivation of Toxic Agents¶ Individual Force Health Protection, Individual Force Protection,
and Force Protection are being addressed through investment in catalytic enzymes and drug design and testing to protect against toxic chemical and biological agents. At the U.S. Army Medical Research Institute of Chemical
Defense, bioengineered recombinant butyrylcholinesterase is being investigated for use as prophylaxis against the adverse effects of exposure to nerve agents, such as sarin, soman, tabun, and VX. This enzyme mimics
acetylcholinesterase and competes with it for binding nerve agents, thus reducing the level of acetylcholinesterase inactivation. It is anticipated that a single dose of this enzyme will be capable of scavenging nerve agent through
stoichiometric binding for up to eight hours. Current efforts are directed at engineering the enzyme so that it has catalytic activity in vivo and exploring the use of a transgenic goat model for generating sufficient quantities of
engineered enzyme to conduct clinical trials.¶ At ECBC, recombinant enzymes are being incorporated into fabrics and polyurethane foams for nonmedical protection and into sprays, detergents, degreasers, and other matrices for
decontamination following exposure. Enzymes for hydrolyzing G-type and V-type nerve agents have been identified, cloned, and optimized. Organophosphorus acid anhydrolase, which works against the G agents sarin, soman, and
tabun, is in large-scale process development. Random and site-directed mutagenesis has resulted in variants of organophosphorus hydrolase enzyme with increased activity against the V-type agent VX. Organophosphorus
hydrolase is also currently in process development. In addition, a bacterial enzyme has been identified that hydrolyzes sulfur mustard, and a collaborative project is under way with Rockefeller University to assess the effectiveness
of using bacteriophage lysins to destroy anthrax spores (Schuch et al., 2002).¶ Biomembrane and Fiber Generation¶ The Army is investing in bioderived materials and molecular recognition as part of Individual Force Protection,
Force Protection, and Intervention. A process called electrospinning is being used at the Natick Soldier Center to produce high-surface-area nanofiber membranes with unique reactive sites for selective immobilization of biological
recognition elements. The current focus is on including immobilized antibodies and antimicrobial peptides on electrospun nanofibrous poly(epsilon-caprolactone) (PCL) for selective binding to pathogens. These materials can be
used in the development of clothing-based biosensors and in filtration of pathogens from food, water, and clothing. Other electrospun polymeric materials include polyurethanes and polyvinyl chloride. ¶ Biomembranes and fibers
are also being investigated at the Institute for Soldier Nanotechnologies. There, electrospun polymers are being used as extracellular matrix-mimicking scaffolds to support tissue regeneration and as vehicles for delivering drugs
and biologics that promote tissue healing after injury.¶ Protection against Ballistics¶ Hard and lightweight ceramic materials, such as boron carbide, are incorporated into body armor and other forms of protective shielding.
Research is now focusing on bioderived nanoceramics in support of Individual Force Protection and Force Protection. ¶ In nature, organisms can form ceramics under mild conditions using protein-directed templated crystallization
mechanisms. Identifying novel peptides that control inorganic ceramic architecture is a technical challenge being addressed at the Natick Soldier Center. Based on our current understanding of how nature nucleates inorganic
nanocrystallization, researchers are attempting to use biomimetic approaches to create novel materials not found in nature. For example, the proteins that direct crystallization for generation of sea urchin spicules are being
genetically modified to favor ions, such as boron and aluminum, rather than the naturally incorporated ions of calcium and silica. ¶ Systems Engineering Issues¶ A key challenge to realizing the Soldier System of Systems is to
provide a comprehensive range of capabilities while simultaneously meeting stringent military requirements to minimize weight and power consumption. Today’s soldiers may carry as much as 100 pounds of equipment. In keeping
with requirements for increased mobility, the objective is to reduce the effective load to less than 40 pounds by developing efficient multifunctional systems for the Soldier System of Systems. Examples include a single system for
detecting exposures to chemical warfare agents, toxic environmental chemicals, biowarfare agents, and/or infectious pathogens and a single vaccine system for protecting against multiple pathogenic organisms. ¶ The problem is
complicated because of potential interactions among drugs and vaccines that can decrease their effectiveness or increase their toxicity. Another concern about biologically based systems is their stability and durability. Many
biological molecules are susceptible to degradation, and it remains to be seen whether bio-based materials and sensors will be able to perform well under rugged field conditions in which they are exposed to extremes of
temperature and humidity, the possibility of oxidation, and other stresses. Biomaterials must also have a reasonably long shelf-life, because perishable materials
could be logistically
insupportable or unaffordable if stockpiles must be frequently refreshed..¶ Other major challenges to
realizing the Soldier System of Systems are gaps in our knowledge. Despite substantial progress in the
enabling technologies for engineering sensors and DNA vaccines, questions remain about which
biomolecules are appropriate for sensing and why some vaccines fail to elicit a protective response. We
will certainly need more basic research on enabling technologies and their applications.¶ By continually
monitoring progress in basic and applied research in the academic, governmental, and industrial
communities, the Army can hope to fill these knowledge gaps, identify the most promising enabling
technologies, and promote their development by carefully directing its investments.
Medical Research – Economy Impact
Medical innovation is key to the economy
Paranicas 14 – President and Chief Executive Officer @ HINJ
(Dean, “THE VALUE OF MEDICAL INNOVATION: SAVING LIVES, SAVING MONEY,” HealthCare Institute of
New Jersey (HINJ), http://hinj.org/the-value-of-medical-innovation-saving-lives-saving-money/)
Medical innovations produced by American life sciences companies have vastly improved the human
condition. Our pharmaceutical, biotech, medical technology, device and diagnostics companies have
helped people live longer, with less pain and greater quality of life. Over the past century, the life
sciences has eradicated some of the world’s most dreaded diseases such as polio and smallpox. More
recently, the industry has made other diseases such as breast cancer, HIV/AIDS, heart disease and lung
cancer no longer the death sentences that they once were. Collectively, new therapies are the greatest
contributors to increased life expectancy. According to the National Bureau of Economic Research
(NBER), between 1960 and 1997, new therapies accounted for 45 percent of the increase in life
expectancy in 30 developing and high-income countries. Between 2000 and 2009, new therapies
accounted for 73 percent of the increased life expectancy for these countries. Despite the dramatic lifesaving advancements that the life sciences sector has made, our work is far from done. Diabetes,
Alzheimer’s, Ebola, different types of cancers, and other formidable medical conditions demonstrate the
compelling need for America’s medical innovation community to build upon its tremendous
achievements to continue saving lives around the world. Toward that goal, every day, teams of scientists
from New Jersey companies go to work to research and discover the next generation of medicines,
therapies, devices, technologies and diagnostic tools that will alleviate even more of these lifethreatening and life-altering diseases. Medical Innovation’s Overlooked Benefit With these medical
innovations, past and future, comes an often-overlooked benefit: the incalculable billions of dollars in
savings to patients, their families, insurers, employers, governments and hospitals in avoided medical
expenses associated with keeping people healthy or curing them of a life-long, chronic condition.
Certainly, these medicines, therapies, medical technologies, devices and diagnostic tools keep people
healthier. They limit the need for frequent visits to the doctor. They help to avoid costly hospital stays.
They help patients avoid expensive surgeries. Unfortunately, these tremendous cost savings often go
unrecognized. Instead, we hear frequent reports about the high cost of medicine or about new
technologies or diagnostic tools being deemed “too expensive” or “unnecessary.” We hear that medical
innovation is a cost-driver, not a cost-saver. The reality is quite to the contrary. Medications, therapies
and medical technologies and devices not only save lives — they save money. By eradicating a disease,
people no longer need to seek or spend money on treatment. By better managing and preventing more
serious complications from an existing disease, people avoid more costly medical care. By discovering a
new treatment or cure, the costs that would have been incurred in addressing a patient’s ongoing
medical issues can be avoided entirely. Therefore, developing new treatments, cures and health
technologies is one of the most important steps we can take — not only to save lives and improve the
quality of life, but also to avoid the expenditure of enormous amounts of health care dollars. How much
savings does medical innovation produce? There is not one, simple answer to that question. However,
there are numerous academic and government statistics that point to the economic benefits of
innovation in the health-care marketplace. In a paper published by the Journal of Political Economy in
2006, it was estimated that over the preceding 50 years, medical innovation had been the source of
nearly half of all economic growth in the United States. Impressively, for every dollar spent on
innovative medicines, total healthcare spending is reduced by $7.20, according to an NBER paper. As for
the price of medicine in America, only 9 cents of every health care dollar spent in America goes to
medicines, according to the Centers for Medicare & Medicaid Services (CMS) in 2013. The other 91 cents
goes to hospitals, physicians, clinics, long-term care facilities, and government administration and net
cost of health insurance. Imagine if we could use that 9 cents to reduce the remaining 91 cents or even
avoid significant portions of it in the first place. The result would be saved lives and even greater healthcare savings. Medication Adherence’s Important Role Medication adherence also plays an important role
in health-care savings, as medical innovations can provide no benefit if they are not accessed by
patients. Of the approximately 187 million Americans who take one or more prescription drugs, it is
estimated that up to one-half do not take their medications as prescribed. Poor medication adherence
results in 33 to 69 percent of medication-related hospital admissions in the U.S., at a cost of roughly
$100 billion per year. In total, non-adherence to prescribed medicines results in approximately $290
billion in unnecessary spending annually. Americans with chronic conditions account for 84 percent of
health care spending. In 2011, this totaled more than $2 trillion. By using medical innovations to prevent
or better manage the most common chronic diseases, the U.S. could decrease treatment costs by $218
billion per year and reduce the economic impact of disease by $1.1 trillion annually. For diabetes, the
total costs of this chronic disease rose to $245 billion in 2012 from $174 billion in 2007. Without a cure,
in the next 25 years, annual spending on diabetes is forecast to increase steeply to approximately $336
billion annually. For Alzheimer’s disease, in the absence of disease-modifying treatments, the cumulative
costs of care for people suffering with Alzheimer’s from 2010 to 2050 are expected to exceed $20
trillion. A treatment breakthrough that only postpones the onset of Alzheimer’s by as few as five years
could result in annual Medicare savings of $33 billion in 2020 and climb to $283 billion by mid-century,
while annual Medicaid savings could increase from $9 billion in 2020 to $79 billion in 2050. A 2007
Milken Institute paper reported that cancer treatment results in a tenfold increase in productivity —
specifically, $37 billion in cancer treatments resulted in an estimated $373 billion in increased
productivity. While the monetary cost savings of medical innovation are extraordinary, the value to
patients is nothing short of priceless. For example, according to the American Cancer Society, U.S. cancer
survivorship alone has more than tripled since 1970, with nearly 14.5 million cancer survivors alive in the
country this year. Also, as of 2014, the U.S. five-year survival rate for all cancers diagnosed between
2003 and 2008 is 68 percent. With HIV/AIDS, medical innovation has delivered an astounding 3 million
life years, which has produced an economic value of $1.3 trillion, according to a 2006 published paper.
Medical Innovation: A Key Part of the Solution Medical innovation is complex, high-risk, time-consuming
and extremely expensive. But it is clear that medical innovation is a key part of the solution — not only
to alleviating human suffering, but also to reducing significantly the incalculable costs associated with
treating that suffering. As a society, we need to recognize the enormous multifaceted return on the
investment in medical innovation, and nurture — rather than stifle — the virtuous cycle of better health,
longer life and economic benefit resulting from life sciences innovation.
Medical innovation is key to growth
Hugin 13 – Chairman, Pharmaceutical Research and Manufacturers of America
(Robert, “Medical Innovation Benefits Patient Health, Economic Growth,”
http://www.phrma.org/robert-hugin-remarks-japan-media-roundtable)
But Celgene is by no means unique among PhRMA member companies. Our companies are vibrant and
changing rapidly. All have impressive, committed, and dynamic leaders. We all have a common mission,
to make a meaningful difference in the lives of patients around the world. PhRMA members have a
common business proposition, that value can't be created if patients don’t benefit first. And the best
way for us to deliver a transformational future of medicine that is in the best long-term interest of for
patients is to invent it ourselves. We have a major responsibility to discover and develop new innovative
therapies, and we are doing so, investing more, as a percentage of our revenues into R&D, than any
other industry in the world. This came to almost $50 billion last year globally. But government policies
also have a significant impact on investment and innovation and our ability to deliver transformational
outcomes to patients. In the US, over the past 60 years, medical innovation has been the source of more
than half of our economic prosperity and growth. In the US, since 1988, as a result of medical
innovation, 42 million life years for cancer patients have been saved contributing nearly $3.5 trillion to
our economy. Decades of health economic evidence reinforce that pro-innovation and pro-patient
policies do make a difference for patients, healthcare and the economy.
Medical innovation is key to the economy---increased life-expectancy positively
correlates with growth
---answers the life-expectancy turn
Wright 13 - editor-in-chief for Life Science Leader Magazine
(Rob, “How Important Is Medical Innovation To The U.S. Economy?,”
http://www.lifescienceleader.com/doc/how-important-is-medical-innovation-economy-0001)
Living Longer, Better, Wealthier?
From 1900 – 2010, the United States has witnessed a 96% decrease in deaths, and a 62% increase in life
expectancy. By the year 2040, average U.S. life expectancy is anticipated at being 85 years of age, while
the rest of the world is estimated to be at 72 years of age. According to Frank Lichtenberg, Ph.D., new
therapies are the greatest contributor to increased life expectancy. A business professor at Columbia
University, Lichtenberg assessed the contribution of pharmaceutical R&D to longevity and the economic
growth which results. You may find some of his insights startling. First, the pharmaceutical industry is
the most R&D-intensive sector of the economy, not technology. Second, the rate of return on
investment in pharmaceutical R&D is 18%. Third, using newer drugs actually decreases overall
healthcare costs, with much of the savings being due to reduced hospital stays and physician office
visits. For $1 spent on innovative medicines, healthcare spending is reduced by approximately $7.20. So
let me ask you — what type of financial impact does living longer have economically? According to
University of Chicago economists Kevin Murphy, Ph.D., and Robert Topel, Ph.D., who calculated
cumulative gains in life expectancy after 1900 to be worth over $1.2 million to the representative
American in the year 2000. Further, in the 30 years between 1970 to the year 2000, life expectancy
gains added approximately $3.2 trillion per year to the national wealth of the United States. But medical
innovation contributes more than just living longer and accumulation of wealth. Medical Innovation
Economics 101 Over the past 50 years, medical innovation has been the source of more than 50% of all
economic growth in the United States. It is estimated that there are more than 650,000 jobs in the U.S.
biopharmaceutical sector, with each of these jobs supporting an additional five jobs in other sectors. In a
report by Battelle, a nonprofit R&D organization, the overall economic impact of the biopharmaceutical
sector on the U.S. economy in 2009 (as measured by output) was estimated to be more than $917
billion on an annual basis. Further, the biopharmaceutical sector generated nearly $85 billion in state,
local, and federal tax revenues for 2009. The annual average personal income of a biopharmaceutical
worker in 2009 was nearly twice the average across all private sector industries ($118,690 vs. $64,278).
When you compare export numbers among industries, you may be surprised to learn that in 2010 the
U.S. biopharmaceutical industry exported $46.7 billion, which is more than automobiles ($38.4 billion),
plastics and rubber products ($25.9 billion), communications equipment ($27 billion), and computers
($12.5 billion). With all of these positive U.S. economic attributes, why then does it seem everyone is
intent on killing the golden goose that medical innovation represents? The Obama administration is
pushing for policy changes to Medicare Part D, which if enacted will most likely result in decreased
pharmaceutical R&D spending, as well as the loss of possibly 250,000 high wage jobs. So Paul, to answer
your question, the pharmaceutical industry is BIG. How important is medical innovation to the U.S.
economy – VERY!
Medical Research – Quality
Robust clinical trials are key – without them the medical knowledge gained causes
long-term damage
Sean Tunis (Centers for Medicare & Medicaid Services, Baltimore, Md) Daniel Stryer (Agency for
Healthcare Research and Quality, Rockville, Md) and Carolyn Clancy (Agency for Healthcare Research
and Quality, Rockville, Md) 2003 “Practical Clinical Trials”
http://umassmed.edu/uploadedFiles/QHS/Content/Tunis%20article1.pdf
The prevalence and significance of gaps in knowledge about clinical effectiveness are most readily
appreciated by reviewing the results of most systematic literature reviews, technology assessments, and
clinical practice guidelines. These reports are generally produced to provide comprehensive reliable
information for decision makers and usually address common conditions with large aggregate cost,
morbidity, and public health importance. A consistent finding of these reviews is that the quality of
evidence available to answer the critical questions identified by experts is suboptimal. For example, a
systematic review of newer pharmacologic agents for depression concludes that few studies provided
data on the long-term effectiveness of treatment, the functional status of patients, or the outcomes of
patients treated in typical practice settings.11 Furthermore, few studies compared the older inexpensive
agents with newer agents in terms of adverse effects and clinical efficacy. Most well-done systematic
reviews and clinical guidelines reach similar conclusions about the quality of evidence associated with
common clinical problems. These gaps in evidence undermine efforts to improve the scientific basis of
health care decisions in several ways. Organizations that develop evidencebased clinical practice
guidelines may not be able to develop clear, specific recommendations.12 For example, the background
report for clinical guidelines on outpatient management of exacerbations of chronic obstructive
pulmonary disease found that although numerousindustry-sponsored clinical trials reported minor
differences in the antimicrobial activity of alternative broadspectrum antibiotics, no trials had been
performed to determine whether any of the newer broad-spectrum antibiotics were better than older
generic antibiotics or even placebo (for mild exacerbation).13,14As a result, the guideline could not
provide definitive recommendations on the appropriate choice of antibiotics for chronic obstructive
pulmonary disease exacerbations. The limited quantity and quality of available scientific information
also impede the efforts of public and private health insurers in developing evidencebased coverage
policies for many new and existing technologies.7,15 Poor-quality studies of new technologies can lead
to millions of dollars being allocated for new technologies for which the long-term benefits and risks
have not been determined.4 Minimally invasive technologies for treatment of benign prostatic
hyperplasia (BPH) are in widespread use, yet no clinical trials have been performed to compare the risks
and benefits of these treatments with standard surgical interventions.16 The Medicare program has
spent millions of dollars per year for home use of special beds for patients with pressure ulcers, despite
the fact that no well-designed study demonstrates that they improve healing of these ulcers.17 The
limited production of this body of research becomes increasingly problematic as major increases in
public funding for basic research generate an expanding range of potentially valuable technologies in
need of careful objective evaluation.
Disease - Turns Economy
Disease spread goes global- easy transmission of today’s viruses make it possible- that
causes economic and healthcare collapse worldwide
Nguyen-Van-Tama and Hampson 3 [Jonathan S. Nguyen-Van-Tama (Aventis Pasteur MSD,) and
Alan W. Hampson (WHO Collaborating Centre for Reference and Research on Influenza). “The
epidemiology and clinical impact of pandemic influenza.” 2003. P. 5.
http://www.birdflubook.org/resources/tam1772.pdf]//EMerz
The three influenza pandemics of the 20th century indicate what can be expected when the first
pandemic of the 21st century makes its appearance. The pandemic virus may emerge in China or a
nearby country and could include surface antigens or virulence factors derived from animal influenza
viruses, much like the avian A/H5N1 virus that emerged in Hong Kong in 1997. Once the new virus
acquires the ability to be transmitted efficiently from person to person, it will spread rapidly
throughout the world. Several waves of infection will occur. Morbidity will be extensive in all age
groups, and there will be widespread disruption of social and economic activity in all countries. Excess
mortality will be evident in most if not all age groups. It is unlikely that health care systems in even the
most economically developed countries will be able to adequately cope with the demand for health care
services. Although modern medical care will offer life-saving treatment to some individuals who in
earlier pandemics would not have survived, the principle determinants of the severity of the next
pandemic will be the virulence and transmissibility of the virus and the susceptibility of human
populations to infection. There is little that people can do to change or control these variables. What
they can do, however, is prepare their societies for managing the consequences of the pandemic and
ensure that there are adequate supplies of vaccines and antiviral agents to lessen if not control its
impact.
Disease turns free trade- any global spread of disease could collapse international
trade- ensuring health is a prerequisite to the global economy
Kerr et al 6 [William Kerr. Van Vliet Professor Senior Associate, Estey Centre for Law and Economics in
International Trade. “A Trade Regime for Sub-National Exports Under the Agreement on the Application
of Sanitary and Phytosanitary Measures.” 2006. P. 2. http://www.uoguelph.ca/catprn/PDFCP/Commissioned_Paper_2006-3_Kerr.pdf]//EMerz
International trade can be a significant factor in the spread of diseases from one region of the world to
another. As such, efficacious international movement controls on potential disease spreading entities
such as people, animals, plants or products from plants and animals is a critical component of good
disease management. Collectively, in international trade law these policies are known as sanitary and
phytosanitary (SPS) measures. Many of these controls are implemented based on national borders as
they are convenient separators of government responsibility. While governments have a legitimate
obligation to prevent disease entry, spread and establishment in their country, they are also
frequently pressured to utilize health regulations as disguised trade barriers to provide protection to
their national producers from international competition (Kerr, 2004). To prevent this, international
efforts were undertaken to promote measures being applied only when there is a scientific justification.
One of the first steps taken was to create international expert bodies that could bring together technical
expertise from around the world to form recommendations regarding what would constitute good
scientific disease management practices. These included, but were not limited to, disease-related trade
restrictions. Effective enforcement, however, was difficult as the international institutions involved
lacked a binding dispute settlement mechanism (Kerr, 2004). As governments increasingly agreed to
constrain their ability to utilize traditional protectionist measures, such as tariffs and quotas, through
consecutive negotiating rounds at the General Agreement for Tariffs and Trade (GATT), illegitimate
barriers to trade, such as SPS measures being applied when not scientifically warranted, were seen as a
rising problem in international trade relations. Members decided to negotiate an agreement within the
GATT, the precursor to the World Trade Organization (WTO), which would govern the use of SPS
measures, allowing Members to enact them but only to the extent necessary to protect human, animal
or plant health. The significance of having an agreement on the application of SPS measures in the newly
created WTO was that it would now be subject to the WTO’s binding dispute settlement procedures,
forcing governments to abide by the rules agreed upon or face retaliation instead.
Disease – A2 Burnout
Disease causes extinction -- Burnout is wrong
Karl-Heinz Kerscher 14, Professor, “Space Education”, Wissenschaftliche Studie, 2014, 92 Seiten
The death toll for a pandemic is equal to the virulence, the deadliness of the pathogen or pathogens,
multiplied by the number of people eventually infected. It has been hypothesized that there is an upper
limit to the virulence of naturally evolved pathogens. This is because a pathogen that quickly kills its
hosts might not have enough time to spread to new ones, while one that kills its hosts more slowly or
not at all will allow carriers more time to spread the infection, and thus likely out-compete a more lethal
species or strain. This simple model predicts that if virulence and transmission are not linked in any way,
pathogens will evolve towards low virulence and rapid transmission. However, this assumption is not
always valid and in more complex models, where the level of virulence and the rate of transmission are
related, high levels of virulence can evolve. The level of virulence that is possible is instead limited by
the existence of complex populations of hosts, with different susceptibilities to infection, or by some
hosts being geographically isolated. The size of the host population and competition between different
strains of pathogens can also alter virulence. There are numerous historical examples of pandemics that
have had a devastating effect on a large number of people, which makes the possibility of global
pandemic a realistic threat to human civilization.
Modeling/Leadership
Global disease surveillance is modeled after the United States- even if they win there is
no precedent, it’s empirically proven. Additionally, member nations won’t comply if
federal surveillance overwhelms local authority.
Calain 07 (Philippe Calain, Senior Researcher at the Research Unit on Humanitarian Stakes and Practices, based
in the Swiss section of Me´decins sans Frontie`res. Trained as a medical doctor and a specialist in infectious
diseases and tropical medicine, he has over ten years of experience in international public health “Exploring the
International Arena of Global Health Surveillance,” Published in Health Policy and Planning
http://heapol.oxfordjournals.org/content/22/1/2.full)
In May 2005, the 58th World Health Assembly adopted a much overdue revision of the IHR, referred to as the
IHR(2005) (WHO 2005a). Compared with the 1969, 1973 and 1981 versions of the IHR, the revised regulations expand
considerably the scope of internationally notifiable epidemic diseases, they accommodate criteria for novel epidemic
events and they set out conditions for involvement of the international community in outbreak response. In May 1995, the 48th World Health
Assembly had already adopted two resolutions calling, respectively, for a revision of the IHR and for the establishment of a comprehensive
programme to tackle new, emerging and re-emerging infectious diseases (WHO 1995a). Accordingly, in October 1995, a
new unit was
established at WHO as the Division of Emerging Viral and Bacterial Diseases Surveillance and Control (EMC) (WHO 1995b), to be later
renamed successively as the Department of Communicable Diseases Surveillance and Response (CSR) and the
Department of Epidemic and Pandemic Alert and Response (EPR). In 2000, under the operational support of CSR team
members, a Global Outbreak Alert and Response Network (GOARN) was created to coordinate technical resources involved worldwide in
combating outbreak-prone diseases (Enserink 2004). The apparent success of GOARN and collaborating technical partners in limiting the
international spread of SARS in 2003 (Heymann and Rodier 2004) has vindicated efforts led by WHO to put the control of emerging or reemerging diseases high on the global health agenda. Next to giving itself the necessary legal instruments (through the revised IHR) and putting
itself in a position to coordinate international response to outbreaks (through the GOARN), the
WHO Secretariat has crystallized
around the CSR/EPR Department a considerable amount of expertise in capacity building, in preparation for
deliberate epidemics and in promoting public health surveillance at all levels. Inspired by a model developed from the early
ages of the United States Centers for Disease Control and Prevention (US-CDC), WHO has become the
flagship of the concept of global surveillance of communicable diseases (Heymann and Rodier 1998). Since 2003, a
limited pandemic of SARS first, soon followed by the fearsome expansion of epizootic avian H5N1 influenza from South-East Asia to the entire Old
World, have been putting this concept to the test. The SARS and avian influenza epidemics have certainly helped in facilitating the acceptance of the new IHR,
through their combined health and economic impacts. Avian influenza H5N1 is now in the limelight of international health conc erns by being seen as a possible
precursor of an upcoming human pandemic (WHO 2005b). Since the end of 2005, several high profile meetings in Geneva, Ottawa, Tokyo and Beijing have tried to
mobilize the international community to shift health priorities and financial resources toward preparedness against the anticipated influenza pandemic (Health
Canada 2005; World Bank 2005; WHO 2005c; WHO Regional Office for the Western Pacific 2005). In May 2006, the 59th World Health Assembly called upon
Member States to speed up the implementation of the IHR(2005), or at least of the provisions that are deemed relevant to the hazards posed by avian influenza and
pandemic influenza (WHO 2006). Historical landmarks of public health surveillance Public health surveillance applied to outbreak detection and monitoring is not a
new idea. During the plague of London in 1665, parish clerks compiled weekly bills of mortality detailing about 40 different causes of death (Naphy and Spicer
2001). In a recent era, the most influential character was Alexander Langmuir who established and popularized the modern concepts of disease surveillance,
following the footsteps of the 19th century statistician William Farr (Thacker and Gregg 1996).2 A public health epidemiologist by training, Langmuir pursued an
academic career in parallel with holding high-level positions in committees of the US Department of Defense overseeing THE INTERNATIONAL ARENA OF GLOBAL
PUBLIC HEALTH SURVEILLANCE 3 by guest on July 23, 2015 http://heapol.oxfordjournals.org/ Downloaded from biological warfare programmes during the World
War II and the Cold War periods (Fee and Brown 2001). In 1949, he was recruited to the US-CDC, to become its chief epidemiologist. Building upon the US
experience of malaria and poliomyelitis eradication programmes, he designed a remarkably successful national system of disease reporting and created the
Epidemic Intelligence Service. The 1990s saw the rise of the ‘emerging diseases worldview’, a post-colonial concept rooted in new biomedical concerns as much as
in perceived threats from a ‘de-territorialized’ world.3 A landmark 1992 report of the US National Academy of Science (Institute of Medicine 1992) formalized the
definitions of ‘emerging’ and ‘re-emerging’ diseases and explicitly discussed their global implications. The social, humanitarian, economic and political fallout of (re)emerging diseases became obvious, first in 1991 when cholera reappeared in South America (Sa´nchez and Taylor 1997) and next in April 1994 when plague broke
out in Surat, India (Garrett 2001). The latter circumstance showed how panic and lack of leadership can lead to unnecessary impacts on national economies and on
local communities (Cash and Narasimhan 2000). In April 1995, an outbreak of highly fatal cases of haemorrhagic fever in Kikwit in the Bandundu Province of DRC
(former Zaire) came to the attention of the international health community through a network of informal and rather delayed channels, before it could be
confirmed as the re-emergence of an Ebola virus. It attracted an unusual amount of press coverage and scientific attention worldwide, partly justified by concerns
over international spread. Lessons from the outbreak in Kikwit (Heymann et al. 1999) led to surveillance being put at the core of CSR activities, and to the revival of
interest in the International Health Regulations.4 Precursor regimes of international governance on communicable diseases actually date back to the first
International Sanitary Conference of 1851. Under their successive formats, they already incorporated mixed concerns over public health as well as related trade and
political issues (Fidler 2003). Their impact seems, however, to have been rather limited. In contrast, the widespread interest in international health regulations seen
at the present time reveals new dimensions to the global public health debate, as well as far-reaching implications of global surveillance. Semantic ambiguities
When Alexander Langmuir (1963, 1971) redefined surveillance to fit his own public health purposes, he departed from a former meaning which restricted the term
to individuals, i.e. typically contacts who had to be followed up for signs of disease without restricting their movements by isolation or quarantine.5 Instead of
individuals, Langmuir’s (1963) modern view of surveillance applies to diseases, as defined by: ‘the continued watchfulness over the distribution and trends of
incidence through the systematic collection, consolidation and evaluation of morbidity and mortality reports and other relevant data. Intrinsic in the concept is the
regular dissemination of the basic data and interpretations to all who have contributed and to all others who need to know.’ With some prophecy, Langmuir
anticipated future problems and cautioned that: ‘the actual performance of the research study should be recognized as a function separate from surveillance’. The
blurred boundary between research and surveillance is a critical issue that was later emphasized by Stephen
Thacker, a succeeding
senior epidemiologist at the US-CDC.6 Thacker noted the ambiguities carried under ‘disease surveillance’ and ‘epidemiologic
surveillance’, and he advocated the term ‘public health surveillance’ to avoid confusion with epidemiologic
research (Thacker and Gregg 1996). Directly inspired by Thacker’s definition, the WHO definition of public
health surveillance proposed under resolution WHA58.3 (WHO 2005a) is clear enough to avoid confusion with research activities:
‘Surveillance means the systematic ongoing collection, collation and analysis of data for public health purposes and the timely dissemination of
public health information for assessment and public health response as necessary.’ Despite its clear merits, however, the latter definition
carries two sources of ambiguity, which were further reflected during the international consultation process and in the drafting of
advanced versions of the revised IHR(2005). These ambiguities relate to (1) the scope of health events targeted by
surveillance, and (2) the sort of ‘public health action’ in which the international community – through
WHO experts – will find itself involved by virtue of the IHR(2005) mandate. Shared concerns by some experts and
policy makers over the scope of the new IHR appear in successive versions of a decision instrument annexed to the IHR(2005) (WHO 2004a).
Initially designed exclusively as a criteria-based algorithm, the final version of the annex ultimately includes as well a number of specific
diseases, leaving it open to frequent updates as new pathogenic agents become identified. In the same line, it is not explicit whether the
IHR(2005) have regulatory authority over programme evaluation as well as detection of epidemics, both being classical components of
communicable diseases surveillance.7 In a conceptual framework endorsed by members of the CSR team (McNabb et al. 2002), the two related
components of ‘public health action’ (acute ‘epidemic-type’ response and planned ‘management-type’ response) are explicitly considered as
complementary outputs of ‘public health surveillance’. What will be missing in some cases of new epidemic threats, especially when the risk
assessment is inconclusive, is a gauge of the degree of urgency from which international action is legitimate. These issues have some relevance
obviously in terms of national sovereignty. More recently, WHO has been promoting, developing and implementing in several countries the
relatively new concept of Early Warning Systems (EWARS) for outbreak surveillance (WHO 2005d). Direct reference to EWARS would perhaps
have lifted some ambiguities carried by too loose a definition of surveillance and would have better clarified the scope of the IHR(2005) and
their derived requirements for Member States. Of equal relevance to the scope of the IHR(2005) is the lack of conceptual clarity over the term
‘global health security’ (Aginam 2005; McInnes and Lee 2006). ‘Global health security’ features prominently in WHO policy documents (for an
example see WHO 2001) to summarize the overall strategy 4 HEALTH POLICY AND PLANNING by guest on July 23, 2015
http://heapol.oxfordjournals.org/ Downloaded from covered by epidemic alert and response activities. Other international alliances (Global
Health Security Initiative 2006) use the term with a clear orientation toward the public health response to the specific threats of international
biological, chemical and radio-nuclear terrorism. Sovereignty and ethical standards How
and if Member States of WHO will
abide by the IHR (2005) (which are to become legally binding in June 2007) will obviously depend on a delicate balance
between perception of threats from specific health events (public health effects per se, or political or economical
consequences), incentives set up by interested parties and any consideration of national sovereignty. Sovereignty has
been one of the main matters of discussion during successive consultations leading to resolution WHA58.3 (WHO 2004a). The issue
has an additional level of complexity for countries with federal governments, where authority over public health is
generally devolved to regional jurisdictions (Wilson et al. 2006). The IHR(2005) do not include a sanctions regime for States that
fail to comply with their provisions (WHO 2005e). Several jurists (Plotkin and Kimball 1997; Fidler 2003) have stressed the marginal role of
former versions of the IHR compared with other international regimes, notably the World Trade Organization8 and its related multilateral
agreements dealing in a more direct way with factors causing the emergence of communicable diseases. It is, however, likely that the new IHR
will become more influential than their precursor versions of 1969, 1973 and 1981, for several reasons: (1) the broader scope of health events
under consideration, (2) a more active and better defined role for WHO in the response phase, and (3) more flexible mechanisms for WHO to
circulate information critical to control public health threats (including information from non-official sources or about non-compliant state
parties). Despite the latter opportunity embedded in the new IHR, it will remain as difficult as ever for WHO to exercise its handling of sensitive
information, especially in a world where the press and the public are the driving forces behind increased transparency.
Courts model each other- constitution globalization
Kersch 05, (Ken I, 4 Wash. U. Global Stud. L. Rev. 345, “New Legal Transnationalism, the Globalized
Judiciary, and the Rule of Law,” 2005,
http://heinonline.org/HOL/Page?handle=hein.journals/wasglo4&div=19&g_sent=1&collection=journals)
//IB
In recent years in the United States, constitutional reasoning and practice has been going global. For many, this
trend became apparent for the first time when, in the course of its analysis in the recent affirmative action and
gay rights cases, the U.S. Supreme Court made frank references to foreign practices, public opinion, and court
decisions, as well as international agreements-those ratified by the United States and those not.' While, strictly speaking, not unprecedented,
the Court's
transnational references in these cases were notable for a number of reasons. First, because they took place
cases involving domestic policy issues that
are at the heart of partisan political contention, they were unusually prominent. Second, rather than amounting to casual allusions,
they represent a calculated step by key justices on the Court--led by Justice Breyer, but also joined by Justices Ginsburg,
in decisions not involving international affairs, as traditionally defined, but rather in
Kennedy, and O'Connor-to bring the Court's approach toward constitutional interpretation into line with new approaches being taken by
justices in the courts of other countries.2 And third, these
efforts in the American judiciary are taking place in a distinctive
in the United States and around the world, are
coming to understand legal transnationalism as an imperative.' As is evident from even the most casual perusal of the
reformist intellectual context in which many scholars and activists, both
increasingly high profile journals of international law, scholars are now hard at work trying out alternative doctrines, seeking those that will be
least politically vulnerable. Debates involving the applicability of the law of nations, customary international law, treaties, international
agreements and pronouncements, and foreign practices, precedents, judicial reasoning (under the guise of "constitutional borrowing"), and
public opinion to the decisionmaking processes of American judges deciding domestic constitutional cases, more and more are filling pages of
these law journals. These calculated efforts to transform the way in which the Court considers domestic constitutional issues may very well
mark the beginning of a major departure in the direction of American constitutional law.
US is losing healthcare leadership
Szarfenberg 10, (Ryszard, Culture and Education, “QUALITY OF SOCIAL WELFARE SERVICES,” 2010,
http://janinewedel.info/KiE-nr-5-2010.pdf#page=61)//IB
In recapitulation, despite ambiguity and multidimensionality of the notion of quality and discrepancies in the
concepts of new public
management, pro-quality reforms of general interest services have been and still are undertaken. Services
of general interest include social welfare services and hence they are also concerned. Th e leading role in the adoption of this
philosophy is played by health services sector, and in this connection also by social services similar to those provided by care
homes or nursing and medical institutions that are closest to the health services sector. One of the presently dominant sources
of ideas aimed to improve quality are the strategies and instruments recommended and applied in the private sector.
However, quality assurance models in the sector of manufacturing and commercial services not necessarily work well in social services. Th
erefore, approaches intended to take due account of their specifi cs are being developed. However, it is not certain whether even those service
models and standards that are well adjusted to specifi cs of the social sector will have a signifi cant impact on improvement of the clients
quality of life, in particular in social care institutions. Presently, Poland implements a systemic project Operational Programme
Human Capital Creating and Developing Standards for Social Welfare and Integration Institutions, whose name originally contained the words
“quality standards”, but “quality” was dropped from a successive version46. It is not known why this change was made (perhaps due to the
conviction that ISO quality management standards are not adequate for social welfare organisation and services), but creation
and
development of standards with exclusion of such an extremely important premise for this process as the
intention to improve services quality, seems at least puzzling.
Disparate Impact
Health surveillance disproportionately targets minorities and is ignored by activist –
the plan is key
Hoppin 12 (Margaret, J.D. at New York University School of Law, “Overly Intimate
Surveillance: Why Emergent Public Health Surveillance Programs Deserve Strict Scrutiny
Under The Fourteenth Amendment,” December 2012, NYU Law Review, Hein
Online)//JL
Security surveillance programs that target politically vulnerable domestic communities for dragnet surveillance
have prompted wide-spread concern in the last decade, although legal challenges to national security programs generally have
not reached a decision on the merits.141 For example, politicians and advocacy groups responded promptly to the
revelation that New York City Police Department sur-veillance programs targeted Arab and Muslim
communities in the Northeast.142 Some politicians publicly declared that the programs were “disturbing” and said they would not have
allowed such a program if they had known about it.143 Academics and academic insti-tutions expressed similar concern and criticism.144
Community leaders petitioned the New Jersey Attorney General to investigate a New Jersey–based surveillance program and give “a full
accounting” of ongoing surveillance.145 In the context of security surveillance, one
commentator advo-cates robust
constitutional privacy protections because “legislative efforts to regulate surveillance may . . .
insufficiently protect the pri-vacy of certain politically unpopular minorities, like Muslim-Americans.”146
Like Arab and Muslim Americans in the security sur-veillance context,147 people with diabetes, obesity, and certain
other chronic conditions are politically vulnerable in the health surveillance context. Diabetes
“disproportionately affects black and Latino New Yorkers, [and] . . . those living in low-income
households and neigh-borhoods,” both with respect to its prevalence and the rates and severity of related complications.148 The
same is true of obesity and obesity-related health problems.149 In addition, many chronic condi-tions, including diabetes, are
“often perceived as a self-inflicted problem among the elderly who are sedentary and obese.”150 The argument that
governments have “a legitimate interest in controlling medical and social costs of individuals’ unhealthy
behaviors that are borne by society at large”151 may be used to justify inappropriate pri-vacy invasions, especially
given that public discourse about obesity is infused with moral condemnation.152 Judicial recognition that emer-gent
programs infringe upon constitutionally protected privacy rights would require governments to develop
substantive (instead of rhetor-ical) justifications for deploying the most invasive types of public health surveillance
against vulnerable populations or, alternatively, to modify those surveillance programs. One indication that diabetics
may be a politically vulnerable group is that, in stark contrast to security surveillance programs, the launch of the A1C
registry provoked virtually no response. On July 13, 2005, the Department published in the City Record a notice of its intention to
create the A1C registry and to hold a public comment period.153 On August 16, 2005, the Department held a public hearing on its proposal.154
In response, the Department received only thirty-one written comments;155 at the hearing, six health care practitioners and one member of
the health care technology industry testified in support, and three private individuals testified in opposition.156 No
civil liberties
organization commented on the proposal.157 Despite its involvement in privacy debates relating to AIDS and bioterrorism surveillance, the ACLU was not even aware of the proposal.158 With a few notable exceptions,159 the public health
community has responded to the A1C registry with approval, and the legal com-munity has not responded much at all. Of
the handful of commenta-tors on the program, most emphasize its potential as a public health tool.160 Perhaps even more surprising, no
one has challenged the pro-gram in court. In addition, despite similarities between the A1C Registry and an
HIV surveillance program proposed by the Department at the same time,161 the objections of the better-organized HIV
community “held more traction . . . [and] effectively thwarted more aggressive surveillance.”162 The HIV proposal prompted “both
the medical community and a wider public [to take] notice and . . . grapple with the meaning of expanded surveillance.”163
Diseases can be used as a front to impose on minority privacy
Bayer and Fairchild 10, (Ronald and Amy, Social Research, “When Worlds Collide: Health
Surveillance, Privacy, and Public Policy,” September 1, 2010,
http://web.b.ebscohost.com.proxy.lib.umich.edu/ehost/pdfviewer/pdfviewer?sid=e3a9c3e1-758e455d-8d55-bdb218570cd9%40sessionmgr111&vid=9&hid=125)//IB
In June 1981 the Centers for Disease Control (CDC) reported the appearance in previously healthy gay men of conditions
that usually occurred 908 social research only in individuals with compromised immune systems. One month later the CDC
reported that in the prior two and a half years Kaposi's sarcoma, a malignancy rare in the United States, especially in young people,
had been diagnosed in 26 gay men in New York and California. These were sentinel cases of an epidemic that would have a
profound impact on gay men, intravenous drug users and their sexual partners, and African American and Latino
communities in the last two decades of the twentieth century (Bayer 1989). Early on there would be some calls for rigid
separation of the sick, though it soon became clear that the new disease could only be spread through sexual contact, from the sharing of
drug injection equipment, by contaminated blood, and from infected pregnant women to their fetuses. That the disease arrived at the
very moment when American politics had taken a sharp conservative turn with the election of President Ronald
Reagan heightened the concern of those who feared that AIDS would provide the occasion for the widescale abrogation of the privacy rights that had gained recognition in the prior decade. Such fears would
have a deep and lingering impact on the surveillance activities undertaken in response to the new
epidemic threat.
Health surveillance violates privacy and disproportionately affects minorities
Hoppin 12 (Margaret, J.D. at New York University School of Law, “Overly Intimate
Surveillance: Why Emergent Public Health Surveillance Programs Deserve Strict Scrutiny
Under The Fourteenth Amendment,” December 2012, NYU Law Review, Hein
Online)//JL
Courts have not considered the implications for Fourteenth Amendment privacy protections
important questions remain unan-swered: Does
modern
technology
alter the scope or nature of constitutional privacy protections
politically underrepresented populations disproportionately experience chronic
diseases and obesity, and are therefore more likely to be targets of surveillance
commentators
have identified
three features
that make the privacy invasions especially troubling: the surveillance is
increasingly comprehensive and intimate, it involves
unprecedented size
it targets
politically underrepresented domestic communities
all three features have provoked
significant privacy concerns
The
nature of
government surveil-lance is changing the analysis under the Fourth Amendment
the targeting
of politically underrepresented com-munities has not explicitly done so
of the last thirty-five years of
devel-opments in public health surveillance programs, technology, or data mining capabilities. As a result,
the fact that
permits ongoing and intimate surveillance of personal behaviors
in the context of
public health surveillance?103 What about the fact that
?104 and are therefore more likely to be targets of
surveillance?104 B.Similarities in Security Surveillance and Public Health Surveillance Courts and
have addressed similar questions in the context of security surveillance programs. In particular, they
of government security surveillance
registries of
and data mining potential, and
. In the context of security surveillance programs,
. However, there is variation in the extent to which courts have incorporated each concern into Fourth Amendment anal-ysis:
intimate and comprehensive
and its state counterparts,
, and the use of registries and data mining falls in the middle.
Genetic information collection is being manipulated to reinforce racial order
Roberts 11 (Dorothy E. Roberts, Kirkland & Ellis Professor, Northwestern University School of Law;
faculty fellow, Institute for Policy Research)(“Collateral Consequences, Genetic Surveillance, and the
New Biopolitics of Race”, Howard Law Journal, Vol. 54 No. 3, 2011)//ASMITH
This Article considers state and federal government expansion of genetic surveillance as a collateral
consequence of a criminal record in the context of a new biopolitics of race in America. As I discuss more
fully in my book Fatal Invention: How Science, Politics, and Big Business Re-create Race in the TwentyFirst Century, the emerging biopolitics of race has three main components.1 First, some scientists are
resuscitating biological theories of race by modernizing old racial typologies that were based on
observations of physical differences with cutting-edge genomic research.2 These scientists are
redefining race as a biological category written in our genes.3 Second, the biotechnology and
pharmaceutical industries are converting the new racial science into products that are developed and
marketed according to race and that incorporate assumptions of racial difference at the genetic level.4
Finally, government policies that appear to be colorblind are stripping poor minority communities of
basic services, social programs, and economic resources in favor of corporate interests, while
simultaneously imposing on these communities harsh forms of punitive regulation.5 Mass incarceration
and its collateral consequences are the chief examples of the punitive regulation of African American
communities. This Article contends that these dehumanizing policies of surveillance and control are
obscured by the emerging genetic understanding of race, which focuses attention on molecular
differences while ignoring the impact of racism in our society.6 Only a decade ago, the biological
concept of race seemed to have finally met its end.7 The Human Genome Project, which mapped the
entire human genetic code, proved that race could not be identified in our genes.8 Yet, there has been
an explosion of race-based science and biotechnologies. For example in 2005, the United States Food
and Drug Administration (“FDA”) approved the first race-specific drug, BiDil, to treat heart failure in
black patients.9 In addition, fertility clinics solicit egg donations based on race and use race in genetic
tests to determine which embryos to implant and which to discard.10 Consumers can send cheek swabs
to dozens of online companies to find out not only their genetic ancestry, but also their racial identity.11
Furthermore, one of these companies used the same forensic tools to help law enforcement agencies
identify the race of suspects.12 Most relevant to the subject of this Symposium, in the last decade,
federal and state governments have been rapidly expanding the collection of genetic information for
law-enforcement purposes.13 With eight million offender samples, the U.S. federal government has
stockpiled the largest database of DNA seized from its citizens of any country in the world.14 Because of
rampant racial bias in arrests and convictions, the government’s DNA databases, which are being
amassed nationwide, effectively constitute a race-based biotechnology emerging from genetic
science.15 Unlike voluntary genetic testing technologies that claim to help people cure their diseases,
improve the genetic composition of their children, and find their identities, forensic DNA repositories
are gathered by the state without consent and maintained for the purpose of implicating people in
crimes.16 Theses repositories signal the potential use of genetic technologies to reinforce the racial
order not only by incorporating a biological definition of race, but also by imposing genetic regulation on
the basis of race.
Discriminatory arrests causes lifetime genetic surveillance of blacks; government DNA
collection is a means to create a universal database for black men
Roberts 11 (Dorothy E. Roberts, Kirkland & Ellis Professor, Northwestern University School of Law;
faculty fellow, Institute for Policy Research)(“Collateral Consequences, Genetic Surveillance, and the
New Biopolitics of Race”, Howard Law Journal, Vol. 54 No. 3, 2011)//ASMITH
These privacy violations are exacerbated by the racial inequities that plague every part of the U.S.
criminal justice system. The most stunning aspect of this injustice is the mass incarceration of African
American men.77 Radical changes in crime control, drug, and sentencing policies over the last thirty
years produced an explosion in the U.S. prison population from three hundred thousand to two million
inmates.78 Additionally, the United States has the highest rate of incarceration in the world at a
magnitude unprecedented in the history of Western democracies.79 The gap between black and white
incarceration rates has increased along with rising inmate numbers.80 Black men are eight times as
likely as white men to be behind bars.81 One in nine black men aged twenty to thirty-four is in prison or
in jail.82 In fact, most people sentenced to prison today are black.83 In her 2010 book, The New Jim
Crow, legal scholar Michelle Alexander demonstrates that black incarceration functions like a modernday Jim Crow caste system because it “permanently locks a huge percentage of the African American
community out of the mainstream society and economy,” replicating the subjugated status of blacks
that prevailed before the civil rights revolution.84 The targeted imprisonment of black men is translated
into the disproportionate storage of their genetic profiles in state and federal databases. We can look to
the United Kingdom to gauge the likely racial impact of our own federal database now that it has
surpassed theirs in size. Their database reveals that 40% of all black men and 77% of black men aged
fifteen to thirty-five, compared with only 6% of white men, were estimated to have genetic profiles in
the UK national DNA database in 2006.85 Also in 2006, Stanford bioethicist Hank Greely estimated that
at least 40% of the genetic profiles in the U.S. federal database were from African Americans, although
they make up only 13% of the national population.86 Sheldon Krimsky and Tania Simoncelli arrive at a
similar estimate in which 41% to 49% of CODIS profiles are from African Americans.87 The extension of
DNA collection by the federal government and a number of states to people who are only arrested—as
opposed to charged or convicted—brings many more whites into the system, but it is also on its way to
creating a nearly universal database for urban black men.88 These men are arrested so routinely that
upwards of 90% would be included in databases if the collection policy is strictly enforced.89 In April
2010, Arizona Governor Jan Brewer signed a controversial law giving police broad authority to detain
anyone suspected of being in the country illegally.90 This law is held up as a model for immigration
enforcement policy in other states.91 When combined with congressional authorization of DNA
sampling from all federal detainees,92 these immigration laws will cause the number of Latino profiles
in CODIS and state databases to skyrocket. Police routinely consider race in their decision to stop and
detain an individual.93 A New York Times/CBS News Poll conducted in July 2008 asked: “Have you ever
felt you were stopped by the police just because of your race or ethnic background?”94 Sixty-six percent
of black men said yes, compared to only 9% of white men.95 The United States Supreme Court has
authorized police to use race in determining whether there is reasonable cause to suspect someone is
involved in crime.96 Michelle Alexander calls the Court’s license to discriminate the “dirty little secret of
policing.”97 In recent decades, a conservative Supreme Court has eroded the Warren Court’s
protections against police abuse in ways that promote the arrest of blacks and Latinos—relaxing, for
example, the standard for reasonable suspicion— and has blocked legal channels for challenging racial
bias on the part of law enforcement.98 There is overwhelming evidence that police officers stop
motorists on the basis of race for minor traffic violations, such as failure to signal a lane change, often as
a pretext to search the vehicle for drugs.99 One of the first confirmations of this was a 1992 Orlando
Sentinel study of police videotapes that discovered that, while blacks and Latinos represented only 5%
of drivers on the Florida interstate highway, they comprised nearly 70% of drivers pulled over by police
and more than 80% of those drivers whose cars were searched.100 A study of police stops on the New
Jersey Turnpike similarly found that, although only 15% of all motorists were minorities, 42% of all stops
and 73% of all arrests were of black drivers.101 In Maryland, only 21% of drivers along a stretch of I-95
outside of Baltimore were African Americans, Asians, or Latinos, but these groups made up nearly 80%
of those who were stopped and searched.102 Likewise, an Illinois state police drug interdiction program,
known as Operation Valkyrie, targeted a disproportionate number of Latinos, who comprised less than
8% of the Illinois population but 30% of the drivers stopped by drug interdiction officers for petty traffic
offenses.103 Police officers also make drug arrests in a racially biased manner. Although whites use
drugs in greater numbers than blacks, blacks are far more likely to be arrested for drug offenses—and,
therefore, far more likely to end up in genetic databases.104 The latest National Survey on Drug Use and
Health, released in February 2010, confirms that young blacks aged eighteen to twenty-five years old are
less likely to use illegal drugs than the national average.105 Yet, black men are twelve times more likely
than white men to be sent to prison on drug charges.106 This staggering racial disparity results in part
from the deliberate decision of police departments to target their drug enforcement efforts on urban
and inner-city neighborhoods where people of color live. Indeed, the increase in both the prison
population and its racial disparity in recent decades are largely attributable to aggressive street-level
enforcement of the drug laws and harsh sentencing of drug offenders.107 A crusade of marijuana
arrests in New York City in the last decade provides a shocking illustration.108 Since 1997, the New York
Police Department (“NYPD”) has arrested 430,000 people for possessing tiny amounts of marijuana,
usually carried in their pockets. 109 In 2008 alone, the NYPD arrested and jailed 40,300 people for the
infraction.110 Even more alarming is the extreme racial bias shown in whom the police target for arrest.
Although U.S. government studies consistently show that young whites smoke marijuana at the highest
rates, white New Yorkers are the least likely of any group to be arrested.111 In 2008, whites made up
over 35% of the city’s population but less than 10% of the people arrested for marijuana possession. 112
Instead, the NYPD has concentrated arrests on young blacks and Latinos. Police arrested blacks and
Latinos for marijuana possession at seven and four times the rate of whites, respectively.113 The racist
marijuana policing strategy is based on the routine police practice of stopping, frisking, and intimidating
young blacks and Latinos. According to Harry Levine, the City University of New York sociologist who
exposed the arrest campaign, “In 2008, the NYPD made more than half a million recorded stop and frisks
and an unknown number of unrecorded stops, disproportionately in black, Latino and low-income
neighborhoods.”114 Although New York City is the “marijuana arrest capital of the world,” other cities
like Atlanta, Baltimore, Denver, Houston, Los Angeles, Philadelphia, and Phoenix are also arresting and
jailing huge numbers of blacks and Latinos for marijuana possession.115 The widespread arrests of
young blacks and Latinos for marijuana possession and other petty offenses, such as truancy,
skateboarding, and playing loud music, have devastating consequences. A first-time offender who
pleads guilty to felony marijuana possession has a permanent criminal record that can block him or her
from getting a student loan, a job, a professional license, food stamps, welfare benefits, or public
housing.116 Even if they avoid prison on a first offense, those who are arrested a second time risk a
harsh sentence for being a repeat offender.117 In addition to harsh sentencing, a lifetime of genetic
surveillance can now be added to the long list of collateral consequences created by discriminatory
arrests.
DNA databanks magnify stereotypes and intensifies racial injustices and disparities
Roberts 11 (Dorothy E. Roberts, Kirkland & Ellis Professor, Northwestern University School of Law;
faculty fellow, Institute for Policy Research)(“Collateral Consequences, Genetic Surveillance, and the
New Biopolitics of Race”, Howard Law Journal, Vol. 54 No. 3, 2011)//ASMITH
Racial disparities in DNA databanks make communities of color the most vulnerable to state surveillance
and suspicion.118 The disproportionate odds faced by blacks and Latinos of having their DNA extracted
and stored will, in turn, intensify the racial disparities that already exist in the criminal justice system.
People whose DNA is in criminal databases have a greater chance of being matched to crime scene
evidence. While a guilty person may have no right to complain, that is no excuse for unfairly placing
certain racial groups at greater risk of detection. Blacks and Latinos have greater odds of being
genetically profiled largely because of discriminatory police practices.119 Moreover, people whose
profiles are entered in DNA databases become subject to a host of errors that can lead to being falsely
accused of a crime. As the federal government and a growing number of states extend the scope of DNA
collection to innocent people, they are imposing this unmerited risk primarily on minorities. The
problem is not only that all of these harms are placed disproportionately on people of color, but also
that the dangers of state databanks are multiplied when applied to blacks and Latinos because these
groups are already at a disadvantage when they encounter the criminal justice system. Blacks and
Latinos have fewer resources than whites to challenge abuses and mistakes by law enforcement officers
and forensic analysts.120 They are stereotyped as criminals before any DNA evidence is produced,
making them more vulnerable to the myth of DNA infallibility.121 “The experience of being mistaken for
a criminal is almost a rite of passage for African-American men,” writes journalist Brent Staples.122 One
of the main tests applied by a disturbing number of Americans to distinguish law-abiding from lawless
people is their race. Many, if not most, Americans believe that black people are prone to violence and
make race-based assessments of the danger posed by strangers they encounter.123 One of the most
telling reflections of the presumption of black criminality is biased reporting of crime by white victims
and eyewitnesses.124 Psychological studies show a substantially greater rate of error in cross-racial
identifications when the witness is white and the suspect is black.125 White witnesses
disproportionately misidentify blacks because they expect to see black criminals.126 According to
Cornell legal scholar Sheri Lynn Johnson, “This expectation is so strong that whites may observe an
interracial scene in which a white person is the aggressor, yet remember the black person as the
aggressor.”127 In numerous carefully staged experiments, social psychologists have documented how
people’s quick judgments about the criminal acts of others are influenced by implicit bias—positive or
negative preferences for a social category, such as race or gender, based on unconscious stereotypes
and attitudes that people do not even realize they hold.128 Whites who are trying to figure out a
blurred object on a computer screen can identify it as a weapon faster after they are exposed to a black
face.129 Exposure to a white face has the opposite effect.130 Research participants playing a video
game that simulates encounters with armed and unarmed targets react faster and are more likely to
shoot when the target is black.131 The implicit association between blacks and crime is so powerful that
it supersedes reality; it predisposes whites to see black people as criminals. Most wrongful convictions
occurred after witnesses misidentified the defendant.132 Databanks filled with DNA extracted from
guilty and innocent black men alike will enforce and magnify the very stereotypes of black criminality
that lead to so many wrongful convictions in the first place. Collecting DNA from huge numbers of
African Americans who are merely arrested, with no proof of wrongdoing, embeds the sordid myth of
black criminality into state policy. As databanks swell with DNA from black people who are arrested or
convicted on petty offenses and as their relatives also come under suspicion in states with familial
searching, the government effectively treats every black person in many communities as a criminal
suspect. It seemingly also legitimizes the myth that blacks have a genetic propensity to commit crime. In
2010, Florida State University criminologist Kevin Beaver published a widely reported study claiming to
show that young men with the low-activity form of the monoamine oxidase A (“MAOA”) gene—dubbed
by the press as the “warrior gene”—were more likely to join gangs than those who had the high-activity
version of the MAOA gene.133 He concluded that “male carriers of low MAOA activity alleles are at risk
for becoming a gang member and, once a gang member, are at risk for using weapons in a fight.”134
The public, who already implicitly associates blacks with violence, may link research claiming that genes
cause gangbanging and aggression to the disproportionate incarceration of African Americans along
with the disproportionate banking of African Americans’ genetic profiles, to reach the false conclusion
that blacks are more likely to possess these crime producing traits—or even that most blacks actually
possess them. Americans will become even more indifferent to racial injustice in law enforcement if
they are convinced that black people belong behind bars because of their genetic predilection to crime.
DNA databases target minorities- eliminating the government’s ability to conduct this
form of surveillance minimizes racial targeting
Grimm 7 (Daniel J. Grimm. Lawyer in Cape Girardeau, Missouri. “The Demographics of Genetic
Surveillance: Familial DNA Testing and the Hispanic Community.” May 2007. P. 1165-1166.
http://projects.nfstc.org/fse/pdfs/Grimm.pdf)//EMerz
While familial testing potentially affects the privacy rights of every person whose relative is a suspect,
perhaps an even greater concern is that these threats to privacy will not be distributed equally
throughout the population.7 The databank system, representing the convergence of DNA profiles
collected over the course of many years, is not racially neutral.8 Instead, years of disproportionately
high arrest and conviction rates have created a data field in which African Americans are
overrepresented.9 While troubling, a related concern that has yet to receive sufficient attention is the
degree to which demographics, which also drive databank system configurations, may produce similarly
disproportionate outcomes for the Hispanic community.10 As the demographic group with the highest
rate of natural population growth, each profile input from a Hispanic defendant is likely, on average, to
lead investigators relying on familial testing to a higher number of genetic relatives than if the profile
had been obtained from a non-Hispanic person.11 Disproportionate distribution of privacy violations is
nearly inevitable in such a system. The Hispanic community, like the African American community, is
subject to disproportionate arrest and conviction rates, such that familial DNA testing will have an
especially significant impact on Hispanic people. Under familial testing, Hispanics will be more likely than
other demographic groups to be added to the databank system, more likely to partially match a sample
once it is added to the database, and, therefore, will be more likely to be targeted by law enforcement
for DNA sample collection. Nonetheless, familial DNA testing will likely survive a constitutional challenge
under the Equal Protection Clause, but is likely to be rejected under the probable cause requirement of
the Fourth Amendment.
Allowing DNA databanks like CODIS magnifies racial disparities across all aspects of the justice system
--- because people of color are disproportionately arrested, the databanks will have disproportionate
amounts of their DNA in them --- this leads to unjust conviction and masks racialized violence --- ruling
on the 14th amendment alone is impossible and has been tried --- the plans use of multiple grounds is
key
Risher, attorney with the American Civil Liberties Union (ACLU), July-August 2009 – (Michael, “Racial
Disparities in Databanking of DNA Profiles”, published in Genewatch Volume 22 Issue 3-4, p. 2224)//roetlin
Of the hundreds of thousands of arrests every year in California on suspicion of a felony, nearly 320,000 in 2006, approximately 30% never lead
to any conviction.[1] A
disproportionate number of these innocent arrestees are people of color. In the U.S. justice
are arrested but never convicted are presumed innocent; yet, as of January 1, 2009, all
arrestees have been forced to let the State of California take a DNA sample, analyze it and include the
resulting profile in a criminal database, to be compared evermore with crime-scene evidence. There are
system, people who
procedures for some of these people to try to get the samples and profiles expunged; however, these procedures often require arrestees to
wait three or more years before even requesting expungement and necessitate the help of a lawyer. As a result, the overwhelming majority of
people arrested but not convicted of any crime are unlikely even to try to get their samples destroyed. Tens of thousands of profiles taken from
innocent people will thus remain in these criminal databases. The
consequence will be a magnification of the current
racial disparities in our criminal justice system as more and more people of color's DNA profiles are
included in databases that make them potential suspects whenever DNA is recovered from a crime scene. The effects of
this disproportionate inclusion of people of color in the databanks are made clear by the other papers in this series on genetics and race. What
is perhaps less clear is how our criminal justice system, which promises equal justice under the law, can tolerate this injustice. This paper, after
outlining the legal growth and transformation of DNA databanks, examines how various steps in our criminal justice system create and magnify
racial disparities, and how the law makes it nearly impossible to effectively address the problem. It also looks at how taking
DNA
samples at various stages in this process may affect these disparities and the factors that cause them. I use as
my primary example California's system because it is one of the world's largest criminal justice systems in one of the nation's most diverse
states. It is also the system in which I have practiced law for the last decade, and is representative of where DNA databanks throughout the
country will likely be in the next few years as more and more states and the federal government collect DNA from arrestees.[2] DNA databanks
comprise two distinct components: the actual biological samples and the computerized database of the profiles generated by analyzing these
samples. In criminal-justice databanks, the biological
samples are collected from crime scenes (forensic samples) and
from known individuals (known samples). Until recently, known samples were usually obtained by drawing blood, although now most
states and the federal government primarily obtain samples by swabbing the inside of the person's cheek to collect skin cells.[3] The
government analyzes both forensic samples and known samples to create DNA profiles, which are essentially a digitized
description of 26 parts of the DNA molecule. The profiles are then uploaded to the Combined DNA Index System
("CODIS"), a centralized, searchable law enforcement database accessible to state, federal, and international
law enforcement agencies. CODIS was created by the FBI in 1994 after Congress authorized it to establish a national DNA database to
link existing state and local databanks. The biological samples themselves are retained by the local police or crime lab for later testing. Once
an arrestee's profile is uploaded into CODIS, it is immediately compared to the thousands of crime-scene
samples in the CODIS forensic database. As long as the arrestee's profile remains in CODIS, any new crime-scene
samples will be searched against it. When an arrestee profile exactly matches a crime-scene profile, CODIS automatically notifies
agencies that provided the sample. Then that agency will usually provide the identity of the arrestee to the agency with jurisdiction over the
crime so that it can follow up. DNA
databanks have grown exponentially in the last decade as new laws have expanded the
range of people subject to having their DNA forcibly seized, analyzed, and the resulting profile
databanked. California's databank is a good example of this. It was originally conceived as a way to connect people convicted of serious
violent crimes with other such crimes in which DNA evidence is most useful. The original 1989 DNA-collection law established a databank and
required people convicted of murder or a felony sex offense to provide DNA samples before they were released from custody.[4] The state
department of justice had the authority to analyze these samples and include the resulting analysis in the new statewide databank.[5] From
today's perspective, this program seems quite limited: the only people subject to having their DNA databanked had been convicted of very
serious crimes, either by pleading guilty or after the charges had been proved beyond all reasonable doubt to a jury. But the law soon began to
expand to include more people. The first steps were modest: in the late 1990s, new crimes were added to the list of qualifying offenses, and the
law was amended to require that samples be taken immediately after conviction, rather than just before release. The latter change was
enacted as the focus shifted from preventing new crimes to solving old crimes. In 2004, California voters
enacted Proposition 69,
drastically expanding the database. The two biggest changes were that, as of November 2004, every person convicted of
any felony - which can include simple drug possession, shoplifting, or even intentionally writing a check without
sufficient funds to cover it - has had to provide DNA samples. And, as of January 1, 2009, every person arrested for a
felony in California must give a DNA sample. Prop. 69 thus radically changed the database from one comprising profiles of individuals convicted
of violent felonies to one that includes profiles from suspected shoplifters. This
huge increase is not distributed equitably
among all people. African-Americans comprise 6.7% of California's population, but 21.5% of those
arrested for felonies in the state.[6] Although, as discussed below, the possibility of race-based decision-making at all levels of the
criminal justice system makes it impossible to know whether changing from a database of people convicted of felonies to one including
everybody arrested for felonies will result in an increase in the proportion of people of color in the database it will clearly result in a significant
increase in the absolute number of minorities included. Racial disparities fluctuate depending on the stage of the criminal proceeding from the
high-level initial decision to make certain acts criminal, to a police officer's decision to contact or arrest an individual, to the decisions made by
prosecutors, judges, jurors, and defense lawyers. Thus, the stage at which DNA samples are taken will affect the racial disparities in the
databank, albeit in unpredictable ways. The first and broadest stage at which racial disparities are introduced into the criminal justice system is
at the legislative level, where crimes are defined and classified. The basic question is, of course what conduct is considered criminal: why is a
person who possesses drugs subject to criminal sanctions while a business that puts its workers or consumers at risk with dangerous or
unsanitary facilities subject only to civil sanctions? Even beyond that basic issue, our criminal justice system treats very similar conduct
differently in ways that create racial disparities. The most notorious example of this is the crack versus powder forms of cocaine disparity in the
federal system, which for years punished people convicted of crack cocaine offenses (well over 80% of whom are African- American) much
more severely than powder cocaine offenders (72% of whom are white or Hispanic).[7] The legislative establishment of "drug-free zones," often
around schools, parks, or public-housing projects, can also have racially disparate effects.[8] These laws mean that people who live and commit
drug crimes in dense urban areas, where few locations are not close to a school or park, will be punished more harshly for the same conduct
than are their suburban or rural counterparts. Because urban areas usually have higher proportions of people of color, these harsher
punishments will reinforce racial disparities. Laws like these interact
with seemingly race-neutral DNA collection laws to
produce great disparities in the databank. A databank that includes all persons convicted of felonies will
include every person - primarily people of color - convicted of possessing cocaine or heroin, no matter
how small the amount; but it will not contain samples from people - primarily white - convicted of minor
methamphetamine offenses that were prosecuted as misdemeanors. Conversely, a databank that includes only
violent crimes or sex crimes - as many originally did - should result in fewer disparities than an all-felony database for the reasons just
described. Excluding non-violent crimes is reasonable since DNA evidence is almost never involved in non-violent offenses. DNA
databanks themselves create a feedback loop that further magnifies these disparities. Well over half of all serious
crimes go completely unsolved, with the police never even identifying a suspect. If DNA databanks work as they are intended, they will identify
suspects for at least some - perhaps many - of these crimes. But a
racially skewed databank will produce racially skewed
results; because racial disparities in the criminal-justice system have led to the inclusion of a
disproportionate number of profiles of African-Americans in CODIS, the databank will return a
disproportionate number of matches to African-American suspects. In contrast, crimes committed by members of
groups that are underrepresented in CODIS will escape detection, particularly as the police spend an increasing amount of their limited time
and resources focusing on cases where they have found a DNA match. The U.S. Constitution, as interpreted by the courts, does not prohibit this
shift, regardless of the racial disparities it introduces. The courts have held that the
Fourteenth Amendment's promise of
equal protection of the law prohibits only intentional discrimination, which means that challenges to criminal
laws that result in racially disparate impacts are extremely difficult. In the words of the U.S. Supreme Court,
discriminatory intent means "more than intent as volition or intent as awareness of consequences. It implies that the decision-maker, in this
case a state legislature, selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects
upon an identifiable group." If the governmental body would have acted the same way even without the discriminatory intent, the law stands.
The United States Court of Appeals has applied these same principles to reject an argument that the racial disparities in the federal DNA
database made it unconstitutional.[9] No matter how disparate the impact of the database, without indications that Congress enacted it in
order to adversely affect African-Americans, the challenge failed. A second policy-level set of decisions also creates racial disparities: the
allocation of law-enforcement resources. The clearest big-picture example of this is the so-called "war on drugs," which is largely responsible
for filling our prisons with men and women of color over the last 30 years.[10] A war on securities fraud or tax evasion would result in the arrest
and prosecution of a very different demographic. Yet resources for combating white-collar crimes have been cut, despite evidence that
violations are common and devastating to our society, as evidenced by the current global impacts of finance fraud. On a smaller scale, police
decisions to conduct buy-bust operations in specific neighborhoods - where undercover officers attempt to buy drugs from people on the street
and then arrest anybody who sells them the drugs - mean that the police choose who will be targeted based on what neighborhood is chosen
for the operation. These operations usually occur in poor, urban neighborhoods with large minority populations. Racial disparities also enter
through racial profiling by individual officers. Studies have shown that some mixture of unconscious racism, conscious racism, and the middleground use of criminal profiles often leads law enforcement to focus its attention and authority on people of color. This can include everything
from discriminatory enforcement of traffic laws to detainment and arrests of people of color without sufficient individualized suspicion. As with
challenges to legislative actions, challenges to racial profiling under the Constitution are extremely difficult because of the need to show
discriminatory intent. The difficulty is magnified because the law gives police officers substantial discretion as to who they approach, stop,
question, or search. The Supreme Court has held that the police may lawfully make pretextual stops - for example, singling out one speeding
driver among many because the officer has a hunch that they may be carrying drugs. This means that, although the police may not stop a
person based solely on race, there are many explanations an officer can give if called upon to explain a stop: the driver or passenger's nervous
glance, reduced speed upon seeing the officer, a pedestrian wearing a heavy coat on a warm day, and so on. None of this behavior alone would
justify the stop of a car, but such seemingly innocent actions are enough to justify the officer's decision to stop this particular car for driving a
few miles per hour over the speed limit while ignoring all the others that did the same, or to stop a particular individual for jaywalking while
ignoring similar violations. Even if a court determines that an officer did make a stop based on nothing more than the driver's race, the only
remedy is the possibility of a civil suit against the officer. Unless serious harm was done, this is highly unlikely to occur, so it is not a significant
deterrent to such police abuse of power. Arrestee sampling adds another incentive for police officers to make questionable or outright illegal
arrests. Whether or not the arrest leads directly to charges being filed, the arrestee's DNA profile will automatically be included in the database
and run against all crime-scene evidence, now and in the future. Because
of the barriers to having DNA samples removed,
few arrestees will be able to have their samples and profiles expunged, thus allowing a single law
enforcement officer the power to place people under lifetime genetic surveillance. The low level of proof
required to make an arrest, combined with the difficulties of preventing arrests that are illegal for lack of proof or for discriminatory
enforcement of laws, means that allowing DNA
collection immediately after arrest will lead to large databases full of
innocent people. Furthermore, given the ubiquity of racial profiling, people of color will largely populate
the databases. The bottom line is that police end up with enormous discretion to determine who is in a
database, with absolutely no review of many of their arrests. The consequence of the arrest of a plainly and
indisputably innocent person will be not only a short stint in jail, but a lifetime of genetic surveillance.
Genetic discrimination results in workplace discrimination- incentivizes companies to
test potential employees
Broome 2 (Zachary Broome. University of Alabama. MBA. “The Legal Issues of Genetic Discrimination.”
P. 40-41. http://www.bama.ua.edu/~joshua/archive/aug06/Zach%20Broome.pdf)//EMerz
In contrast to the positive benefit genetics presents in homosexual discrimination, a second area of legal
debate stemming from genetic research is that of workplace discrimination. A watchword of many
companies when considering employees is liability, or the potential responsibility a company might have
for any employee who causes damage while at work. Presently, liability for things like violent behavior
can only be determined based on prior offenses, such as a criminal record. With the advancement of
genetic research, there have been 41 claims that some people contain predispositions towards violence
and anger. Mark Rothstein, in an article for the American Judicature Society, questioned if “employers in
the future have a duty to review medical records or conduct their own medical testing to determine
whether applicants had genetic indicators of an increased risk for violent behavior… If behavioral genetic
tests were on the market and their use by employers was not unlawful, it is possible that a jury might
impose liability for failure to use them.” (Rothstein) For many companies, being liable for a single lawsuit
could cost them millions of dollars. Testing would not be limited to violent characteristics, but could also
be applied to any sort of negative predisposition, such as drug and alcohol abuse. Therefore, it is not
only conceivable but also likely that many businesses would require testing of all potential employees
and only hire those that possessed no threat of litigation or deviant behavior. Some critics of legislating
against genetic discrimination argue that discrimination in the workplace is purely hypothetical and does
not warrant creating new laws. They contend that critics like Rothstein are too focused on possibilities.
The problem with that belief is it is simply not true. In a statement released by the ACLU, it was noted,
Genetic testing in the workplace is on the rise. In 1982, a federal government survey found that 1.6% of
companies who responded were using genetic testing for employment purposes. 1 In a similar survey
conducted by the American Management Association in 1997, 6-10% of employers were found to be
conducting genetic testing. 2 Moreover, there have been many documented cases of genetic
discrimination. 3 In a survey of nearly 1,000 individuals who were at risk for genetic conditions, over
22% reported that they had experienced some form of discrimination based on their risk status. 4 The
U.S. Department of Labor has found genetic information to be a very serious workplace issue. 5 ” (ACLU;
all numerical citations reflect citations of ACLU columnist as noted in subsection of sources) As this
release contends, genetic discrimination is rising, and rising unabated because it is legal. There is little
opposition in contemporary legislation to employers enjoying a hiring bias based on genetic
predispositions, primarily because the research of the Humane Genome Project is the first time such a
possibility has existed. Realizing the high potential for, and beginnings of, discrimination by employers,
the Humane Genome Project created a research department called Ethical, Legal, and Social Issues (ELSI)
in 2003 to determine ways to prevent such problematic consequences of sequencing the genome. ELSI
noted that the Americans with Disabilities Act of 1990 is the best source of protection against genetic
discrimination, but is still weakened by the simple flaw that it never explicitly provides for discrimination
based on genetic testing. The problem with the ADA is it only specifically prevents discrimination against
expressed genetic conditions, not those merely represented in a person’s DNA. This makes the law
almost useless in combating employer discrimination, which focuses on sifting out workers with the
potential for problems.
Genetic discrimination promotes eugenics- that treats disabled people as a lower class
Broome 2 (Zachary Broome. University of Alabama. MBA. “The Legal Issues of Genetic Discrimination.”
P. 40-41. http://www.bama.ua.edu/~joshua/archive/aug06/Zach%20Broome.pdf)//EMerz
While the issue of discrimination is generally considered only in terms of limiting the rights of current
members of society, one emerging branch of genetic discrimination being contested is eugenics.
Eugenics carries a certain social connotation of radical ideals of racial purity, but actually refers to any
sort of manipulation of the gene pool to produce desired offspring. The issue proposed by critics of new
research is that advanced genetic testing allows potential parents to select which children they want to
consider rearing based solely on genetic discrimination of potential flaws. While this seems an honest
enough process, some groups, such as fundamentalist Catholics and radical disability activists, view this
as a medical version of negative eugenics. Negative eugenics is defined by one group as “preventing the
births of children, with characteristics (genotypes/phenotypes) viewed as unhealthy or undesirable or
preventing child bearing by "undesirable" individuals.” (Wolbring) Many people who argue against
discrimination of genetically flawed embryos and fetuses say that doing so not only reinforces the social
stigma attached to those born with disabilities, but also implies that some forms of life are better. The
law, by contrast, is in favor of those who do wish to be selectively pregnant and avoid genetic disorders.
The most basic, and famous, ruling in the matter is Roe v. Wade, which contends that women have the
right to abortion regardless of reason. In addition, there is no legal stipulation on in vitro fertilization
clinics as to what embryos can or cannot be implanted into the mother. Unlike previous discussions of
genetic discrimination, in the situation of pregnancy there is nothing legal the dissenting group can do.
Selective pregnancy, through whatever means, is a constitutionally guaranteed right and precludes any
arguments against discriminatory practices. The issue of genetic discrimination, especially in the
workforce, is something that must be decided by changes in legal issues. As noted, when there is no
legal recourse for those with unfavorable genetic conditions, both employers and insurance companies
will take advantage of the unfortunate. In addition, both the government and scientific community have
a responsibility to protect those who might be harmed by the decision to pursue knowledge of genetics.
The advances in science allow for a better understanding of the genome, but also provide another
potential outlet for social division on physical premises. In essence, measures must be enforced to
ensure that the civil rights of those with genetic predispositions will be secure, or the country will create
a potential for tragedy.
Genetic discrimination otherizes people with diseases and disabilities
Lemke 13 (Thomas Lemke. Heisenberg Professor of Sociology with focus on Biotechnologies, Nature
and Society at the Faculty of Social Sciences of the Goethe-University Frankfurt. “Perspectives on
Genetic Discrimination.” 2013. P. 2-3.
http://samples.sainsburysebooks.co.uk/9781134056910_sample_508168.pdf)//EMerz
One may wonder whether today we have reached the age of the “gene police” predicted by Canguilhem
in an almost visionary fashion.2 A series of empirical studies conducted in different countries in the last
twenty years has pointed to new forms of exclusion, disadvantage, and stigmatization caused by the
increase of genetic knowledge (Billings et al. 1992; Geller et al. 1996; Low, Kind, and Wilkie 1998;
Otlowski et al. 2007; Taylor et al. 2008). The spectrum of this “genetic discrimination” ranges from labor
market exclusion and problems with insurance policies to difficulties involving adoption agencies. Thus,
applicants’ job qualifications have been rejected, and they have been denied employment on the
grounds of a possible future disease. Similarly, health and life insurance companies have cancelled or
refused to issue policies when genetic risks were suspected among their (potential) customers. In other
cases, couples were denied child adoption when one spouse had a disposition for a genetic disease.
Experiences of genetic discrimination have also been documented with regard to the health sector, the
education system, and the military. The hopes of a “molecular medicine,” able to identify and prevent
disease before concrete symptoms manifest themselves, are overshadowed by the nightmare of a
society in which career prospects, insurance options, educational pathways, and family planning are
determined by genetic characteristics. The academic discourse surrounding the negative consequences
of growing genetic knowledge is dominated by the fear of a “genetic underclass” (Nelkin and Tancredi
1994: 176; Nelkin 1992: 190; Keays 2000: 84–85; Kutter and Ruess 2001) or “new pariahs” (Kitcher 1996:
127)—individuals stigmatized, pathologized, and discriminated against on the basis Introduction 3 of
their genetic properties. The main concern is that innovations relating to genetic knowledge will
produce new types of class formation not based on socio-economic status, but on genetic criteria. A
danger is seen in a “genetocracy with individuals, ethnic groups, and races increasingly categorized and
stereotyped by their genotype, making way for the emergence of an informal biological caste system in
countries around the world” (Rifkin 1998: 3; cf. also Dickens 2001: 105–106). Apart from academic
discourse, the problem of genetic discrimination has now prompted regulatory initiatives at the juridical
and political level to determine the conditions and limitations concerning the use of genetic information.
Many countries have introduced laws designed to prevent the discriminatory treatment of individuals
due to their genetic properties. These legislation projects guarantee the right to self-determination and
“genetic privacy,” and protect personal data against misuse.
Surveillance Bad - Privacy
Medical privacy is a bulwark against violent totalitarianism and fascism
Faria 98 (Miguel A. Faria Jr. MD is a consultant neurosurgeon and author of Vandals at the Gates of Medicine (1995) and the newly
released Medical Warrior: Fighting Corporate Socialized Medicine (Macon, Georgia, Hacienda Publishing, Inc., 1997). He is also the Editor-inChief of the Medical Sentinel.
, “Patient Privacy and Confidentiality --- Time to Draw the Line” http://www.haciendapub.com/medicalsentinel/patient-privacy-andconfidentiality-time-draw-line)///CW
The dismemberment of the medical profession continues unabated in the age of managed care, HMOs, and corporate socialized medicine. The
patient-doctor relationship, erstwhile based on trust and beneficence, has been eroded by the corporatist ethics imposed on the practice of
medicine. The situation worsens daily as the excesses of HMOs are brought to light and patients realize many of their physicians are no longer
their advocates but adversarial gatekeepers, enticed by the managed care organizations (MCOs) to ration medical care - for the network's (and
the doctor's) economic benefit.¶ One area where this
dismemberment is most pronounced, aimed like a dagger at the heart
of Hippocratic medicine, is the relentless violation of patient privacy and medical record confidentiality.
Privacy and trust in the patient-doctor relationship have been essential elements in medical ethics and
the practice of medicine. Thus, it's worth examining what the Oath of Hippocrates states regarding this issue:¶ Whatever, in
connection with my professional practice, or not in connection with it, I may see or hear in the lives of men which ought not to be spoken
abroad I will not divulge, as reckoning that all such should be kept secret.¶ While I continue to keep this oath unviolated, may it be granted to
me to enjoy life and the practice of the art, respected by all men at all times, but should I trespass and violate this oath, may the reverse be my
lot.¶ Patient confidentiality, then, is not only a time-honored principle of medical practice, but indeed, a strong covenant of the ethics of
Hippocrates, inherent to the honorable medical profession.¶ When President Clinton was asked to release his medical records to the public
during the 1996 re-election campaign, he invoked the privacy of the patient-doctor relationship and his lawyers refused to
do so (recently it has taken subpoenas and a grave criminal investigation by the Office of the Independent Counsel before the president
surrendered certain biologic samples and medical information to government investigators). Americans
should be entitled to, and
afforded, this same right of privacy, and should be concerned about confidentiality for ultimately, as patients, we will all have
sensitive medical information compiled. Yes, we will all have medical charts compiled documenting details of our medical history, which should
only be inspected by medical personnel to whom explicit written consent has been given for continuity of medical care, or made accessible to
third parties (including the government) upon written authorization from the patient - each time information is requested, and delineating the
specific need for the disclosure, as well as outlining the manner in which the information will be used.(1)¶ This may not seem as important in
our open and permissive society of the 1990s, as it was at
the time of the Nazi Third Reich in Germany, where records of
those whose life were deemed "not worth living" were compiled, inspected, and selected by government officials
before the intended victims were sent to the extermination camps. Nevertheless, no one knows what the future will bring. The
holocaust of Nazi Germany, after all, was preceded by the openness, permissiveness, and seemingly beneficent
social and welfare policies of the Weimar Republic.¶ Confidentiality of medical records is, perhaps, particularly important in
the case of psychiatric patient-doctor consultations. In the Soviet Union, "psychiatric" records of dissidents were kept
and used to document the "illnesses" prior to sending the "patients" for "rehabilitation" in the gulags of
Siberia. In America, only a few years after the stumble of the Soviet bear - and at the height of the 1993-1994 health care debate - Hillary
Clinton wanted to establish a Health Security Card with an encoded computer chip capable of containing 60 pages of potentially prejudicial
information (i.e., sexually transmitted diseases, drug and alcohol abuse, depression, etc.) and sensitive personal data (i.e., living arrangements,
impotence, sexual practices, etc.) on every American - a federal dossier - from personal medical records to tabulations of individual health care
costs (i.e., charges incurred by the government as a result of the individual acting as a "consumer of finite and scarce health care resources"). As
U.S. Supreme Court Justice William O. Douglas stated in 1996: "Once electronic surveillance...is added to the techniques of snooping that this
sophisticated age has developed, we face the stark reality that the walls of privacy have broken down and all the tools of the police state are
handed over to our bureaucracy."(2)¶ Towards a National ID Card¶ Today, all
three branches of government are making a
mockery of patient record confidentiality and the privacy (and trust) of the patient-doctor relationship. In
fact, patient medical records are being viewed increasingly as public property and considered "within the public domain" by many government
bureaucrats! The administrative simplification provisions of the Kassebaum-Kennedy law (1996) and the various administrative edicts from the
offices of the Department of Health and Human Services (HHS) and the Health Care Financing Administration (HCFA) militate, ever more
insidiously, for the collection and the electronic transfer of records (including mental health records), and medical data generated by every
patient-doctor encounter. Ironically, the Kassebaum-Kennedy law* requires HHS Secretary Donna Shalala to make recommendations for
preserving patient confidentiality in medical records. Instead, Sec. Shalala contends that "individuals' claims to privacy must be balanced by
their public responsibility to contribute to the common good, through use of their information for important, socially useful purposes..."(3)
Although Sec. Shalala and the
government in other communications have paid lip service, in Orwellian Newspeak
fashion, to preserving personal privacy, the assignment of unique health identification requirements makes a
mockery of patient confidentiality and personal privacy.
DNA testing violates privacy—First and Fourth Amendment
Nelkin and Andrews 1(Dorothy and Lori, Department of Sociology and School of Law, New York
University 2 Chicago-Kent College of Law, Illinois Institute of Technology, “DNA identification and
surveillance creep” Sociology of Health & Illness Vol. 21 No.5 1999 ISSN 0141–9889, pp. 689–706
http://onlinelibrary.wiley.com/doi/10.1111/1467-9566.00179/pdf 2001 JM)
To the marines, prisoners, and immigrants who challenged mandatory testing, body tissue holds
religious, social and political meanings, and privacy concerns were critical. For Native American Donald
Power, the military’s taking of DNA violated his religious beliefs. Mayfield and Vlacovsky defined their
DNA in terms of personal identity. And even prisoners, whose privacy rights are compromised, defined
the taking of DNA as different from the searching of prison cells or body cavities. While convicted felons
would have lesser rights than other individuals, the potential uses of forensic DNA banks affect more
than just criminals. Those tested in a DNA dragnet because they happen to be in an area will then have
their DNA samples on file. Victims also have their DNA tested at forensic labs and their samples may be
banked. Family members related to the offenders are also affected because health information about
the offender (say, a genetic predisposition to cancer) indicates genetic risks to relatives as well.
Collecting tissue samples from an individual who has not been charged or convicted of a crime—as in a
DNA dragnet—could violate the person’s Fourth Amendment right to be free from unreasonable
searches and seizures. However, persuaded by the ‘scientific’ nature of ‘profiling’, courts have allowed
the random stopping of individuals thought to fit criminal profiles of hijackers or drug smugglers. One
judge, referring to a hijacker profiles as ‘elegant and objective’ was convinced that hijackers had
characteristics ‘markedly distinguishing them from the general traveling public’ (US v. Lopez 1971 As a
controlling tool for modern institutions and complex organisations, the use of DNA is appealing. But in
light of problems of privacy and potentials for abuse, testing should be closely regulated. The Fourth
Amendment could be used to prohibit non-consensual tissue collection so as to limit the taking of DNA
samples (Krent 1992). Informed consent doctrines could be more widely enforced to limit possibilities of
abuse. Or the property interests in the body could be recognised, giving people greater control over
what is done with their tissue (Andrews 1986). There could be greater limits on access to DNA
information: Vermont legislation, for example, includes language in a databanking bill to prohibit the use
of genetic information as a basis for employment and insurance decisions. Though the practice of testing
and banking DNA is extending to a widening range of people—from soldiers who go to battle to
chaplain’s assistants, from violent to nonviolent felons, from immigrant families to foreign adoptees—
there has been little public concern about the practice. The possibilities of error are deflected by faith in
science and, especially, the promise of genetics. Potential abuses of DNA data are deflected by
perceptions that surveillance pertains to ‘others’—the soldier, the criminal or the illegal immigrant—and
a belief that DNA identification is an efficient means to maintain social order. Moreover, Americans
these days have few expectations of privacy, accepting surveillance in many spheres. Shoppers accept
television surveillance in department stores, strollers accept camera surveillance in public parks (Nelkin
1995). The dossier society that Laudon and Rule predicted years ago has crept up on us; facilitated by
the ability to gather, store, and access information—not just about finances, credit rating, or consumer
preferences, but about the body, identity, and health. In 1972, a legal scholar wrote that the social
security numbers assigned to us at birth have become a ‘leash around our necks, subjecting us to
constant monitoring and making credible the fear of the fabled womb-to-tomb dossier’ (Miller 1972).
Could DNA identifiers eventually replace social security numbers, requiring every person to have DNA on
file? Today, according to Janet Hoeffel (1990), ‘It is not merely paranoia to imagine the incremental
steps the current government would take that would lead from a data bank with DNA profiles on
criminals to a data bank with profiles on each of us’. Indeed, molecular biologist Leroy Hood has
predicted that within 20 years all Americans will carry a credit card type plastic stripe that contains
computer readouts of their personal genomes: ‘Your entire genome and medical history will be on a
credit card’ (Hood 1996)
Genetic surveillance is a serious intrusion of privacy and contradicts democratic
principles—the result is totalitarianism
Roberts 11 (Dorothy E. Roberts, Kirkland & Ellis Professor, Northwestern University School of Law;
faculty fellow, Institute for Policy Research)(“Collateral Consequences, Genetic Surveillance, and the
New Biopolitics of Race”, Howard Law Journal, Vol. 54 No. 3, 2011)//ASMITH
Government DNA data banking began as a targeted procedure to assist law enforcement in identifying
perpetrators of a narrow set of crimes.59 It has expanded into a form of state surveillance that ensnares
innocent people or petty offenders who have done little or nothing to warrant the collateral intrusion
into their private lives. Databanks no longer detect suspects—they create suspects from an evergrowing list of categories. Even so, the public shows little alarm about the massive retention of genetic
information because the balance between protecting individual privacy and keeping the streets safe
seems to fall in favor of more law enforcement. DNA profiling is a far more precise and objective
method of identifying suspects compared to less sophisticated law enforcement techniques, such as
eyewitness identification or smudge fingerprints found at a crime scene.60 Far from feeling threatened
by this gigantic storehouse of genetic data, many Americans see it as a surefire way of catching criminals
and ensuring that only guilty people are convicted of crimes.61 Storing an innocent person’s DNA seems
a small price for such a great public good. The countless cases where DNA data banking either yielded
no benefit or produced erroneous identifications received little attention from the media. Moreover,
the public does not hear from the thousands of innocent people whose DNA was seized and stored
against their will. Although DNA testing has shed light on the injustice of false convictions, it cannot
solve the underlying problems that lead innocent people to be convicted in the first place. Most
wrongful convictions result from deep biases in the criminal justice system that make poor, minority
defendants vulnerable to police abuse, misidentification, and inadequate representation.62 False
confessions coerced by the police are one of the main causes of wrongful convictions.63 According to
the Innocence Project, “In about [twenty-five] percent of DNA exoneration cases, innocent defendants
made incriminating statements, delivered outright confessions or pled guilty.”64 Coerced false
confessions were a factor in fifteen of thirty-three exonerations won by the Center on Wrongful
Convictions.65 It makes no sense to correct a problem created by law enforcement’s abuse of power by
handing over even more authority to law enforcement in the form of DNA collection. The way to reduce
wrongful convictions is to remove the biases based on race and class that corrupt our criminal justice
system. Extending the reach of state surveillance does just the opposite. Besides, contrary to the
public’s belief that DNA evidence is infallible, there have been numerous cases of errors in the handling
and analysis of DNA that have led to false accusations and convictions of innocent people.66 These
weaknesses in the state’s use of DNA data banking as a tool for reducing crime make it harder to justify
the resulting breach of individual privacy. Society recognizes that the government violates its civil
liberties if it taps our telephones or secretly searches our homes without court permission.67 Collecting
and storing our DNA is also a serious intrusion into our private lives because DNA is a part of the body;
taking it without consent violates our bodily integrity. In addition to this material aspect, DNA contains
sensitive personal information that can be used to identify our family members and us, can be matched
with other private records, including medical files.68 Society tolerates the state forcibly extracting highly
personal data from people convicted of serious crimes because these offenders have a diminished right
to privacy as a result of their antisocial conduct.69 But as the categories of people who are compelled to
submit DNA broaden, it becomes less clear why the state should have so much power over them. Once
compelled DNA collection goes beyond murderers, rapists, and armed robbers, law enforcement’s need
for a sus-pect’s DNA lessens and the right to retain control over their private information strengthens.70
Although people convicted of heinous crimes may forfeit their claim to privacy, there is no such
justification for seizing genetic samples from someone who has, say, forged a check. State agents should
be required to obtain informed consent to take or test DNA from anyone who has not been convicted of
a serious crime. Although U.S. courts have been slow to recognize this threat to civil liberties,71 in 2008,
the European Court of Human Rights unanimously held that the United Kingdom’s storage of DNA for
purposes of criminal investigation infringed privacy rights protected by Article 8 of the European
Convention.72 The European Court was especially troubled by the indefinite retention of genetic
information taken from children and adults who were never convicted of a crime,73 stigmatizing them
as if they were convicted criminals. This equation of the innocent and the guilty disregards the
presumption of innocence accorded to citizens in a democracy. Massive government collection of DNA
transforms the relationship between citizens and their government in ways that contradict basic
democratic principles.74 Government becomes the watchdog of citizens instead of the other way
around. Although they are guilty of no wrongdoing, huge segments of the population are perpetually
under suspicion. Citizens can no longer rely on the state to safeguard their privacy by forgetting their
past behavior because evidence about them is stored forever.75 The state has the authority to take
citizens’ private property—in this case, their genetic information—without due process.76 Those are
features of a totalitarian state, not a liberal democracy.
Public health surveillance risks invasions of privacy and previous cases fail to
addresses status quo conditions
Mariner 07 (WENDY K.MARINER, Professor of Health Law, Bioethics and Human Rights, Boston
University School of Public Health; Professor of Law, Boston University School of Law; Professor of SocioMedical Sciences, Boston University School of Medicine. J.D., Columbia University School of Law; LL.M,
New York University School of Law; M.P.H., Harvard School of Public Health.)(“MISSION CREEP: PUBLIC
HEALTH SURVEILLANCE AND MEDICAL PRIVACY”, BOSTON UNIVERSITY LAW REVIEW, Vol. 87:347,
2007)//ASMITH
Today, almost everyone, regardless of station, could be subject to public health surveillance. The scope
of public health surveillance has grown significantly beyond its contagious disease origins. Public health
organizations now recommend compulsory reporting of more than sixty infectious diseases, twenty-nine
genetic conditions (for newborns), almost all types of cancer, and other chronic diseases like asthma and
lupus.14 The Bush administration’s National Strategy for Pandemic Influenza has given the Department
of Homeland Security the task of developing a National Biosurveillance Integration System (NBIS) to
integrate surveillance data about agriculture, food, environment, and human diseases.15 In January
2006, the New York City Department of Health and Mental Hygiene began requiring laboratories to
submit electronic reports of the blood sugar test results of all patients with diabetes, by name and
without patient consent.16 The Health Department intends to contact patients who are not controlling
their blood sugar to encourage taking medications, better diet, and more exercise.17 Although there will
always be a need to investigate disease outbreaks in order to prevent epidemics, the more prevalent
use of disease surveillance data today is for statistical analysis, planning, budgeting, and general
research.18 This new generation of reporting laws reflects a goal of many people in public health: to
collect data about chronic diseases outside the context of a research study and without the need to
obtain any individual patient’s informed consent. The question is whether these new surveillance
programs should be able to compel the collection of personally identifiable data. Is it possible to
reconcile individual interests in personal privacy with modern forms of public health surveillance? Are
mandatory public health surveillance programs that focus on statistical analysis, research, or monitoring
personal health status a reasonable exercise of the state’s police power, or are they vulnerable to
challenge as an invasion of privacy? Do they offer the promise of medical advances, or the threat of
“general searches, which the authors of the Bill of Rights were so concerned to protect against”?19 This
Article begins to answer these questions. Part I summarizes the evolution of public health surveillance
programs. Part II describes three major functions of surveillance programs: outbreak investigation,
identifying newborns who need essential medical care, and research. It also highlights how the aim of
those who collect medical information has shifted from preventing the spread of contagious diseases to
the more general purposes of research, budget analysis, and policy planning.20 This shift poses a
challenge to the principles of liberty and privacy that underpin one’s individual autonomy to decide
whether to participate in research or to accept medical care. Part III argues that the sparse case law on
constitutional challenges to compulsory reporting laws offers only a fragile conceptual framework for
modern public health statutes that compel the disclosure of personally identifiable information. The
cases themselves offer little guidance, often ignoring how surveillance information is used and how
valuable the right of privacy is to individuals. Modern health surveillance programs, with their focus on
obtaining data accurate enough to use for statistical analysis and research, do not easily fit the legal
constructs guiding earlier laws designed to prevent epidemics. At the same time, the general goal of
improving public health fails to provide any principle for limiting government intrusions into medical
privacy. The Article concludes that modern public health surveillance needs defensible principles that
define the scope and limits of state power to collect personally identifiable medical information. Part IV
outlines a more robust approach to balancing the state’s interest in public health and the individual’s
interest in the privacy of medical information. This approach weighs the present value of the actual use
of the information (instead of speculative longrange goals) against the dignitary value of privacy.
Although space precludes a fully developed argument, I hope this Article will inspire thoughtful efforts
to retain the value of modern public health surveillance without sacrificing the value of patient privacy.
State data collection without consent invades subject rights
Mariner 07 (WENDY K.MARINER, Professor of Health Law, Bioethics and Human Rights, Boston
University School of Public Health; Professor of Law, Boston University School of Law; Professor of SocioMedical Sciences, Boston University School of Medicine. J.D., Columbia University School of Law; LL.M,
New York University School of Law; M.P.H., Harvard School of Public Health.)(“MISSION CREEP: PUBLIC
HEALTH SURVEILLANCE AND MEDICAL PRIVACY”, BOSTON UNIVERSITY LAW REVIEW, Vol. 87:347,
2007)//ASMITH
Several states have gone beyond authorizing the creation of cancer registries, and have enacted laws or
adopted regulations that either permit or require medical providers to report cancer cases to a registry
without their patients’ consent.106 In some states, advocacy groups lobbied state legislatures and
health departments for a centralized source of information, either in an attempt to explain unusually
high rates of cancer in their communities or in response to fears of exposure to hazards from local
manufacturing plants.107 The more important factor appears to be the availability of federal grant
funds to create or expand a registry.108 CDC prefers that registries be located in states that require the
reporting of cancer cases by law. Although the National Cancer Act does not require states to enact any
particular laws, undoubtedly because such a federal requirement would violate state sovereignty,109
grants are unlikely without a mandatory reporting law. The Act requires that statewide cancer registries
be legally authorized to obtain all medical records of cancer patients from any individual or organization
providing cancer services in order to be eligible for funding.110 It would be difficult to assure access to
“all records” without dispensing with consent.111 Arguably, any use of personally identifiable
surveillance data – apart from outbreak investigation and epidemic containment – could qualify as
research with human subjects. Cancer registries squarely present the question of whether the state can
demand access to an individual’s personally identifiable information for use in research without consent.
Since the Nuremberg Code was issued in 1947, research with human subjects has been deemed
unethical and unlawful unless the subject gives voluntary, informed consent.112 The consent
requirement is intended to protect the individual’s right of selfdetermination and the dignity of human
beings recognized in all international declarations and covenants on human rights.113 Without informed
consent, humans are being treated only as a means to an end.114 These foundational principles have
been embodied in the common law,115 and in regulations governing federally funded research known
as the “Common Rule,”116 and may have constitutional protection.117 All of these sources support the
conclusion that the use of personally identifiable information for research purposes without the
subject’s consent violates the subject’s rights.118
A2 Politics
Link Turn
The plan is popular – tech companies will push for the plan and it has widespread
support
Young 14 (Kerry Young, Roll Call Staff, graduate of Tulane University)(“Tech Firms Ask Congress to
Redefine Medical Privacy Rules”, Sept. 8, 2014, Roll Call,
http://www.rollcall.com/news/tech_firms_ask_congress_to_redefine_medical_privacy_rules-2360691.html?pg=3&dczone=policy)//ASMITH
Tech firms, including Amazon.com Inc., are asking Congress to redefine the rules on medical privacy, saying the
risks of potential disclosure should be weighed again against the anticipated benefits of wider sharing
and easier access to crucial health data. Executives of tech companies and health organizations have told the House Energy and
Commerce Committee in recent months that what they consider an excessively conservative stance on health data privacy is
hindering development of new medical technologies and approaches to treatment, and also adding costs to
already burdened state and federal budgets. “We, in our effort to protect the patients, are constructing a health care system that they and we
cannot afford, and we’re putting the balance in the wrong spot,” Joseph M. Smith, a former Johnson & Johnson medical technology executive
who has been involved with venture capital projects, told the committee in June. “In Congress’ view of trying to protect everyone from that
information, we may be protecting them to death.” Much of what health researchers and executives seek involves more clear guidance on
what are known as HIPAA privacy regulations. The name reflects their genesis as an add-on provision to the Health Insurance Portability and
Accountability Act of 1996 (PL 104-191). Yet, these calls for a new look at HIPAA are coming at a time of marked concern about the sanctity of
consumers’ online accounts — health and otherwise. House
Republicans responded with great concern when the
Department of Health and Human Services this month announced that common malware had been
detected on the website for the federal medical insurance exchange. No personal information was
comprised as a result of this intrusion on a healthcare.gov test server, HHS has said. June brought a furor over
the revelation of an experiment seeking to alter the emotional state of about 690,000 of Facebook users. That’s likely to heighten people’s
concern about how data in general is shared online, especially medical records, said Justin Brookman, director for consumer privacy at the
Center for Democracy & Technology. “By and large, they don’t expect that they are going to be guinea pigs,” he said. “When we are talking
about health information, people feel even more strongly about it.” In
May, HHS reported a record HIPAA settlement of
$4.8 million in a case involving New York Presbyterian Hospital and Columbia University and medical
records for about 6,800 people, including laboratory results. The hospital and Columbia learned of the security lapse
when the partner of a deceased patient found that person’s health information on the Internet. New York Presbyterian and the university
notified HHS of the security lapse, and there’s been no indication any of that information was ever accessed or used inappropriately. Still,
HHS found their “approach to guarding data” lacking and levied the record fine. The complexity of
HIPAA regulations and the threat of inadvertently triggering fines keep many small companies from
venturing into projects that would involve using medical data, Smith said at the Energy and Commerce
meeting in June. “Once they understand the HIPAA penalties and the machinery involved and the limitations that imposes on the value
that they could create, they demure,” said Smith, now the chief medical and science officer at the nonprofit West Health Institute, noting this
has an effect on the United States health system at large. The “innovative spirit” falters when “it encounters that immovable object that we
currently call HIPAA,” he said. Large companies also
are looking for changes in HIPAA. Paul Misener, Amazon’s
vice president for global public policy, in July told Energy and Commerce that current rules make it
difficult to negotiate contracts for cloud computing services. Congress should direct HHS to provide more clear guidance
on the HIPAA requirements for cloud computing when the host firm has no way of accessing the encrypted data that would be stored, he said.
The current interpretation “impedes health-care delivery entities from leveraging cloud services by causing the parties to negotiate a ‘business
associate agreement’ in which virtually all of the terms are inapplicable because the cloud services provider does not have access to health
information,” Misener said
These complaints about HIPAA have caught the attention of a powerful lawmaker
who is intent on putting forth broad bipartisan health legislation in the next session of Congress. “We
have heard on numerous occasions that there is a wealth of health data available, but there are barriers
to using it,” House Energy and Commerce Chairman Fred Upton, R-Mich., told CQ Roll Call in an email
last week. “We are exploring opportunities to break down those barriers, allowing for greater innovation and advancement, all the while
protecting the privacy of our patients. A look at HIPAA has been part of what Upton calls his 21st Century Cures Initiative, which has drawn
federal officials, including top Food and Drug Administration regulators, to sit and publicly hash out ideas with company executives and patient
advocates. Upton’s lead partner in the project is Diana DeGette, D-Colo., and the backers so far include two Democrats competing for their
party’s top spot on Energy and Commerce, Frank Pallone Jr. of New Jersey and Anna G. Eshoo of California. In May, HHS reported a record
HIPAA settlement of $4.8 million in a case involving New York Presbyterian Hospital and Columbia University and medical records for about
6,800 people, including laboratory results. The hospital and Columbia learned of the security lapse when the partner of a deceased patient
found that person’s health information on the Internet. New York Presbyterian and the university notified HHS of the security lapse, and there’s
been no indication any of that information was ever accessed or used inappropriately. Still, HHS found their “approach to guarding data”
lacking and levied the record fine. The
complexity of HIPAA regulations and the threat of inadvertently triggering
fines keep many small companies from venturing into projects that would involve using medical data,
Smith said at the Energy and Commerce meeting in June. “Once they understand the HIPAA penalties and the machinery involved and the
limitations that imposes on the value that they could create, they demure,” said Smith, now the chief medical and science officer at the
nonprofit West Health Institute, noting this has an effect on the United States health system at large. The “innovative spirit” falters when “it
encounters that immovable object that we currently call HIPAA,” he said. Large companies also are looking for changes in HIPAA. Paul Misener,
Amazon’s vice president for global public policy, in July told Energy and Commerce that current rules make it difficult to negotiate contracts for
cloud computing services. Congress should direct HHS to provide more clear guidance on the HIPAA requirements for cloud computing when
the host firm has no way of accessing the encrypted data that would be stored, he said. The current interpretation “impedes health-care
delivery entities from leveraging cloud services by causing the parties to negotiate a ‘business associate agreement’ in which virtually all of the
terms are inapplicable because the cloud services provider does not have access to health information,” Misener said These complaints about
HIPAA have caught the attention of a powerful lawmaker who is intent on putting forth broad bipartisan health legislation in the next session of
Congress. “We have heard on numerous occasions that there is a wealth of health data available, but there are barriers to using it,” House
Energy and Commerce Chairman Fred Upton, R-Mich., told CQ Roll Call in an email last week.
“We are exploring opportunities to
break down those barriers, allowing for greater innovation and advancement, all the while protecting
the privacy of our patients. A look at HIPAA has been part of what Upton calls his 21st Century Cures
Initiative, which has drawn federal officials, including top Food and Drug Administration regulators, to sit
and publicly hash out ideas with company executives and patient advocates. Upton’s lead partner in the project is
Diana DeGette, D-Colo., and the backers so far include two Democrats competing for their party’s top spot on Energy and Commerce, Frank
Pallone Jr. of New Jersey and Anna G. Eshoo of California.
A2 Bioterrorism DA
No Link
Changing health policies key—current policies are more ineffective
Mauroni 11 (Al, Director of the U.S. Air Force Counterproliferation Center, “GAUGING THE RISK FROM BIOTERRORISM”
http://warontherocks.com/2014/01/gauging-the-risk-from-bioterrorism/3/ 1/6/15 JM)
The focus of the federal government has been on coordinating a medical response to biological
incidents, given that in the event of certain contagious diseases, the impact may be global and fast
moving. As a result of policy that addresses both natural disease outbreaks and bioterrorism, there are
numerous government agencies involved. Others have talked about the need to work public health with
national security to address shared health security concerns. However, any focus on bioterrorism is lost
in the greater concern about natural disease outbreaks. The challenge is one of resources and priorities
between public health threats and deliberate biological threats. The public health community has a
prioritized list of global infectious diseases. Diarrhea, malaria, dengue fever, and seasonal influenza top
the list, followed by strains of hepatitis, HIV/AIDS, typhoid, and meningitis. Anthrax and smallpox are not
listed in the top 30 infectious diseases because there are not regular outbreaks of those diseases and
vaccines exist for both. Among the 60-70 infectious diseases that are tracked by the public health
community, about ten constitute military biological warfare (BW) or bioterrorism threats. If the public
health community is leading the medical response to bioterrorism, we need to understand that it isn’t
focused on deliberately released BW threats. A 2011 CRS report on federal efforts to address the threat
of bioterrorism makes this point. Although there is clear presidential and congressional attention on
bioterrorism, the report notes criticism on the lack of metrics and unclear goals across the interagency,
leading to ineffective efforts. The risk assessment process does not adequately address the intent and
capabilities of deliberate actors. National bio-surveillance is challenged by expensive environmental
sensors. The investment of billions of dollars into medical countermeasures for BW threats has been
slow to produce results, and has been criticized by those who would rather see funds invested against
public health threats. The CRS report fails to address the public health community issues overshadowing
bioterrorism concerns, but one should be able to read this between the lines. It may be correct that a
response to a biological incident should not be determined by the threat source (Mother Nature versus
a deliberate actor), but certainly it makes a difference to those federal agencies responsible to prevent
those threat sources from acting and to protect specific populations (military service members versus
the general population). Defending fit military troops against BW agents on the battlefield (bio-defense)
is very different from protecting young and old civilians from biological hazards dispersed by extremists
(bio-security), which is distinct from protecting the general public from natural disease outbreaks (biosafety). Currently, there is no clarity in national policy to reflect these distinct roles. It is clear that the
federal government has been tasked to defend the public against the threat of bioterrorism. Numerous
government agencies are involved, and given the breadth and depth of this subject, it is difficult (but not
impossible) to address all aspects and programs associated with the subject. Public health threats are
more probable and affect more people than bioterrorism threats do. But, attempts to get a “two for
one” by tasking the public health system to address bioterrorism in a holistic “all-hazards” approach
will fail, resulting in a loss of focus on bioterrorism. The future challenges of infectious diseases and new
biotechnology will continue to require a hard focus on how we conduct bio-defense, bio-safety, and biosecurity. As DoD and the interagency comes together to develop policies and strategies for countering
biological threats, we need to ensure we are asking the right questions and not shortcutting the system
in favor of quick fixes that may fail to produce viable results. Above all, we need to abandon rhetorical
statements about how “the threat is real” and how a terrorist WMD incident will happen “within the
next five years.” These statements aren’t resulting in increased resources or attention. It’s not 2001
anymore. It’s time for relevant analysis against tomorrow’s challenges.
No Impact
No risk of a bioterror attack—its too technically difficult
PressTV 15 (PressTV, reporting source from the UK, “Ebola can be weaponized for bioterrorism in UK: Study” page 3
http://www.presstv.com/Detail/2015/02/01/395598/Weaponized-Ebola-could-be-used-in-UK 2/1/15 JM)
The Ebola virus could be weaponized to kill thousands of people in Britain, UK germ warfare experts
have warned. According to an investigation carried out at the Defense Science and Technology
Laboratory at Porton Down in Wiltshire, there are three scenarios in which the virus could be
weaponized for use in the UK, British media reports. The study was conducted following a request by
the government for guidance on “the feasibility and potential impact of a non-state actor exploiting the
Ebola outbreak in West Africa for bioterrorism,” The Mirror reported on Saturday. Following the
assessment which was carried out last October, the British government called for the screening of
passengers at Heathrow airport. The results of the study have emerged in a redacted version edited by
the Ministry of Defense (MoD) and show it would difficult for Ebola to be weaponized by terrorists
without the backing of a government, implying the possibility of the bioterrorist act. “This scenario
would be logistically and … technically challenging for a non-state group,” read part of the redacted
document about the first scenario. “There are practical issues with such a scenario that of themselves
are often not insurmountable but taken together add enormously to the complexity of successfully
undertaking this attack,” The Mirror excerpted in relation to the second scenario. Regarding the third
scenario the report said it would be very technically challenging. The report was redacted by the MoD
because it “contains details whose disclosure would prejudice the capability and effectiveness of our
forces and safety of UK citizens.” Ebola is a form of hemorrhagic fever, whose symptoms are diarrhea,
vomiting, and bleeding. The virus spreads through direct contact with infected blood, feces, or sweat. It
can be also spread through sexual contact or the unprotected handling of contaminated corpses.
Checks in place to ensure no impact
MNT 15 (Medical News Today, Leading reporting news source for medical and health news, “Genetic safety switches could help curb
potential bioterror risks” http://www.medicalnewstoday.com/releases/288584.php 1/28/15 JM)
The potential threat of bioterrorism using man-made biological organisms could be reduced, thanks to a
new method developed by scientists. Synthetic biologists - who can design and modify the DNA of living
organisms to give them novel, useful functions - have devised a way of containing their products to help
ensure that they work only as intended. Researchers have developed a set of genetic switches that can
be built into engineered organisms, to control the function of genes they need to survive. The genetic
switches are controlled by the addition of a mixture of naturally occurring chemicals, which can be
customised for a variety of products. These could prevent potential harm from either the theft or
misuse of these substances, which are used in biofuels, food, and medicines. Researchers at the
Universities of Edinburgh and NYU Langone Medical Center have developed two types of molecular
switch that work in yeast, a commonly used model organism. The team inserted a second set of on and
off switches to target another vital gene, to mitigate the risk that changes in the live yeast might enable
it to circumvent chemical control. The study, published in Proceedings of the National Academy of
Sciences, was funded by the US Defense Advanced Research Projects Agency and the Biotechnology and
Biological Sciences Research Council. Dr Yihzi Patrick Cai of the University of Edinburgh's School of
Biological Sciences, who jointly led the research, said: "Synthetic biology is a fast-developing field with
huge potential to benefit society, but we need to be mindful about its potential risks and take active
steps to limit them in our biological designs. With these genetic safety switches, we can contain
engineered organisms with a special combination of small molecules."
Bioterrorism unlikely—time, resources, danger, dissemination techniques all check
Ivanov 14 (Sandra, postgraduate education in Peace and Conflict Studies. She is currently an editor of the blog “Conflict and Security“,
and primarily works in the non-government sector, “HOW TO MAKE THE ‘EBOLA BOMB': WHY YOU SHOULD STOP WORRYING ABOUT
BIOTERRORISM” http://cimsec.org/make-ebola-bomb-stop-worrying-bioterrorism/13069 9/23/14 JM)
Many studies from a health, as well as a humanities perspective, assume that terrorists could
successfully generate biological or chemical agents and weaponise them. Taking this initial premise, a lot
of literature has been based around this looming threat, subsequently offering policy advice, public
health recommendations, and technological investment to avoid such catastrophes. However it would
be useful to deconstruct this claim entirely. So I’ll begin by offering a baking recipe, to explore at the
very core, what a group would need to do to successfully create a biological weapon, in this case,
utilising the Ebola virus. Ingredients Firstly, any terrorist group wanting to create and weaponise a
biological or chemical agent will need to have an appropriate kitchen. In the case of the Ebola virus, a
standard biosafety level 4 (BSL-4) scene will be required (Adeline M. Nyamathi et al., “Ebola Virus:
Immune Mechanisms of Protection and Vaccine Development“, Biological Research For Nursing 4, No. 4,
April 2003: 276-281). Some features of these laboratories include decontamination mechanisms, pest
management systems, air filters, and special suits. Sometimes the kitchen will have to be in a separate
building, or in an isolated area within a building to meet the safety requirements. Not only will the
kitchen be under strict conditions, the baking process will need to be kept in total secrecy. The constant
threat of law enforcements raiding facilities, and intelligence and secret services detecting activities will
have to be avoided. Also, there are only some fifty of these laboratories successfully maintained
worldwide. Before starting, make sure there is a baking dish of ‘uncertainty’ readily available to just
throw all of the following ingredients into: 1 Tablespoon of Proper Agent Initially, a terrorist group must
decide what kind of agent they would like to use in a bioterror attack. This is one part of the recipe
which can be modified, but the other ingredients will be standard for all types of attacks. The recent
spread of the deadly Ebola virus will be the agent of choice for this bomb. Ebola is a virus which is
passed to humans through contact with infected animals. The spread of the virus from person-to-person
is brought about through blood and bodily fluids, as well as exposure to a contaminated environment.
An infected live host with Ebola would need to be maintained in a human or animal – only a few animals
are able to be used as hosts, such as primates, bats, and forest antelope. Although Ebola infection of
animals through aerosol particles can be effective, it has not successfully been transferred with this
method to humans (Manoj Karwa, Brian Currie and Vladimir Kvetan, “Bioterrorism: Preparing for the
impossible or the improbable“, Critical Care Medicine 33, No. 1, January 2005: 75-95). 1 Bucket of
Resources and Money In order to develop a biological weapon, a substantial amount of material and
money is required. Investment is needed from the very outset – taking into account membership size
and capabilities of a terrorist group, financial assets of a group, and making sure territory and proper
infrastructure is available for the biological agent. For a successful bomb to be created, a group must
think about the resources they will need for each stage of the baking process, such as weapons
production, potential testing phases, and logistics, such as transportation and communications
technologies (Victor H. Asal, Gary A. Ackerman and R. Karl Rethemeyer, “Connections Can Be Toxic:
Terrorist Organizational Factors and the Pursuit of CBRN Terrorism“, National Consortium for the Study
of Terrorism and Responses to Terrorism, 2006). Resources needed for an “Ebola Bomb” will most likely
need to be imported from the outside, and a group must determine the feasibility of acquiring the
materials and technologies needed for the bomb (Jean Pascal Zanders, “Assessing the risk of chemical
and biological weapons proliferation to terrorists“, The Nonproliferation Review, Fall 1999: 17-34). A
surplus of money would also be a smart idea in case technical difficulties arise. 5 Cups of Expertise With
all the correct resources and necessary amount of monetary support, the recipe will require the right
kind of know-how. For an operation like this, a terrorist group should have members with high levels of
education and training in science, engineering, and technological development, to deal with highly
virulent agents, and for successful weaponisation (Zanders). A group may need to be integrated into
knowledge flows and institutions, or be able to recruit members to their cause with this specific
expertise (Asal, Ackerman and Rethemeyer). Knowledge and expertise is required to create the correct
strain, handling the agent, growing the agent with the desired characteristics, and maintaining the
agent. Taking Ebola specifically requires synthesising proteins which make it infectious, and becomes a
task that is difficult and unlikely to succeed (Amanda M. Teckma, “The Bioterrorist Threat of Ebola in
East Africa and Implications for Global Health and Security“, Global Policy Essay, May 2013). If Ebola is
successfully created in the kitchen, it is not itself a biological weapon – an expert will be required to
transform the virus into a workable mechanism for dissemination. A Teaspoon of Risk The decision to
use biological weapons for an attack is in itself extremely risky. There is a risk that bioterrorism could
cause dissenting views among followers, and that public approval and opinion may channel the way a
group operates. After all, terrorists are political communicators, wanting to bring attention to their
grievances. If a group becomes polarised or resented by their actions, they will not see the benefits of
pursuing certain methods. Terrorists want to send powerful messages, gain more members, in which
these members assist to bring about certain plans and demands. Therefore, public opinion and political
opportunism will be risked in a quest to create a bioweapon such as an “Ebola Bomb” (Zanders).
Secondly, a terrorist group may be subject to more scrutiny or attention. This is why keeping activities
covert will be a key to success. States will be more vigilant towards groups that are known to be seeking
and acquiring biological and chemical capabilities (Asal, Ackerman and Rethemeyer). And finally, risk will
always cling on to funding requirements, and potential technical difficulties in all stages of the
bioweapon making process. A Fist of Time Now this recipe is going to take a while to prepare and bake
in the oven, and there is no particular moment to determine when it should be removed from the
baking dish. So, whatever group wants to make this bomb, will need to realise this is a long-term and
complex effort. It will not work like most conventional weapons, which produce a high number of
casualties with a single explosion, and that could be a reason why bioterrorism is not the most popular
means for a violent attack – demanding time, effort, and resources without guarantees of a concrete
result. A fist full of time may be needed so that knowledge, both tacit and explicit, can be acquired, as
well as accounting for the various mistakes and learning curves to overcome (Asal, Ackerman and
Rethemeyer). It can also refer to how long it will take to cook up, maintain and prepare a virus for an
attack. It will take time to create a successful weapon with prior testing, and wait for the correct
environmental conditions when it comes to dissemination. Time will have to be a group investment – it
is not the kind of bomb that will detonate immediately. A Pinch of Curiosity of the Unknown The
teaspoon of risk coincides with uncertainty, and there will need to be a commitment to potential
unknown factors. It is unknown what will happen once a virus is disseminated. Will the weapon even
work in the first place? Weather conditions are unpredictable and Ebola will not have a prominent effect
in certain environments. What happens to the terrorist group if the attack fails? What happens to the
reputation of the group and its membership, or will the group cease to exist? If the recipe is a success, it
is impossible to control the biological agent which is released – not only can it affect the targeted
population, but it may annihilate the terrorist group itself. There will be an unknown into potentially
losing local and international support, and donors if this causes widespread catastrophe. Method:
Weaponisation and Dissemination Mix that up good in your baking dish of what is now “deep
uncertainty” and pop it in the oven to bake. But as time passes, it seems as though the ingredients are
not rising. The process of turning a biological agent into a weapon for attack is the phase with the most
hurdles for terrorist groups. In order for a virus to inflict a lot of harm, it has to be disseminated through
an effective delivery mechanism. As mentioned previously, the Ebola virus needs a live host.
Weaponising a live host is more difficult than other agents which can be cultured on dishes of nutrients.
The process has many stages which involve testing, refining, upgrading, and toughening. The methods to
disseminate an agent are only known to few people, and rarely published – it is not a basement project
(Teckman). Let’s take Aum Shinrikyo as an example of conducting a bioterrorist attack (even it was
“only” a chemical attack). This apocalyptic religious organisation in Japan managed to release sarin gas
inside a Tokyo subway, killing a dozen people, and injuring 50. However, even with money and
resources, they failed to effectively weaponise the chemical. Factors which led to their failure included
internal secrecy and breakdown in communication; selecting members only solely dedicated to their
cause to work on the weapons, ultimately employing unskilled people to operate and maintain the
project, causing accidents and leaks (Zanders). Aum Shinrikyo’s attempt to disseminate botulinum toxin
into Tokyo using a truck with a compressor and vents, did not work because they had not acquired an
infectious strain (Sharon Begley, “Unmasking Bioterror“, Newsweek, 13.03.2010; “Chronology of Aum
Shinrikyo’s CBW Activities“, Monterey Institute of International Studies, 2001). Finally, a major obstacle
to successfully disseminating Ebola, is because this virus requires a specific environment in order to
thrive. Weather conditions can be unpredictable, and Ebola particularly needs high temperatures and
humidity to remain effective. Obviously, this “Ebola Bomb” has not come close to containing the right
requirements needed to explode. Looking back historically, pathogens, and all kinds of toxins have been
used as tools in sabotage and assassinations since the beginning of time. Now, it would be silly to say
this recipe will never work – there will always be a possibility that Ebola or other viruses may be used as
biological weapons in the future. However, the likelihood of its development and use by a terrorist
group is quite improbable. Mentioning Aum Shinrikyo again, they are an organisation which at the time,
had a war chest of more than $300 million, with six laboratories and a handful of biologists, in the end
having insurmountable difficulties with the weaponisation and dissemination processes, and killing a
dozen people (Begley). There is a greater amount of knowledge and technology available in our day and
age than in 1995 with the Aum Shinrikyo attacks, but it is still unlikely that this will be the weapon of
choice. Examining state biological weapons programmes, Soviet Russia had almost 60,000 personnel
employed in their weapons development, with only about 100 people that actually knew how to take an
agent through the full production process. In the United States, at Fort Detrick, there were 250 buildings
with 3,000 personnel, and it took them a while to weaponise a single agent, such as botulinum (Manoj
Karwa, Brian Currie and Vladimir Kvetan). Nowadays, the narrative has assumed a worst case scenario
analysis, and subsequently narrowed down bioterrorism to a single threat prognosis. There is little
distinction made between what is conceivable and possible, and what is likely in terms of
bioterrorism. Anything can be conceived as a terrorist threat, but what is the reality? The “Ebola Bomb”
is not a danger. The likelihood of a bioterrorist attack remains highly unlikely (Teckman). The focus
should be on preventing natural pandemics of human disease, such as tuberculosis, SARS, AIDS and
influenza – emphasis placed on how we can cure diseases, and how medical training could be improved
to contain, and avoid viruses such as Ebola altogether. Resources are being pumped into biodefence in
the security as well as the medical sector, but preparedness and investment in bioterrorism needs to be
in proportion to actual threats, otherwise, funds are diverted away from much needed public health
programmes: Diversion of resources from public health in the United States include diversion of funds
needed for protection against other chemical risks – spills, leaks and explosives – and infectious
diseases. Each year in the United States there are 60,000 chemical spills, leaks and explosions, of which
8,000 are classified as ‘serious’, with over 300 deaths. There are 76 million episodes of food-borne
illness, leading to 325,000 hospitalisations and 5,000 deaths, most of which could be prevented. There
are 110,000 hospitalisations and 20,000 deaths from influenza, a largely preventable illness, and there
are 40,000 new cases and 10,000 deaths from HIV/AIDS. Diversion of resources for public health outside
the US reduce the resources that can help provide protection against diseases rooted in poverty,
ignorance and absence of services. — Victor W Sidel, “Bioterrorism in the United States: A balanced
assessment of risk and response“, Medicine, Conflict and Survival 19, No. 4, 2003: 318-325. The
effectiveness of biological weapons has never been clearly shown, the numbers of casualties have been
small and it is likely that hoaxes and false alarms in the future will continue to outnumber real events
and create disruptive hysteria (Manoj Karwa, Brian Currie and Vladimir Kvetan). Emphasis needs to be
back on medical research, as well as social science investigations into the roots of why terrorist groups
would even want to pursue biological weapons, and the lengths they would go to use them. Let this be
an avenue for further pondering and exploring, the realities of bioterrorism.
Bioterrorism won’t happen—too many resources are put into defense
Goonzer 12 (Merrill, reporter for The Fiscal Times, “Billions to Stem an Unlikely Bioterror Attack”
http://www.thefiscaltimes.com/Articles/2012/03/30/Billions-to-Stem-an-Unlikely-Bioterror-Attack 3/30/12 JM)
Republicans and Democrats agreeing on industrial policy to save the auto industry? Unthinkable.
Republicans and Democrats agreeing on industrial policy to promote clean energy companies? Absurd.
But Republicans and Democrats agreeing on industrial policy for the pharmaceutical industry to develop
drugs and vaccines to combat bioterror agents? It not only passed by unanimous consent in the Senate
earlier this month, it will likely be approved by the conference committee that will soon consider the
$4.5 billion Pandemic and All-Hazards Preparedness Act (PAHPA), the reauthorization of the 2006 law
coordinating the nation’s decade-long effort to prepare for a terrorist biological warfare attack. Despite
the reality that the only bioterrorist attack that has ever taken place on U.S. soil (one week after 9/11)
was launched by a rogue U.S. scientist who had worked in the Cold War biological weapons program and
was one of the world’s few experts in weaponizing anthrax, the nation has spent an estimated $66
billion in the past decade preparing for the next assault. Tens of billions of dollars have been poured into
basic science and applied research to develop vaccines and drugs to combat diseases like anthrax,
smallpox (a disease that no longer occurs naturally on earth), botulism and plague. Billions more has
gone into beefing up the public health system’s ability to respond to emergency health crises. Hospitals
have been paid to expand their capacity to respond to surges of patients stricken by a pandemic or a
terrorist attack. These nationwide grant programs have helped build a broad base of political support for
the programs. And now, in the reauthorization bill sponsored by Sen. Richard Burr, R-N.C., Congress has
earmarked $50 million for a “strategic investor” venture capital fund to invest in start-up biotechnology
companies that are developing drugs and vaccines that combat bioterror pathogens. Structured as a
public-private partnership outside the government, the goal is to bring more private funding into the
hunt for new “countermeasure” products. It will be added to the $450 million a year the government
already doles out in grants to companies through the Biomedical Advanced Research and Development
Authority (BARDA) and the $2.9 billion earmarked over the next five years for procurement of new drugs
and vaccines for government stockpiles. As the votes in Congress attest (the House version of the bill
also passed on a voice vote), the massive commitment to biodefense spending in the 2000s has won
broad support from the nation’s research and scientific establishment. The National Institute for
Allergies and Infectious Diseases (NIAID), headed since the 1980s by Anthony Fauci, receives over $1
billion a year for bioterror-oriented scientific research. The National Cancer Institute, by comparison,
receives about $5 billion to look for cures for the tumors that kill over a half million Americans annually.
Officials at NIAID and legislators on Capitol Hill say the massive investment in preventing and curing
diseases that rarely if ever occur naturally is providing a huge boost to the moribund U.S. effort to
develop new antibiotics to fight the drug resistant bacterial strains that are causing tens of thousands of
deaths annually in U.S. hospitals. “The goal of this basic research is to lay the groundwork for developing
broad-spectrum antibiotics and antivirals—drugs that can prevent or treat diseases caused by multiple
types of bacteria or viruses—and multi-platform technologies that potentially could be used to more
efficiently develop vaccines against a variety of infectious agents,” the agency says on its website. But
some scientists complain that the anti-bioterror research agenda has detracted from research that
specifically targets infectious diseases that are already killing people, both in the U.S. and in the
developing world. “I’m sure other programs are reduced because of the money we’ve put into this,” said
Peter Agre, director of the Johns Hopkins Malaria Research Institute and winner of the 2003 Nobel Prize
in chemistry for his work on cell membrane channels. “We’re seeing scientists who have to prematurely
end their careers because they can’t get grants. Is this bioterror the most important and cost-effective
research being done on infectious diseases? I don’t think it is.” However, the leaders of the Infectious
Diseases Society of America, which represents the medical specialists and researchers in the field, back
the program because it creates a stream of funding that otherwise wouldn’t exist. “While we
understand the nation’s current fiscal pressures, we believe that greater investment in key areas is
crucial to protect the American people and others from biothreats, pandemics and emerging infections,”
Thomas Slama, the group’s president, wrote in a letter to House and Senate leaders last month. Beefed
up biodefense spending also gets championed by the movement to broaden the pipeline of new
antibiotics being developed by the pharmaceutical industry. Their argument is the same as NIAID’s: a
new drug that fights an anthrax infection could also be used to treat the drug-resistant hospital-acquired
infections that kill tens of thousands of Americans a year. “BARDA has pumped $200 million into critical
developmental molecules that would either be dead or much less further along if BARDA wasn’t
around,” said Brad Spellberg, a professor of medicine at the Los Angeles Biomedical Research Institute.
He also consults for numerous drug companies working on new antibiotics. “The government has
become a resource for companies that are not well capitalized.”
Topicality
A2 Surveillance
We meet- health surveillance has intent and uses technology
Rubel 12 (Alan Rubel. Ph.D., Department of Philosophy, University of Wisconsin-Madison; J.D., magna
cum laude, University of Wisconsin Law School Assistant Professor. “Justifying Public Health
Surveillance: Basic Interests, Unreasonable Exercise, and Privacy.” 2012. P. 2-3.
https://kiej.georgetown.edu/home_files/22.1.rubel.pdf)//EMerz
Public health surveillance is “the ongoing systematic collection, analysis, and dissemination of health
data to those who need to know” (Thacker, Stroup, and Dicker 2003, p. 224). Its scope is wide, both in
its purposes and its methods. Information gathered in public health surveillance is used “to assess public
health status, to define public health priorities, to evaluate programs, and to conduct research” (Thacker
1994, p. 8). Surveillance is used in detecting epidemics, understanding the natural history of diseases,
determining the magnitude and geographic distribution of problems, evaluating control and prevention
efforts, planning and priority setting, detecting changes to health practices, and stimulating research
(Thacker, Stroup, and Dicker 2003, pp. 8–14; Thacker 1994, pp. 8–24; CDC 2011a). Surveillance systems
collect information in numerous ways. They may use mundane sources such as vital statistics (e.g., birth
and death records), surveys, and environmental data regarding risk factors (e.g., air-monitoring data
gathered under the Clean Air Act and hazardous materials spills reported to the federal Department of
Transportation) (Thacker, Stroup, and Dicker 2003, p. 231). There are also sentinel surveillance
programs, which monitor key health events. For example, occupational health conditions are monitored
in the United States by key health care providers participating in the Sentinel Event Notification System
for Occupational Risks (SENSOR) (Stroup, Zack, and Wharton 1994, pp. 45–46). The recognition that
behavior is a crucial aspect of health has led public health agencies to gather information regarding the
use of alcohol, cigarettes, and drugs, the use of safety devices such as seatbelts and bicycle helmets, and
persons’ eating, exercise, and sexual habits (Gostin 2008, p. 292). A relatively novel approach, which
may prove useful for early detection of outbreaks or bioterrorism, is syndromic surveillance. This
involves “collecting and analyzing statistical data on health trends—such as symptoms reported by
people seeking care in emergency rooms or other health care settings—or even sales of flu medicines”
(Stoto, Schonlau, and Mariano 2004).
Medical privacy is at the heart of the topic of surveillance and privacy – expert
consensus is unanimous
Goldman, from the College of Physicians and Surgeons, Columbia University, November 1998 – (Janlori,
“Protecting Privacy To Improve Health Care”, published in HealthAffairs volume 17 number 6)//roetlin
a comprehensive national health privacy law is critical to
ensuring both the integrity of the doctor / patient relationship and the continued development of this
nation’s health care system. 17 As an editorial in the Washington Post concluded: “Of all the threats posed to personal
privacy by new information technologies, the threat to the privacy of medical records is by far the most
urgent.” 18 In the past few years nearly every witness who has testified before Congress on this issue has
stated that a comprehensive federal privacy law is critical to preserving people’s trust in their doctors
and in the health care system. Every report on health privacy issued recently concludes that a federal
Reports over the past twenty years unanimously conclude that
health privacy law is necessary to plug existing gaps in law, policy, and practice. There also is strong
public support for a comprehensive federal health privacy law.
The aff deals with public health surveillance
Lee et al, American Journal of Public Health, 12 (Lisa M. Lee, PhD, MS, Charles M. Heilig, PhD,
and Angela White, MA, Lisa M. Lee is with the Office of Surveillance, Epidemiology, and Laboratory
Services at the Centers for Disease Control and Prevention (CDC), Atlanta, GA. Charles M. Heilig is with
the Tuberculosis Trials Consortium, Division of Tuberculosis Elimination, CDC. Angela White is with the J.
L. Rotman Institute of Philosophy, University of Western Ontario, London, ON, Canada.) Health Policy
and Ethics | Peer Reviewed | AMERICAN JOURNAL OF PUBLIC HEALTH, January 2012, Vol 102, No.
1)//ASMITH
PUBLIC HEALTH Surveillance is defined as the ongoing, systematic collection, analysis, and interpretation
of health-related data with the a priori purpose of preventing or controlling disease or injury, or of
identifying unusual events of public health importance, followed by the dissemination and use of
information for public health action.1 It is distinct from other types of surveillance (e.g., security or
intelligence) in that the purpose of public health surveillance is to prevent or control disease or injury
and to improve the public’s health.2 Surveillance is a foundational tool of public health, serving as the
finger on the pulse of the health of a community. Public health surveillance is used, in some cases
uniquely, to quantify the magnitude of health problems, describe the natural history of disease, detect
outbreaks and epidemics of known or new pathogens, document the distribution and spread of health
events, facilitate epidemiological and laboratory research, generate and test hypotheses, evaluate
control and prevention measures, monitor isolation activities and changes in infectious agents, detect
changes in health practices, plan public health actions and use of resources, and appropriate and
allocate prevention and care funds.3 Public health surveillance consists of 7 ongoing, systematic
activities in 3 basic steps––system development, data collection and analysis, and data use––that
provide continuous feedback for system improvement. The first step, system development, involves (1)
planning and design. The second step, data collection and analysis, involves (2) data collection, (3)
collation, (4) analysis, and (5) interpretation. The third step, data use, involves (6) dissemination and (7)
application to public health program. These 7 activities create the infrastructure of a coherent and stateof-the-art system.4 Findings from such systems are fed directly to public health programs that benefit
the populations and communities from which the data are collected2; this feedback into programmatic
action distinguishes public health surveillance from other ways of knowing about health.5 Public health
surveillance systems vary according to their purpose, the condition monitored, and the planned uses of
the data. Some systems use non---name-based reporting mechanisms; others require names and other
personal identifiers for case reporting. We examine the conditions under which it is ethically justifiable
to create and maintain a public health surveillance system that, in addition to the disease or health
outcome, risk factors, and demographic characteristics, requires that a name or other identifying
information be reported to the local or state health official for storage and future use.
A2 Its
Multi-jurisdictional law enforcement task forces transfer jurisdictional power to state
authorities
Brenda Grantland (private attorney in Mill Valley California, with 30 years' experience primarily in
asset forfeiture defense, as well as federal criminal appeals and victims rights and restitution. Brenda
handles federal cases throughout the country, and frequently works with other attorneys or legal teams
as a consultant or co-counsel) February 2015 “The truth about federal multi-jurisdictional task forces:
resources for reporters writing about Holder’s policy change”
http://brendagrantland.com/truthjustice/the-truth-about-federal-multi-jurisdictional-task-forces/
My final rant (for tonight) about multi-jurisdictional drug task forces: The Holder policy order is partially
a clever ploy to appease those clamoring for forfeiture reform – but also a Trojan horse. It is a Trojan
horse because it will force state and local police agencies to form multi-jurisdictional task forces with the
federal government if they want to preserve their previously abundant Equitable Sharing revenue
streams. Task forces are governed by contract between participating police agencies. State and local
police agencies are created and regulated by statutes and/or ordinances, and answer directly to the
local or state government which created them, and the agency’s chain of command answers to the top
official of the agency, with internal checks and balances to ensure that they enforce the law they were
hired to enforce. The state or local legislature controls their purse strings and that is a big motivator to
get them to obey the applicable state or local law. The fact that the federal government could override
that statutorily established chain of command, substituting federal law for the law of the state, county
or city that hired them is questionable in itself. That state and local officers’ chain of command could be
supplanted by a board of directors created by private contract between law enforcement agencies is a
topic of grave concern that warrants discussion. Once agents are detailed to task forces, the chain of
command is no longer the usual government hierarchy of the county sheriff’s department, city police, or
state police – even though those local agencies continue to pay their salaries. Who do the task force
agents ultimately answer to? They owe their allegiance not to the chain of command of the agencies
that pay their salaries, but to a board of directors chosen by their individual participating government
agencies, governed by the task force coordination agreement. The Holder policy change will only cut off
Equitable Sharing revenue to state and local police agencies that remain under the chain of command of
their local agencies. This policy change will force the local agencies to form federal task forces to
preserve their revenue streams. From what I conclude from reading the DEA’s website, forming a
federal task force is an easy thing to do. They just negotiate a contract with surrounding local law
enforcement agencies to create a multi-juridictional task force and apply to have the DEA sponsor it. The
local agents get cross-deputized as federal agents (probably a brief ceremony with no entrance test or
prerequisites except maybe a criminal background check). This empowers all of them to enforce federal
law while they are on the payroll of state and local law enforcement agencies. The state and local
agencies are rewarded by a kickback from the Equitable Sharing program of a percentage of the
forfeiture revenue generated each time their agents on the task force help generate federal forfeiture
revenue. The Equitable Sharing program promises law enforcement agencies up to 80% of the proceeds
of the forfeiture case they work on, with the profits being split up according to how much each agency
contributed, with the U.S. Department of Justice being the sole arbiter on who gets what percentage of
the loot, with unreviewable discretion to decide as it pleases. Nation wide, police agencies are showing
serious lacks of control already – violations of civil rights, use of excessive force, falsification of evidence
and other misconduct. Stricter oversight is needed to regain control over the forces that are supposed
to be maintaining law and order. They don’t need more autonomy.
***NEG***
***Doctor-Patient Trust CP***
1NC
Text: The United States Federal Government should track healthcare companies’
quality of care by mandating that Department of Health and Human Services evaluate
health care companies for privacy protections. The United States Federal Government
should mandate that health institutions use high security cloud computing to store
sensitive data about patients by enforcing encryption and redaction measures.
Cloud computing has potential to secure patient data if health care providers
implement encryption and redaction measures
Filkins 14 (Barbara Filkins. Senior SANS Analyst and Healthcare Specialist. “New Threats Drive
Improved Practices: State of Cybersecurity in Health Care Organizations.” December 2014. P. 19.
https://www.sans.org/reading-room/whitepapers/analyst/threats-drive-improved-practices-statecybersecurity-health-care-organizations-35652)//EMerz
This emphasis indicates that the cloud-computing industry has matured. Respondents are now looking
toward secure access and data-centric controls and are less concerned with operational considerations
such as monitoring of cloud applications for vulnerabilities and threats. Cloud computing may be an area
where secure, multifactor authentication, which combines two or more independent credentials—such
as what the user knows (password), what the user has (security token) and what the user is (biometric
verification)—also takes off. This year, 60% of respondents said they are using multifactor
authentication as their top control to address the risk to data and applications in the cloud. This
represents a shift from 2013, where APIs for data reporting, auditing and providing alerts were cited by
respondents as the top security control for addressing cloud security concerns. Cloud computing is also
driving a more data-centric method of security, which focuses on protecting data rather than just
protecting the network or application in which the data lives. Starting a data-centric security plan
involves learning and understanding where sensitive data resides, as well as how that information will
be used, accessed, managed, retained or retired across its life cycle. The next step is to assess the risks
and determine the policies and resources needed and available to monitor and control risk in cloudbased computing models. For example, storing data in the cloud demands encryption for the data at
rest. Is that provided through the internal application or the cloud services provider? Sharing that same
data among individuals with different roles and levels of access might demand further modification of
data to protect it, such as redaction, masking or a combination of both.
Data breaches are likely with current cloud computing technology—new security
measures and technology can prevent them
Filkins 14 (Barbara Filkins. Senior SANS Analyst and Healthcare Specialist. “New Threats Drive
Improved Practices: State of Cybersecurity in Health Care Organizations.” December 2014. P. 19.
https://www.sans.org/reading-room/whitepapers/analyst/threats-drive-improved-practices-statecybersecurity-health-care-organizations-35652)//EMerz
Trends such as mobile and cloud computing are game changers for the way individuals and
organizations must approach the security of their systems, the privacy of protected sensitive data, and
compliance. Health care organizations must complement traditional, infrastructure-driven controls such
as network perimeter security with protections for the newer and evolving threat vectors where their
data and applications are outside of the protected network. Providers, payment plans, insurers and
other related industries now allow patients unprecedented access to helpful, sophisticated health
information and digital tools. Patients have online access to their doctors, and immense social support is
also provided online. The fact is that the attack surfaces are many, and the movement to detect, protect
and defend in the health care industry, as shown by the small improvements in this survey, is still not
enough to keep up the pace. Investment in understanding the new threat landscape and designing
solutions to protect against these attacks, including leveraging newer tools for protecting data and
responding to new forms of attacks, become critical to staying ahead of attackers.
This institutional trust is key to solve
Rowe and Calnan 6 (Rosemary Rowe and Michael Calnan. Professor of Medical Sociology, School of
Social Policy, Sociology and Social Research at the University of Kent. “Trust Relations in Health Care- the
New Agenda.” 2006. http://eurpub.oxfordjournals.org/content/eurpub/16/1/4.full.pdf)//EMerz
Given that trust remains important, how can new forms of trust relations be developed and sustained? There
is considerable
evidence as to what factors encourage patient trust in clinicians: the clinician’s technical competence,
respect for patient views, information sharing, and their confidence in patient’s ability to manage their
illness.8 Patient participation per se does not necessarily result in higher trust, rather it is associated with value congruence regarding
participation, patient involvement produced higher trust where patients wanted to participate.9 In contrast, evidence as to what builds
institutional trust is sparse, with trust relations between providers and between providers and managers a particularly neglected area. Hall
et
al US survey of HMO members found that system trust could help the development of interpersonal
trust, where there was no prior knowledge of the clinician, but it is not known how interpersonal trust
affects institutional trust. Medical errors and cost containment are associated with distrust of health
care systems, whereas relationship building with the local community is regarded as an important trust
building mechanism. However, little research has been conducted to identify how different modes of governance affect institutional
trust. The focus of trust relationships may of course differ according to the model of health care delivery; in market based systems
such as the US patient trust may be more important to secure loyalty to particular providers whereas in
tax-financed systems which are organized by national or regional agencies public trust may be more necessary. However, as health
systems converge and increasingly share common challenges including: providing adequate patient choice; managing
a mixed economy of provision; and more explicit rationing, then both interpersonal and institutional trust
will continue to be important for all health systems. In conclusion, we would argue that clinicians and managers
need to address and respond to the changing nature of trust relations in health care. The benefits of trust
demonstrate the value to be Trust and the sociology of the professions 5 gained from ensuring that both interpersonal and institutional trust
are developed, sustained, and where necessary rebuilt. Trust is still fundamental to the clinician–patient relationship but as that relationship
has changed so has the nature of trust. Trust is now conditional and has to be negotiated but, whilst clinicians may have to earn patients’ trust,
there is good evidence as to what is required to build and sustain such interpersonal trust. The lack of knowledge about how institutional trust
can be developed indicates the need for research, ideally through inter-country comparisons to identify whether such trust varies by health
system and how it can be generated. The cost of failing to recognize the importance of trust and to address the changing nature of trust
relations could be substantial: economically, politically, and most important of all, in terms of health outcomes.
2NC Extensions
Government monitoring of healthcare quality ensures trust in patients
CQHCA ‘1 (Committee on the Quality of Health Care in America. “Crossing the Quality Chasm: A New
Health System for the 21st Century.” March 1, 2001.
http://www.ncbi.nlm.nih.gov/books/NBK222265/)//EMerz
Recommendation 2: All health care organizations, professional groups, and private and public purchasers should pursue six major aims;
specifically, health care should be safe, effective, patient-centered, timely, efficient, and equitable. The committee believes substantial
improvements in safety, effectiveness,
patient-centeredness, timeliness, efficiency, and equity are achievable
throughout the health care sector. This opportunity for improvement is not confined to any sector, form of payment, type of
organization, or clinical discipline. Problems in health care quality affect all Americans today, and all can benefit
from a rededication to improving quality, regardless of where they receive their care. The committee applauds the
Administration and Congress for their current efforts to establish a mechanism for tracking the quality of care. Title IX of the Public Health
Service Act (42 U.S.C. 299 et seq.; Agency for Healthcare Research and Quality Part A) provides support for the development of a National
Quality Report, which is currently ongoing. Section 913(a)(2) of the act states: “Beginning in fiscal year 2003, the Secretary, acting through the
Director, shall submit to Congress an annual report on national trends in the quality of health care provided to the American people.”
Recommendation 3:
Congress should continue to authorize and appropriate funds for, and the Department
of Health and Human Services should move forward expeditiously with the establishment of,
monitoring and tracking processes for use in evaluating the progress of the health system in pursuit of
the above-cited aims of safety, effectiveness, patient-centeredness, timeliness, efficiency, and equity.
The Secretary of the Department of Health and Human Services should report annually to Congress and
the President on the quality of care provided to the American people. Without ongoing tracking of quality
to assess the country's progress in meeting the aims set forth in this chapter, interested parties—including patients, health care
practitioners, policy makers, educators, and purchasers—cannot identify progress or understand where
improvement efforts are most needed. Continued funding for this activity should be ensured.
Health institutions use weak cloud services to transmit sensitive patient data
Filkins 14 (Barbara Filkins. Senior SANS Analyst and Healthcare Specialist. “New Threats
Drive Improved Practices: State of Cybersecurity in Health Care Organizations.” December 2014. P. 1011. https://www.sans.org/reading-room/whitepapers/analyst/threats-drive-improved-practices-statecybersecurity-health-care-organizations-35652)//EMerz
Health care organizations rely on cloud services for applications processing sensitive information,
including protected health care patient records as well as PCI-protected financial information.
Respondents plan to expand these services in the next 12 months. Open-ended responses by several
respondents reflect the bias against cloud services, most often prompted by concerns over loss of
control or oversight over sensitive data, but more than 60% are either using or planning to use the cloud
for multiple applications containing sensitive data, as shown in Figure 4. Mobile devices are also a
source of additional risk, according to respondents. Not surprisingly, 92% of respondent organizations
allow access to calendar and email via mobile devices. However, 52% also allow respondents to access
health record information from their mobile devices, and nearly as many access data from cloud-based
applications, through which they may be processing highly sensitive data, as discussed previously (see
Figure 5).
Secure cloud computing increases patient trust in health care institutions
CSCC 12 (Cloud Standards Customer Council. Advocacy group dedicated surrounding the transition to
the cloud. “Impact of Cloud Computing on Healthcare.” November 2012. P. 12. http://www.cloudcouncil.org/cscchealthcare110512.pdf)//EMerz
“Patient centricity” has become the key trend in healthcare provisioning and is leading to the steady
growth in adoption of electronic medical records (EMR), electronic health records (EHR), personal health
records (PHR), and technologies related to integrated care, patient safety, pointof-care access to
demographic and clinical information, and clinical decision support. Availability of data, irrespective of
the location of the patient and the clinician, has become the key to both patient satisfaction and
improved clinical outcomes. Cloud technologies can significantly facilitate this trend. Cloud computing
offers significant benefits to the healthcare sector: doctor’s clinics, hospitals, and health clinics require
quick access to computing and large storage facilities which are not provided in the traditional settings.
Moreover, healthcare data needs to be shared across various settings and geographies which further
burden the healthcare provider and the patient causing significant delay in treatment and loss of time.
Cloud caters to all these requirements thus providing the healthcare organizations an incredible
opportunity to improve services to their customers, the patients, to share information more easily
than ever before, and improve operational efficiency at the same time.
Doesn’t link to the net benefit- health businesses that use cloud computing still
adhere to status quo HIPAA procedures
CSCC 12 (Cloud Standards Customer Council. Advocacy group dedicated surrounding the transition to
the cloud. “Impact of Cloud Computing on Healthcare.” November 2012. P.7. http://www.cloudcouncil.org/cscchealthcare110512.pdf)//EMerz
In the United States, every healthcare entity (e.g., hospital, university research facility, physician’s office)
that deals with Protected Health Information (PHI) must adhere to the guidelines stipulated under the
Health Information Portability and Accountability Act (HIPAA). HIPAA is a U.S. Federal law that was
designed to protect patient privacy, and does so by mandating and enforcing strict privacy and security
rules over how medical information is collected, handled, used, disclosed and protected. While the
HIPAA Privacy rule pertains to patients’ privacy and rights for their personal health information, the
HIPAA Security rule, focuses on assuring the availability, confidentiality, and integrity, of electronic
protected health information through a series of administrative, physical and technical safeguards.
Under Title II of HIPAA, most of a patient’s medical record and payment history are considered PHI, and
is protected under the law. PHI may only be disclosed to other medical entities on a “need to know”
basis, only upon the permission of the individual patient and only the “minimum data fields required for
the purpose involved”. As a result, one of the challenges is “Patient Consent Management” and
managing PHI in a way that is sufficiently simple to enable use by the general public. The owner of the
data must require the cloud service provider (aka the “business associate”) to contractually agree to
maintain all PHI in adherence with HIPAA standards. The HIPAA Privacy rule defines a business associate
as “a person or entity that performs certain functions or activities that involve the use or disclosure of
protected health information on behalf of, or provides services to, a covered entity”. Covered entities
are institutions, organizations or persons who electronically transmit any health information in
connection with transactions for the United States Health and Human Services (HHS) adopted standards.
While ultimate responsibility for compliance always resides at the covered entity, the actual
implementation of certain operational and control aspects of securing the data occurs at the business
associate cloud provider.
***States CP***
1NC
Text: The 50 states and relevant US territories should apply strict scrutiny to public
health surveillance programs.
State privacy protections are extremely effective
Terry 14 (Nicolas P. Terry. “Big Data Proxies and Health Privacy Exceptionalism.” 2014. P. 19-21
https://www.ftc.gov/system/files/documents/public_comments/2014/01/00004-89091.pdf)//EMerz
Health privacy and HIPAA frequently are viewed as indistinguishable. However, health
privacy exceptionalism is not restricted
to federal law. In the decade and a half since the appearance of the HIPAA regulations and notwithstanding the Privacy Rule’s limitation
on preemption, state law regarding health privacy appears to have receded into the background. The Bush
Administration’s health information technology narrative included the characterization of divergent state laws as impeding EHR
implementation. 144 Furthermore, in the intervening years several states have normalized their laws with HIPAA. There are explicit
protections of privacy in a handful of State constitutions.146 And some state supreme courts have implied such a right147
that subsequently has been applied in cases involving medical information.148 Yet there is nothing that could be as described as exceptional. In
contrast, many state
legislatures embraced strong, exceptional health privacy models (particularly in the pre-HIPAA
state privacy statutes continue to escape preemption due to HIPAA’s “more
stringent” provision. Any generalized account fails to credit the resilience of health privacy
exceptionalism in some states. Of course, there should be little surprise that California has built on its enviable consumer protective
reputation with additional substantive and enforcement provisions. The state’s original Confidentiality of Medical Information
Act dates from 1981. It is notable for possessing a broader reach than HIPAA, applying, for example, to health data
custodians who are not health care providers.151 California passed one of the first health information breach
notification laws.152 More recently the state established the Office of Health Information Integrity to “ensure the enforcement of state
years). 149 Indeed many
law mandating the confidentiality of medical information and to impose administrative fines for the unauthorized use of medical
information”153 which requires: Every provider of health care shall establish and implement appropriate administrative, technical, and physical
safeguards to protect the privacy of a patient's medical information. Every provider of health care shall reasonably safeguard confidential
medical information from any unauthorized access or unlawful access, use, or disclosure. Perhaps more surprisingly Texas enacted
similarly broad protection for health information. In sharp contrast to the narrow HIPAA conception of a “covered entity,” the
Texas law applies to “any person who . . . engages . . . in the practice of assembling, collecting, analyzing,
using, evaluating, storing, or transmitting protected health information.” 155 Texas also requires “clear and
unambiguous permission” before using health information for marketing 156 and broadly prohibits the sale of an individual's protected health
information.157 As discussed above, HITECH (together with a change in administration) provided the enforcement focus that HIPAA had
lacked.158 However, the 2009 legislation did not alter the longstanding HIPAA position of not permitting private rights of action.159 Of course
a small number of states permit such actions under their health privacy statutes.160 However, almost all jurisdictions allow some species of the
breach of confidence action in such cases,161 and some even allow HIPAA in through the “back door” establishing a standard of care in
negligence per se cases.162 For example, Resnick v. AvMed, Inc., concerned two unencrypted laptops that were stolen from the defendant
managed care company. The compromised data concerned 1.2 million persons, some of whom subsequently became victims of identity theft.
Dealing with Florida law allegations of breach of contract, breach of implied contract, breach of the implied covenant of good faith and fair
dealing, and breach of fiduciary duty, the Eleventh Circuit addressed the question whether plaintiffs had alleged a sufficient nexus between the
data theft and the identity theft. The court concluded that the plaintiffs had “pled a cognizable injury and . . . sufficient facts to allow for a
plausible inference that AvMed’s failures in securing their data resulted in their identities being stolen. They have shown a sufficient nexus
between the data breach and the identity theft beyond allegations of time and sequence.”164
Overall there seems to be a
proliferation of data breach cases being filed in state courts. State privacy case law and legislation are
continually evolving both in and out of the health care space. However, there is reason to believe that
health privacy exceptionalism remains an accepted tenet among state courts and legislatures.
The states are sufficient
Jason Kreag (Visiting Assistant Professor, University of Arizona James E. Rogers College of Law) 2015
“GOING LOCAL: THE FRAGMENTATION OF GENETIC SURVEILLANCE”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583957
While a federal law would be most effective, there are other options to achieve some of the benefits of
the reforms outlined in Part III.C. For example, each state could be encouraged to adopt a model statute
that includes these reforms. The prospect of quick action by each state seems considerably less likely to
occur without the stick of being excluded from CODIS that could be a part of federal regulation.
However, Alaska, Vermont, and Washington have demonstrated that some states are capable of
regulating local databases. In addition, there are options aside from legislation. Existing regulatory
bodies could promote these reforms as best practices for local DNA databases. For example, the
recently created National Commission on Forensic Science (“NCFS”), a joint project of the Department of
Justice and the National Institute of Standards and Technology (“NIST”), describes part of its mission as
“reduc[ing] fragmentation and improve[ing] federal coordination of forensic science.”323 Similarly,
NIST’s newly-formed Organization of Scientific Area Committees (“OSACs”) represents another potential
source for external regulation.324 Whereas the NCSF will outline broad policies, the OSACs are designed
to adopt specific “standards and guidelines” for each forensic discipline.325 These organizations, which
include national leaders from law enforcement, practice, and academia, are limited to adopting nonbinding recommendations. However, even recommended procedures could be powerful forces to alter
current practices. Finally, while this Article argues that external regulation is optimal and necessary,326
it is at least possible that the early adopters of local databases could organize a working group to
develop uniform standards. Director Harran of Bensalem has considered holding a meeting with the
agencies that use local databases to explore the adoption of standard procedures.327 A working group
offers at least three potential incremental benefits. First, simply starting the dialogue would force some
agencies to articulate their practices and procedures. Second, a discussion about what regulations are
needed could encourage law enforcement to consider some of the external costs of local databases.
Finally, even if the working group did not possess the power to adopt binding regulations, it is possible
that some agencies—motivated by the self-interested desire to continue using their own local
databases—could pressure others to act more cautiously so as not to generate interest from external
regulators. CONCLUSION Given the pressure on police to solve crimes and reduce criminal activity, it is
not surprising that law enforcement aggressively adapts surveillance technology to its benefit. Such
actions are often commendable and encouraged. Indeed, the very manner in which law enforcement
agencies measure their absolute and comparative success—through crime rates and clearance rates—
incentivizes local agencies to push the boundaries of crimesolving tools. Early adopters of local
databases are doing just that, trying to maximize the ability of forensic DNA analysis to fight and deter
crime. Palm Bay, Bensalem, and others have shown that local databases offer great promise when
measured on that scale. But a narrow focus on crime rates and clearance rates is not the only relevant
metric when allocating policing resources in general, and public surveillance in particular. Rather,
policing has the potential to generate positive and negative externalities unrelated to crime rates and
clearance rates, and these externalities are often difficult to measure reliably. Furthermore, there is
little incentive for law enforcement to identify or measure these externalities, particularly negative
ones. This Article is the first attempt to identify the full implications of local databases. While it is
beyond its scope to measure these externalities, identifying their existence and recognizing law
enforcement’s failure to consider them calls for some level of external regulation of local databases.
Because the empirical work needed to measure the external costs of local databases has not been
developed, the reforms proposed in this Article are modest. It is possible, although, in the opinion of the
author, unlikely that the external costs of local databases will outweigh their benefits. If that proves
true, states should follow Vermont’s lead and ban local databases. More than likely, the result of a fullscale empirical study of local databases will call for something in the middle, rejecting the total
prohibition in Vermont and rejecting the current landscape, where local agencies are free to develop
and use local databases without external regulation.
Solvency – Flexibility
States solve better
Duffy et al 11(Effective State-Based Surveillance for Multidrug-Resistant Organisms Related to Health
Care-Associated Infections,Jonathan Duffy, MD, MPH,a,b Dawn Sievert, PhD, MS,a Catherine Rebmann,
MPH,a Marion Kainer, MD, MPH,c,d Ruth Lynfield, MD,c,e Perry Smith, MD,c,f and Scott Fridkin, MDa
Division of Healthcare Quality Promotion, Centers for Disease Control and Prevention, Epidemic
Intelligence Service, Centers for Disease Control and Prevention, Atlanta, GA 2011 Mar-Apr;
http://www-ncbi-nlm-nih-gov.proxy.lib.umich.edu/pmc/articles/PMC3056030/?tool=pmcentrez)
A primary aim of public health surveillance is to direct prevention and control activities and monitor
their effectiveness. Collection of surveillance data by itself does not control disease or constitute public
health action. As public health agencies operate with finite resources, implementation of surveillance
tools should occur in conjunction with a plan to interpret and act on the data collected. Resources
should be devoted to MDRO surveillance activities only when resources are also available for specific
MDRO infection- or transmission-prevention activities or to build capacity to respond with public health
action to the MDRO surveillance data. Moreover, integrating input from local partners and key opinion
leaders in infection control and prevention to ensure that any surveillance and response strategy is
consistent with regional priorities or concerns is critical. A state is more likely to develop a
surveillance system that meets its particular needs and functions well within the constraints of its
available resources if the state health department takes an active role in deciding what MDRO
surveillance activities are appropriate for its circumstances. Surveillance activities developed in
response to mandates created without health department input could lack these characteristics.
Solvency - Speed
Stats solve – quicker public health responses
Galva et al 5 (Jorge, JD MHA, Christopher Atchison, MPA, Samuel Levy, PhD SM, analysts for Public Health Reports, “Public Health
Strategy and the Police Powers of the State” http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2569983/ 2005 JM)
The preparedness of the U.S. public health system to respond to acts of terrorism has received a great
deal of attention since September 11, 2001, and especially subsequent to the anthrax attacks later that
year. The use of biologic agents as a weapon has served as a catalyst to better aligning public safety and
health strategies through public health law reforms. Associated with this work is the renewal of the
debate over the most appropriate means to both protect the public and asssure the rights of individuals
when implementing readiness strategies. A key element of the debate focuses on what is a reasonable
application of state-based police powers to ensure community public health standards. The doctrine of
state “police power” was adopted in early colonial America from firmly established English common law
principles mandating the limitation of private rights when needed for the preservation of the common
good. It was one of the powers reserved by the states with the adoption of the federal Constitution and
was limited only by the Constitution's Supremacy Clause—which mandates preeminence of federal law
in matters delegated to the federal government—and the individual rights protected in the subsequent
Amendments.1,2 The application of police power has traditionally implied a capacity to (1) promote the
public health, morals, or safety, and the general well-being of the community; (2) enact and enforce
laws for the promotion of the general welfare; (3) regulate private rights in the public interest; and (4)
extend measures to all great public needs.3 The application of “police powers” is not synonymous with
criminal enforcement procedures; rather, this authority establishes the means by which communities
may enforce civil self-protection rules. More specifically, public health police power allows the states to
pass and enforce isolation and quarantine, health, and inspection laws to interrupt or prevent the
spread of disease. Historically, the exercise of public health police power was enforced with strong
support of the courts and restraint of police power occurred only when there was open disregard for
individual rights. The abilities of states to exercise their police powers has been constrained since the
1960s by the legal and social reexamination of the balance of power between the individual, the states,
and the federal government, which affects contemporary efforts to reform public health law in the face
of terrorism. Given the development of the criminally based threats to health marked by bioterrorism,
the relatively recent emphasis on the personal rights side of the equation should be reassessed.4 A
reexamination of the legal, ideological, and social limits of police power is appropriate since increased
state capacity can be crucial for first responses to terrorist threats or actions. Effective first responses
may be hampered in the absence of pragmatically designed realignments of the state-individual
relationship and the redesign of state public health infrastructures.5 This article begins with an historical
overview of the doctrine of state police power, addresses recent limitations imposed on the
implementation of public health police powers, then uses the example of the imposition of quarantine
orders to illustrate the state's capability to impose such orders in exercise of its police power. Finally, it
suggests changes in state public health agency governance, focus, and regulation to rebalance public
and private interests.
Solvency – General
States solve best—have a balance of privacy and effectiveness
Galva et al 5 (Jorge, JD MHA, Christopher Atchison, MPA, Samuel Levy, PhD SM, analysts for Public Health Reports, “Public Health
Strategy and the Police Powers of the State” http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2569983/ 2005 JM)
Population-based measures in response to increased public health threats assume diverse forms. These
are essentially clustered in two distinct groups: prevention (detection, data-basing, and tracking), and
remediation (containment of actual damage). Preventive measures entail mechanisms to control and
track the movement of persons and things. This type of activity may involve the enactment and
enforcement of unsympathetic laws and regulations affecting real or perceived spheres of rights.
Effective enforcement will depend on the public health authorities' ability to safely overcome resistance
to these measures. The control of the flow of information may also result in restrictions to the access
and publication of public health information. Remediation demands even greater degrees of control
over persons and property. Remediation measures could include: (1) quarantine and involuntary holds
when and where necessary for an indefinite period limited only by the cessation of the state of
emergency; (2) suspension of habeas corpus in case of quarantine with very limited post-detention
remedies for the individuals affected; and (3) property rights (establishment of “public interest
easements” on private property in anticipation of an emergency and deputization/commandeering
private-sector resources for public use during an emergency). Remediation measures must be rapidly
implemented in the event of biological attack or new infectious disease.65 Significant normative
measures in this respect have been proposed at both the federal and state levels.66 The Model State
Emergency Health Powers Act (MSEHPA) illustrates this effort. The MSEHPA contains projected
measures based on potential terrorist threats and proposed preventive and remedial measures as well
as a detailed description of the protection of individual and business rights during an emergency.67
The State Emergency Powers Act's purpose is to create a unified response system whereby the states
put into effect standardized measures.68 The driving principle behind this uniform legislation is twofold:
on the one hand, standardization and modernization of obsolete or inapplicable state laws regulating
public health responses, and on the other, creation of balance between states' ability to control
individual activity and constitutional rights.4 The goals of the MSEHPA are, inarguably, meritorious.69
Nevertheless, there are valid concerns regarding the effects of the attempted balance of public and
private interests on the states' ability to carry out an effective public health response. There is
foundation for these concerns. The MSEHPA's balancing act may sidestep the needed mechanics of
infectious disease control by unduly incorporating post-Warren Court legal restraints—pre-intervention
notices, hearings, heightened burden of proof, and access to witnesses—into the law.70 The MSEHPA
fails to restore the historic deference to public health activities or enhance the crucial scientific and
administrative underpinnings of public health enforcement actions. Stringent preventive and remedial
public health measures are necessary to face contagion. The recent experience with quarantine
measures as the principal method used against SARS validates this conclusion.44 Taiwan successfully
implemented a broad quarantine program: 131,132 persons were placed under strict quarantine orders
that required them to stay where they were quarantined, submit to periodic temperature checks, and
sharply restrict transportation or visits to public places. These measures were needed because of the
unknown transmissibility of SARS; they are associated with the rapid control of the epidemic in that
country.71 Although the Canadian government attempted to use voluntary isolation, ultimately orders
were issued for mandatory quarantine when the use of voluntary isolation became difficult.72 The
Canadian government's response was later characterized as deficient, while the limited spread of SARS
in Canada has been attributed to chance.73 It is hard to envision the application of the MSEHPA in a
manner congruent with stringent quarantine measures. The procedural guarantees in the MSEHPA may
well be impossible to implement due to the risk of exposing judges, witnesses, and the public to possible
contagion. In addition, the judiciary and public authorities are not prepared to implement quarantine
orders due to lack of familiarity with public health doctrines or logistical shortcomings.74,75 The effects
of one successful injunction resulting from these shortcomings—very likely under the MSEHPA—
allowing, for example, a single SARS super-spreader to avoid quarantine, could be devastating.76 A
perfect balance between private and public rights in the face of a highly infectious disease may not be
attainable, or even desirable. Emergency activities will be effective if the states' exercise of public
health police power is strengthened by good scientific practices and rigorous application of justified
means of control. Expiration of any extraordinary powers once the emergency is controlled remains an
obligatory feature unless there is reauthorization on the basis of solid scientific evidence. The ultimate
goal of public health law should be the reinforcement of public health on the basis of historic principles
of police power allowing broad but temporary administrative activities that are needed to face an
impending emergency when the situation warrants.77 This necessitates a return to the traditional
historic bases of public health police power. Recommended steps in this direction should include: (1)
reinforcing the administrative capability for the issuance of robustly evidence-based public health orders
properly issued under authority of law; (2) removing all judicial pre-intervention review measures of
such orders while limiting review of public health orders to the post-execution phase; (3) subjecting all
public health orders to automatic expiration terms and making renewal of the orders contingent on the
same robust degree of evidence allowing the original order.
The issue of health information is the jurisdiction for the state
O’connor et al 11(Informational Privacy, Public Health, and State Laws, 2011 October Jean O'Connor,
JD, DrPHcorresponding author and Gene Matthews, JD with the Centers for Disease Control and
Prevention, Atlanta, GA. Gene Matthews is with the North Carolina Institute of Public Health, Chapel
Hill. http://www-ncbi-nlm-nih-gov.proxy.lib.umich.edu/pmc/articles/PMC3222345/?tool=pmcentrez)
The US Constitution does not impart a broad right to the privacy of individual health information.7 At
the federal level, statutes place boundaries around the collection, use, and disclosure of certain types of
health-related information. These statutes include the Freedom of Information Act,8 the Privacy Act of
1974,9 the Department of Health and Human Services (HHS) Human Subject Protection Regulations,10
the E-Government Act of 2002, 11 the Family Educational Rights and Privacy Act,12 the Federal Drug
and Alcohol Confidentiality provisions,13 and the Genetic Information Nondiscrimination Act.14 These
statutes restrict the use of information for different purposes. For example, the HHS Human Subjects
Protection Regulations focus on protecting information in the research context. However, the most
frequently cited law in discussions of the privacy of public health information is the Health Insurance
Portability and Accountability Act (HIPAA) and its associated regulations. The HIPAA Privacy Rule
protects most health records from disclosure but permits health care providers to make disclosures to
public health officials and for certain other purposes.15 The rule does not protect information possessed
by public health officials from disclosure, except in limited circumstances. HIPAA also does not preempt
state laws on the use or disclosure of data by public health authorities.16∂ Because there is no national
standard for safeguarding all data held by public health agencies, state laws remain central to
discussions of the privacy, confidentiality, security, use, and disclosure of information within the public
health system.17 These state laws have been reported to be fragmented and antiquated, and to “fail to
effectively balance competing individual interests in privacy with the need to share public health data
and information for the common good.”18(p1389)∂ For more than a decade, both public health
advocates and privacy advocates have responded to this need by calling for clearer protections for state
public health information and developing model state policies.17,19,20 To disseminate ideas to update
state public health privacy laws, Gostin et al. developed the Model State Health Privacy Act (MSHPA), a
model statute for states to use as a guide in developing new laws, in 1999.18 The MSHPA contains
detailed language about the appropriate acquisition and use of public health information, terms for
when it is appropriate for state health departments to disclose that information, and penalties for
noncompliance. After the events in the fall of 2001, the Model State Emergency Health Powers Act
(MSEHPA) was drafted to promote the adoption of state public health emergency statutes that
contained, among other things, language related to the disclosure of public health information.21
Despite these efforts, anecdotal information suggests that few states have adopted public health privacy
and disclosure provisions recommended in the MSHPA and MSEHPA.∂ To address the lack of adoption
of provisions by states and the continuing development of new approaches to data exchange, Lee and
Gostin recently recommended a set of national principles for protecting public health data.17 The
principles included discussion of use of data for legitimate public health purposes, collection or use of
the minimum information necessary, data use agreements and security measures, and stewardship and
trust. The need to develop a common approach to the use and disclosure of public health information
has also been recognized as more than solely a domestic problem; various professional organizations
(e.g., the International Epidemiological Association22) have developed guidelines for the use of data by
their members, and an international collaborative is seeking to develop a collective code of conduct for
the use of public health data.23 An analysis of current public health privacy laws can inform these
efforts. The success of a national or international set of principles for the use and disclosure of
personally identifiable health information under the control of the public health system depends, in
part, on acknowledging the specific political and historical factors that have resulted in existing laws. In
the United States, understanding current state laws may assist in identifying approaches to bridging the
gap between the reality that state and local public health agencies face and ideal policies, frameworks,
or practices for the use and disclosure of public health information. Identifying approaches and patterns
in existing state laws is also an essential first step in further analyses of what laws are effective.
States solve best – only way to avoid circumvention
Pritts 13 (Joy L. Pritts JD is a lawyer who practices in Washington DC and earned her degree at Georgetown Univeristy. “Altered States:
State Health Privacy Laws and the Impact of the Federal Health Privacy Rule”
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1047&context=yjhple)///CW
States have traditionally been the primary regulators of health care¶ information. While the promulgation of the Federal
Health Privacy Rule¶ changes the regulatory landscape, it need not supplant the importance of¶ state health privacy laws. In
fact, states have often become more active after¶ the enactment of federal privacy laws, enacting statutes that either mirror ¶ or build upon the federal protections. This approach, endorsed by the¶ Privacy
Protection Study Commission in the 1970s, ensures that the states¶ will be able to enforce the law and protect their citizens.8 4
Because the¶ Federal Health Privacy Rule does not preempt current or future stronger¶ state health privacy
laws, the states have ample opportunity to fill the gaps¶ and strengthen the weaknesses of the federal
regulation.¶ States therefore should not rely solely on the Federal Health Privacy¶ Rule to protect the privacy rights of their
citizens. Rather, states should¶ take advantage of the need to evaluate their health privacy laws in light of¶ the Federal Health Privacy Rule and take appropriate action.¶ States with little statutory protection of health
information in place¶ may want to use Federal Health Privacy Rule as a roadmap for enacting ¶ comprehensive state health privacy laws. At a bare minimum, states can¶ mirror the federal protections, thereby allowing
to afford truly comprehensive protection, states¶ should directly regulate not
only the entities governed by the Federal¶ Health Privacy Rule, but also the other major generators and holders of¶
health information (such as employers and life insurers). Additionally,¶ states should directly regulate the recipients of health
information from¶ these core record keepers. Furthermore, states should strengthen some of¶ the weak
provisions of the Federal Health Privacy Rule, such as the use of¶ health information for marketing purposes.¶ States with fairly well
enforcement to occur at¶ the state level. However,
developed health privacy rules should also reevaluate¶ their laws in light of the Federal Health Privacy Rule. Some state¶ and federal rules may accomplish the same goals through slightly different ¶ requirements (e.g., different
content requirements for a notice advising¶ the patient of information practices). In this situation, a state may want to¶ harmonize its provisions with the Federal Rule in order to avoid confusion¶ and to afford some degree of
uniformity between states.
States should also¶ use this as an opportunity to fill in gaps in state law that may exist (such as¶ having statutory access rights to hospital records
but not doctor's records).
CP solves – more stringent state laws take precedence over federal regs
Holloway 3 (Jennifer Daw Holloway is a communications manager at Ipas, an organization dedicated to safe abortions. “What takes
precedence: HIPAA or state law?” January 03, http://www.apa.org/monitor/jan03/hipaa.aspx)///CW
With the Health Insurance Portability and Accountability Act (HIPAA) privacy rule compliance date--April 14--fast approaching, psychologists
must explore how the new federal rules interact with their current state laws.¶ HIPAA's
privacy rule governs how health-care
providers handle the use or disclosure of protected health information (PHI). In effect, PHI is defined as individually
identifiable health information relating to the condition of a patient, the provision of health care or payment for care. All states already
have privacy laws that apply to such information. Areas such as patient consent, access to records and subpoena rights, to
name a few, are included under HIPAA as well as state laws.¶ So, will HIPAA's rules preempt state laws?¶ "The general standard is
that if a state law is more protective of the patient, then it takes precedence over HIPAA," says Doug
Walter, legislative and regulatory counsel in APA's Practice Directorate.¶ Conversely, if a state law is less stringent than HIPAA,
then HIPAA takes over, he says.¶ The following examples illustrate the interplay between state laws and HIPAA and how that will affect
psychologists:¶ Consent for payment, treatment and health-care operations. Dr. Smith, a psychologist in Utah, has scheduled a new patient.
When the patient comes for her general appointment, Dr. Smith's office must be sure she signs a consent form for the disclosure of her records.
Utah law requires that psychologists obtain signed consent, while the HIPAA privacy rule does not
require consent. So, Utah law applies instead of HIPAA in this case because the state law gives patients greater privacy protection.
Other states may have similar laws that would take precedence over HIPAA. Patient access to psychotherapy notes. Under HIPAA, patients are
granted access to their records, with the exception of "psychotherapy notes," better known as what psychologists traditionally call "process
notes." But in some states, such as Vermont, patients can access their psychotherapy notes under state law. So, when a patient of Vermont
practitioner Dr. Jones asks to see his notes, Dr. Jones must permit the patient to see the notes. Because
Vermont law provides
greater rights from the patient's standpoint for the patient to access his or her psychotherapy notes, it takes
precedence over the HIPAA requirements. Again, several other states may have such protective laws. Subpoena of patient
records. Dr. Milton, a psychologist in New Hampshire, receives a subpoena requesting one of his patient's records. Attached to the subpoena is
a notice from the requesting party's attorney stating that her office has made diligent but unsuccessful efforts to reach the patient to serve
notice that his records are being requested. This is an adequate attempt to notify the patient under HIPAA and, therefore, the psychologist
would not be barred from producing the patient's records if HIPAA took precedence. However, under New Hampshire law, psychologists are
precluded from producing their patients' records for a third party absent a court order or patient consent. New Hampshire law is more
protective than HIPAA with respect to records subpoena. Therefore, state law preempts HIPAA in this case.¶ There
are myriad
examples--aside from the three above--of how state laws may take precedence over HIPAA. The simple rule
of thumb is that any provision--in state laws or HIPAA--that gives greater protection to patients' privacy or right to access their own health
information takes precedence. The HIPAA privacy rule "won't
impair the effectiveness of state laws that are more
protective of privacy," says Russ Newman, PhD, JD, APA's executive director for practice. And, he notes, in states where protective laws
haven't been enacted, HIPAA will not prevent states from enacting laws that provide greater patient privacy protection.¶ HIPAA assumes that
practitioners know the ins and outs of their state laws, but figuring out which law will take precedence involves a complicated analysis of state
statutes, regulations and common law decisions.¶ The APA Practice Organization and the APA Insurance Trust are developing comprehensive
resources for psychologists that will facilitate compliance with the HIPAA privacy rule. Along with several offerings, a new product, "HIPAA for
Psychologists"--which will include the necessary state-specific forms that comply with both the HIPAA privacy rule and relevant state law--will
be available for purchase online at the Practice Organization's new practitioner portal.¶
Health Data is important for state use
O’connor et al 11(Informational Privacy, Public Health, and State Laws, 2011 October Jean O'Connor,
JD, DrPHcorresponding author and Gene Matthews, JD with the Centers for Disease Control and
Prevention, Atlanta, GA. Gene Matthews is with the North Carolina Institute of Public Health, Chapel
Hill. http://www-ncbi-nlm-nih-gov.proxy.lib.umich.edu/pmc/articles/PMC3222345/?tool=pmcentrez)
Developments in information technology that make it possible to rapidly transmit health information
also raise questions about the possible inappropriate use and protection of identifiable (or potentially
identifiable) personal health information.∂ Despite efforts to improve state laws, adoption of provisions
has lagged. We found that half of states have no statutes addressing nondisclosure of personally
identifiable health information generally held by public health agencies. Exceptional treatment of HIV,
sexually transmitted infections, or tuberculosis-related information was common. Where other
provisions were found, there was little consistency in the laws across states.∂ The variation in state laws
supports the need to build consensus on the appropriate use and disclosure of public health information
among public health practitioners.∂ Surveillance, epidemiological, and laboratory data are essential to
the practice of public health, particularly at the state and local level.1 Public health practitioners within
government agencies use data to identify new cases of disease and to make decisions about when to
apply public health interventions. The exchange of information between health officials in different
jurisdictions has been demonstrated to be essential to managing outbreaks of well-understood diseases,
such as measles, and identifying and responding to new and emerging threats, such as severe acute
respiratory syndrome and pandemic influenza A (H1N1). However, the very developments in
information technology and health care policy that make it increasingly possible to rapidly transmit
health information, such as electronic medical records and health information exchanges, continue to
raise questions about the possible inappropriate use and lack of protection of personally identifiable
health information.2–4∂ In highly charged situations, such as the recent influenza A (H1N1) pandemic,
variations in state laws and incomplete understanding among jurisdictions can easily lead to inconsistent
public health disclosure practices, resulting in media questions about the integrity of information access
policies.5,6 Clearly, consideration should now be given to a more cohesive approach to public health
information sharing.
State prohibition of re-identification of patient information is crucial in preventing
widespread sharing of personal patient files
Terry 14 (Nicolas P. Terry. “Big Data Proxies and Health Privacy Exceptionalism.” 2014. P. 16-19
https://www.ftc.gov/system/files/documents/public_comments/2014/01/00004-89091.pdf)//EMerz
There has always been something lopsided about the HIPAA regulatory model. Rather than
concentrating on securing health data, most of the Privacy Rule provisions detail wide-ranging
exceptions (public health, judicial and regulatory) to data protection or outline the process by which
patients can consent to disclosure. Just recently, for example, a pharmacy chain made the headlines by
conditioning its loyalty rewards program on a broad HIPAA authorization.86 It is no surprise, therefore,
to learn that there has been leakage of health data through the very system set up to protect it. Such
leakage has been exacerbated by the mission creep exhibited by the recipients of data under HIPAA,
particularly public health agencies. As Wendy Mariner notes: Today, almost everyone, regardless of
station, could be subject to public health surveillance. The scope of public health surveillance has
grown significantly beyond its contagious disease origins. . . . [A] new generation of reporting laws
reflects a goal of many people in public health: to collect data about chronic diseases outside the
context of a research study and without the need to obtain any individual patient's informed consent. . .
. Do they offer the promise of medical advances, or the threat of “general searches, which the authors
of the Bill of Rights were so concerned to protect against?”87 For example, a 2013 report from the
Citizens’ Council for Health Freedom alleges broad state health surveillance based on individual and
often identifiable records.88 However, public health authorities are not only voraciously consuming
patient data but also abetting the acquisition of the same by big data companies. Researchers at
Harvard’s Data Privacy Lab have found that thirty-three states re-release patient hospital discharge data
that they have acquired as HIPAA-permitted recipients of patient data. 89 Generally states release this
data (that is no longer in the HIPAA protected zone) in somewhat de-identified or anonymized form but
with little restriction on future use of the data. The naïve thought that such data was only being released
to academic researchers was upended by the Data Privacy Lab’s discovery that many of the major
buyers of such state health databases were big data companies.90 Most states only charge small fees
that are not a major source of revenue for them, and many are oblivious to this practice.91 The obvious
solution is for the state public health agencies to contractually prohibit re-identification. For example,
the National Practitioner Data Bank (NPDB) collects information about physician malpractice awards,
adverse licensure reports and Medicare/Medicaid exclusions. Although it is not a public resource the
NPDB does release de-identified data. Following a re-identification episode NPDB now contains a
prohibition on re-identification, specifically against using its “dataset alone or in combination with other
data to identify any individual or entity or otherwise link information from this file with information in
another dataset in a manner that includes the identity of an individual or entity.” Clearly, state health
departments and any similarly placed recipients of HIPAA data should require similar restrictions.
Indeed, the proposed FTC privacy framework would mandate such: . . . [I]f a company makes such deidentified data available to other companies – whether service providers or other third parties – it
should contractually prohibit such entities from attempting to re-identify the data. The company that
transfers or otherwise makes the data available should exercise reasonable oversight to monitor
compliance with these contractual provisions and take appropriate steps to address contractual
violations.”95 Until such prohibitions are instituted HIPAA’s public health exception unpardonably will
continue to facilitate the “laundering” of protected patient data as it is transferred from a data
protected domain to unprotected space.
***Disad Links***
Politics – Link
Congress has no interest in changing health surveillance standards
Evans 13 (Barbara J. Evans. Professor of Law; Co-director, Health Law & Policy Institute; Director,
Center on Biotechnology & Law, University of Houston Law Center, Yale Law School; M.S., Ph.D. Stanford
University; Post-doctoral Fellow, The University of Texas M.D. Anderson Cancer Center. “Institutional
Competence to Balance Privacy and Competing Values: The Forgotten Third Prong of HIPAA Preemption
Analysis.” P.1189-1190. http://lawreview.law.ucdavis.edu/issues/46/4/Articles/46-4_Evans.pdf)//EMerz
The problem, however, is that Congress appears to lack this desire. An excellent opportunity to address
this problem came and went when Congress introduced major amendments to the HIPAA statute in the
2009 Health Information Technology for Economic and Clinical Health (“HITECH”) Act.74 Congress
declined to expand HIPAA’s preemption of state privacy law. Pragmatism counsels that HIPAA’s
preemption provisions are not likely to change. Those who favor a more uniform legal framework to
support large, interoperable public health data networks and public health uses of data must find a way
to achieve these goals within the existing preemption framework. To paraphrase Donald Rumsfeld, “You
go to war with the [HIPAA preemption provisions] you have, not the [provisions] you might want or wish
to have at a later time.”75 Accordingly, this Article takes a fresh look at HIPAA’s existing preemption
provisions to check for tactical opportunities that earlier scouts may have overlooked.
Privacy rulings are extremely unpopular and take up the entire floor- HIPAA empirics
proves
Evans 13 (Barbara J. Evans. Professor of Law; Co-director, Health Law & Policy Institute; Director,
Center on Biotechnology & Law, University of Houston Law Center, Yale Law School; M.S., Ph.D. Stanford
University; Post-doctoral Fellow, The University of Texas M.D. Anderson Cancer Center. “Institutional
Competence to Balance Privacy and Competing Values: The Forgotten Third Prong of HIPAA Preemption
Analysis.” P. 1212-1213. http://lawreview.law.ucdavis.edu/issues/46/4/Articles/46-4_Evans.pdf)//EMerz
The HIPAA Privacy Rule had a famously contentious rulemaking history. The proposed regulation drew
more than 52,000 public comments and the final rule of December 2000 subsequently was reopened for
a second round of comments and amendments. Consensus was hard to achieve and, in fact, was not
fully achieved. The Privacy Rule continues to be disliked by all sides. For example, it is simultaneously
criticized for allowing too much and not enough access to data and biospecimens. Modestly positioning
the Privacy Rule as a floor of privacy protections may have had a calming effect during the fractious
rulemaking process. By its own terms, the Privacy Rule is merely a floor, and that was all that needed to
be discussed during the rulemaking. The Privacy Rule only becomes a ceiling in one narrow context —
public health uses of data and biospecimens — and then only when read in conjunction with the HIPAA
statute. The rulemaking carefully set the stronger statutory preemption provision at 42 U.S.C. § 1320d7(b) to one side and avoided making it a topic of rulemaking discussions.
No political constituency for the plan – politicians will defer to law enforcement
Jason Kreag (Visiting Assistant Professor, University of Arizona James E. Rogers College of Law) 2015
“GOING LOCAL: THE FRAGMENTATION OF GENETIC SURVEILLANCE”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583957
The lack of legislative interest in regulating local DNA databases is not surprising.287 Absent a public
outcry, there is normally little political upside for politicians to initiate legislation to curb police use of a
tool that law enforcement has identified as effective.288 And the possibility of a public outcry resulting
from surveillance techniques like local databases, which disproportionately impact people with
comparatively little socioeconomic standing and political power, seems unlikely because “citizens tend
not to see themselves as the subjects of future police investigations.”289 Furthermore, even if policy
makers would be interested in regulating a particular surveillance method, they are often not notified of
new techniques in advance, leaving the new methods to gain a foothold absent external oversight.290
The debate over the plan get dragged into the ObamaCare debate
Katherine Gasztonyi (associate in the firm’s Washington, DC office and a member of the Privacy &
Data Security and Intellectual Property Rights practice groups) 2014 “House Republicans Signal Push for
Data Breach Legislation” http://www.insideprivacy.com/united-states/congress/house-republicanssignal-push-for-data-breach-legislation/
In the wake of the recent Target Corp. credit card data breach, Congress is once again turning its
attention to data breach legislation. In a memorandum to Republican lawmakers on January 2, House
Majority Leader Eric Cantor (R-Va.) stated that he intends to schedule legislation on security and breach
notification requirements for federally facilitated healthcare exchanges when Congress resumes session
next week. Democratic leaders characterized the news as yet another effort by Republican lawmakers
to undermine the Affordable Care Act rather than a serious effort to deal with data security issues.
***Case***
1NC Link Turn
Despite privacy concerns - substantial numbers of patients are still engaging the
medical system now
Erin McCann (Managing Editor of Healthcare IT News) November 2014 “Trust issues over health
privacy persist” http://www.healthcareitnews.com/news/trust-issues-over-health-privacy-persist
Healthcare industry, listen up: You've got a consumer distrust issue on your hands. The majority of
American consumers continue to have serious doubts over the privacy and security of their medical
records – so much so that a sizable number of them actually withheld information from care providers
over those concerns. This according to a new Office of the National Coordinator for Health IT survey,
which took a pulse of consumer perceptions toward healthcare privacy and security. The numbers are
telling. After surveying more than 2,000 consumers, ONC officials found that about three-quarters of
them were either very or somewhat concerned over the privacy and security of their medical records.
What's more, 10 percent of respondents withheld information from their healthcare provider who used
an electronic health record. (This compared to the 6 percent who withheld data from providers who
used paper medical records.) The differences between the two were not statistically different, ONC
pointed out. The lion's share of Americans are also not keen on their medical records being sent
electronically or through fax, with about 60 percent of consumers indicating concern over unauthorized
access of their medical records when they're sent in these two forms. These numbers appear to align
with a similar study conducted by Harvard researchers just last year. The study, which assessed the
privacy perceptions of U.S. adults, found similarly that more than 12 percent of the 1,500 respondents
withheld information from care providers over medical security concerns. Findings supported "the need
for enhanced and sustained measures to ensure the confidentiality, integrity and availability of PHI,"
Harvard School of Public Health researchers wrote in the study. Despite all these concerns, as ONC
officials highlighted in Tuesday's HIT Policy Committee meeting, most respondents still "wanted
healthcare providers to use an EHR despite any potential privacy and security concerns," with some 76
percent indicating this. "In spite of the fact that a majority of Americans expressed concerns regarding
the privacy and security of both their medical records and with sharing of their medical records, support
for EHRs and electronic health information exchange remained consistently strong," said Vaishali Patel,
senior advisor at the Office of the National Coordinator for Health IT.
Restrictions on health surveillance destroys medical research and disease prevention –
anonymization and consent are too burdensome – turns the entire aff
Chris Verity et al. (Child Development Centre, Addenbrooke's Hospital, past chairman, British
Paediatric Surveilance Unit Executive Committee, Agnus Nicoll, PHLS Communicable Disease Surveillance
Centre, and Donal Manning, Child Development Centre, Addenbrooke's Hospital) 2002 “Consent,
confidentiality, and the threat to public health surveillance / Commentary” British Medical Journal,
International edition324.7347 (May 18, 2002): 1210-3
Why is surveillance important? Since the 1980s the public has become increasingly concerned about
health protection against real and perceived hazards, including HIV, bovine spongiform
encephalopathy/variant Creutzfeldt-Jakob disease, food poisoning, possible adverse effects of medicines
and vaccines, etc.16 People expect that health surveillance will be undertaken efficiently and effectively.
When outbreaks of infectious disease occur, local public health doctors, regional epidemiologists, or,
centrally, the Communicable Disease Surveillance Centre, mount rapid investigations to enable them to
provide protective measures, identify hazards, and reduce the risk of further infections and disease. Is
surveillance acceptable? When the rationale for surveillance is explained to colleagues in primary care
and in hospitals, they are almost always cooperative, as are affected patients and healthy "controls,"
sometimes providing personal information over the phone. Similarly, feedback from parents of children
with rare but important disorders indicates that they support surveillance and would not welcome
changes that threaten its completeness or accuracy. No major effort, however, has been made to
explain surveillance mechanisms or their importance to the public. Threats to health surveillance The
present arrangements for health surveillance are threatened by the proposal that either explicit consent
should be sought from patients for use of their personal data, or data must be completely anonymised.
Obtaining explicit consent before sharing identifiable patient data Simple but unrealistic suggestions
have been made to solve the complex problems surrounding surveillance, consent, and confidentiality
One is that consent for reporting can readily be obtained from patients or parents. Almost all reporting
and referral of clinical specimens relies on the cooperation of busy people such as clinicians and
microbiologists who are providing patient care with growing workloads in an increasingly bureaucratic
environment For example, over 90% of paediatricians return the British Paediatric Surveillance Unit's
monthly surveillance card, but the data the card requests are purposely kept to a minimum in order to
sustain good response rates.17 It is our considered opinion, and that of our colleagues, that if explicit
consent for sharing data had to be obtained the completeness and timeliness of reporting would be
dangerously disrupted. Obtaining explicit consent would be most difficult for single consultations-for
example for an acute infectionwhen the need for a report is often only appreciated some time after
collection of the specimen or after initial diagnosis. It is usually impossible to determine at the time of a
consultation which specimen will reveal a significant pathogen. For laboratory reporting, clinicians
would have to ask for consent for sharing of data or specimens for every proposed investigation, or else
pathologists would later be ringing up clinicians to ask them to trace and contact patients for consent.
Neither system could be expected to work well. When approached, families almost always wish to
cooperate,4 but reporting doctors do not readily want to add the task of obtaining consent to their
other work commitments,4 18 as a sequential surveillance and research investigation undertaken by the
Royal Colleges of Ophthalmologists and Paediatrics and Child Health on retinopathy of prematurity
illustrates. In this study, 235 cases were initially reported through conventional surveillance (without
seeking explicit consent from parents). Later, reporting doctors were asked to obtain consent because
an additional research study involved seeking parental views. In some cases repeated reminders to
clinicians were needed although there were only three parental refusals. Eventually consent was
obtained for 188 of 221 eligible cases (85%), and each consent took on average 3 months to obtain (L
Haines, personal communication, 2001). The percentage would have been far lower had not the
investigators been able, from prior knowledge of existing cases, to remind clinicians that consent was
outstanding. Other specialties have had similar experiences. Introduction of the requirement for consent
for cancer registration resulted in a 70% drop in notifications to the long established Hamburg cancer
register, destroying its comparative value-it is no longer referred to in European publications (M Parkin,
International Agency for Research on Cancer, personal communication, 2001). An American study on
consent found that the requirement for consent led to selective exclusion of some patients and hence
introduced bias.19 In the United Kingdom, a belief that patient consent was needed before inclusion in a
general practitioner diabetes register contributed to ascertainment of only 60% of eligible diabetic
patients,20 mainly because some doctors never got round to obtaining consent (S Burnett, UCL London,
personal communication, 1999). A disturbing recent development is that, notwithstanding official
reassurances 9 10 12 some NHS trusts have instructed doctors not to transfer data about patients unless
they do have consent, and this has inhibited some doctors who were keen to contribute to, for example,
cancer registries. This has already impaired the work of the cancer registries, and the reporting of
infectious diseases might be similarly affected. Anonymising data before transfer It has been suggested
that removal of the identifiers from patient data will obviate the need for consent, but in a number of
health surveillance studies the identifiers are essential links to other sources of health information about
individuals that provide validation and eliminate duplication (table). An alternative suggestion is to use
NHS numbers instead of such identifiers as names and dates of birth, but at present NHS numbers are
rarely included in routine data sets, so this solution would also interfere with surveillance. Conclusions
Health surveillance is essential to protect public health, and existing surveillance mechanisms work
reasonably well. Surveillance could be seriously threatened if it was thought that there was an overriding need to maintain patient confidentiality or always to have to seek explicit consent to sharing of
data. We are very concerned that restrictive interpretations of some of the recent guidance on patient
consent would so damage surveillance mechanisms that they would cease to protect the health of the
public, thus resulting in preventable ill health and deaths.
2NC Link Extensions
Rigid health privacy protections collapses public health – expansive surveillance key
Amy Fairchild (associate professor in the Department of Sociomedical Sciences and assistant director
for scholarly and academic affairs at the Center for the History and Ethics of Public Health at the Joseph
L. Mailman School of Public Health, Columbia University in New York City) Ronald Bayer (professor of
public health and codirector of the Center for the History and Ethics of Public Health at the Joseph L.
Mailman School of Public Health, Columbia University in New York City) and James Colgrove (assistant
professor in the Department of Sociomedical Sciences at the Joseph L. Mailman School of Public Health,
Columbia University in New York City) December 2007 “Privacy and Public Health Surveillance: The
Enduring Tension” http://journalofethics.ama-assn.org/2007/12/mhst1-0712.html
The discovery that cases of paralytic polio in 1955 were caused by a single manufacturer of Salk vaccine,
the linkage of toxic shock syndrome to tampons in 1979, the identification of the sentinel cases of AIDS
on the East and West coasts in the early 1980s, the recognition of West Nile, SARS, and avian flu at the
turn of the twenty-first century—were all the result of surveillance systems, through which alert and
troubled physicians could communicate with public health officials, thus enabling emerging patterns to
be identified. In each instance, such vigilance made it possible to initiate measures that could limit the
human toll. Surveillance serves as the eyes of public health. Name-based reporting of cases has provided
the foundation for planning, intervention, and prevention and has been critical for epidemiological
research into patterns of morbidity and mortality for a wide variety of diseases and conditions.
Registries have been essential for tracking individuals and their conditions over time. Surveillance has
also served to trigger the imposition of public health control measures, such as contact tracing,
mandatory treatment, and quarantine. The threat of such intervention and long-term monitoring has
provoked alarm and rendered surveillance suspect for those concerned about the unwarranted exercise
of state authority in the name of public health. Thus the history of surveillance has been bounded by a
promise and a specter. Over the course of the 20th century, public health officials reiterated the
importance of surveillance, arguing that without the name and location of diseased individuals they
worked "in the darkness of ignorance" and might "as well hunt birds by shooting into every green bush"
[1]. It was the prospect of what surveillance might offer that raised hopes—for the delivery of services,
for lifesaving knowledge, and for protection of individuals and communities. Hermann Biggs, a titanic
figure in the history of public health, who was perhaps the most important late 19th- and early 20thcentury architect and philosopher of U.S. public health surveillance, made it clear that names of the
diseased were never collected "in order to keep clerks or adding machines busy" [2]. Toward the end of
the 20th century, Surgeon General David Satcher would state the value of surveillance as plainly as had
Biggs: "In public health, we can't do anything without surveillance. that's where public health begins"
[3]. When surveillance opened the doors to vital services and knowledge, its subjects could well become
among its most ardent advocates, thus underscoring a politics that goes beyond the politics of privacy.
In the late 19th and early 20th centuries, as public health was extending the ambit of surveillance, the
medical community reacted with hostility, particularly when it came to tuberculosis surveillance and
seemingly threatened to intrude on the sanctity of the clinical relationship, over which the physician was
guardian. Medical Record editor George Shrady thus complained of TB surveillance, The compulsory
step taken is a mistaken, untimely, irrational, and unwise one.... The real obnoxiousness of this
amendment to the sanitary code is its offensively dictatorial and defiantly compulsory character. It
places the Board [of Health] in the rather equivocal position of dictating to the profession and of
creating a suspicion of an extra bid for public applause [4]. "Already," he continued, "the profession as a
whole has watched with jealous eye the encroachments of the Board upon many of the previously wellrecognized privileges of the medical attendant" [4]. Over time, disease reporting was extended to
chronic, noncontagious conditions such as cancer, birth defects, and occupational illnesses. Not only
physicians but laboratories were often required to report cases to local health authorities. The
surveillance of chronic diseases, of course, differs because these conditions do not represent a direct
threat to the health of others. And, indeed, when state and local health departments first began tracking
conditions like congenital malformations and cancers in the first half of the 20th century, these
initiatives typically served epidemiological or research purposes only. These reporting efforts, critically,
also became linked to the assessment and improvement of clinical care. Tumor registries, for example,
emphasized patient care improvement since the 1950s and, currently, data from the National Cancer
Institute's SEER program (Surveillance, Epidemiology, and End Results Program) are routinely used for
quality improvement initiatives. It was not until the AIDS epidemic that activists challenged the longstanding tradition of name-based reporting. Even so, as AIDS has become a more treatable disease,
resistance to reporting has all but vanished. In the 1990s, the promulgation of national standards to
safeguard the privacy of medical records, as dictated by HIPAA (the Health Insurance Portability and
Accountability Act), provoked intense public debate. But there was virtually no opposition to carving out
an exception in the guidelines for the reporting of diseases to public health agencies. While there was
initial uncertainty among physicians and researchers about whether hospitals could continue to provide
cancer data to state registries, the Department of Health and Human Services made clear that HIPAA did
not serve as an obstacle to reporting. In the early 20th century it was physicians who spearheaded
opposition to surveillance; since the 1970s, patients have often been at the forefront of challenges to
reporting diseases. Parents of children with disabilities, for example, successfully changed the terms of
birth defects surveillance in Minnesota, requiring the state to allow unwilling parents to opt out of
reporting. Patient advocates within the American Diabetes Association forced New York City health
officials to place limits on an initiative to track cases of diabetes. But just as often, patients with serious
illnesses have pushed for better tracking of their conditions. Breast cancer survivors have emerged as
the most ardent defenders of universal name-based cancer reporting, recognizing how important
surveillance and the research it makes possible is to their own well-being. Similarly, communities
concerned about "cancer clusters" and environmental threats have demanded access to the data that
only cancer registries can accumulate. Patients expect their privacy to be protected, of course, but also
maintain that a rigid commitment to privacy could hobble the usefulness of registries. In these
instances, public health officials, committed to the paramount importance of surveillance, have been
extremely wary about disclosing any data that could potentially compromise individual privacy.
Disrupts biomedical research
Hannson et al 12 (Mats, Centre for Research Ethics & Bioethics at Uppsala University;
Bengt Simonsson, Department of Medical Sciences at Uppsala University; Nils Feltelius,
The Swedish Medical Products Agency; Joanna Forsberg, Centre for Research Ethics &
Bioethics at Uppsala University; Joerg Hasford, Institut for med
Informationsverarbeitung, “Medical registries represent vital patient interests and
should not be dismantled by stricter regulation,” July 2012, The International Journal of
Cancer Epidemiology, Detection, and Prevention, p. 3-4)//JL
Rothstein foresees criticism of his proposal for leading to selection bias in research, delaying the
introduction of new treatment and safety procedures in medicine, but he claims that at present there is
an ‘‘insufficient empirical basis to assert that adding some level of privacy and autonomy protection to
deidentified health information and biological samples will invariably and unreasonably disrupt
biomedical research’’ (p. 8). However, as has been argued by several, inclusivity and universality are the
keys to successful registry research [10,11]. There is a price to be paid since all requirements for
informed consent, opt-out, re-consent, etc. imply that the registry will be affected both by those
included and those not included. The likely result is incomplete information and data bank bias that will
prevent researchers from tracking success and failure of treatment and drug efficacy and safety. The
immediate victims of this will be the patients, with those suffering from rare diseases like CML paying
the highest price. There are several examples of bureaucratic ethical review procedures and requests for
consent that seriously jeopardized the possibility of doing biomedical research, at the end exposing
patients to increased risks [12,13]. There are recent assessments available of the cost in lives caused by
hurdles related to information and consent procedures [14].
Privacy is a prerequisite to any form of successful health surveillance
Khaled El Emam (founder and CEO of Privacy Analytics Inc, senior scientist at the Children’s Hospital of
Eastern Ontario (CHEO) Research Institute and Director of the multi-disciplinary Electronic Health
Information Laboratory (EHIL) team) 2014 “Public Health Surveillance and Privacy in the Age of Ebola”
https://privacyassociation.org/news/a/public-health-surveillance-and-privacy-in-the-age-of-ebola/
Being able to introduce anonymization methods into practice to ensure data custodians are willing to
share data for public health purposes is important in the age of such epidemics as Ebola. The efficiency
with which we track and investigate outbreaks is directly related to the spread of the disease. There is
an urgency to get access to data. And it is not always health data that is important. Ongoing public
health surveillance systems would allow rapid detection of and reaction to outbreaks. But this can only
happen if privacy concerns that currently act as a barrier are addressed. Privacy does not have to be an
obstacle, but it is an issue that needs be dealt with upfront when these surveillance systems are put into
place. We cannot take for granted that data custodians are willing to share their data, even when there
is an outbreak, as we saw during H1N1.
Thomas R. Frieden (Director, U.S. Centers for Disease Control and Prevention; Administrator, Agency
for Toxic Substances and Disease Registry) September 2012 “Non-Communicable Diseases and the New
Global Health” http://www.cfr.org/diseases-noncommunicable/non-communicable-diseases-newglobal-health/p35310
Really, let me say one thing about the problem and one thing about the solution. Noncommunicable
diseases are sometimes mischaracterized as diseases of affluence because we have the concept that as
people get richer, they do more unhealthy things, and these diseases follow. But actually, I think these
are fundamentally diseases of poverty. They're diseases of poverty because in most countries, not only
do they disproportionately affect the poor, but they perpetuate poverty in individuals, in families, in
communities and, perhaps most importantly, in countries. Noncommunicable diseases are an enormous
drag on economic development, on health care systems, on workplace productivity. And so they have
enormous economic implications for individuals, families, communities, work sites and countries. The
global burden of disease has really shifted. For the first time in human history, we have more people
living in cities than in rural areas. We have more people who are overweight than underweight. We have
more deaths among adults than among children. And we also have more people dying from
noncommunicable diseases in poor countries than in rich countries, with higher rates of
noncommunicable diseases in poor countries than rich countries. In fact, in poor countries, half of all
deaths from noncommunicable diseases occur before the age of 70. In rich countries, it's about a
quarter of all deaths from noncommunicable disease before the age of 70. So these are huge
differences, and now non-communicable diseases kill more people than communicable diseases, about
two-thirds of all of the world's deaths, and that burden is not only high, but it is increasing and on a
trajectory to increase even further.
Mass health surveillance is good – its key to medical effectiveness and drug
development
Freedland 14 (Jonathon Freedland is the Guardian’s executive editor. He also writes for the NYT and New York Review of Books. He
won the Orwell special prize for journalism and the columnist of the year in What the Papers Say. “We now trust no one with our data – not
even our doctors” 1/31/14 http://www.theguardian.com/commentisfree/2014/jan/31/nhs-medical-data-trust-doctors-edwardsnowden)///CW
If you thought someone snooping around your emails and listening to your phone calls was bad, imagine
them looking at your
medical records. The private realm may be ever-shrinking – in an age when we reveal so much of ourselves online and when we know the
eavesdroppers of the NSA and GCHQ are never far away – but if there's one thing we'd want to keep behind
high walls, it's surely the intimate histories of our mental and physical health.¶ So there can be little surprise that
privacy campaigners are recoiling at the expansion of NHS England's data collection, which from this spring will take in information from the
place where most people experience the NHS: their GP's surgery. Until now, the NHS in England kept the stats from hospital visits but not from
those day-to-day encounters with your local doctor. As 26.5m leaflets pop through letterboxes, explaining the new "care.data" project, groups
such as medConfidential.org are urging patients to opt out in the name of basic privacy. One survey found that up to 40% of GPs plan to keep
their own personal records out of the scheme. My first, unreflective instinct would be to stay out too – and others will surely feel the same way.
Indeed, the appeal of that stance says much about the times we live in, both online and in the physical world.¶ For one thing, less than a year
after Edward Snowden's revelations of mass surveillance, the
notion that our medical records will remain closely
guarded, viewed only by those doctors and scientific researchers who need to see them, arouses instant scepticism. Sure, we
think. They said the same about our emails. After Snowden, many will assume that if the authorities want to know whether we
are HIV-positive or once suffered from depression, they'll be able to find out with just one click. As
medConfidential's Phil Booth told the FT: "Everyone agrees medical research is a good thing but, after the NSA
scandal, people are getting wise to the dangers of these massive data sets." [paywalled link]¶ It doesn't even have
to be that sinister. It wasn't that long ago that government ministers were apologising from the floor of the House of Commons after Revenue
& Customs mislaid two discs containing the names, dates of birth, national insurance numbers and, where relevant, bank details of 25 million
people. What, one wonders now, is to stop the geniuses who brought us that disaster messing up again, except this time losing not our tax
details but the stories of our lives and bodies?¶ Advertisement¶ Campaigners worry too about who might want to take a look at all that info.
Won't the big drug companies be desperate to pore over that information, the better to profit from our
frailties? And if private health and life insurance companies get access to that data, won't they start charging higher
premiums if they know what once took us to see the doctor?¶ Given all those worries, you can see why some
want to opt out. And yet that first, gut instinct might be wrong. It's not just that the vast bulk of the information will be
rendered anonymous, with individuals blurred out in all but the most controlled circumstances, or that there are strict rules in place over access
to this information. Nor even that there is an explicit declaration that this data will not be shared with insurance or marketing companies – so
no prospect of a Strepsils ad popping up on your screen just after you've seen your GP over a sore throat.¶ Rather, it's the great gain that this
information will provide. Small, clinical studies only tell you so much. Sometimes it's mass data you need. It was mass
information that disproved the link between MMR and autism, or that spotted the connection between Thalidomide and birth defects, or
between smoking and cancer. Ethically
you can't conduct trials on pregnant women or children, so you're reliant
on knowing what's happening in the population. If you can know that swiftly and at scale, you can act
faster and more effectively. As the leaflet popping through the door puts it: "Better information means better care."¶ The pragmatic
truth is that this logic extends even to the private drug companies. Like it or not, it's through pharmaceutical companies that
new medicines are developed: they're the ones who fund the trials, turning research into medication. As Nicola Perrin of the
Wellcome Trust, which strongly backs care.data, put it to me: "If we want access to the best possible drugs, the drug
companies need access to the best possible information."¶ There is a principle at stake here too. In a subtle piece for the
Socialist Health Association, Prof Dave Byrne recalls the traditional method of teaching medical students, in which a senior doctor on a wardround would urge them to look at and learn from real-life individuals and their treatment: care.data is just a hi-tech version of that process,
says Byrne, gathering together doctors' experience of treating patients. Viewed this way, our individual experience of treatment – suitably
anonymised – is not our private property, even if it should remain private. Those who treated us have the right to use that experience to
benefit others, to help the collective good.¶ But anonymity is the key. None of these arguments in favour of care.data works unless we
can be sure those rules on access hold firm and that the identity of individual patients remains concealed – and not easily hacked as some
currently fear. And yet online anonymity remains vexed. All too often it seems we don't have it when we should,
whether through data loss or NSA-style state intrusion. At the same time, we have too much anonymity when we shouldn't: witness the social
media trolls and abusers, or phoney, astroturf campaigners, able to stay hidden when they would surely shrivel if exposed to the daylight and
forced to reveal their true identities.¶ The larger obstacle confronting this new scheme goes beyond the virtual realm. It is a change that is
infecting almost every aspect of our shared lives: loss of trust. So the government can issue guarantees of privacy protection and our first
thought is of missing discs, GCHQ eavesdroppers or perhaps hacked phones. Too many institutions have been exposed as having betrayed their
unspoken promises,
whether it's MPs, the security services, the police, the banks or the BBC.¶ For many
years the NHS stood alone, immune to this trend, doctors topping every index of trust. But thanks to
Mid-Staffs and scandals like it, the NHS too has been found wanting. Which is why a good idea like a
project to share our broad, unnamed data can face such resistance. We take nothing on trust these days
– not even the word of a doctor.
Medical Research Extensions
Even the current minimal protections provided by HIPAA drastically impede research
Steinberg and Rubin 9 (Mindy Steinberg and Elaine Rubin. Steinberg is a program associate at the
Association for Academic Health Centers. Rubin is the vice president for policy and program at AAHC.
“The HIPAA Privacy Rule: Lacks Patient Benefit, Impedes Research Growth.” 2009. P. 1-2.
http://www.aahcdc.org/Portals/0/pdf/AAHC_HIPAA_Privacy_Rule_Impedes_Research_Growth.pdf)////
EMerz
The Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA), a regulation
designed to protect the privacy of health information, continues to have a negative impact on the
nation’s research enterprise, according to the latest survey of academic health center research
administrators and principal investigators by the Association of Academic Health Centers (AAHC). Since
the 2003 implementation of the Privacy Rule (45 CFR 160, 164), studies have shown that it has imposed
barriers to research at academic health centers, the nation’s major research institutions, thus slowing
the pace of research, increasing the costs, and significantly hindering participation of individuals in
important research studies. Research was not intended to be governed by the HIPAA Privacy Rule, but
neither was it exempted from the regulation. However, the new constructs and restrictions on
information mandated by the Rule have had untold consequences for the conduct of research and the
advance of science and discovery in the United States. Despite repeated efforts by the research
community to highlight the negative consequences of the HIPAA Privacy Rule, policymakers have made
little attempt to address the Rule and consider options to remedy the situation. With the U.S. facing
critical socioeconomic challenges, including an aging population and the desire for new treatments and
cures for disease and illness, it is essential that policymakers reexamine the HIPAA Privacy Rule. The
AAHC called for changes to the HIPAA Privacy Rule and recommended options to address these critical
research issues based on evidence from a limited number of focus groups conducted with researchers
throughout the country in 2007.4 This year, to broaden its information base, the AAHC developed a
questionnaire that was administered online to 102 members of the AAHC’s executive leadership group
of Vice Presidents for Research as well as other senior leaders (e.g., legal counsel and chief compliance
officers) who are members of the Vice Presidents for Research Workgroup on HIPAA. The vice
presidents for research were also asked to forward the survey to 2-4 principal investigators at their
institution in the interest of including the perspective of researchers along with that of senior research
administrators.
Privacy legislation destroys scientists’ motivation to conduct research- it’s too
expensive with protections in place
Steinberg and Rubin 9 (Mindy Steinberg and Elaine Rubin. Steinberg is a program associate at the
Association for Academic Health Centers. Rubin is the vice president for policy and program at AAHC.
“The HIPAA Privacy Rule: Lacks Patient Benefit, Impedes Research Growth.” 2009. P. 3.
http://www.aahcdc.org/Portals/0/pdf/AAHC_HIPAA_Privacy_Rule_Impedes_Research_Growth.pdf)////
EMerz
In short, the majority of survey respondents believe the HIPAA Privacy Rule had a significant negative
impact on the scope, pace, and costs of research. The greatest concern was expressed about the
negative impact on the costs of research. Respondents also indicated they were aware of research
studies that were stopped or never pursued because of Privacy Rule related problems. The negative
perceptions of research leaders are especially significant. The HIPAA Privacy Rule imposes another
limitation on America’s ability to fulfill the promises of new science. A lack of interest in scientific
careers, and decreased federal funding of research when coupled with the HIPAA Privacy Rule, create
a burdened and troubled environment for the future.8
That turns case- patients health will be worse off if there are more barriers to DNA
research
Steinberg and Rubin 9 (Mindy Steinberg and Elaine Rubin. Steinberg is a program associate at the
Association for Academic Health Centers. Rubin is the vice president for policy and program at AAHC.
“The HIPAA Privacy Rule: Lacks Patient Benefit, Impedes Research Growth.” 2009. P. 3.
http://www.aahcdc.org/Portals/0/pdf/AAHC_HIPAA_Privacy_Rule_Impedes_Research_Growth.pdf)////
EMerz
The problems with the HIPAA Privacy Rule are extensive and are likely to be even broader than the
survey suggests. Furthermore, there is no clear evidence that the Rule is achieving its intended purpose
in the research arena. Given the longstanding history of the Common Rule in research, it would be most
expedient and effective to exempt research from the HIPAA Privacy Rule and to defer to the Common
Rule. The Common Rule — an essential safeguard that has worked successfully — has been responsible
for ensuring the protection of research participants’ safety and privacy for more than 30 years. The
negative impact of the HIPAA Privacy Rule on research ultimately translates into negative consequences
for patients, with more terminally ill patients missing out on the opportunity to participate in clinical
trials that have the potential to save their lives. To remedy this threat to research and the American
people, revision of the HIPAA Privacy Rule is imperative. The AAHC recommends that research be
exempt from the HIPAA Privacy Rule and that it be solely governed by the Common Rule. Furthermore,
the AAHC recommends a revision of the Common Rule to incorporate more explicit standards for the
privacy of health information and to augment the protections of the Common Rule to accommodate
new technologies and guard against new threats to patient safety and privacy
Privacy-based critiques fail and undermine research
Hannson et al 12 (Mats, Centre for Research Ethics & Bioethics at Uppsala University;
Bengt Simonsson, Department of Medical Sciences at Uppsala University; Nils Feltelius,
The Swedish Medical Products Agency; Joanna Forsberg, Centre for Research Ethics &
Bioethics at Uppsala University; Joerg Hasford, Institut for med
Informationsverarbeitung, “Medical registries represent vital patient interests and
should not be dismantled by stricter regulation,” July 2012, The International Journal of
Cancer Epidemiology, Detection, and Prevention, p. 3-4)//JL
3. Registries criticized for threatening privacy Accordingly, vital patient interests are in the balance in association with the EUTOS for CML and other similar
registrations and data-sharing efforts. However, within the ethics and legal literature collaborations between medical registries of this kind are seen as controversial
because they pose a potential threat to the individual privacy of the patients. Mark Rothstein
has recently argued that collection and
use of large quantities of health information create a substantial challenge for protecting the privacy of
patients and research subjects that is accentuated when biological samples are involved [8]. De -identification, he suggests, does not
solve the problem since the process of removing identifiers implies that someone will actually have to do it thus representing an intrusion in private
matters. It has also been claimed that re-identification may be possible by using publicly available databases, provided that one have access to reference samples
[9]. Rothstein
suggests that rules about de-identification are insufficient for privacy protection and need to be comple-
mented with rules about notice provisions to patients, such as informed consent, strategies for opt-out, and giving individual patients a degree of control over the
use of data and, where relevant, biological samples. 4. The
critique fails for four reasons In light of the experience with the EUTOS for CML
registry we believe that Rothstein’s argument fails for four reasons. 1. Rothstein foresees criticism of his proposal for leading to
selection bias in research, delaying the introduction of new treatment and safety procedures in medicine, but he claims that
at present there is an ‘‘insufficient empirical basis to assert that adding some level of privacy and autonomy protection to
deidentified health information and biological samples will invariably and unreasonably disrupt biomedical research’’ (p. 8). However, as has been
argued by several, inclusivity and universality are the keys to successful registry research [10,11]. There is a price
to be paid since all requirements for informed consent, opt-out, re-consent, etc. imply that the registry will be
affected both by those included and those not included. The likely result is incomplete information and data bank bias that
will prevent researchers from tracking success and failure of treatment and drug efficacy and safety. The
immediate victims of this will be the patients, with those suffering from rare diseases like CML paying the highest price. There are several examples of bureaucratic
ethical review procedures and requests for consent that seriously jeopardized the possibility of doing biomedical research, at the end exposing patients to increased
risks [12,13]. There are recent assessments available of the cost in lives caused by hurdles related to information and consent procedures [14]. 2.
Rothstein
acknowledges that research concerns should not be dismissed lightly, but, he continues: ‘‘On the other hand, the
interests of patients and the public also deserve respect and consideration’’ (p. 8). His argument for privacy
relies, as stated, on a perceived dichotomy between the clinical researcher on the one side with the patient and the public at
the opposite side, a normative description of the relationship that is questionable. This dichotomization seems to be a rather
common phenome-non [15]. As Dixon-Woods et al. have recently argued, the ethical, legal and sociological accounts of medical research
that influence the policy debates describe research as operating in opposition to the norms and interests of the
general public and of the patient [16]. Based on empirical studies in a pediatric oncology research context they were, in contrast to this alleged dichotomy, able
to show how sentiments of coalition and partnership characterized the relationships between the patient families, their
doctors and the researchers. 3. Rothstein argues for the need of increased protection of privacy and autonomy
based on these interests as fundamentally protected by constitutional law. Wendy Mariner argues in a
similar vein for the need of limiting intrusion into medical privacy and has suggested that a constitutional challenge could dismantle
cancer registration [17]. Health is regarded as an important concern but must sometimes give way to inherent principles of law, e.g. protection
of privacy [18]. That privacy is a vital interest of citizens and democratic societies is not controversial. However, the values
that are associated with a secluded life are all kinds of social value [19]. They presuppose and acquire their meaning only in a
context where various kinds of social relationships with other individuals are involved. To be banished to seclusion on a desert
island, certainly implies that one will be left in peace, but it is not the kind of situation which people wishing to protect their private life, strive for. Individuals, as far as their own personal matters are concerned, have an interest in being left in peace but they also wish to
participate in the possibilities that are available to citizens in a society. This includes having access to new medical knowledge attainable
only when personal medical data is recorded and shared within the format of large well-managed registries. In order to further strengthen his
argument Rothstein suggests that autonomy is only one aspect of the broader concept of ‘‘respect for persons’’ (p.
8) and that this should imply closer regulation of registry research. However, patients have interests also at the end of the research
line, e.g. in new possibilities to follow up the effects of medical drugs with regard to treatment response and adverse reactions, and if they became aware of the
costs of stricter regulation undermining the possibilities of participating in the development of scientific knowledge they may be more likely to feel disrespected. 4.
Rothstein is critical of partnership with commercial interests in association with biomedical research, something not uncommonly questioned by ethicists and lawyers [20]. However, we suggest that partnership between academic and commercial partners
is essential for making progress in medical research and is intrinsic to concerns about assessment of drug efficacy, safety and
effectiveness. This claim does not imply that one should be naı¨ve. For the benefit of patients sharing of data should go in both
directions, also when a pharmaceutical company enjoys a monopoly. Potential conflicts of interest may arise and should not be
taken lightly. The increasing collaboration between industry and patients’ organizations should be considered. However ELN provides an interesting example
of how doctors and researchers may be able to collaborate with the pharmaceutical industry while preserving their own integrity. A working party has just started a
controlled trial in order to find out when treatment of CML patients with TKI should be stopped because the patient will not benefit from prolonged treatment with
the drug. Such a study may, arguably, not be in the best (economic) interest of the drug companies.
HIPAA’s protections of individual health records have prevented vital research
Pritts 13 (Joy L. Pritt. “The Importance and Value of Protecting the Privacy of Health Information: The
Roles of the HIPAA Privacy Rule and the Common Rule in Health Research.” 2013. P. 1-2
http://iom.nationalacademies.org/~/media/Files/Activity%20Files/Research/HIPAAandResearch/PrittsPr
ivacyFinalDraftweb.ashx)//EMerz
The privacy of personal information, and of health information in particular, continues to be a vexing
issue in the United States. As more and more health information is computerized, individuals express
concern about their privacy and that they are losing control over their personal health information. To
help allay public concerns, federal rules governing the use and disclosure of health information were
promulgated under the Health Insurance Portability and Accountability Act (known as the HIPAA Privacy
Rule). While the HIPAA Privacy Rule does not directly regulate researchers, it does restrict the manner in
which health care providers may use and disclose health information for health research. Health
researchers have been critical of the HIPAA Privacy Rule since its inception, concerned that it would
interfere with valuable research. Various research organizations and others have requested that the
Rule be revised to lessen its effect on research. Most recently, an Institute of Medicine (IOM) committee
was formed and charged with reviewing the impact of the Privacy Rule on health research. This paper
was commissioned by that committee, the IOM Committee on Health Research and the Privacy of
Health Information: The HIPAA Privacy Rule.
Disease Turn - Military
Surveillance key to check tick-based disease outbreaks --- specifically likely on military
installations
Peterson et al, masters in entomology qualifications of other authors: Medical
Entomologist/epidemiologists, 2015 (Wade, “Tick-borne disease surveillance”, published in U.S. Army
Medical Department Journal, jan-march edition, Academic OneFile)//roetlin
Tick-borne diseases (TBDs) represent some of the world's most rapidly expanding arthropod-borne infectious
diseases. (1) (p1) In the United States, ticks are responsible for more human disease than any other arthropod
group. The incidence and the number of pathogens transmitted by ticks are increasing. For example, Lyme
disease is now the most commonly reported arthropodborne illness in the United States. (2) Anaplasmosis, ehrlichioses, and rickettsioses are
also on the rise. (1) (p1) In most parts of the world, TBDs
are potentially serious health threats to troops, civilian
employees, and residents at military installations. (2) (p6) Companion animals and military working dogs (MWD)
are also at risk in areas where ticks and TBDs are endemic or emerging. Risk of TBD increases with the introduction of exotic tick species into
new areas and the expansion of historical tick ranges. One example of exotic ticks that effects the United States is Boophilus annulatus and B
microplus, also known respectively as the cattle fever tick and the southern cattle tick, that were imported here by Spanish colonists who
brought tick-infested cattle and horses with them. These ticks transmit a severe disease to cattle called Texas fever or cattle fever that caused
enormous losses to the US cattle industry in the past. Present efforts to keep this tick out of the United States exist as the Cattle Fever Tick
Eradication Program. (3) Nilgai antelopes, native to India, Nepal, and Pakistan, that were released into southern Texas are also hosts to the
cattle fever ticks, posing a threat as maintenance hosts of cattle fever. (4) There are many other examples of exotic tick introductions from
migratory birds, exotic and wildlife species, and domestic animals. (5) Changes in climate may also alter the geographic distribution of tick
vectors, and in turn, cause a change in the currently recognized demographic patterns, seasonality, and incidence of TBDs. (1) (p61) For
example, the range of the Gulf Coast tick (Amblyomma maculatum) has historically been along the Gulf of Mexico and southern Atlantic coast
as far north as South Carolina, and extending approximately 100-150 miles inland. However, resident populations of these ticks are now
established in Arkansas, Oklahoma, and Kansas, (6) and they have been collected on the east coast as far north as Delaware and Maryland. (7)
Another example is the lone star tick (A americanum) which has moved northward as far as Maine and westward into central Texas and
Oklahoma. (8) Incidental introductions of these ticks, and the diseases they carry beyond endemic regions, occur with increasing frequency.
This is likely due to the feeding of immature ticks on migrating birds, and the transportation of tick-infested livestock and wildlife into new
areas. (6) These introductions may also come from pets belonging to people who move from one area to another. In addition, suburbanization
has contributed to the increase in TBD transmission in North America by bringing people and their pets close to ticks and by creating new tick
habitat. (9) In the northeastern United States, the highest risk for Lyme disease occurs around the homes of those who have been infected. (10)
As communities continue to expand into tick habitat, and people are encouraged to enjoy outdoor
recreation and pursue activities such as urban farming, the risk for peridomestic exposure to ticks and TBDs may
increase. The National Notifiable Disease Surveillance System (NNDSS) of the Centers for Disease Control
and Prevention (CDC) maintains a list of diseases that are considered to be of public interest by reason
of their contagiousness, severity, or frequency. The 7 TBDs on the NNDSS list are shown in the Table. Many of these
diseases, which are caused by closely related tick-borne pathogens, can also be acquired internationally.
There are also many TBDs that can be acquired abroad that do not occur in the continental United States. In addition to transmitting disease,
ticks can cause irritation, pain, and swelling at attachment sites, otoacariasis (invasion of the auditory canal), paralysis, allergic reactions, and
anaphylactic reactions. (11) Heavy infestations of ticks on animals can cause debilitation due to blood loss. Direct
effects from TBDs
include troop and MWD morbidity and mortality. There are also many indirect effects, such as illness of dependents
or Department of Defense (DoD) civilian personnel, and related healthcare costs. Both types of effects can be
mitigated through aggressive surveillance, public education, and prevention/control programs, together with prompt diagnosis
and treatment. (2) (p6) TICK BIOLOGY AND DISEASE TRANSMISSION Ticks are grouped into 2 separate families. Family Ixodidae, also called hard
ticks, have 4 developmental stages: egg, larva, nymph, and adult. The latter 3 each take one large blood meal and then molt to the next stage,
or lay eggs in the case of the adult. Hard ticks have mouthparts with recurved teeth that allow them to firmly anchor themselves to hosts while
feeding with the assistance of a cement-like substance secreted by the salivary glands. This allows them to feed for extended periods of time
that can vary from 2 to 12 days or longer, depending on species, life stage, and gender. Family Argasidae, also called soft ticks, have the same 4
developmental stages, but most have multiple nymph stages. Soft ticks have mouthparts that allow them to hold fast to their host, as hard ticks
do, but they do not secrete cement. Although some soft ticks can remain attached to the host for several days, (11) (p501) others can complete
a meal within minutes to hours. (12) This is still much longer than other bloodsucking arthropods such as mosquitoes, and is one of the factors
that contribute to their high vector potential because it increases the likelihood of pathogen ingestion and allows them to secrete large
amounts of host-derived fluid and salivary secretions, which contain pathogens, back into the host. Other factors that make ticks efficient
disease vectors
include a highly sclerotized body that protects them from environmental stresses, high
reproductive potential, and a long life span (compared to other blood feeding arthropods). Although the majority of TBDs are
transmitted during normal feeding activity, they can be transmitted by other routes as well, including through regurgitation and feces. Argasid
ticks can also release pathogens through excess liquid excreted from the coxal glands located adjacent to the first segment (coxa) of the front
legs. (11) (p512) Adding to their efficiency as vectors, the larvae and nymphs are very small. The presence of an immature tick on a host often
goes unnoticed, enabling the tick to feed to repletion and drop off without detection, which increases the likelihood of pathogen transmission.
Ticks can also transmit more than one pathogen at a time. For example, Ixodes ticks can simultaneously or sequentially
infect their hosts with Borrelia burgdorferi, Anaplasma phagocytophilum, and Babesia microti. (1) (p61) Co-infections with these pathogens
have been reported from wild and domestic animals, including dogs, as well as humans. These infections
can result in more
severe and longer illnesses and can complicate diagnoses. (1) (p493) Ticks are also effective disease
reservoirs. In some species, pathogens can be transmitted from the adult female to its offspring (transovarial transmission) and from one
developmental stage to the next (transstadial transmission). Infected ticks can also transmit viruses to uninfected ticks while feeding
simultaneously on an uninfected host. (11) (p512) Therefore, they can maintain and transmit infections even if they have not fed on an infected
host. SURVEILLANCE Surveillance is the process of determining the presence of vectors and pests, estimating their general population levels,
and determining if pathogens of concern are present in the population. It gives quantifiable data on which to base control and education
programs and is the starting point in the prevention of any arthropod-borne disease. The analysis
and interpretation of
information gained from surveillance is the basis for developing quantitative and qualitative risk
assessments that can be used to predict the occurrence of pest outbreaks or vector-borne diseases. (13)
(p7) Various methods can be used to describe disease risk. One commonly used index is called the Entomologic Risk Index (ERI), an indicator of
the number of infected ticks that a person might come into contact with over a set distance. The ERI is calculated as the number of infected
ticks collected over a 1,000-meter drag (described below). Accurate ERIs are obtained by testing ticks for pathogens to determine tick infection
rate. Public health officials can use indices like the ERI in public education efforts and to determine if, when, and what control measures should
be implemented. (13) (p7)
That collapses military readiness
Peterson et al, masters in entomology qualifications of other authors: Medical
Entomologist/epidemiologists, 2015 (Wade, “Tick-borne disease surveillance”, published in U.S. Army
Medical Department Journal, jan-march edition, Academic OneFile)//roetlin
Ticks are one of the major vectors of disease that threatens military personnel, families, and civilian
employees on US military installations. (25) The presence of tickborne disease in military personnel, including our
military working animals, may result in the loss of training days, decreased force strength, and may adversely
affect unit readiness and effectiveness. Tick-borne disease also affects DoD civilians and the families of our
troops. Soldier and unit readiness may be affected when family members and companion animals are
sickened by TBDs. The information gained from tick surveillance regarding tick vectors, disease incidence,
and pathogen prevalence is invaluable. It allows medical personnel to educate personnel regarding tickbite and TBD recognition and prevention. Tick surveillance information also enables leaders to make decisions regarding the
application of safety and control measures during training and operations to prevent TBDs. As with any disease, prevention of TBDs is highly
preferable to treating the short- and long-term consequences once they occur. (1(p155))
Readiness solves lashout
Jack Spencer, 2k, Research Fellow in Nuclear Energy Policy at The Heritage Foundation's Roe Institute
for Economic Policy Studies. “The Facts About Military Readiness” Sep. 15, 2k. accessed July 31, 2010
http://www.heritage.org/Research/Reports/2000/09/BG1394-The-Facts-About-Military-Readiness//
Military readiness is vital because declines
in America's military readiness signal to the rest of the world that the
United States is not prepared to defend its interests. Therefore, potentially hostile nations will be more likely
to lash out against American allies and interests, inevitably leading to U.S. involvement in combat. A
high state of military readiness is more likely to deter potentially hostile nations from acting
aggressively in regions of vital national interest, thereby preserving peace.
Disease Turn – A2 Privacy
Aggregated data is good – doesn’t hurt privacy and facilitates effective treatment
Hannson et al 12 (Mats, Centre for Research Ethics & Bioethics at Uppsala University;
Bengt Simonsson, Department of Medical Sciences at Uppsala University; Nils Feltelius,
The Swedish Medical Products Agency; Joanna Forsberg, Centre for Research Ethics &
Bioethics at Uppsala University; Joerg Hasford, Institut for med
Informationsverarbeitung, “Medical registries represent vital patient interests and
should not be dismantled by stricter regulation,” July 2012, The International Journal of
Cancer Epidemiology, Detection, and Prevention, p. 3-4)//JL
Development of medical registries with sharing of data is intrinsic for the protection of patient benefits and
patient safety. If, linked to the medical record, and used also for clinical decision making in dialogue with the patient the benefit and legitimacy of clinical
registries might increase even more. The patient in our view should have the right to quality assured medical treatment and
care and the clinicians and hospitals should have a corresponding duty to document relevant quality measures for long term follow up of treatment. There is a
well-recognized duty to document at the individual patient level but today there is a lack of systematic
collection and analysis of aggregated registry data. It was objected by one reviewer that registries for quality assurance are seldom
considered a problem from a data inspection point of view, because the exact use of data is clearly specified at outset and the registries are used for the same,
usually repetitive quality assurance analyses while research implies that new questions are being raised as science develops. However, there
is an
increasing awareness of the need for aggregated data for quality assessments and drug efficacy/safety
assessments. Recent developments in genomics in fact blur the traditional line between quality assurance and
research through the rapidly increasing possibilities to identify genotypes as well as environmental factors regulating the
treatment benefit/risk scenarios. It is actually strange that the demand of mandatory quality assurance that is common in so many other areas in society is not
implemented as rigorously in health care where lives are at stake each day. Furthermore, in
order to assure the patient the best medical
treatment available at each time research based on those registries is necessary and should in principle be
approved and supported. From the patient’s perspective there is no conflict between the interest of documentation
in a medical record, the interest of follow-up and long-term assessment through medical registries (whether local, national or collaborative
on a global level) and the interest of receiving the at each moment best available treatment based on research.
This, we believe, holds not only for rare diseases like CML but also for all medical treatment.
Registries don’t hurt privacy and are key to solve diseases – empirics prove
Hannson et al 12 (Mats, Centre for Research Ethics & Bioethics at Uppsala University;
Bengt Simonsson, Department of Medical Sciences at Uppsala University; Nils Feltelius,
The Swedish Medical Products Agency; Joanna Forsberg, Centre for Research Ethics &
Bioethics at Uppsala University; Joerg Hasford, Institut for med
Informationsverarbeitung, “Medical registries represent vital patient interests and
should not be dismantled by stricter regulation,” July 2012, The International Journal of
Cancer Epidemiology, Detection, and Prevention, p. 3-4)//JL
The EUTOS
for CML Registry clearly illustrates the benefits of aggregated, long-term clinical data for the
assessment of drug effectiveness, in particular for orphan diseases but the same logic applies to all diseases, i.e. the more
standardized, relevant and validated data available in quality registries, the better. Although values such as autonomy
and privacy are important and should be safeguarded, it must be kept in mind that these registries exist for the good of
patients and therefore it seems inconsistent and even unethical to hinder their optimal utilization. Transparency
and safeguarding personal integrity are necessary to preserve trust but rules and legislations to protect integrity
should not prevent the development of registries and performance of clinical trials in both national and transnational collaborations.
That would be detrimental to vital patient interest of reaping the benefits of collaborating with others.
Systemic data collection over a wide range of health issues is inevitable and required
for a wide range of issues --- the plans reversal is bad --- it’s a linear case turn
Gostin, an internationally recognized scholar in law and public health, professor of Law at Georgetown
University; Professor of Public Health at the Johns Hopkins University; and the Director of the Center for
Law & the Public’s Health at Johns Hopkins and Georgetown Universities, 2001 – (Lawrence, “Health
Information: Reconciling Personal Privacy with the Public Good of Human Health”, published in
Healthcare Analysis vol 9,
A health care system supported by data on almost any relevant subject, accessible to a diverse and
significant number of users, is an integral part of the vision for the health care system. Plans for the
systematic collection, storage, use, and dissemination of a huge volume of uniform data sets in
electronic form are already under way and have an aura of inevitability. This new health information infrastructure
is the subject of reports published by the Congressional Office of Technology Assessment (Congressional Office of Technology Assessment,
1993, 1988, 1986), the General Accounting Office (Information Management and Technology Division, General Accounting Office, 1993a,
1993b, 1991), the National Academy of Sciences (Donaldson and Lohr, 1994), the Department of Health and Human Services (Task Force on
Privacy, U.S. Dep’t of Health and Human Servs., 1993; Task Force on the Privacy of Private Sector Health Records, U.S. Dep’t of Health and
Human Servs., 1995), the Physician Payment Review Commission (Physician Payment Review Comm’n, Annual Report to Congress, 1994, 1993,
1992) 322 and the Centers for Disease Control and Prevention.1 The U.S. Department of Health and Human Services issued final regulations on
health information privacy in 2001 (Gostin, 2001). Contrary to the assertions of some privacy advocates, powerful
reasons exist for
the broad collection and use of health data. High quality data are needed to help consumers make
informed choices among health plans and providers, to provide more effective clinical care, to assess the
quality and cost effectiveness of health services, to monitor fraud and abuse, to track and evaluate
access to health services and patterns of morbidity and mortality among under served populations, and
to research the determinants, prevention, and treatment of disease.
Surveillance is key to solve economy—saves money, resources, and labor
Mirza et al 13 (Nabila, Tera Reynolds, Michael Coletta, Katie Suda, Ireneous Soyiri, Ariana Markle, Henry Leopold, Leslie Lenert,
Erika Samoff, Alan Siniscalchi, and Laura Streichert researchers and analyists for OJPHI, “Steps to a Sustainable Public Health Surveillance
Enterprise A Commentary from the International Society for Disease Surveillance” http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3733763/
July 2013 JM)
Recognize systematic and ongoing public health surveillance as a core public health function that is essential for
population health, economic stability, and national security. Public health surveillance data is the foundation
of public health programs and is required for a number of purposes, including: to demonstrate the size and impact of
the public health problem being addressed by a program; to identify the population groups to which additional prevention efforts should be directed;
to determine whether the problem is growing in size or abating; to provide feedback to data providers; and as part of an overall program
evaluation strategy. The significant health impacts and economic costs of disease outbreaks illustrate the critical
importance of effective public health surveillance and rapid response, as well as the cost of inaction [11]. Table 1
provides examples of the health and financial burdens posed by some naturally occurring and intentional infectious disease
outbreaks. The values reported in Table 1 do not fully reflect additional indirect costs of diseases and their
potentially crippling effects on a community, nor do they address costs that are underreported/ unreported due to lack of data. Higher
rates of illness, for example, can lead to lower worker productivity [11], while premature mortality can reduce
the size of the labor force, both of which have economic ramifications. There is growing evidence that these economic and societal
costs can be mitigated by surveillance systems that are stable; a stable system provides the best foundation for
identifying whether the problem being addressed is getting bigger or smaller or disproportionately affecting a section of the population, etc., while
still allowing flexibility to provide useful information quickly about emerging issues. The optimum mix of
stability and flexibility will depend on the purpose(s) of surveillance and the particular health condition under surveillance.
For example, in the case of SARS, an effective surveillance system has the potential to decrease the size of an
epidemic by one-third and the duration by 4 weeks, with significant cost savings [25]. Another study found that the early detection of an
outbreak of highly infectious bacterial meningitis saved approximately $2 for every dollar invested in infectious disease
surveillance [26]. Yet another evaluation of surveillance practice found that technological improvements in a sentinel influenza-like illness (ILI) surveillance
system in Virginia saved over $9,500 (1,992 hours) in staff-time during the 2007-2008 influenza seasons [27]. Ongoing surveillance can also
inform the design and evaluation of prevention and intervention programs in order to control the escalating costs associated
with chronic diseases in the U.S. and abroad [28]. Some experts forecast that chronic disease prevention programs could save up to
$48.9 billion per year by 2030 [29], while others predict applying electronic medical record implementation and networking to the prevention and
management of chronic disease will exceed the currently projected $81 billion in annual savings [30].
Bioterror Links
More surveillance is key to solve the aff impacts
White House 12 (The White House, from the President of the United States Barak Obama,
“NATIONAL STRATEGY FOR BIOSURVEILLANCE”
https://www.whitehouse.gov/sites/default/files/National_Strategy_for_Biosurveillance_July_2012.pdf July 31 2012
JM)
national biosurveillance enterprise is a national security imperative. Our ability to detect quickly and
a potential incident of national significance that affects human, animal, or plant health is of
paramount importance. Rapid detection and enhanced situational awareness are critical to saving lives and improving
incident outcomes, whether the result of a bioterror attack or other weapons of mass destruction
(WMD) threat, an emerging infectious disease, pandemic, environmental disaster, or a food-borne
illness. Beyond our need to protect domestic interests, and because health threats transcend national borders, the United States also
plays a vital role within an international network of biosurveillance centers across the globe. For years, there have been dedicated
A well-integrated,
characterize
efforts to promote and strengthen biosurveillance capabilities. There exists a strong foundation of capacity arrayed in a tiered architecture of Federal, State, local, tribal, territorial, and private
we
seek to leverage distributed capabilities and to add value to independent, individual efforts to protect
the health and safety of the Nation through an effective national biosurveillance enterprise. A key to
improving all-hazards incident management is to focus efforts on collecting, analyzing, and disseminating
information to facilitate timely decisionmaking, whether a health incident is a naturally occurring phenomenon, accidental, or deliberate in nature. From
capabilities. We can strengthen the approach with focused attention on a few core functions and an increased integration of effort across the Nation. In these fiscally challenging times,
the individual, to primary care providers, to hospital practitioners, to state and local health officers, to Federal entities responsible for health emergency response, to the President of the
goal is to achieve a wellintegrated national biosurveillance enterprise that saves lives by providing essential information for
better decisionmaking at all levels. Our Strategy is to integrate and enhance national biosurveillance efforts to answer specific
key questions that guide decisionmaking in times of crisis; enable more rapid detection and foster improved situational awareness
by further extending a dynamic, distributed national network of expertise and capabilities; and put into practice new
thinking to facilitate decisionmaking processes in conditions of significant ambiguity. This enhanced national biosurveillance capability will be
applied broadly to identify and understand potential human, animal, or plant health impacts resulting
from chemical, biological, radiological, and nuclear (CBRN) and environmental incidents, as well as influenza and
United States, there exists an imperative to identify incidents early and to make decisions swiftly to save lives, even amidst great uncertainty. The
other public health trends, all of which may also be leveraged in the service of global health efforts. We must be resolved to strengthen life-saving biosurveillance capabilities within our
existing resources. We can do this by leveraging more effectively our existing national network of expertise and capabilities, and through targeted enhancements that provide benefits across
the enterprise. There are no higher priorities than the health, well being, and security of the American people.
Outbreak reaction plans require the necessary data in real time to work effectively
[Lindsey Thomas, Professor @ UC Santa Barabara “Pandemics of the future: Disease surveillance in
real time” 2014]
In 2013, the World Health Organization (WHO) published a document on the 2009 H1N1 influenza pandemic entitled Evolution of a Pandemic. This document
traces the disease outbreak from April 2009 to August 2010 and documents how the WHO responded to the crisis. The document particularly emphasizes
the importance of preparedness plans to mitigating the effects of the pandemic: it claims that investment “in
developing national and regional pandemic preparedness plans” by WHO member nations had “paid major dividends” and that these plans “helped
make the world better prepared to cope with public health emergencies” (WHO 2013a: 9, 43). Such plans
involved the “active surveillance of diseases and public health events” and rapid response to “unexpected, internationallyspreading events” (WHO 2013c). Active surveillance and rapid response are important features of what’s known as
global health security, which emphasizes preparing for pandemics before they occur through the
adoption of international frameworks for pandemic response. These frameworks, or preparedness plans, allow
public health officials to react quickly, in real time, to mitigate the effects of pandemics when they occur
(Lakoff 2007). Global health security can be seen as part of a larger program of preparedness, a security paradigm that emphasizes planning for future catastrophic
events in the present. Preparedness, which moved to the center of United States national security policy after September 11, 2001, has also been adopted by
international organizations like the WHO in order to secure against potentially catastrophic pandemics. It is one among several modes of what Ben Anderson has
called “anticipatory action”: these modes, which also include precaution and preemption, are all security paradigms that focus on making possible futures available
in the present (Anderson 2010; also see Grusin 2010). Preparedness emphasizes institutional readiness and emergency management, treating a variety of potential
catastrophic threats—terrorist attacks, hurricanes, pandemics—under the same rubric. Because
the probability and severity of such
catastrophes cannot be calculated, preparedness focuses not on trying to prevent such events but
rather on preparing officials and experts for their eventual emergence. A variety of techniques and technologies make such
preparation possible. For global health security, this has involved not only the creation of international preparedness plans, but also of international disease
surveillance systems that monitor emerging infectious disease outbreaks. These
systems allow public health officials to collect and
manage huge amounts of data on disease outbreaks as they occur. Such systems attempt to harness the
power of big data to get ahead of the catastrophic pandemic that is coming, not necessarily in order to prevent it from
happening (because we can’t), but rather to better deal with its effects (de Goede and Randalls 2009; Lakoff and Collier 2010).
Health surveillance exists for a reason --- terror results in unique risks to public health
that this surveillance remedies --- specifically checks against bioterror
Gostin, an internationally recognized scholar in law and public health, professor of Law at Georgetown
University; Professor of Public Health at the Johns Hopkins University; and the Director of the Center for
Law & the Public’s Health at Johns Hopkins and Georgetown Universities, November 2001 – (Lawrence,
“Public Health Law In An Age Of Terrorism: Rethinking Individual Rights And Common Goods”, published
on HealthAffairs vol 21 no. 6)//roetlin
The balance between individual interests and common goods needs to be recalibrated in an age of
terrorism. Public health agencies should have a robust infrastructure to conduct essential public health
services at a level of performance that matches evolving threats to the health of the public. This includes
a well-trained workforce, electronic information, surveillance, and laboratory capacity. This paper explains modern efforts at
public health law reform: a Model Public Health Statute and the Model State Emergency Health Powers Act (MSEHPA), which has been enacted
wholly or in part by nineteen states and the District of Columbia. Next, the paper shows why existing public health laws provide a weak
foundation for public health practice. Finally, the paper offers a systematic defense of MSEHPA, which has galvanized the public debate around
the appropriate balance between public goods and individual rights. PROLOGUE: Following the 2001 anthrax attacks, an outbreak of concern
about the inadequacies
of the public health infrastructure caught the nation in the grip of a profound
ambivalence about what we expect from government. For the past twenty years distrust of public institutions
has severely dampened public health spending and so dominated the political landscape that even the Institute
of Medicine’s stern warning about deterioration of the infrastructure in 1988 did not generate renewed investment. Then, in the wake of the
anthrax scare, the refrain suddenly became, “Why aren’t we
better prepared?” The following essay by legal scholar Lawrence
perform its essential functions, the
public health system needs legal authority to act. Yet most of its statutory foundations, which lie primarily in the
domain of state government, have not been updated for half a century. Even before last fall’s terrorist attacks,
efforts were under way to develop new model laws for the states. The focus of the model legislation is to confer enough
authority that public health agencies can mount adequate preparations, obtain information, and act in
an emergency to protect those who are threatened. But some sacrifice of personal rights and freedoms is
necessary to achieve this end, and these legal initiatives have been controversial. “In a country so tied to rights rhetoric..., any
Gostin suggests that our collective confusion about public health goes deeper than dollars. To
proposal that has the appearance of strengthening governmental authority was bound to travel in tumultuous political waters,” Gostin
concludes. Three Perspectives that follow Gostin’s paper highlight the extent of the disagreement that still exists, nearly a year after the model
law was last revised. Gostin is ideally suited to clarify the difficult issues involved. He is a professor of law at Georgetown University; a professor
of public health at the Johns Hopkins University; and director of the Center for Law and the Public’s Health, which drafted the Model State
Emergency Health Powers Act at the request of the Centers for Disease Control and Prevention. In defense of a model act that was written to
bring public health law into the modern age. Public and scholarly discourse in the late twentieth century became highly oriented toward
“rights.” The political community stressed the importance of individual freedoms rather than the health, security, and well-being of the
community. The salience of individualism could be seen on both sides of the political spectrum. The ideological left favored a set of personal
interests, principally autonomy, privacy, and liberty. This meant that individuals should be free to make choices, restrict the flow of health
information, and have unfettered movement, without regard to the needs and desires of the wider community. The ideological right favored a
set of proprietary interests, principally the freedom to contract, conduct business, use and develop property, and pursue a profession. This
meant that entrepreneurs should be permitted to engage in free enterprise without the fetters of, for example, occupational health and safety
regulations, inspections and products liability, zoning and nuisance abatements, and licenses. In this civil and property rights society, the tone
has been distinctly antigovernment. The State has been perceived as inefficient, bureaucratic, and burdensome. Citizens have opposed taxation
and broad health and welfare spending as well as oppressive regulation. From a funding perspective, this has meant that health dollars have
been allocated primarily to advanced biotechnology and health care, which serve the needs of individual patients, particularly those who can
afford private health insurance. Funding for traditional prevention and population-based services represents only a small fraction of health
spending, estimated at around 1 percent at the state level and less than 5 percent at the federal level.1 As a result of chronic underspending,
the public
health infrastructure is badly deteriorated.2 Public health agencies lack the capacity to conduct
essential public health services at a level of performance that matches the constantly evolving threats to
the health of the public. Critical components of that infrastructure include a well-trained workforce, electronic information and
communications systems, rapid disease surveillance and reporting, laboratory capacity, and emergency response capability.3 The public health
law infrastructure is equally deficient. The law establishes the mission, functions, and powers of public health agencies. Yet public health laws
are highly antiquated, after many decades of neglect. Very little consideration has been given to modernizing these laws to reflect advances in
public health practice and constitutional law. Reform of public health law is essential to ensure that public health agencies have clear missions
and functions, stable sources of financing, adequate powers to avert or manage health threats, and restraints on powers to maintain respect
for personal rights and liberties. The
balance between individual interests and common goods needs to be
recalibrated in an age of terrorism. The attacks on the World Trade Center and Pentagon on 11 September 2001 and the
subsequent dispersal of anthrax spores through the U.S. postal system reawakened the public to the
importance of public health, safety, and security.4 The president’s 2003 budget reflects changing priorities, with an influx of
funding to prevent and respond to bioterrorism.5 However, even in this budget, disproportionate funding is devoted to biotechnology rather
than to basic prevention and population-based services.6
Bioterrorism – Link Uniqueness
Current electronic system effective—economy, disease prevention and treatment
Freudenheim 12(Milt, reporter for the NY times, “Fast Access to Records Helps Fight Epidemics”
http://www.nytimes.com/2012/06/19/health/states-using-electronic-medical-records-to-track-epidemics.html?_r=0 6/19/12 JM)
health departments around the country have long scrutinized data from local hospitals for indications that
diseases like influenza, tuberculosis, AIDS, syphilis and asthma might be on the rise, and to monitor the
health consequences of heat waves, frigid weather or other natural phenomena. In the years since 9/11, this
scrutiny has come to include signs of possible bioterrorism. When medical records were maintained mainly on paper, it could take weeks to find out
that an infection was becoming more common or that tainted greens had appeared on grocery shelves. But the growing prevalence of electronic medical
records has had an unexpected benefit: By combing through the data now received almost continuously from hospitals and other medical facilities, some health
departments are spotting and combating outbreaks with unprecedented speed. More than one-third of the nation’s 5,000
Public
acute care hospitals now use electronic medical records, and the share of primary care doctors using them has doubled to 40 percent in the last two years, said Dr. Farzad Mostashari, the
technology’s spread is helping “officials faced with events
of public health significance to know sooner, act faster and manage better,” said Dr. Seth Foldy, a senior
adviser to the Centers for Disease Control and Prevention. In February, public health officials in Michigan noted an increase in electronic reports from clinical laboratories
Obama administration’s national coordinator for health information technology. The
indicating E. coli cases in several counties. Eleven patients were identified, including six who were hospitalized. In less than a week, officials had enough evidence to warn the public that the
infection appeared to be linked to clover sprouts in food at the Jimmy John’s sandwich chain, said James Collins, director of the communicable diseases division at the state’s Department of
You can see it happen in real time and zero in
on the cause faster,” said David A. Ross, director of the Public Health Informatics Institute, a nonprofit organization that helps write digital standards. “That can save
both lives and money.” In Massachusetts, the data are being used to prevent hepatitis infections. Medical labs transmit more than
100,000 electronic reports annually to the state health department. Names are confidential, though available to certain medical personnel.
The agency’s software sorts through the reports and every year identifies more than 1,500 cases of hepatitis B for follow-up.
Infected women ages 14 to 44 get special attention. Health officials alert their medical providers to infections; they in turn identify anyone who is pregnant or
recently gave birth. Their newborns are vaccinated and then monitored. Without that prompt protection, those babies risk lifelong infection with hepatitis B and its
Community Health. The chain quickly removed the sprouts, and by April, the 11-state outbreak was over. “
consequences, liver disease, cirrhosis and cancer. With paper records, locating at-risk babies would take weeks or months, said Kevin Cranston, director of the infectious disease bureau at the
Massachusetts Department of Public Health. “That would be too late to be of benefit to the newborn,” he said. Although the C.D.C. recommends prompt hepatitis B vaccination for all
When the H1N1 flu pandemic broke out in 2009,
Wisconsin laboratories generated thousands of positive H1N1 test results, said Dr. Foldy, who was then chief medical officer of the
Wisconsin Health Information Exchange. “We were able to route this electronically into our case management system to alert public health
nurses,” Dr. Foldy said. “Because we were getting near real-time information from hospitals, we could see that even with the large numbers of emergency room visits for flulike
symptoms, very few were being admitted as inpatients,” he added. This provided an early glimpse of how the pandemic was rising and
then declining. Public health officials in Marion County, Ind., were among the first to sound the all-clear in the flu outbreak by tracking the drop in cases from electronic reports
from hospitals and laboratories, forwarded by the Indiana Health Information Exchange. More than 150 health information exchanges are now
operating or being set up across the country. (These differ from the insurance exchanges mandated under the Affordable
Care Act.) Each exchange receives electronic medical data from clinical laboratories, hospital admissions offices and emergency rooms and relays it to relevant public health agencies.
newborns, nationally, four in 10 did not get that protection, according to an agency report last year.
Health care providers are required to provide pertinent data electronically to local and state public health officials, who feed into a national digital network coordinated by the C.D.C. in
. Using an electronic records registry, the Urban Health Plan, a network of clinics in the South Bronx and Queens, was able
to triple its caseload of mostly young, low-income asthma patients to 8,100. “We are in the heart of asthma country,” said Dr.
Atlanta
Samuel De Leon, a lung specialist who is Urban Health’s chief medical officer. His group compared spending per patient with a Medicaid managed care plan in the city that did not then have
For
children, we saved about 39 percent of the cost of care. For adults, savings were in the 25 percent
range,” he said. New York City health officials began using electronic medical records six years ago. After reviewing the incoming medical data, city health department officials recently
electronic monitoring. Using its record system to keep tabs on its patients, Dr. De Leon said, Urban Health was able to reduce emergency room visits and hospital admissions. “
discovered that smoking rates are a little higher in Staten Island than in the other boroughs. Now, instead of sending trainers on routine visits to every primary care doctor to help them learn
to use electronic records to improve care, the visits are concentrated to help those physicians whose patients need it most. “
We can identify and monitor trends
in high-priority diseases and health problems by geography and groups,” said Dr. Amanda Parsons, a deputy commissioner at the
city’s Department of Health and Mental Hygiene. “We can tell where things are improving or getting worse.
Bioterrorism – Impact Uniqueness
Synthetic biology makes bioterror inevitable- creates means and motive
Rose, 14 -- PhD, recognized international biodefense expert
[Patrick, Center for Health & Homeland Security senior policy analyst & biosecurity expert, National
Defense University lecturer, and Adam Bernier, expert in counter-terrorism, "DIY Bioterrorism Part II:
The proliferation of bioterrorism through synthetic biology," CBRNePortal, 2-24-14,
www.cbrneportal.com/diy-bioterrorism-part-ii-the-proliferation-of-bioterrorism-through-syntheticbiology/, accessed 8-16-14]
In Part I of this series, we examined how the advancement of synthetic biology has made bio-engineering accessible to the
mainstream biological community. Non-state actors who wish to employ biological agents for ill intent are sure to be aware
of how tangible bio-weapons are becoming as applications of synthetic biology become more affordable and the
probability of success increases with each scientific breakthrough. The willingness of non-state actors to engage in biological attacks is not a
new concept; however, the past biological threat environment has been subdued compared to that of conventional or even chemical terrorism.
The frequency and deadliness of biological attacks has, thankfully, been limited; much of which can be attributed to the technical complexity or
apparent ineptitude of the perpetrators developing biological weapons. Despite the infrequency and ineffectiveness of biological
attacks in the last four decades, the threat may be changing with the continued advancement of synthetic
biology applications. Coupled with the ease of info rmation sharing and a rapidly growing do-it-yourself-biology
(DIYbio) movement (discussed in Part I), the
chances of not only , more attacks , but potentially more deadly ones will
inevitably increase .¶ During the last half century terrorist organizations have consistently had an interest in using
biological weapons as a means of attacking their targets, but only few have actually made a weapon and used it. The attraction is that
terrorist activities with biological weapons are difficult to detect and even more difficult to attribute without a specific perpetrator claiming
responsibility. Since 1971 there have been more than 113,113 terrorist attacks globally and 33 of them have been biological. The majority of
bio-terrorism incidents recorded occurred during the year 2001 (17 of the 33); before 2001 there were 10 incidents and since 2001 there were
6 (not counting the most recent Ricin attacks). The lack of a discernable trend in use of bio-terrorism does not negate the clear intent of
extremist organizations to use biological weapons. In fact, the capacity to harness biological weapons more effectively today only increases the
risk that they will successfully be employed.¶
The landscape is changing : previously the instances where biological attacks had the
potential to do the most harm (e.g., Rajneeshees cult’s Salmonella attacks in 1984, Aum Shinri Kyo’s Botulinum toxin, and Anthrax attacks in the
early 90’s) included non-state actors with access to large amounts of funding and scientists. Funding and a cadre of willing scientists does not
guarantee success though. The assertion was thus made that biological weapons are not only expensive, they require
advanced technical training to make and are even more difficult to effectively perpetrate acts of terrorism with. While it is
difficult to determine with certainty whether the expense and expertise needed to create biological weapons has acted as a major deterrent for
groups thinking of obtaining them, many experts would argue that the cost/expertise barrier makes the threat from biological attacks
extremely small. This assertion is supported by the evidence that the vast majority of attacks have taken place in Western countries and was
performed by Western citizens with advanced training in scientific research.¶ In the past decade the cost/expertise assertion has
become less accurate. Despite the lack of biological attacks, there are a number of very dangerous and motivated
organizations that have or are actively pursuing biological weapons. The largest and most outspoken organization has been the
global Al Qaeda network, whose leaders have frequently and passionately called for the development (or purchase) of Weapons of Mass
Destruction (WMD). The principal message from Al Qaeda Central and Al Qaeda in the Arabian Peninsula (AQAP) has included the call to use
biological WMDs to terrorize Western nations. Al Qaeda has had a particular focus on biological and nuclear weapons because of their potential
for greatest harm. Osama Bin Laden, Ayman al-Zawahiri and Anwar al-Awlaki have all called for attacks using biological weapons, going so far as
to say that Muslims everywhere should seek to kill Westerners wherever possible and that obtaining WMDs is the responsibility of all Muslims.
Before the US-led invasion of Afghanistan, Al Qaeda had spent significant funds on building a bio-laboratory and had begun collecting scientists
from around the world; however, the Afghanistan invasion and subsequent global War on Terrorism is thought to have disrupted their
capabilities and killed or captured many of their assets. Despite the physical setbacks, this disruption does not appear to have
changed the aggressive attitude towards obtaining WMDs (e.g., more recently U.S. Intelligence has been concerned
about AQAP attempting to make Ricin).¶ The emergence of synthetic biology and DIYbio has increased the
likelihood that Al Qaeda will succeed in developing biological WMDs . The low cost and significantly reduced
level of necessary expertise may change how many non-state actors view bio logical weapons as a worthwhile
investment. This is not to say that suddenly anyone can make a weapon or that it is easy. To the contrary making an effective biological
weapon will still be difficult, only much easier and cheaper than it has been in the past.¶ The
rapid advancements of synthetic
bio logy could be a game changer , giving organizations currently pursuing biological weapons more options,
and encouraging other organizations to reconsider their worth. Because the bar for attaining bio logical weapons
has been lowered and is likely to continue to be lowered as more advances in biological technology are made, it is important
that the international community begin to formulate policy that protects advances in science that acts to prevent the intentional misuse of
synthetic biology. Disregard for this consideration will be costly. A successful attack with a potent biological
weapon, where no pharmaceutical interventions might exist, will be deadly and the impact of such an attack will
reverberate around the globe because biological weapons are not bound by international borders.
Doctor-Patient Trust - Data Breach Inevitable
Patient-Doctor relations low now
Appari and Johnson 10, ( Ajit, Eric, Tuck School of Business, “Information security and privacy in
healthcare: current state of research,” Dartmouth, 4, 2010,
http://www.ists.dartmouth.edu/library/501.pdf)//IB
Healthcare information systems are largely viewed as the single most important factor in improving US
healthcare quality and reducing related costs. According to a recent RAND study, the USA could potentially save $81B annually by
moving to a universal Electronic Health Record (EHR) system (Hillestad et al., 2005). Not surprisingly, recent government initiatives have pushed
for wide-scale adoption of universal EHR by 2014 (Goldschmidt, 2005). Yet, IT spending in healthcare sector trails that of many other industries,
typically 3–5% of revenue, far behind industries like financial services where closer to 10% is the norm (Bartels, 2006). Anecdotal
evidences from recent years suggest that a lack of adequate security measures has resulted in numerous
data breaches, leaving patients exposed to economic threats, mental anguish and possible social stigma
(Health Privacy Project, 2007). A recent survey in the USA suggests that 75% of patients are concerned about health
websites sharing information without their permission (Raman, 2007). Possibly, this patient perception is fuelled by the
fact that medical data disclosures are the second highest reported breach (Hasan and Yurcik, 2006). In response to
these increasing threats to health information and privacy, new regulations at both the state and the federal level have been proposed in the
USA, e.g., Health Insurance Portability and Accountability Act (HIPAA).
Medical identity theft is an expanding issue that current legal protections fail to
prevent
Terry 14 (Nicolas P. Terry. “Big Data Proxies and Health Privacy Exceptionalism.” 2014. P. 8-10
https://www.ftc.gov/system/files/documents/public_comments/2014/01/00004-89091.pdf)//EMerz
With a legislative requirement to notify a data subject of a data breach, the data custodian’s duty is
triggered upon loss of control of the data, making a breach notification rule the definitive downstream
protective model. Breach notification laws proliferated because of the dramatic increase in identity
theft.27 Although all federal agencies are subject to a robust breach notification policy,28 federal
legislation to cover private parties has been proposed but not yet passed.29 In contrast, and in the
decade following California’s 2002 example, forty-six states and the District of Columbia have enacted
breach notification laws.31 More recently attention has turned to medical identity theft.32 It has been
argued that medical identities are highly valued by criminals because of the comprehensive data that
are contained in, for example, a stolen electronic medical record (EMR).33 A 2006 report from The
World Privacy Forum focused attention on the issue,34 and in 2009 the Office of the National
Coordinator for Health Information Technology (ONC) commissioned a study on the subject from Booz
Allen Hamilton.35 Today both HHS’s Office of Inspector General36 and the Federal Trade Commission 37
web sites have information pages concerning medical identity theft. According to a 2012 Ponemon
Institute study, 52% of health care organizations experienced one or more incidents of medical identity
theft. The 2013 Survey on Medical Identity Theft (also conducted by the Ponemon Institute) estimated a
19 per cent increase in medical identity theft victims year-to-year.39 Relatively few states include
health data within their definition of the personal information subject to breach notification. Others,
true to the US sector-based approach to privacy regulation, exclude data covered by, say, HIPAA or the
Gramm-Leach-Bliley Act of 1999 (GLBA).41 HITECH introduced two closely related breach notification
regimes. The first, introduced by section 13402, requires HIPAA covered entities and HIPAA BAs to
provide notification following a breach of “unsecured protected health information.”44 The second,
courtesy of section 13407, imposes a similar duty on vendors of personal health records (PHR) 45 and
their third party service providers 46 with regard to “Unsecured PHR Identifiable Health Information.”47
Rulemaking authority and enforcement are vested in the HHS regarding the former and the (Federal
Trade Commission) FTC regarding the latter. The regulation of PHRs is a limited (but ultimately
unsuccessful) attempt to expand health data protection from a narrow sector provider based model
(e.g., information held by a covered entity) to a data-type based model. Unfortunately it stopped short
of a broad datatype model (e.g., by protecting the data itself held by any data custodian), limiting the
custodian cohort to PHR providers.49 It is an interesting question why HITECH added a breach
notification data protection model. Certainly medical identity theft was being raised as an issue.50 As
likely this rethinking of the approach to data protection may have been triggered by the expansion of
personal health records services offered by non-health companies such as Google Inc.51 Maybe the
HITECH architects could not agree on a way to open up the broader and established HIPAA model to
apply to nontraditional custodians of health data (BAs aside) and so had to settle on a new but limited
data protection model as the legislative alternative. Notwithstanding, the result was that HITECH
authorized regulatory activity by the FTC that would mirror the work of HHS in the more narrowly
defined, traditional health space. Ironically, however, by the time HITECH was passed the PHR business
was slowing and Google Health, the PHR poster-child, soon would be closed.52
Healthcare data breaches are inevitable
Appari and Johnson 10, ( Ajit, Eric, Tuck School of Business, “Information security and privacy in
healthcare: current state of research,” Dartmouth, 4, 2010,
http://www.ists.dartmouth.edu/library/501.pdf)//IB
These attackers may have resources ranging from modest financial backing and computing skills to a
well-funded infrastructure. Additionally, the nature of the threats typically depends on the technical capability of the attackers.
Moreover, with the growing underground cyber economy (Knapp and Boulton, 2006), an individual possessing
adequate financial resources and with the intent to acquire data may be able to buy the services of
sophisticated hackers to breach healthcare data.
Government Access to records greatly expands the risk of data disclosure
Appari and Johnson 10, ( Ajit, Eric, Tuck School of Business, “Information security and privacy in
healthcare: current state of research,” Dartmouth, 4, 2010,
http://www.ists.dartmouth.edu/library/501.pdf)//IB
Although health information privacy has been widely discussed in the social science and business press (Etzioni,
1999), the academic literature lacks systematic investigation to identify and classify various sources of threats to information privacy and
security. Recent policy-based studies (such as NRC, 1997; Rindfleisch, 1997) broadly categorise privacy threats, or source of information
security, into two areas: 1 organisational
threats that arise from inappropriate access of patient data by either
internal agents abusing their privileges or external agents exploiting a vulnerability of the information
systems 2 systemic threats that arise from an agent in the information flow chain exploiting the disclosed data beyond its intended use (NRC,
1997). Organisational Threats: These threats assume different forms, such as an employee who accesses
data without any legitimate need or an outside attacker (hacker) that infiltrates an organisation’s information
infrastructure to steal data or render it inoperable. At the outset, these organisational threats could be characterised by four
components: motives, resources, accessibility and technical capability (NRC, 1997).
Government will leak private data
Appari and Johnson 10, ( Ajit, Eric, Tuck School of Business, “Information security and privacy in
healthcare: current state of research,” Dartmouth, 4, 2010,
http://www.ists.dartmouth.edu/library/501.pdf)//IB
Recent studies suggest that the broad spectrum of organisational
threats could be categorised into five levels, listed in
increasing order of sophistication (NRC, 1997): • Accidental disclosure: Healthcare personnel unintentionally disclose patient
information to others (e.g., e-mail message sent to wrong address or inadvertent web-posting of sensitive data). • Insider curiosity: An
insider with data-access privilege pries upon a patient’s records out of curiosity or for their own purpose (e.g., a nurse
accessing information about a fellow employee to determine possibility of a sexually transmitted disease or medical personnel accessing
potentially embarrassing health information about a celebrity and transmitting it to the media). • Data
breach by insider: Insiders
access patient information and transmit it to outsiders for profit or revenge. • Data breach by outsider with physical
intrusion: An outsider enters the physical facility either by coercion or forced entry and gains access to the system. •
Unauthorised intrusion of network system: An outsider, including former employees, patients, or hackers,
intrudes into an organisation’s network from the outside to gain access to patient information or render
the system inoperable. Systemic Threats: Etzioni (1999), in discussing the ‘limits to privacy’, observed that a
major threat to patient privacy occurs, not from outside of the information flow chain, but from insiders
who are legally privileged to access patient information. For example, insurance firms may deny life insurance to patients
based on their medical conditions, or an employer having access to employees’ medical records may deny promotion or terminate
employment. Patients or payer organisations may incur financial losses from fraud including upcoding of diagnoses or for rendering medically
unnecessary services.
They cant solve --- technological advances make illegal dissemination unpreventable
Ruebner and Reis, professor former professor of law at The John Marshall Law School, 1/1/2004 –
(Ralph, Leslie, “Hippocrates to HIPAA: A Foundation for a Federal Physician-Patient Privilege, 77 Temp. L.
Rev. 505 (2004)”, published in the Temple Law Review at The John Marshall Law School)//roetlin
HHS commented on the inherent conflict between technology and privacy, in particular, the
connection between the increasing
use of interconnected electronic information systems in the health care context and the loss of health
information privacy. 6 3 In doing so, HHS emphasized the fact that advances in technologies used to collect and
disseminate patient health information have "reduced or eliminated many of the financial and logistical
obstacles that previously served to protect the confidentiality of health information and the privacy
interests of individuals." 6 4 Simply, the pervasiveness of and access to medical information in electronic
form creates the likelihood that such information will be wrongfully disclosed or used in a manner that
may harm the patient. 6 5 Technological advancements in information systems "may provide a reason for institutionalizing privacy
protections in situations where the risk of harm did not previously justify writing such protections into law." 6 6
Heath information data breaches inevitable now – triggers all aff links
New York Times April 2015 “Patients' Medical Records Under Threat From Data Breaches”
http://www.nytimes.com/aponline/2015/04/14/health/ap-us-med-breached-health-records-.html
Your private medical information is under threat. That's according to a study that found almost 30
million health records nationwide were involved in criminal theft, malicious hacking or other data
breaches over four years. The incidents seem to be increasing. Compromised information included
patients' names, home addresses, ages, illnesses, test results or Social Security numbers. Most involved
electronic data and theft, including stolen laptops and computer thumb drives. The study didn't examine
motives behind criminal breaches, or how stolen data might have been used, but cyber-security experts
say thieves may try to use patients' personal information to fraudulently obtain medical services. Cases
that didn't involve malicious intent included private health information being inadvertently mailed to
the wrong patient. Hackings doubled during the study, from almost 5 percent of incidents in 2010 to
almost 9 percent in 2013. Hackings are particularly dangerous because they can involve a high number
of records, said Dr. Vincent Liu, the lead author and a scientist at Kaiser Permanente's research division
in Oakland, California. "Our study demonstrates that data breaches have been and will continue to be a
persistent threat to patients, clinicians, and health care systems," Liu said. The study appears in
Tuesday's Journal of the American Medical Association. A JAMA editorial says there's evidence that the
incidents are leading some patients to avoid giving doctors sensitive information about their health,
including substance abuse, mental health problems, and HIV status. "Loss of trust in an electronic health
information system could seriously undermine efforts to improve health and health care in the United
States," the editorial said. Patients should be alert to cyber threats, including "phishing" emails from
hackers posing as doctors, hospitals or health insurance companies, said Lisa Gallagher, a cybersecurity
expert at the Healthcare Information and Management Systems Society. Those messages require
clicking on a link to get information, and patients should instead should call the purported sender to
verify whether the email is legitimate, she said Patients should also double check doctor bills and other
insurance company information. "Don't throw away your explanation of benefits. Take a look at them,"
Gallagher said. "If you see care that wasn't provided to you, or dates and names of providers that don't
make sense, go to the provider and report that." For the study, Liu and colleagues analyzed an online
database regulated by the U.S. Department of Health and Human Services and containing mandated
reports of breaches in health information protected by federal privacy law. Over the four years, 949 data
breaches were reported across the country. The numbers climbed annually, from 214 in 2010 to 265 in
2013. Nearly 60 percent involved theft.
Doctor-Patient Turst – Privacy Not Key
Patients don’t actually expect privacy
Appari and Johnson 10, ( Ajit, Eric, Tuck School of Business, “Information security and privacy in
healthcare: current state of research,” Dartmouth, 4, 2010,
http://www.ists.dartmouth.edu/library/501.pdf)//IB
Bansal et al. (2007) developed a set of constructs based on utility theory and prospect theory as antecedents of trust formation and privacy
concern that impact users’ personal disposition to disclose their health information to online health websites. In particular, they reported that
users’ current health status, personality traits, culture, and prior experience with websites and online privacy invasions play a major role in
users’ trust in the health website and their degree of privacy concerns. On the other hand, in a mail-based survey with adult patients in
England, Campbell et al. (2007) found that about 28–35% of patients are neutral to their health information – such as
age, gender, ethnicity, reason for treatment, medical history, personal habits impacting health, type of treatment obtained, side effects of
treatment – being used by physicians for other purpose.
Only about 5–21% of patients, however, expected to be asked for
permission to use their information by their physicians. Similarly, only about 10% of the patients
expected to be asked for permission if their doctors used their health information for a wide variety of
purposes, including combining data with other patients’ data to provide better information to future patients, sharing
treatment outcomes with other physicians, teaching medical professionals and writing research articles about
diseases and treatments.
No internal link – patients don’t care
McCarthy 15 (Kevin McCarthy covers healthcare tech and policy regulations, “Why EHRs do not harm the doctor-patient relationship”
6/3/15 http://www.nuemd.com/news/2015/06/03/ehrs-do-not-harm-doctor-patient-relationship)
It's no secret that the road to widespread implementation of electronic health records has been a difficult one for some clinicians. While large
providers may have had the capital to throw at a problem like staff training and new equipment purchases, small practices were faced with
financial and operational issues that, while challenging, proved not to be as unsolvable as some critics had predicted. According to the U.S.
Centers for Medicare and Medicaid Services, over 447,000 providers have implemented and been compensated for EHR systems in their
offices.¶ Now
that EHR software has become a large part of the medical industry, experts have turned their
gazes back to an issue that dominated the discussion when federal agencies first started pushing the platform as reform alternative. The
question of how EHRs affect the physician-patient relationship can seem simple at times - more screens separating
clinicians from their patients can only seem wrong - but, as EHR Intelligence explained, the underlying factors may point to a different and more
positive interpretation for EHRs in the workplace.¶ Office manners¶ The doctor-patient relationship goes all the way back to the days when
house calls and personal physicians were only the domain of the super wealthy. Today, every
patient has a right to expect their
doctors to be open, polite, informative, and, most of all, confidential. Such a natural relationship fosters
trust between both parties, and when outpatient treatments are the only ones possible, this level of mutual respect is necessary for
both sides to move toward a positive care outcome.¶ However, with the rise of EHRs, especially on mobile devices, creating a
meaningful doctor-patient relationship isn't as easy as it used to be. In an interview with EHR Intelligence, James
Avallone, director of physician research for Manhattan Research, explained that EHR use is most certainly up, but its impact on the personal
dynamics between patients and doctors is much less clear.¶ "Whether it is too much or too little, it is difficult for us to say from our
perspective," Avallone said. "In the past four to five years, we have seen a fair share of complaints in terms of the efficiency of EHRs and how
[they are] changing bedside manners for physicians overall. I do think we are starting to see some efficiencies come about in terms of efficient
use of these platforms and that includes at the point of care. It is certainly something that physicians are getting used to as it becomes more
ingrained in their day-to-day behaviors. They have had more time to streamline workflow and that is something that we are seeing in terms of
how these devices are being used at the point of care."¶ Avallone noted that research from a recent Manhattan study found that 66 percent of
physicians self-reported as being more efficient with their EHRs than in the past. While part of this may be due to a greater sense of familiarity
with the product and how to fit it into workflows, EHR vendors have also caught up with the trends of the day by developing software that
intuitively meshes with physicians' daily tasks.¶ A
minor annoyance¶ While EHRs may be an easy target for opponents of the technology,
studies show that EHRs are not a top concern among physicians who are worried about losing the trust and
goodwill of their patients.¶ According to a 2013 study published in Health Affairs, only 25.8 percent of physicians reported that EHRs
were threatening the doctor-patient relationship. Administrative burdens like the ICD-10 transition and HIPAA compliance regulations, on the
other hand, were noted by more than 41 percent of those surveyed. ¶ If industry experts are truly concerned about protecting the quality of the
doctor-patient relationship, then EHR
software should not be the primary focus. Instead, it should be highlighted during
discussions with patients to show them just how powerful it can be. From there, patients may not care so much about the
time doctors spend inputting their information into a piece of software that could save their lives.
Healthcare privacy is not key to trust
Dan Munro (Writer for Forbes and Quora specializing in healthcare related topics) November 2014
“Trust Trumps Privacy In Battle For Patient Health Data”
http://www.forbes.com/sites/danmunro/2014/11/09/trust-trumps-privacy-in-battle-for-patient-healthdata/
There’s no shortage of advocates on behalf of the “free your health data” movement. The keywords, of
course, are “ your,” “health data” and “free” (as in donating your health data for the global benefit of
clinical research). The latest demand was an article that appeared last week in Wired ‒ You Should Share
Your Health Data: Its Value Outweighs The Privacy Risk by Beth Seidenberg, MD (a partner at the
venture firm Kleiner Perkins Caufield & Byers). Dr. Seidenberg’s medical credentials are definitely
compelling (including Chief Medical Officer of Amgen AMGN -0.82%), but it’s always a red flag to me
when a total stranger (especially one with medical credentials) boldly demands that I “should” do
anything online ‒ with my health ‒ which includes my health data. While Dr. Seidenberg’s demand is
noble in the conclusion that we can all benefit from the clinical research, her argument is based squarely
on the false premise that privacy is the largest gating factor in the reluctance of consumers (or patients)
to share their health data. I’m sure that privacy is a reason for many, but it’s certainly not for me. I know
just how easy all health data can be breached ‒ and wrote about it earlier this year when I logged onto
the network of a 300+ bed hospital using just a browser and my desktop PC (here). It’s not that the
electronic door to the hospital was unlocked ‒ or even open. There was simply no door at all. The only
thing missing was a banner ad saying “Click here for free health data.” The larger trend for health data
breaches (including this year’s 2nd largest ever ‒ 4.5 million by CHS) is alarming. But risk of data breach
‒ cloaked as ‘privacy’ ‒ is not the issue. At least it’s not mine. The issue I see is much larger ‒ trust. Given
the importance of getting this priority right, it’s really tone deaf for anyone anywhere to demand that
we do anything with our personal health data. Dr. Seidenberg’s demand makes sense, of course,
because the interests of venture capitalists are well aligned with many commercial interests in
healthcare ‒ much of which has been optimized around revenue and profits ‒ not safety and quality.
The lack of trust I see is clearly evident in countless stories of courageous patients, battling openly
(almost entirely at their own expense) for access to their health data. Privacy issues (and HIPAA) are
often cited as the legal reason for prohibiting access, of course, but that’s just an excuse. Absent data
security (clearly evident) there is no privacy and the real reason masquerading behind these false claims
isn’t privacy protection ‒ it’s revenue protection. This isn’t just hospitals. The data battle for many
patients encompasses medical device manufacturers, pharmaceutical companies and electronic health
record vendors too. Our collective rights as patients are entirely secondary ‒ if at all. Here’s one
example that appeared just yesterday in the New York Times ‒ Medical Records: Top Secret (by
Elisabeth Rosenthal). The story outlines the continuing case of Mr. Drier ‒ a patient Ms. Rosenthal wrote
about previously who was billed $117,000 after a 3‒hour neck surgery. Mr. Drier’s efforts to get his
health record (for ongoing management of his health condition) resulted in this summary: The six-week
ordeal included requests that needed to be made via regular mail, numerous phone calls, consent forms
and an estimate for copying fees that totaled $100. This was topped off by an actual visit to the hospital
by Mr. Drier, who sat in an office until he had paper documents in hand. The problem is enormous ‒ and
longstanding. The above example is simply one case that highlights what little progress we’ve made in
the course of 5 years. I reference that timeframe because this last September marked the 5‒year
anniversary of Dave deBronkart’s battle cry at the Medicine 2.0 event in Toronto. He opened his keynote
with this slide. Working with his physician ‒ Dr. Danny Sands ‒ he was finally able to download his health
record electronically. The data that came into view, however, was largely based on billing records and
loaded with inaccuracies (including the fact that an x‒ray from 2003 identified him as a 53 year‒old
woman). He summarized his experience with transferring his health data into Google GOOGL +1.71%
Health (now defunct) this way: In other words, the data that arrived in Google Health was essentially
unusable. Dave deBronkart ‒ Imagine someone had been managing your data, and then you looked ‒
April, 2009 Hugo Campos is another example. Hugo continues to work tirelessly on getting access to the
data from the cardiac defibrillator inside his own chest. His TEDxCambridge talk highlights his dilemma
and his ongoing battle with Medtronic MDT -0.73% for access to the data his own heart generates ‒
again to manage his own health. Like other device manufacturers, Medtronic believes they should own
the data ‒ and patients who actually generate the data have no legal rights. The ICD device collects a lot
of data about its own function and about the patient’s clinical status. It’s a pretty complex little
computer, but unfortunately, none of this very valuable data is made available to the patient who
originates it. The best we can do is get a print-out or a hardcopy of an interrogation report (typically at 6
or 12 month intervals). These reports are designed for doctors ‒ not really for patients ‒ so a lot of
patients are discouraged from even getting this information. It’s hard to read.” Hugo Campos ‒
TEDxCambridge 2011 Earlier this year, I wrote about Anna McCollister‒Slipp and her battle with the data
that she needs to manage her Type 1 diabetes. So I have all of this incredible information literally 24/7 –
not just from my prescription medical devices – but also from my Fitbit, from a Bluetooth blood pressure
monitor, from my digital scale and from a variety of different iPhone apps that are used for nutrition
tracking etc. None of it connects. They’re all in completely different data streams, and even though each
of them provides something that would be an incredibly vital element for me to truly understand how to
manage my disease, how to predict when I need to change insulin in response to exercise, or stress, or
schedule changes, or whatever the case may be – I can’t get that information all in one place. Even
though it’s electronic – even though it’s all downloadable in one form or another – it’s all on different
platforms, different computing systems and it doesn’t work together. Anna McCollister‒Slipp ‒ The View
Of Digital Health From An Engaged Patient These are just a few examples ‒ there are millions more ‒
most of which will remain forever silent for reasons of personal privacy (or embarrassment) and they all
exist because the business models don’t support sharing data with the people who create it in the first
place ‒ patients. Venture capitalists are notably absent when it comes to funding any patient‒centered
solutions because there’s simply no way to avoid the first question ‒ who pays? Healthcare needs our
clinical (and genetic) data for the purpose of advancing diagnosis and treatment of disease. I get that.
What’s hard to believe is the misaligned priority of demanding our health data in advance of important
efforts to break down the impenetrable barriers of our own access ‒ to our own data. Tone deaf may be
a harsh characterization, but if it doesn’t apply here ‒ where does it? There is no question that all this
data has enormous value, but getting the priority right makes all the difference in establishing trust. As
Dr. Peter Diamandis suggested in his keynote at CHIME earlier this month, “privacy is dead.” Whether
he’s right or not is immaterial. Trust most certainly isn’t dead ‒ and that trumps privacy everywhere.
Especially in healthcare.
Beth Seidenberg (M.D. general partner with Kleiner Perkins Caufield & Byers) November 2014 “You
Should Share Your Health Data: Its Value Outweighs the Privacy Risk”
http://www.wired.com/2014/11/on-sharing-your-medical-info/
Single issue focus under patient-physician trust is flawed - key issues constantly shift
Steven Pearson and Lisa Raeke (Center for Ethics in Managed Care, Harvard Medical School and
Harvard Pilgrim Health Care, Boston, Mass) 2000 “Patients' Trust in Physicians: Many Theories, Few
Measures, and Little Data” http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1495476/
The importance of trust in patient-physician relationships is not questioned, but our understanding of it
has depended largely on the passionate thoughts and anecdotes of physicians who cherish the special
bond they feel with their patients. For practicing clinicians and for those who teach medical students
and residents, the elements of physician behavior that foster trust can continue to reflect the instincts
of physician-theorists: competence, compassion, reliability, integrity, and open communication. A widely
accepted empirical conceptualization and understanding of trust is yet to come. In recent years, other
complex and once believed intangible concepts, those of “satisfaction”24,25 and “health status,”26,27
have yielded to rigorous qualitative and quantitative research, and investigators and policy leaders now
have standardized instruments with which to measure these concepts in a wide variety of health care
settings. Although attempts to operationalize patient-physician trust are in their infancy, with models
emerging recently through the effort of investigators such as Kao and Safran, a refinement and
convergence of techniques may soon allow trust to be measured and discussed as routinely and
rigorously as many other elements of health care. For patient-physician trust to be strengthened, our
ability to measure the mediators and outcomes of trust must mature. However, a single measure of
patient trust is unlikely to achieve long-lasting predominance, nor should it. The evolving nature of the
health care system will continue to cast new light on patient-physician relationships. There will be new
threats to trust that appear on the horizon, while other threats will be perceived to fade in importance.
Much as the threat of overly paternalistic physicians provided the chief concern in the 1970s,
researchers are now more interested in measuring patients' concerns about physicians' conflict of
interest in the setting of strong financial incentives. As the focus of measures of trust have evolved, from
the earliest measure of Dedrick and Anderson to the latest measure of Kao et al., measures of patientphysician trust must also continue to evolve to address changes in the health care system and in how
our society views the key elements of trust.
Doctor-Patient Trust - Uniqueness
Doctor-Patient trust high now
Gregory Giroux (writer for Bloomberg Business News) July 14, 2014 “Doctors Running for Congress
Ditch Suits for White Coats” www.bloomberg.com/news/2014-07-14/doctors-running-for-congressditch-suits-for-white-coats.html
It’s no accident: polls show nurses and doctors are among the most trusted people in America.
Politicians are among the least trusted. All three commercials for Monica Wehby, an Oregon Republican
seeking to unseat Democratic Senator Jeff Merkley, have shown her in a hospital setting. “As a pediatric
neurosurgeon, I know firsthand how devastating Obamacare is for Oregon families and patients,”
Wehby said in one of her ads, which was interspersed with footage of the candidate in surgical scrubs.
The “Grey’s Anatomy” backdrop comes as Republicans seek to gain control of the U.S. Senate and, with
their House majority counterparts, pass a law repealing 2010’s Affordable Care Act. The quest is gaining
urgency as Americans become more accepting of the law. Republicans need a net gain of six seats for a
Senate majority. Fifty-three percent of Americans oppose the law, though just 32 percent say it should
be repealed, according to a Bloomberg National Poll last month. Fifty-six percent say they want to keep
Obamacare with “small modifications.” Wardrobe Messaging The latest wardrobe preferences for
political ads also put distance between some candidates and the unpopular Congress they are seeking to
join. About 82 percent of Americans say nurses have a “high or very high level” of honesty and ethical
standards, the top spot among 22 professions rated in a December Gallup survey. Pharmacists were tied
for second at 70 percent, and medical doctors were tied with military veterans for fourth at 69 percent.
Medical professionals have high approval ratings because people view them as “primary care-givers,”
said Frank Newport, Gallup’s editor-in-chief.
Doctor-Patient Truest – Uniqueness o/w Link
Doctor-Patient trust is at an all-time low – suspicion is deep-rooted and privacy
doesn’t solve
Fiaz Fazili (M.D., King Fahad Hospital Medina La Munawarah Kingdom Of Saudi Arabia, Surgery;
Minimal invasive and acute acre) June 16, 2015 “A Lost Trust”
http://www.greaterkashmir.com/news/opinion/story/189486.html
Medicine still is a noble profession. To most of us, medicine is more than a job of care providing- putting
patients' interest first. Unfortunately, in quest of big business, nobility of noble this profession is
vanishing, and the doctor-patient trust is running all time low. Sadly, there is a general perception in
public that the ethics of medical profession have degenerated, Doctors are accused of not attending to
patients with same zeal and compassion as it used to be. Contrarily, in their own private clinic attitudes
often are different. There is a conflicts of Interest. Is your doctor paid to promote a drug or device? Are
doctors prescribing what is best for you? Today, patients, or their relatives carry a lot of prejudice and
preconceived notions when they enter a doctor's chamber for consultation; a mindset of suspicions that
doctors also behave like businessmen. Recognition and avoidance of conflicts of interest represent a
core issue of professionalism, and are well covered in State and Indian medical council bye-laws of, as
most of our doctors are honest, follow the rules, avoiding situations in which the interest of the doctor is
placed above that of the patient. Honesty is a major concern in medical ethics and carries an important
value for a medical practitioner where doctor is perceived as a messiah – a healer. Quality of care varies
dramatically between individual doctors and hospitals, but those differences are invisible to patients.
Whether it is a systemic failure, lack of uniformity in standards of care, organizational disarray, trust
deficit or attitude problem. A number of common problems arise within the 'expectation zone',
environment, and circumstances. Valley medicos often cry insecurity, seek action and protection from
concerned authorities. Isn't it time to lift the veil on this sad reality for finding some important remedial
measures to restore the dignity, honor and trust of overwhelming majority of the doctors who don’t
succumb to kickbacks or other lucrative incentives from pharmaceutical companies, who are unwilling to
prescribe a drug, or implant a device, refusing facilitation for conferences, symposiums and research?
Generalizing a statement, doctors fleecing patients in their private clinics or nursing home, is a myth in
our valley when you compare similar circumstances outside the state. Agreeably, there might be a few
even in our state who disgrace the profession, as there are in any profession but factually majority of
doctors are altruistic. I don't say that all doctors are like priests, not driven by a greed. Some among us
do resort to practices that are unethical practices to make money. This menace once limited to
corporate hospitals is now infiltrating the state administered hospitals through these dishonest
elements who need to be identified and let the writ of law take its course. My humble appeal goes to
public and patients for change in perception, don’t look through tainted glasses on this profession. Our
dedicated, intelligent health care staff need recognition of for the hard work they do.
Doctor-Patient Trust – A2 Disease Impacts
Status quo solves – antifolates – breakthroughs have already happened and are going
to trials
Colin Poitras (writer for the UConn Today) July 23, 2014 “Possible Breakthrough in Battle Against
Drug-Resistant Diseases” http://today.uconn.edu/blog/2014/07/possible-breakthrough-in-battleagainst-drug-resistant-diseases/
In the war against drug-resistant diseases and so-called “superbugs”, the family of bacteria known as
CREs are a particularly nasty bunch. The bacteria, whose scientific name is carbapenem-resistant
Enterobacteriaceae – include notorious strains of E. coli and Klebsiella and are a constant health concern
in hospitals and nursing homes, where the germs breed in ventilators, catheters, and intravenous lines.
CREs have been flagged as an “urgent threat” by the Centers for Disease Control and Prevention
because of their strong resistance to antibiotics and easy transmission between humans. Some CRE
bacteria are resistant to all known antibiotics. The mortality rate is high. As many as 50 percent of
patients infected with CRE bacteria die because there is no drug to fight them. But two UConn scientists
may be gaining new ground against the public health threat. Professors Amy Anderson and Dennis
Wright, along with their students in the School of Pharmacy, have developed a group of drug
compounds that appear to be particularly effective against CREs in early tests. A lead is a preliminary
molecule that shows promise and is poised for further development. The potent compounds – part of a
group of drugs known as antifolates – were a long time coming for the two, who have been searching
for effective treatments for drug-resistant diseases like MRSA, E. coli, and Klebsiella pneumoniae for
more than 10 years. Working with drug-resistant strains is particularly challenging for researchers, as the
diseases constantly morph and evolve to fend off attacks to kill them. “It has been a holy grail to kill
these types of CREs,” says Anderson, a professor of medicinal chemistry and interim head of the
Department of Pharmaceutical Sciences. “These (CRE) bacteria have an extra thick, tight membrane
meshed with proteins that makes it very hard for drugs to penetrate. We’ve spent years trying.” After
testing hundreds of different compounds, delicately altering each one’s chemical structure with the
hope of finding the magic recipe that would serve as a CRE knockout blow, Anderson and Wright
recently started seeing positive results in one particular group. ‘Our goal was to inhibit a certain enzyme
in the bacteria so it can’t function and the bacteria can’t survive,” Anderson says. “When we finally got a
very potent inhibition of the enzyme, that was definitely a eureka moment.” The pair recently received
a five-year, $2.7 million grant from the National Institutes of Health to further study these compounds
and prepare them for clinical trials. Together, Anderson’s and Wright’s labs have received more than
$10 million in federal research support since they began working on the project. Wright, a professor of
medicinal chemistry, synthesizes the new drugs; Anderson evaluates them and determines the atomic
details of how they interact with their intended target . “We want to make compounds that are potent
inhibitors of the growth of the bacteria and at the same time are safe, with good drug properties, so
down the line they will be effective when used at a clinic,” says Wright. At this stage in the research,
Anderson and Wright are trying to learn more about the physical and chemical processes that allow
their compounds to penetrate the armor-like coating around CREs when so many others have failed.
Understanding why their compounds are working may allow them to apply the same biological
chemistry to different compounds that could be used to fight other persistent infections. Associate
professor of pharmacy practice Jeffrey Aeschlimann from UConn Health is helping with the CRE drug
characterizations. University of Montana professor of chemistry Nigel Priestley is assisting with testing in
early animal pre-clinical trials. “Right now, what makes our compounds attractive is that they seem to
have a very low rate of resistance,” says Wright. “We’ve made compounds that are very hard for these
CREs to fend off.”
Recently discovered fungus
Catholic Online July 2014 “How one fungus may stop superbugs”
http://www.catholic.org/news/health/story.php?id=56093
Scientists at McMaster University in Ontario discovered a compound that instantly turned off a gene in
several harmful bacteria that made them highly resistant to treatment with a class of antibiotics used to
fight so-called suberbug infections. There are still thousands of children who need just one light in the
darkness. Aspergillomarasmine A (AMA), was the compound that was found in a soil sample extracted
from a common fungus found in soil and mold. Antibiotic resistance is a growing public-health threat.
Common germs such as Escherichia coli (E. coli) are becoming harder to treat because of increasing
immunities to common antibiotics. In the United States alone, some two million people are infected
with antibiotic-resistant diseases, and around 23,000 die as a result, according to information released
from the Centers for Disease Control and Prevention (CDC). The World Health Organization (WHO) has
called antibiotic resistant a threat to global public health. Using the compound, the Canadian team was
able to disarm a gene-New Delhi Metallo-beta-Lactamase-1 (NDM-1) that has become the WHO's
number one enemy since it was discovered in 2009. , "Discovery of a fungus capable of rendering these
multidrug-resistant organisms incapable of further infection is huge " said Irena Kenneley, a
microbiologist and infectious disease specialist at Frances Payne Bolton School of Nursing at Cleveland's
Case Western Reserve University. "The availability of more treatment options will ultimately save many
more lives."
Squo solves
Anne Trafton (writer for the MIT News Office) September 21, 2014 “Battling superbugs”
http://newsoffice.mit.edu/2014/fighting-drug-resistant-bacteria-0921
In recent years, new strains of bacteria have emerged that resist even the most powerful antibiotics.
Each year, these superbugs, including drug-resistant forms of tuberculosis and staphylococcus, infect
more than 2 million people nationwide, and kill at least 23,000. Despite the urgent need for new
treatments, scientists have discovered very few new classes of antibiotics in the past decade. MIT
engineers have now turned a powerful new weapon on these superbugs. Using a gene-editing system
that can disable any target gene, they have shown that they can selectively kill bacteria carrying harmful
genes that confer antibiotic resistance or cause disease. Led by Timothy Lu, an associate professor of
biological engineering and electrical engineering and computer science, the researchers described their
findings in the Sept. 21 issue of Nature Biotechnology. Last month, Lu’s lab reported a different
approach to combating resistant bacteria by identifying combinations of genes that work together to
make bacteria more susceptible to antibiotics. Lu hopes that both technologies will lead to new drugs to
help fight the growing crisis posed by drug-resistant bacteria. “This is a pretty crucial moment when
there are fewer and fewer new antibiotics available, but more and more antibiotic resistance evolving,”
he says. “We’ve been interested in finding new ways to combat antibiotic resistance, and these papers
offer two different strategies for doing that.” Cutting out resistance Most antibiotics work by interfering
with crucial functions such as cell division or protein synthesis. However, some bacteria, including the
formidable MRSA (methicillin-resistant Staphylococcus aureus) and CRE (carbapenem-resistant
Enterobacteriaceae) organisms, have evolved to become virtually untreatable with existing drugs. In the
new Nature Biotechnology study, graduate students Robert Citorik and Mark Mimee worked with Lu to
target specific genes that allow bacteria to survive antibiotic treatment. The CRISPR genome-editing
system presented the perfect strategy to go after those genes. CRISPR, originally discovered by
biologists studying the bacterial immune system, involves a set of proteins that bacteria use to defend
themselves against bacteriophages (viruses that infect bacteria). One of these proteins, a DNA-cutting
enzyme called Cas9, binds to short RNA guide strands that target specific sequences, telling Cas9 where
to make its cuts. Lu and colleagues decided to turn bacteria’s own weapons against them. They designed
their RNA guide strands to target genes for antibiotic resistance, including the enzyme NDM-1, which
allows bacteria to resist a broad range of beta-lactam antibiotics, including carbapenems. The genes
encoding NDM-1 and other antibiotic resistance factors are usually carried on plasmids — circular
strands of DNA separate from the bacterial genome — making it easier for them to spread through
populations. When the researchers turned the CRISPR system against NDM-1, they were able to
specifically kill more than 99 percent of NDM-1-carrying bacteria, while antibiotics to which the bacteria
were resistant did not induce any significant killing. They also successfully targeted another antibiotic
resistance gene encoding SHV-18, a mutation in the bacterial chromosome providing resistance to
quinolone antibiotics, and a virulence factor in enterohemorrhagic E. coli. In addition, the researchers
showed that the CRISPR system could be used to selectively remove specific bacteria from diverse
bacterial communities based on their genetic signatures, thus opening up the potential for “microbiome
editing” beyond antimicrobial applications. To get the CRISPR components into bacteria, the researchers
created two delivery vehicles — engineered bacteria that carry CRISPR genes on plasmids, and
bacteriophage particles that bind to the bacteria and inject the genes. Both of these carriers successfully
spread the CRISPR genes through the population of drug-resistant bacteria. Delivery of the CRISPR
system into waxworm larvae infected with a harmful form of E. coli resulted in increased survival of the
larvae. The researchers are now testing this approach in mice, and they envision that eventually the
technology could be adapted to deliver the CRISPR components to treat infections or remove other
unwanted bacteria in human patients. “This work represents a very interesting genetic method for
killing antibiotic-resistant bacteria in a directed fashion, which in principle could help to combat the
spread of antibiotic resistance fueled by excessive broad-spectrum treatment,” says Ahmad Khalil, an
assistant professor of biomedical engineering at Boston University who was not part of the research
team. High-speed genetic screens Another tool Lu has developed to fight antibiotic resistance is a
technology called CombiGEM. This system, described in the Proceedings of the National Academy of
Sciences the week of Aug. 11, allows scientists to rapidly and systematically search for genetic
combinations that sensitize bacteria to different antibiotics. To test the system, Lu and his graduate
student, Allen Cheng, created a library of 34,000 pairs of bacterial genes. All of these genes code for
transcription factors, which are proteins that control the expression of other genes. Each gene pair is
contained on a single piece of DNA that also includes a six-base-pair barcode for each gene. These
barcodes allow the researchers to rapidly identify the genes in each pair without having to sequence the
entire strand of DNA. “You can take advantage of really high-throughput sequencing technologies that
allow you, in a single shot, to assess millions of genetic combinations simultaneously and pick out the
ones that are successful,” Lu says. The researchers then delivered the gene pairs into drug-resistant
bacteria and treated them with different antibiotics. For each antibiotic, they identified gene
combinations that enhanced the killing of target bacteria by 10,000- to 1,000,000-fold. The researchers
are now investigating how these genes exert their effects. “This platform allows you to discover the
combinations that are really interesting, but it doesn’t necessarily tell you why they work well,” Lu says.
“This is a high-throughput technology for uncovering genetic combinations that look really interesting,
and then you have to go downstream and figure out the mechanisms.” Once scientists understand how
these genes influence antibiotic resistance, they could try to design new drugs that mimic the effects, Lu
says. It is also possible that the genes themselves could be used as a treatment, if researchers can find a
safe and effective way to deliver them. CombiGEM also enables the generation of combinations of three
or four genes in a more powerful way than previously existing methods. “We’re excited about the
application of CombiGEM to probe complex multifactorial phenotypes, such as stem cell differentiation,
cancer biology, and synthetic circuits,” Lu says.
Its already got a patent – will be scaled up for commercial and national needs now
Kenneth Ma (Lawrence Livermore National Laboratory) October 7, 2014 “Bio researchers receive
patent to fight superbugs” https://www.llnl.gov/news/newsreleases/2014/Oct/NR-14-10-3.html
Superbugs, or antibiotic-resistant bacteria, have been on the rise since antibiotics were first introduced
80 years ago. That's because these germ-fighting agents have lost their punch from being
overprescribed and misused, allowing bacteria pathogens to develop immunities against them. As a
result, superbugs sicken nearly 2 million Americans each year and roughly 23,000 people die annually
from these infections, according to the Centers for Disease Control and Prevention. Many more people
die from other conditions that are complicated by antibiotic-resistant infections. Lawrence Livermore
National Laboratory scientists have figured out a way to reverse this trend by developing novel
antibiotics that effectively kill superbugs. They were recently issued a patent for producing antimicrobial
compounds that degrade and destroy antibiotic-resistant bacteria by using the pathogen's own genes
against it. Their approach can be used to fight superbugs such as antibiotic-resistant E. coli, Salmonella,
Campylobacter, Methicillin-resistant Staphylococcus aureus (MRSA), Bacillus anthracis and many others.
Antimicrobial compounds available today are designed to treat a host of bacteria, not target specific
ones. While this is effective in the short term, bacteria are able to modify themselves over time to
prevent a number of antibiotics from inhibiting their growth, rendering the antibiotics useless. To
prevent this, the LLNL team created a process to discover new antibiotics designed to eradicate targeted
bacterium responsible for a specific infection. Their technique uses computational tools and genome
sequencing to identify which genes inside a bacterium encode for lytic proteins that can be used to kill
it. Lytic proteins are enzymes that normally produce nicks in cell walls that allow cells to divide and
multiply. But used in high concentrations, these enzymes cause rapid cell-wall degradation and cell
rupture, a process known as lysis. Lytic proteins circumvent any defenses that bacteria have developed
against today's broadly focused antimicrobials. Once genes encoding lytic proteins are identified in a
bacterium, Lab researchers synthesize those genes and produce the lytic proteins in a laboratory setting.
They are then experimentally introduced to the cell walls of targeted pathogens to destroy them. "We
knew about these proteins because they were primarily coded and identified in bacteriophages, virus
particles that attack bacterium and make copies of themselves," said Matthew Coleman, a member of
the LLNL research team. "Bacteriophages need a way to get out of the bacteria once they make enough
copies. So they encode a lytic protein, called an endolysin that breaks down the cell wall, causing the cell
to die. The wall is what gives the cell its strength." The team's unique discovery was the existence of lytic
proteins that are not associated with bacteriophages. They learned that bacteria themselves encode
their own versions of these lytic proteins, which they use under tight regulatory control to remodel their
cell wall during cell division. Tight regulatory production means that lytic protein is not overproduced
because too much of it will kill the cells. The team conducted lab experiments that show lytic protein
produced by bacteria killed pathogens more effectively than lytic protein produced by bacteriophages.
LLNL's resources allowed the team to sequence genomes within a few weeks to obtain information on
new pathogens, unknown bacteria species and even species yet to be sequenced. This data helps the
team determine which genes encode lytic proteins and reproduce those proteins in large quantities to
eliminate targeted pathogens. So far, the team's novel approach has been extremely effective in lab
testing. In CDC experiments, the LLNL-produced lytic protein killed 100 percent of Bacillus anthracis
cells, the bacterium that causes anthrax. "We can isolate these genes to support the development of
effective antimicrobial agents for commercial and national needs," Coleman said.
Multi-drug resistance is unlikely- Combination therapy
Cobey el al. 15, (Gabriel G. Perron, R. Fredrik Inglis, Pleuni S. Pennings and Sarah Cobey, Evolutionary
Applications, “Fighting microbial drug resistance: a primer on the role of evolutionary biology in public
health,” 23 MAR 2015, http://onlinelibrary.wiley.com/doi/10.1111/eva.12254/full)//IB
The shortage
of new antibiotics motivated the search for novel strategies to manage resistance evolution. For
therapy showed that some antibiotics have nonlinear inhibitory activities when used
together (King et al. 1981; Yeh et al. 2009). Extensive phenotypic screens revealed that many classes of antibiotics could
inhibit the effects of other antibiotics given their modes of activity (Yeh et al. 2006), often caused by regulatory
example, combination
conflicts in the expression of the antibiotics’ cellular targets (Bollenbach and Kishony 2011) or by reductions in bacterial growth rates (Ocampo
et al. 2014). Subsequent
studies have shown that such interactions could modulate resistance evolution (Yeh et al.
2009): Multidrug resistance is unlikely to evolve against sets of antibiotics that inhibit each other's activity,
as resistance evolution to one antibiotic would expose the bacterium to the full efficiency of the second
antibiotic (Michel et al. 2008). However, additional clinical trials are required to see whether this finding can be put into practice.
Alt Cause – Laundry List
Series of factors affect the doctor-patient relationship and trust
Goold and Lipkin 99 (Susan Dorr Goold, MD, MHSA, MA, Received from the Division of General
Medicine, University of Michigan Medical Center, Ann Arbor, Mich. AND Mack Lipkin, Jr., MD, New York
University Medical Center, New York)(“The Doctor–Patient Relationship: Challenges, Opportunities, and
Strategies”, J Gen Intern Med. 1999 Jan; 14(Suppl 1): S26–S33. doi: 10.1046/j.15251497.1999.00267.x)//ASMITH
A series of organizational or system factors also affect the doctor–patient relationship. The accessibility
of personnel, both administrative and clinical, and their courtesy level, provide a sense that patients are
important and respected, as do reasonable waiting times and attention to personal comfort. The
availability of covering nurses and doctors contributes to a sense of security. Reminders and userfriendly educational materials create an atmosphere of caring and concern. Organizations can promote
a patient-centered culture,29 or one that is profit- or physician-centered, with consequences for
individual doctor–patient relationships. Organizations (as well as whole health care systems) can
promote continuity in clinical relationships, which in turn affects the strength of in those relationships.
For instance, a market-based system with health insurance linked to employers' whims, with
competitive provider networks and frequent mergers and acquisitions, thwarts long-term relationships.
A health plan that includes the spectrum of outpatient and inpatient, acute and chronic services has an
opportunity to promote continuity across care settings. The competition to enroll patients is often
characterized by a combination of exaggerated promises and efforts to deliver less. Patients may arrive
at the doctor's office expecting all their needs to be met in the way they themselves expect and define.
They discover instead that the employer's negotiator defines their needs and the managed care
company has communicated them in very fine or incomprehensible print. Primary care doctors thus
become the bearers of the bad news, and are seen as closing gates to the patient's wishes and needs.
When this happens, an immediate and enduring barrier to a trust-based patient-doctor relationship is
created. The doctor–patient relationship is critical for vulnerable patients as they experience a
heightened reliance on the physician's competence, skills, and good will. The relationship need not
involve a difference in power but usually does,30 especially to the degree the patient is vulnerable or
the physician is autocratic. United States law considers the relationship fiduciary; i.e., physicians are
expected and required to act in their patient's interests, even when those interests may conflict with
their own.9 In addition, the doctor–patient relationship is remarkable for its centrality during lifealtering and meaningful times in persons' lives, times of birth, death, severe illness, and healing. Thus,
providing health care, and being a doctor, is a moral enterprise. An incompetent doctor is judged not
merely to be a poor businessperson, but also morally blameworthy, as having not lived up to the
expectations of patients, and having violated the trust that is an essential and moral feature of the
doctor–patient relationship.31 Trust is a fragile state. Deception or other, even minor, betrayals are
given weight disproportional to their occurrence, probably because of the vulnerability of the trusting
party (R.L. Jackson, unpublished manuscript).
Alt Cause – Staff/Expertise
Budget cuts and staff shortages short-circuit all health surveillance
Edward Richards (Harvey A. Peltier Professor of Law and Director, Program in Law, Science, and Public
Health at the Paul M. Herbert Law Center, Louisiana State University) 2009 “DANGEROUS PEOPLE
,UNSAFE CONDITIONS T HE CONSTITUTIONAL BASIS FOR PUBLIC HEALTH SURVEILLANCE” The Journal of
Legal Medicine, 30:27–50, http://biotech.law.lsu.edu/Articles/ULGM_A_369622_O.pdf
The Constitution grants broad authority for public health surveillance. As long as public health
authorities do not use administrative searches as a subterfuge for criminal law searches, the courts will
uphold these searches when they are conducted either pursuant to an area warrant or through the regulated industries exception to a warrant requirement. Surveillance, however, is just the first step in
protecting the public health and safety. Surveillance data must be combined with good epidemiologic
analysis, and then become the basis for public health interventions. There have been few abuses of
public health administrative searches. Public health authorities, if anything, have been too reticent to
use proper surveillance techniques. Although some of this reticence is because of con- cerns about
being seen as violating individual rights, most of it stems from lack of staff and other resources. 113
Despite the push on public health preparedness since the terrorist attacks on September 11, 2001,
health departments around the United States continue to suffer budget and staff cuts. The impacts of
these cuts are exacerbated by legislatures pushing ever-increasing responsi- bilities on health
departments without providing the budgets or staff to carry out these new tasks. 114 The hardest issue
for public health policy makers is to avoid pressures to transform public health agencies into extensions
of the Department of Homeland Security. As we have seen from the adoption of Draconian emergency
powers laws, it is more difficult to maintain a balance between individual rights and community
protection than to attempt to satisfy political pressures by swinging wildly between extreme positions.
Staff and expertise shortages take out the aff
Bernard Choi (Injury Prevention Research Centre, Medical College of Shantou University, Shantou,
China and Department of Epidemiology and Community Medicine, University of Ottawa, Ottawa,
Canada) 2012 “The Past, Present, and Future of Public Health Surveillance” Scientifica Volume 2012
(2012), Article ID 875253, 26 pages http://dx.doi.org/10.6064/2012/875253
To avoid fragmentation in national surveillance efforts [107, 144], there is a need for federal agencies to
provide national facilitation to foster interstate and intercounty collaboration. Central guidance can lead
to coordination across states and counties, interstate technology transfer, and opportunity to learn from
the successes and failures of other localities. Needless expense, unnecessary development time, and
failure to rapidly share information on innovative systems can be avoided [205]. No attempt to meet the
current challenges in public health surveillance will succeed unless it recognizes the fundamental
importance of providing and maintaining a cadre of highly trained and motivated public health
professionals in every local health agency in the country [5]. To use surveillance information to better
prioritize, plan, deliver, and evaluate programming, public health staff must possess the required
knowledge and skills. While it is neither feasible nor necessary for all staff to receive postgraduate
academic training, a greater proportion of the public health workforce will need to acquire the
knowledge and skills necessary to effectively understand and use surveillance concepts and techniques.
Public health surveillance systems must be strengthened by (1) allocating resources, including human
resources, for the effective use of health surveillance data and tools and (2) recognizing the need for
existing staff to acquire new skills [77].
Alt Cause – Commercialization/Pharma
Alt causes – commercialization of health and Ebola
Collins 14 (Sam P.K. Collins is a health reporter for ThinkProgress. He previously provided general news coverage of the D.C. metropolitan
area for the Washington Informer, and wrote reports of President Barack Obama’s activities as a White House press pool reporter for American
Urban Radio Networks. Sam holds a master’s degree in public policy, and a bachelor’s degree in journalism and mass communication from
George Washington University. “American’s Don’t Trust The Medical Profession” 10/23/14
http://thinkprogress.org/health/2014/10/23/3583625/americans-skeptical-doctors/)///CW
Americans count among the least trusting of the medical profession, according to an international
health care survey. The findings, which appeared in a recent issue of the New England Journal of Medicine, show significant levels of
suspicion of doctors, especially among those who make less than $30,000 annually.¶ Researchers studied public health polls dating back four
decades, including one conducted by a consortium of universities between 2011 and 2013 during which people in 29 countries answered survey
questions. In that poll, 58 percent of Americans said they trust the medical profession, placing the United States in 24th place with Croatia.¶ “It
fits with decades of data on the American public’s trust in institutions, in general,” Michael Gusmano, a scholar at the Hastings Center, a
Garrison, N.Y.-based research institute that focuses on health care, told WebMD.¶ Skepticism of the
medical profession hasn’t
happened without any reason. Experts point to unequal access to health care and the
“commercialization” of American medicine as key factors at play in that damaged relationship. Some people say that
members of the medical field often seem more concerned about protecting their financial interests than caring for patients, especially those
from less affluent backgrounds.¶ Big
Pharma has historically tried to influence the advice that doctors give
patients, something that may make Americans wary of the field in general. In exchange for their endorsement of prescription medications,
physicians receive free samples and gifts that include coffee mugs emblazoned with the drug company’s logo, tickets to sporting events,
expensive dinners, and trips to exotic destinations. At the peak of Big Pharma’s profitable relationship with the medical industry in 2007, more
than 100,000 representatives made visits to more than 650,000 physicians across the country.¶ This can sometimes have a direct effect on
patients. A Centers for Disease Control and Prevention (CDC) study in August, for example, found that doctors in hospitals with a strong black
patient base encouraged breastfeeding to expectant mothers at a rate 15 percentage points less than that of their white counterparts, due in
part to a relationship between the facility and manufacturers of baby formula.¶ Americans’ mistrust of the medical
industry
has been on full display in the weeks since American Ebola patient zero Thomas Eric Duncan died in a Dallas
hospital.¶ Days after CDC officials assured Americans that the disease would spread no further, two nurses
who treated Duncan tested positive for Ebola. Many of the nurses who had direct contact with patient zero before he succumbed
criticized the medical establishment, saying nurses at Presbyterian Hospital in Dallas treated Duncan for days in an open space in the
emergency room under constantly changing protocols and without sufficient protective gear.¶ The controversy has discouraged some
Americans from trusting what CDC officials are saying about the United States’ ability to contain the virus. According to one recent poll,
nearly half of Americans don’t think their local hospital could safely treat an Ebola case.¶ That has facilitated
the spread of panic about Ebola — anxiety that may pose a bigger threat to Americans than the virus itself. Instead
of listening to federal health officials, many Americans have looked to sensationalized media reports and reckless
words of commentators and politicians as indicators of Ebola’s impact in the United States.¶ There are other examples of how
some Americans’ mistrust of the medical profession undermines public health. An increasing number of parents are skipping or delaying their
children’s recommended vaccination, due in part to a belief that the injections cause autism and other sicknesses. Members of the scientific
community beg to differ, especially since vaccinations in the last two decades have prevented nearly 700,000 deaths. But the parents who
choose to delay their kids’ vaccines don’t trust scientists’ opinions on the subject.¶ The study recently published in the New England Journal of
Medicine does have another significant finding: Even when Americans are skeptical of the medical industry as a whole, they do trust their own
doctor. So information about things like Ebola and vaccinations might need to come from those immediate sources rather than national
spokespeople.
Genetics Surveillance – Data Leaks Inevitable
Impossible to keep genetic data anonymous – data leaks inevitable
Gina Kolata (Medical reporter for the New York Times) June 2013 “Poking Holes in Genetic Privacy”
http://www.nytimes.com/2013/06/18/science/poking-holes-in-the-privacy-ofdna.html?pagewanted=all&_r=0
For years now, a steady stream of research has eroded scientists’ faith that DNA can be held
anonymously. The first shock came in 2008, when David W. Craig, a geneticist at TGen, a research
institute in Phoenix, and his colleagues imagined a theoretical problem. Suppose you are trying to learn
what percentage of intravenous drug users are infected with hepatitis, and you collect DNA from
discarded needles and amass it in a database to look for signs of the virus in the genetic material. Is
there any way, they wondered, to find a particular person’s DNA is in this soup of genes? Most
researchers would have said the task was impossible, worse than looking for a needle in a haystack. But
Dr. Craig and his colleagues found a way to do it, exploiting the four million or so tiny, and usually
inconsequential, differences in DNA letters between one individual and another. With their method,
using the combinations of hundreds of thousands of DNA markers, the researchers could find a person
even if his or her DNA constituted just 0.1 percent of the total in the mix. So explosive was the finding
that Dr. Craig deliberately chose to write about it only very technically. The N.I.H. understood what he
had accomplished, though, and quickly responded, moving all genetic data from the studies it financed
behind Internet firewalls to prevent the public or anyone not authorized from using the data and, it was
hoped, to protect the identities of research subjects. But another sort of genetic data — so-called RNA
expression profiles that show patterns of gene activity — were still public. Such data could not be used
to identify people, or so it was thought. Then Eric E. Schadt of Mount Sinai School of Medicine
discovered that RNA expression data could be used not only to identify someone but also to learn a
great deal about that person. “We can create a profile that reflects your weight, whether you are
diabetic, how old you are,” Dr. Schadt said. He and a colleague also were able to tell if a person is
infected with viruses, like HPV or H.I.V., that change the activity of genes. Moreover, they were able to
make what they called a genetic bar code that could be used to identify a person in a number of DNA
databases. Then, this year, in perhaps the most disturbing exercise, Yaniv Erlich, a genetics researcher at
the Whitehead Institute, used a new computational tool he had invented to identify by name five people
from their DNA, which he had randomly selected from a research database containing the genes of one
thousand people. Experts were startled by what Dr. Erlich had done. “We are in what I call an awareness
moment,” said Eric D. Green, director of the National Human Genome Research Institute at the National
Institutes of Health. Research subjects who share their DNA may risk a loss of not just their own privacy
but also that of their children and grandchildren, who will inherit many of the same genes, said Mark B.
Gerstein, a Yale professor who studies large genetic databases. Even fragments of genetic information
can compromise privacy. James Watson, a discoverer of DNA’s double helix shape, had his genes
sequenced and made the information public — except for one, the sequence for ApoE, a gene that has a
variant linked to an increased risk of Alzheimer’s disease. Researchers noticed, though, that they could
still figure out if Dr. Watson had that variant by examining the DNA on either side of the gene he had
removed. They did not reveal whether he had it. With so many questions about the privacy and security
of genetic data, researchers wonder what research subjects should be told. Leaks and identification of
study subjects will never be completely avoidable, said George Church, a Harvard geneticist. And as
much as investigators might like to find a way to keep genetic data secure and private, he does not think
there is an exclusively technical solution. “If you believe you can just encrypt terabytes of data or
anonymize them, there will always be people who hack through that,” Dr. Church said. He believes that
people who provide genetic information should be informed that a loss of privacy is likely, rather than
unlikely, and agree to provide DNA with that understanding. Other researchers say the idea is not farfetched, and some suggest that scientists be licensed before they are given access to genetic databases,
with severe penalties for those who breach privacy. “My fear is not so much that someone will take
everyone’s genomes and put them on the Web,” Dr. Gerstein said. “It is that a graduate student in some
lab somewhere will naïvely post bits of genomes on his Facebook page. The idea is that before he could
get access to genomes, he would be taught he can’t do that. And if he did he would lose his license.” The
amount of genetic data that has been gathered so far is minuscule compared with what will be coming
in the next few years, Dr. Altshuler noted, making it important to address the problems before the data
deluge makes them worse. “We see substantial issues,” he said. “We want to have serious discussions
now.”
Genomic data breaches happen all the time- the health system does not have enough
protections in place to secure private genetic information
McEwen et al 13 (Jean E. McEwen, Ethical, Legal, and Social Implications Program, Division of
Genomics and Society, National Human Genome Research Institute, National Institutes of Health,Ethical,
Legal, and Social Implications Program, Division of Genomics and Society, National Human Genome
Research Institute, National Institutes of Health. Joy T. Boyer, Senior Program Analyst, and Kathie Y.
Sun, Program Analyst. “Evolving Approaches to the Ethical Management of Genomic Data.” February 28,
2013. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3665610/)//EMerz
The genetic studies and test protocols that dominated the field 15–20 years ago were generally highly
targeted, and tended to view the risks to participants or patients (apart from the physical risks
associated with blood drawing) as straightforwardly informational [17–19]. Thus, consent materials in
use prior to the mid-2000s, if they mentioned non-physical risks at all, tended to focus on the potential
for breach of privacy, with insurance and employment usually listed as the two areas of main concern
[20–22]. Data security measures of the time were, by today’s standards, remarkably “low tech,” often
consisting of little more than coding samples and data and storing samples and data in locked freezers
and cabinets. Still, consent forms, if they addressed the issue at all, typically described the risk of a
security breach as low; at the time that assessment seemed reasonably accurate, predating as it did the
development of massive, web-accessible genomic databases and expanded data sharing norms. Early
consent forms rarely addressed the issue of whether individual findings from studies would be returned
to participants [20, 21]. The usual default presumption was that they would not be [23], because most
findings emanating from studies of the time interrogated only limited regions of the genome, so the
likelihood of generating incidental findings (apart from occasional evidence of undisclosed adoption or
misattributed paternity [24]) was relatively low. Another feature of early consent forms was their
characteristically narrow scientific scope [8, 20, 21]. Most described only the immediate study for which
samples were being collected or the specific disease being analyzed; although the possibility of sharing
with close collaborators working on the same disease was sometimes mentioned, obtaining broad
consent to an unspecified range of future uses was the exception, not the norm. Often, consent
documents were simply silent about plans for any future sharing, and in such cases, the absence of an
explicit prohibition against sharing was generally interpreted (or, at least over time came to be
interpreted) as tacit permission to share [23]. In 1994, long-percolating concerns among bioethicists
about the practice of using stored, linkable samples without obtaining new consent from those from
whom they had been obtained culminated in the publication of a highly influential paper that
recommended against continuing this practice [25]. Following this recommendation, consent documents
gradually began to be written with greater specificity about whether, with whom, and for what
purposes, samples and data would be shared. In practice, however, the recommendation was often
interpreted as applying only to prospectively collected samples. Thus, as was recently called to public
attention in a best-selling book, archived samples collected under widely varying and sometimes
questionable consent conditions – and cell lines derived from such samples - are often still being used
today.
Genetic Surveillance – No Impact
There’s no impact to genetic discrimination- their evidence is just rhetoric
Begley 4 (Sharon Begley. Senior health & science correspondent at Reuters. “Bill Seeking to Ban DNA
Discrimination Isn't Really Necessary.” February 6, 2004.
http://www.wsj.com/articles/SB107595572756521572)//EMerz
When it comes to genetic discrimination, there is a yawning chasm between rhetoric and reality. As law
professor Henry Greely of Stanford University puts it, "Genetic discrimination is a much greater threat in
people's fears than it is in reality, today or in the foreseeable future....Failure to ban [it] will not make
the sky fall, [or] the employment markets crumble." Genetic discrimination means being denied
employment or health insurance (or being charged more for it) as a result of testing positive for a gene
that raises your risk of developing a disease such as cancer or Alzheimer's. Since at least 1990, it has
been cast as the dark underbelly of the human genome project, which dutifully set aside 3% to 5% -almost $100 million -- of its annual budget to study such ethical, legal and social issues. Francis Collins,
director of the project, has called genetic discrimination "a vexing problem" and praised the Senate's
"important" bill. The emperor, however, is wearing skivvies. Just as genome enthusiasts, and much of
the media, have hyped the medical benefits of decoding humankind's double helix, so they (and we)
have grossly overstated the threat and the reality of genetic discrimination. If you probe beneath the
anecdotes, evidence of genetic discrimination melts away. Bioethicists and genetic counselors, for
instance, say they've heard of people being fired or denied health coverage after testing positive for a
risk gene, but concede they know of no such patients firsthand. When they do offer an actual case, it
turns out that the discrimination was based not on a predictive genetic test (finding a genetic variant
that raises the risk of cancer, perhaps) but on family history or actual symptoms of, say, the blood
disorder hereditary hemochromatosis. That may be medical discrimination, but it isn't genetic
discrimination as usually understood. In an effort to get beyond anecdote, a 2000 study examined the
effect of state laws barring genetic discrimination in health insurance. To their surprise, Mark Hall and
Stephen Rich of Wake Forest University in Winston-Salem, N.C., found that states with such laws had no
fewer cases of genetic discrimination than states without them. Why? Because you can't have fewer
cases than zero, and zero is about how much genetic discrimination the study turned up. "We found
almost no cases of health insurers asking for or using the results of predictive genetic tests," Prof. Hall
says. "The laws have so little impact because almost no genetic discrimination is occurring," as morerecent studies confirm. Dawn Allain, president of the National Society of Genetic Counselors, agrees:
"We haven't seen any real cases of genetic discrimination." Health insurers have little financial incentive
to set rates based on predictive genetic tests, Prof. Hall explains. For group coverage, it's much simpler
to tote up last year's costs and factor in inflation. For individual coverage, people change carriers so
frequently that even if they develop a disease 15 years down the road, as a genetic test might predict, it
will likely be on another insurer's dime. Although the warnings of bioethicists (including, Prof. Greely
sheepishly admits, "an earlier version of myself") haven't come true, some now argue that we need
federal legislation for symbolic reasons, to protect people from even the theoretical risk of genetic
discrimination. This "what harm does it do?" argument is OK, says William Nowlan, chief medical officer
of the National Life Insurance Co., Montpelier, Vt., who has written widely on the myth of genetic
discrimination. But then let's admit that the Senate bill addresses a problem that exists solely in the
public's imagination. As far as I can tell, the bill's only real benefit would be to allay the fears of people
who reject genetic tests in the belief that a positive result could make them uninsurable and
unemployable. That's a worthwhile goal. But it comes at a cost. By enshrining genetic status in federal
law, we reinforce the widespread and pernicious belief that DNA is destiny. It isn't. Risk genes for
common diseases aren't like those for the exceedingly rare Huntington's or Tay-Sachs, where carrying
the gene means you definitely will get the disease. Instead, risk genes are low in what biologists call
"penetrance:" They increase your chance of developing the disease, but to nothing like 100%. In one
fascinating 2000 study, Swedish scientists calculated that genes account for less than half of the risk of
developing 11 common cancers. The cancers with the highest genetic component, the study found, are
prostate (42%) and colorectal (35%). A woman's risk of getting breast cancer if her identical twin does is
only 13%. Supporters of the genetic discrimination bill should make clear that what they want to guard
against is no more than a theoretical risk. They should make equally clear that the risk genes they're so
worried about are not all they're cracked up to be.
Even if genetic surveillance contains invasive information, it doesn’t require much
protection- few people are qualified to read DNA
Lauss et al 13 (Georg Lauss, Arndt Bialobrzeski, Matthias Korkhaus, Karoliina Snell, Johannes
Starkbaum, Andréa E. Vermeer, Jukka Weigel, Herbert Gottweis, Ilpo Helén, Jochen Taupitz, Peter
Dabrock. “BEYOND GENETIC PRIVACY PAST, PRESENT AND FUTURE OF BIOINFORMATION CONTROL
REGIMES.” 2013. http://private-gen.eu/uploads/media/PRIVATE_Gen_FINALREPORT_2013_01.pdf)//EMerz
Ultimately, some genetic information might merit special treatment because it has a number of
characteristics which, although they may be individually present in respect of other forms of
information, are present to a high degree in the case of genetic information and combine to give it a
special status in some contexts. [p.31] The report emphasizes the importance of context. Genetic
information might not always be sensitive in itself. What makes genetic information – and arguably
information in general – sensitive is its context and the way a piece of information is combined with
other information. Since information about a person or a state of affairs takes on meaning only if it is
put into a social context and if it is combined with other information, it was even be argued that genetic
information is even better protected from widespread third-party misuse than other types of (medical)
information because it requires a high level of expert knowledge and expert resources to “read” it and
interpret it in meaningful ways. In a certain sense, it has a comparably high legibility threshold [24].
Moreover, empirical research has shown the likelihood that genetic information and its related research
may be seen as problematic, but it appears that people perceive other types of information as being
sensitive, as well, and that their concerns revolve around the concrete context in which data and
materials are used and the intention behind a particular inquiry
Genetic Surveillance Good - Crime
Genetic research base is key to solving violent crimes and exonerating criminals
[David H. Kaye, Penn State Law “Trawling DNA Databases for Partial Matches: What is the FBI Afraid
of?” 2009]
Across the globe,
many countries have established DNA databases-collections of computer-searchable
records of the DNA profiles of suspected or convicted offenders.' England started the first national criminal DNA
database in 1995.2 In the United States, the state and federal databases as combined in the National DNA Index System (NDIS)
hold over seven million short tandem repeat (STR) profiles from convicted offenders as well as a growing number of
people who were merely arrested or detained. 3 When investigators recover a DNA sample from the scene of a crime,
they can search these databases to discover if any of the recorded profiles match. Such "cold hits" from
these database trawls have led police to serial rapists and murderers who have long eluded detection.
4 Indeed, even dead men have been "accused" through this technology. 5 In addition, database trawls have
considerable potential to solve common property crimes.6 In one case, an observant police inspector in Finland noticed a
dead mosquito in a stolen vehicle. 7 The mosquito's body contained human blood from its last meal. Testing the blood against Finland's
database yielded a DNA profile match, giving the police a likely suspect.8
At least 10,000 people are wrongfully convicted annually for crimes they didn’t
commit – the plan stop the exoneration process and is a helping hand in human rights
abuse
[Shaun King “An exoneration happens every three days in America.
What this really says about our justice system” March 24th 2015]
According to the National Registry of Exonerations at the University of Michigan, 1,569
men and women in the United States,
most of them African American, have been completely exonerated after being wrongfully convicted and
sent to prison. The number of people exonerated for wrongful convictions actually broke a record high in
2014 with 125 exonerations, including six people who were actually on death row awaiting execution.
Less than every three days in our country, some man or woman is released back into society after spending a tragic portion of their life behind
bars for a crime they never committed.
Few injustices can compare to the horror of spending one hour in prison
for something you didn't do. Ricky Jackson of Ohio spent 341,640 hours, or 39 years, behind bars before he was exonerated. Just a
teenager when he was convicted, he was nearly a senior citizen when he was released. Jonathan Fleming was serving the 25th year of a 25-year
sentence when he was finally exonerated after a wrongful conviction. Glenn Ford, on death row for 30 years in Louisiana, was 64 years old
when he was released and was exonerated. Stricken with lung cancer, he was only expected to live a few more months. One study determined
that nearly 10,000 people are likely to be wrongfully convicted for serious crimes annually. Another study
estimates that as many as 340 people are likely to have been executed in the United States before they were
properly exonerated. This is a travesty. Anyone who says otherwise is sick. Jump below the fold for more. But the conversation
should not end at our conclusion that these wrongful convictions are a travesty. It appears, though, that an entire section of America refuses to
believe that police or prosecutors can ever do any wrong at all. Except they do. Often. Detective Louis Scarcella of the NYPD is accused of
framing suspects, forcing fake confessions, and using the same single eyewitness for multiple murders. Many men who were wrongfully
convicted under his watch have recently been exonerated and 50 of his cases are under review. Chicago has now been called the "false
confession capital" as more and more details are uncovered on how the city's police officers are torturing men and women to confess to crimes
they didn't commit. They were so good at it, in fact, that Detective Richard Zuley was brought from Chicago to Guantanamo Bay to directly
oversee one of the most brutal torturing operation in modern history. The prosecutor of Glenn Ford, shipped off to death row at Angola State
Prison in Louisiana in 1984, now openly admits that he was "sick ... arrogant, judgemental, narcissistic and very full of myself" when he sought
the wrongful conviction of Ford, who spent 30 years of his life in one of the most brutal prisons in the world. Four police officers in Fort
Lauderdale, Florida, were just caught sending texts to one another about "killing nigg*rs" and giving them the "early death penalty." This is not
okay. It's wrong. Our justice system is altogether broken. This brokenness, though, must not be understood in some abstract way. It's broken
because the people leading it are often sick, disturbed racists who care very little for those on the receiving end of their sickness. It's not good
enough to simply give wrongfully convicted men an insufficient check and an apology. We
must repair the broken system so
these instances go away for good.
Genetic surveillance stops crime
Lindey 11 (Brooke, reporter for CTV news Vancouver, “Could a new technique catch a serial rapist in
B.C.?” http://bc.ctvnews.ca/could-a-new-technique-catch-a-serial-rapist-in-b-c-1.597435 1/18/11 JM)
A contentious DNA analysis that helped snag one of America's most notorious suspected murderers
could be used in the hunt for a serial rapist in Vancouver, according to a lawyer who pushed to have it
approved south of the border. DNA evidence has linked a single unknown man to three sex assaults in
Vancouver, and police say he could be responsible for five more unsolved cases. But the genetic
evidence taken at the scene of the assaults doesn't match anyone in the national DNA databank, and
police have been left to plead with the public for tips. Vancouver police made a public appeal for help on
Thursday, but five days later, there are no new leads. In the U.K. and some parts of the U.S., police
would have had one more option before hitting a dead end. That's because laws in those places allow
investigators to search for partial matches in the offender DNA databank and identify possible family
members of unknown criminals. "Using familial DNA searching, you can continue to try and solve a case
when those other steps have failed," said Rockne Harmon, a retired California deputy district attorney
and one of the technique's biggest proponents. "We do know that crime seems to run in families for
complicated reasons." Privacy advocates have lobbied against allowing the new technique in Canada,
arguing that it submits relatives of convicted offenders to unfair genetic surveillance. But thanks to
familial DNA searching, Los Angeles police were able to identify Lonnie Franklin Jr. as a suspect in the
brutal "Grim Sleeper" killings -- the murders of at least 10 people over 25 years. When investigators
compared genetic samples taken from the scenes of the Grim Sleeper murders with California's offender
DNA database, there were no exact hits, but investigators were able to create a list of about 150 close
matches -- potential family members of the vicious murderer. Analysts then compared the Y sex
chromosomes from those 150 people with the Grim Sleeper's, and found a match so close, the offender
had to be either the father or the son of the serial killer. As it turns out, Franklin's son had recently been
arrested, and swabbed for DNA. When police followed the elder Franklin to a restaurant, they were able
to take a sample from his cup, and found a perfect match for the Grim Sleeper's DNA. Familial DNA
searching is currently not permitted in Canada, and in the U.S., only California and Colorado allow it,
although Virginia appears to be on the brink of approval. Harmon was the driving force behind
California's decision to allow the unique searching technique, and he says that Canada should consider
it, too. "Why would you have a law that would keep you from something that can solve crimes?" he
told ctvbc.ca. "It'll help make the world a safer place."’
Solvency – Circumvention
Federal oversight can’t minimize health surveillance- the biggest offenders are private
businesses that use big data
Terry 14 (Nicolas P. Terry. “Big Data Proxies and Health Privacy Exceptionalism.” 2014. P. 13-16
https://www.ftc.gov/system/files/documents/public_comments/2014/01/00004-89091.pdf)//EMerz
Big data is so named because of its unprecedented volume and for its “complexity, diversity, and
timeliness.” Big data refers not only to the collection and storage of extremely large data sets but also
the data mining and predictive analytic routines that process the data, the latter being understood as
“[t]echnology that learns from experience (data) to predict the future behavior of individuals in order to
drive better decisions.”74 Essentially big data is the latest type of business intelligence (BI), or, to frame
it slightly differently, the latest BI analytics are what extract value from big data. 75 Not surprisingly,
MBA-speak business jargon dominates the space. Thus, according to Gartner, Inc., “‘Big data’ is highvolume, -velocity and -variety information assets (sic) that demand (sic) cost-effective, innovative forms
of information processing for enhanced insight and decision making.”76 It is important not to
underestimate one of these three properties—high-variety. Big data does not use structured databases
(or at least is not as reliant on them as previous generation systems such as credit reporting) but is
capable of absorbing high-variety data. Data sources (or data pools) continually change and expand; yet
big data is seems adept at digesting them. As described in a recent report by the Centre For Information
Policy Leadership, While traditionally analytics has been used to find answers to predetermined
questions, its application to big data enables exploration of information to see what knowledge may be
derived from it, and to identify connections and relationships that are unexpected or were previously
unknowable. When organisations employ analytics to explore data’s potential for one use, other
possible uses that may not have been previously considered often are revealed. Big data’s potential to
yield unanticipated insights, the dramatically low cost of information storage and the rapidly advancing
power of algorithms have shifted organisations’ priorities to collecting and harnessing as much data as
possible and then attempting to make sense of it.77 The analytics of big data seek to predict the
behavior not only of populations or cohorts but also of individuals. In Predictive Analytics: The Power to
Predict Who Will Click, Buy, Lie, or Die, computer scientist Eric Siegel explained the distinction as
follows: Forecasting makes aggregate predictions on a macroscopic level. How will the economy fare?
Which presidential candidate will win more votes in Ohio? Whereas forecasting estimates the total
number of ice cream cones to be purchased next month in Nebraska, predictive technology tells you
which individual Nebraskans are most likely to be seen with cone in hand.78 In the context of health
information the business intelligence grail is to identify and exploit a patient’s differential health status.
According to Neil Biehn with such segmentation “organizations can more easily identify anomalous
buying behavior and make intelligent product and offer recommendations that are statistically more
likely to be purchased. Biehn continues, “If two customers are alike but not buying the same products,
the data analysis can advise which opportunities the sales team might be missing,” concluding “[t]his is
the type of Big Data viability that moves the needle in the real world.”79 The privacy implications of
individuated big data analysis are profound. Beyond the expropriation or “using” objections to such data
collection and processing, such as Commissioner Brill’s critique quoted at the beginning of this article,80
the computer modeling of predictive analytics predicts a world of dehumanizing “data determinism,”
described by FTC Chairwoman Edith Ramirez as the judgment of persons “not because of what they’ve
done, or what they will do in the future, but because inferences or correlations drawn by algorithms
suggest they may behave in ways that make them poor credit or insurance risks, unsuitable candidates
for employment or admission to schools or other institutions, or unlikely to carry out certain
functions.”81 Finally, there is the “Doomsday” scenario—a big data breach. The industrial scale datawarehousing model is the antithesis of the “silo” model of data storage used in the pre-information age.
The lack of data liquidity (with all of its informational disadvantages) inherent in that model meant that
there was little profit or harm in an isolated security breach. The opposite is true with big data storage.
However, there are reports that big data brokers are not immune from the same security breaches that
are plaguing other businesses.82
Individuals willingly give up their health records by using non-protected mediumsmeans state legislation can’t solve
Terry 14 (Nicolas P. Terry. “Big Data Proxies and Health Privacy Exceptionalism.” 2014. P. 19-21
https://www.ftc.gov/system/files/documents/public_comments/2014/01/00004-89091.pdf)//EMerz
Ironically one of the greatest threats to an individual’s health privacy is . . . the individual. One of the
first examples of theretofore HIPAA-protected data migrating to HIPAA-free space was during President
George W. Bush’s administration at a time when the slowing of the administration’s provider-curated
EMR program coincided with the launching of PHR platforms by Google and Microsoft.96 As a result the
HITECH Act architects attempted to protect for the first time health data that migrated from a protected
to an unprotected (or marginally protected) zone. However, they chose to do so with a swiftly
outmoded, downstream breach notification model.97 In the interim different (and unregulated)
technologies have emerged that encourage patient rather than provider curation of health data. The
most obvious example is the federal government’s “Blue Button” technology that allows patients to
download their records to their own devices. The “Blue Button” approach to patient access and hence
control of their health data has become a rallying cry for many (if not all) patient privacy advocatesand
has been encouraged by President Obama’s administration. 101 Indeed, then ONC National Coordinator
Farzad Mostashari announced a Blue Button Mash-Up challenge to build software for patients designed
to combine their downloaded Blue Button information with other data sources.102 At root such patient
curation of health data bespeaks autonomy and is symbolic of patient ownership of the data. However,
it fails to take into account one practical limitation—the canonical version of the record will remain in
the provider’s control – and one legal limitation— that only the provider-curated copy is protected by
HIPAA-HITECH. In contrast, the patient-curated “copy” attracts little meaningful privacy protection.
Well-meaning privacy advocates should think carefully before promoting this autonomy-friendly
“control” model until data protection laws (not to mention patient education as to good data practices)
catch up with patient curated data. A similarly dichotomous result is likely as the medically quantified
self develops. The quantified-self movement concentrates on personal collection and curation of inputs
and performance. 103 Obviously, health, wellness and medically inflected data will likely comprise a
large proportion of such data. A similar, if less formal, scenario is emerging around health and wellness
apps on smartphones and connected domestic appliances such as scales and blood pressure cuffs. 104
Smartphones are crammed with sensors for location, orientation, sound and pictures that add richness
to data collection.105 And there is ongoing and explosive growth in the medical apps space that seeks to
leverage such sensors. More and more we are going to demand control of information about ourselves
and generate medically inflected and core health data about ourselves. These processes will in most
cases lead to medically inflected data that exists outside of the HIPAA-HITECH protected zone.
Circumvention inevitable- police legally collect DNA all the time
Scherr 13 (Albert E. Scherr. Professor of Law, University of New Hampshire. “Genetic Privacy & the
Fourth Amendment: Unregulated Surreptitious DNA Harvesting.” 2013. P. 448-449.
http://georgialawreview.org/wp-content/uploads/2015/02/Download-PDF-V47-I2-Scherr.pdf)//EMerz
So why does the law regard genetic privacy issues in criminal and civil contexts differently? Why do
surreptitious-DNA harvesting practices by private parties get appreciably more legal scrutiny than such
practices by police? One broad-brush answer is that society places more value on the public-safety goal
of solving crimes than on the needs of amateur genealogists, divorce lawyers, and genetic researchers.
That broad-brush answer is unsatisfactory. Current Fourth Amendment jurisprudence on surreptitious
harvesting creates an all-or-nothing dynamic. If a putative suspect—one for whom the police have some
reasonable suspicion but not enough for a search warrant—abandons his DNA in a public place, the
police can do with the sample what they will, without limitation. The police can do the same for a
suspect for whom they have only a hunch. They can also do the same for someone for whom they have
no suspicion, including a victim or a witness. They can do so without a suspect’s, a witness’s, or a
victim’s consent or knowledge. If surreptitious DNA harvesting is not a “search” under the Fourth
Amendment, the police can do whatever they want with anyone’s DNA.
Solvency - Alt Causes
Too many alt causes
Outdated legal codes
THEIR AUTHOR Gostin, an internationally recognized scholar in law and public health, professor of Law
at Georgetown University; Professor of Public Health at the Johns Hopkins University; and the Director
of the Center for Law & the Public’s Health at Johns Hopkins and Georgetown Universities, November
2001 – (Lawrence, “Public Health Law In An Age Of Terrorism: Rethinking Individual Rights And Common
Goods”, published on HealthAffairs vol 21 no. 6)//roetlin
The public
health law infrastructure is equally deficient. The law establishes the mission, functions, and powers of public
health agencies. Yet public health laws are highly antiquated, after many decades of neglect. Very little
consideration has been given to modernizing these laws to reflect advances in public health practice and constitutional
law. Reform of public health law is essential to ensure that public health agencies have clear missions and functions, stable
sources of financing, adequate powers to avert or manage health threats, and restraints on powers to maintain respect for personal rights and
liberties.
Underfunding and infrastructure
THEIR AUTHOR Gostin, an internationally recognized scholar in law and public health, professor of Law
at Georgetown University; Professor of Public Health at the Johns Hopkins University; and the Director
of the Center for Law & the Public’s Health at Johns Hopkins and Georgetown Universities, November
2001 – (Lawrence, “Public Health Law In An Age Of Terrorism: Rethinking Individual Rights And Common
Goods”, published on HealthAffairs vol 21 no. 6)//roetlin
As a result of chronic underspending, the public health infrastructure is badly deteriorated.2 Public
health agencies lack the capacity to conduct essential public health services at a level of performance
that matches the constantly evolving threats to the health of the public. Critical components of that infrastructure
include a well-trained workforce, electronic information and communications systems, rapid disease surveillance and reporting, laboratory
capacity, and emergency response capability.
Faulty allocations and income inequality
THEIR AUTHOR Gostin, an internationally recognized scholar in law and public health, professor of Law
at Georgetown University; Professor of Public Health at the Johns Hopkins University; and the Director
of the Center for Law & the Public’s Health at Johns Hopkins and Georgetown Universities, November
2001 – (Lawrence, “Public Health Law In An Age Of Terrorism: Rethinking Individual Rights And Common
Goods”, published on HealthAffairs vol 21 no. 6)//roetlin
In this civil and property rights society, the tone has been distinctly antigovernment. The State has been
perceived as inefficient, bureaucratic, and burdensome. Citizens have opposed taxation and broad health and welfare
spending as well as oppressive regulation. From a funding perspective, this has meant that health dollars have been
allocated primarily to advanced biotechnology and health care, which serve the needs of individual
patients, particularly those who can afford private health insurance. Funding for traditional prevention
and population-based services represents only a small fraction of health spending, estimated at around 1 percent at the
state level and less than 5 percent at the federal level.1
Solvency – A2 Judicial Modelling
No court influence now
Liptac 08, (Adam, New York Times US, “U.S. Court Is Now Guiding Fewer Nations,” September 17,
2008, http://www.nytimes.com/2008/09/18/us/18legal.html?pagewanted=all)//IB
But now American
legal influence is waning. Even as a debate continues in the court over whether its decisions should ever cite
foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American
justices. “One of our great exports used to be constitutional law,” said Anne-Marie Slaughter, the dean of the Woodrow Wilson School of
Public and International Affairs at Princeton. “We are losing one of the greatest bully pulpits we have ever had.” From
1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States Supreme Court
about a dozen times a year, an analysis by The New York Times found. In the six years since, the annual citation rate has
fallen by half, to about six. Australian state supreme courts cited American decisions 208 times in 1995,
according to a recent study by Russell Smyth, an Australian economist. By 2005, the number had fallen to 72. The story is
similar around the globe, legal experts say, particularly in cases involving human rights. These days, foreign courts in developed
democracies often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and
prohibitions against cruel treatment, said Harold Hongju Koh, the dean of the Yale Law School. In those areas, Dean Koh said, “they tend
not to look to the rulings of the U.S. Supreme Court.” The rise of new and sophisticated constitutional courts elsewhere is
one reason for the Supreme Court’s fading influence, legal experts said. The new courts are, moreover, generally
more liberal than the Rehnquist and Roberts courts and for that reason more inclined to cite one another. Another reason is
the diminished reputation of the United States in some parts of the world, which experts here and abroad said is in
part a consequence of the Bush administration’s unpopularity around the world. Foreign courts are less apt to justify their
decisions with citations to cases from a nation unpopular with their domestic audience. “It’s not
surprising, given our foreign policy in the last decade or so, that American influence should be
declining,” said Thomas Ginsburg, who teaches comparative and international law at the University of Chicago. Aversion to Foreign Law
The adamant opposition of some Supreme Court justices to the citation of foreign law in their own opinions
also plays a role, some foreign judges say. “Most justices of the United States Supreme Court do not cite foreign case
law in their judgments,” Aharon Barak, then the chief justice of the Supreme Court of Israel, wrote in the Harvard Law Review in 2002.
“They fail to make use of an important source of inspiration, one that enriches legal thinking, makes law more creative, and
strengthens the democratic ties and foundations of different legal systems.”
Surveillance K Links
Trying to curtail the medical surveillance state starts from the wrong position—
ignoring the interaction between the self and the collective body leads to reinforcing
the biopolitics of the state and recreates the impacts of the 1AC through risk
calculations
Baur and Olsen 9 (Susanne, professor at the University of Copenhagen, and Jan, professor at
University of Copenhagen, “Observing the Others, Watching Over Oneself: themes of medical
surveillance in society” file:///C:/Users/Jessi/Downloads/3252-5562-2-PB.pdf 2009 JM)
This paper is an attempt to explore the reconfiguration of space, body and gaze in recent biomedicine.
The constellations of the body and the medical gaze and their location in space were closely intertwined
with specific epistemologies of medical science and practice at different historical periods. Michel
Foucault localized the birth of the clinic in the spatialization of disease and bodies, which took place with
the structuring of hospitals according to nosological categories (Foucault 1963). Inspired by Foucault’s
analyses of the clinical space, David Armstrong coined the term ‘surveillance medicine’ as ‘a significant
alternative model to hospital medicine and pathology, which emerged during the 20th century around
the observation of seemingly healthy populations’ (Armstrong 1995: 393). Medical thinking in terms of
surveillance embraces probabilistic rationality and prediction, which have continuously proliferated in
medical research and in public health, for instance in early diagnostics or decision-making in the clinic
and in preventive medicine. Drawing on examples from clinical diagnostics on the one hand and
population health surveillance on the other hand, we explore recent reconfigurations of the clinical gaze
in western biomedicine. In these recent forms of diagnostic monitoring an augmented space of digital
visualization and statistical data, an abundance of numbers and images is created and the clinical gaze is
being delocalized. In large-scale epidemiological studies, health data from whole populations are used
for risk calculations that inform policy making. Both the body and society are governed by data
analyses and numerical profiling; interventions are made in a rationality of prevention at ever earlier
stages. This paper thus refers to developments that take place within western biomedicine and are
products of the latter; in a global perspective, however, there remains a digital divide in terms of access
and availability of information technologies. Our themes – monitoring the patient-body and population
surveillance – can be read as representing both poles of biopower, in the sense the term has been
introduced by Foucault: the gaze is directed both upon the individual body and the self as well as upon
the collective ‘population body’. Taking up these two poles of biopower, we explore the digitized and
transparent individual patient body of the clinic on the one hand and the epidemiological databases
originating through public health surveillance practices on a population scale on the other hand. In doing
so, we pay particular attention to the more distributed forms of contemporary surveillance, which go
beyond the classic spatialization of the body in the clinic and the accounts of Jeremy Bentham’s
panopticon (Foucault 1975). Drawing on surveillance studies, we take inspiration in the concept of
panopticism and synopticism, as proposed by Thomas Mathieson (1997). In other words, we are asking
about who is observing and who is being watched. What constellations between individuals, bodies
and data do we encounter in the worlds of biomedicine and epidemiology? Which specific modes of
knowing do such digital assemblages bring about? What is the location of the body and knowledge on
the body – is it still in the macroanatomic body or rather on the hard drive or in population databases?
How do imaging and visualization techniques mediate medical procedures, clinical and political decisionmaking? What kinds of body and control practices do we face with the data avalanches of imaging
techniques and databasing in the health sector? In exploring these questions, we will examine selected
biomedical sites and contexts in which surveillance is at work – often as taken-for granted and widely
accepted if not desired practice. By exploring the effects of surveillance from perspectives situated in
the cultural studies of medicine, this article attempts to expose the digital reconfiguration of the body as
object of medical monitoring and intervention.
Health monitoring relies on statistics that are informed by the biopolitical state—their
evidence is predicated off of skewed data epistemes have constructed to support
themselves
Baur and Olsen 9 (Susanne, professor at the University of Copenhagen, and Jan, professor at
University of Copenhagen, “Observing the Others, Watching Over Oneself: themes of medical
surveillance in society” file:///C:/Users/Jessi/Downloads/3252-5562-2-PB.pdf 2009 JM)
Monitoring population health has a long tradition in demography, government statistics and social
policy; in 18th century political arithmetic, population thinking, probability theory and the field of
political economy were closely entangled (Desrosières 1998). The production of population data has
long been intertwined with biopolitical frameworks, e.g. of central state governance, life insurance and
actuary reasoning. The panoptic constellation of monitoring and managing a collective ‘population body’
continues to play a central role in contemporary concepts and practices of evaluation and governance.
In public health, surveillance, as defined by Alexander Langmuir, means ‘the continued watchfulness
over the distribution and trends of incidence through the systematic collection, consolidation and
evaluation of morbidity and mortality reports and other relevant data’ for purposes of prevention of
disease or injury’ (Langmuir 1992). Epidemiologist Alfredo Morabia described surveillance as the
‘bedrock of public health’ (Morabia 2000: 22); securing generation and access to valid data is critical in
epidemiologic research. Survey and monitoring techniques bring about statistical entities and make
them perceptible; subsequent data visualization works as a tool for inspection of multiple aspects ‘at a
glance’, similar to techniques of mapping. A survey is an act of viewing, examining and inspecting; the
term ‘survey’ originated in 19th century land surveys and geology (Converse 1987). Different from land
surveys for the mapping of geographical space, the data patterns visualized in epidemiology refer to
multiple levels and diverse contexts. The extent and modalities in which data are collected has differed
between countries; often so-called ‘routine data’ such as demographic data on births and deaths (‘vital
statistics’) are collected for the entire population. The Nordic countries maintain central population
registries which allow record linkage between different sectors (for example population registries, social
services and health care data). Health research relies heavily on data from these routine administrative
monitoring techniques as well as on the data recording systems of health-related registries. Registry
research has become a sub-discipline in epidemiologic research in the Nordic countries (Mortensen
2004). Further, specific epidemiological studies are usually conducted for representative samples of the
population, for example longitudinal follow-up studies or cross-sectional surveys. Health surveys among
representative or random samples of the population are used to gain quick ‘comparative snapshots’ of
the population’s health. Not only has the anatomic atlas of the macroanatomical body been replaced by
a statistical and digitized body; at a population level health and disease are documented for instance in
national cancer atlases, as done for example in Denmark since the 1970s. Visual mapping as part of
descriptive epidemiology creates new epistemological infrastructures; the surveillant gaze takes up
these new data patterns as grids of orientation, in which one is able to navigate. More than a metaphor
the visual episteme plays is key to design and display of health statistics. Alluding to the objectivity
effects of photography, Catherine Waldby has described epidemiological surveillance as an imaging
process that is conceived to provide ‘accurate photographs of population health’ (Waldby 1996: 99).
Graphs, charts and tables visualise and spatialize data; they mediate research design and risk
communication. While as part of state administrative procedures, routine data are recorded and stored
to evaluate health and disease at the population level, it is also new forms of accountability that drive
the implementation of monitoring and evidence-based decision-making; these in turn nurture the need
for documentation, visibility and transparency. This data hunger of quality management has
contributed to the vast bureaucracies that accompany medical practice and health care systems.
The plan fails – only questioning broader surveillance structures solves
Whetton 13 (Suzanne, Lecturer at University of Tasmania, “Health informatics
discourses and the use of personal health information: Which piper, which tune, who
pays?”, July 2013, University of Tasmania, http://eprints.utas.edu.au/17110/2/whole-Whettonthesis.pdf)//JL
The health informatics community has the option of continuing to participate in discussions within the parameters
established by the privacy framework, or it may go beyond these parameters to challenge the dominant
approach to personal health information management and, in doing so, address issues beyond a
private trouble/public interest level. To adopt this form of critique would mean exploring alternative
approaches to conceptualizing information management issues. It would mean challenging the representation of
the privacy framework as neutral. It would also mean identifying links between the collection of personal health
information and broader social practices and power relations in Australia. Such a challenge would ‘invoke
broader questions of social control and warn of the dangers of the creeping surveillance society’ (Bennett,
2011, p. 485). It would explain this creeping surveillance society in terms of disciplinary power and control not only of
some individuals and groups but of the population as a whole. The willingness to critique is increasingly imperative as the Australian
Government progresses its plans for an Individual Health Identifier (IHI) and a Personally Controlled Electronic Health Record (PCEHR). As health
information networks expand to intersect with other personal information networks, creating the potential for new, more
widespread and more intrusive forms of surveillance, it becomes even more imperative that the health informatics
community participate in the critical debate.
Biopolitical disease surveillance sets the stage for the militarization of health and
society – culminates in authoritarianism
Youde 10 (Jeremy Youde is a professor of Political Science at the University of Minnesota Duluth, “BIOPOLITICAL SURVEILLANCE AND
PUBLIC HEALTH IN INTERNATIONAL POLITICS” p. 31-34)///CW
The other major concern about the increased
surveillance associated¶ with biopolitics focuses on overly militarized
responses. As we¶ redefine infectious disease as a security threat, critics have warned¶ that governments may inappropriately
rely on traditional security¶ apparatuses to address the problem. Deudney raised a similar concern¶ with the
environment. If environmental degradation is deemed a¶ security threat that concerns national and international stability, it¶ may lead political
leaders to call on military forces to confront the¶ threat. Militaries may be useful for traditional threats, but they may¶ be poorly equipped to
respond to environmental degradation or¶ infectious disease.73¶ Militaries
can and do play a role in biopolitical
surveillance. Some¶ of this is concentrated on the members of the armed forces. Military¶ commanders have an obvious
interest in ensuring that their forces are¶ healthy and able to respond to situations as they arise. The military¶ often creates
its own parallel public health infrastructure specifically¶ for its members. Like any other public health system, the military¶ seeks to monitor,
treat, and prevent illnesses. However, those same¶ capabilities can be extended to monitor civilian populations.
Militaries¶ may have laboratory and diagnostic capabilities beyond those of traditional¶ public health organizations. They may also have the
logistical¶ and organizational capabilities to facilitate rapid deployment in epidemic¶ regions and the communication technologies to
communicate¶ with WHO officials in a timely manner.74 Indeed, in developing¶ countries, the military may be the only organization with these
capabilities.¶ Such
an extension of military capabilities into decidedly nonmilitary¶ realms raises fears of the
militarization of society. Chretien et¶ al. suggest that some governments have essentially turned the provision¶ of
public health services and disease surveillance over to military¶ forces “by providing health services for civilians in
remote areas and¶ reporting military surveillance data to the ministry of health.”75 This¶ extends the role of the military into a
more prominent place within¶ the domestic arena.¶ The connections between military forces and public health are not¶
limited to developing countries. Within the United States, much of the¶ global infectious disease surveillance system is linked to the
Department¶ of Defense (DoD). In the 1990s, the U.S. government established the¶ Global Emerging Infectious Surveillance and Response
System (GEIS).¶ The system set up mobile laboratories that could quickly respond to¶ disease outbreaks around the world. Interestingly, GEIS
comes under¶ the administrative aegis of the DoD, not one of the diplomatic or¶ humanitarian bureaucracies in the government. “Their
location in the¶ DoD, as opposed to the United States Agency for International¶ Development (USAID) or Center for Disease Control (CDC)
demonstrates¶ how seriously the United States views the response to infectious¶ disease as a key national security strategy.”76
Surveillance becomes¶ inextricably linked with the military and the deployment of military¶ personnel
in foreign countries. Fears arise that this could cloud the¶ state’s response, leading to rely too heavily on
military, as opposed to¶ health, means. It also could potentially place the military in a strong¶ position for ensuring and regulating
the population’s health.¶ Pandemic influenza preparations have further stoked fears about¶ the links between biopolitical surveillance and the
role of the military.¶ In 2005, U.S. President Bush released the document National¶ Strategy for Pandemic Influenza. The document focuses on
preparedness,¶ surveillance, and containment. This strategy calls upon government¶ officials at the local, state, and federal government to
develop¶ mitigation strategies, build greater lines of communication between¶ officials, and collaborate with international partners. To contain
an¶ outbreak, the strategy acknowledges that military capabilities may be¶ used domestically to provide additional medical facilities and to¶
engage in “infrastructure-sustainment activities.”77 Bush expanded¶ upon the military’s potential role during a press conference. He¶
remarked:¶ If we had an outbreak somewhere in the United States, do we not then¶ quarantine that part of the country, and how do you then
enforce a¶ quarantine? When—it’s one thing to shut down airplanes; it’s another¶ thing to prevent people from coming in to get exposed to
the avian¶ flu. And who best to be able to effect a quarantine? One option is the¶ use of a military that’s able to plan and move.78¶ Some have
seized upon this potential role for the military as proof¶ that governments
are using the threat of an infectious disease
outbreak¶ to introduce an overly militaristic response that could border¶ on martial law. The United States’
pandemic influenza program specifically¶ carves out a special role for the military in providing medical¶ services, enforcing quarantines, and
ensuring continuity of government¶ and economy. Some critics of this program have argued that it¶ essentially allows for the declaration of
martial law.79 Greger argues¶ that using the military to institute some sort of quarantine, as he suggests¶ the National Strategy for
Pandemic Influenza allows, would¶ serve only to increase
stigmatization and discrimination. This would¶ drive
people further away from medical attention and exacerbate an¶ epidemic.80 Irwin Redlener, the dean of Columbia
University’s¶ Mailman School of Public Health, called the militarized aspect of the¶ government’s response “extraordinarily draconian” and
equated it¶ with martial law.81¶ More bombastically, Michael Osterholm, an advisor to the U.S.¶ government on its pandemic flu preparations,
paints the following¶ doomsday scenario:¶ Border security would be made a priority, especially to protect potential¶ supplies of pandemicspecific vaccines from nearby desperate countries.¶ Military leaders would have to develop strategies to defend the¶ country and also protect
against domestic insurgency with armed¶ forces that would likely be compromised by the disease.82¶ He goes on to discuss the fallout from the
government’s failure to¶ properly securitize pandemic influenza:¶ Someday, after the next pandemic has come and gone, a commission¶ much
like the 9/11 Commission will be charged with determining¶ how well government, business, and public health leaders prepared the¶ world for
the catastrophe when they had clear warning. What will be¶ the verdict?83¶ Osterholm’s prognostication envisions widespread looting and the
need¶ for roaming militias to ensure access to drug supplies as he envisions¶ millions of people dying. He speaks strongly about the need to
protect¶ our borders to prevent people from coming to the United States to get¶ America’s drugs. This also suggests that pharmaceutical
manufacturing¶ capabilities may become a national security issue, as could access to¶ antiretroviral drugs in developing countries. Garrett
notes that pharmaceutical¶ patent protections are stoking anti-Western sentiments in¶ some countries, threatening to create greater
problems.84¶ These concerns about
the role of the military in responding to a¶ disease outbreak get to the
very heart of surveillance. Fears have arisen¶ about the potential for overt coercion going hand in hand with¶
increased government surveillance in public health. Government officials¶ have linked increasing adherence with universal
standards embodied¶ within increased health surveillance with a loss of sovereignty,¶ attempts to weaken the state, and domination by
Western states.
***Impact Framing***
No War - General
No risk of global war – economic costs, democracy, treaties, interdependence and multiple other
reasons check conflict escalation
[John Aziz, former economics and business editor @ The Week. “Don't worry: World War III will almost
certainly never happen” 2014]
Next year will be the seventieth anniversary of the end of the last global conflict. There have been points on that timeline — such as the Cuban missile crisis in 1962,
and a Soviet computer malfunction in 1983 that erroneously suggested that the U.S. had attacked, and perhaps even the Kosovo War in 1999 — when a global
conflict was a real possibility. Yet today — in the shadow of a flare up which some are calling a new Cold War between Russia and the U.S. — I believe the threat of
World War III has almost faded into nothingness. That is,
the probability of a world war is the lowest it has been in decades,
and perhaps the lowest it has ever been since the dawn of modernity. This is certainly a view that current data supports. Steven Pinker's studies into the decline of
violence reveal that deaths from war have fallen and fallen since World War II. But we
should not just assume that the past is an accurate
guide to the future. Instead, we must look at the factors which have led to the reduction in war and try to conclude whether the decrease in war is sustainable.
So what's changed? Well, the first big change after the last world war was the arrival of mutually assured destruction. It's no coincidence
that the end of the last global war coincided with the invention of atomic weapons. The possibility of complete annihilation provided a huge
disincentive to launching and expanding total wars. Instead, the great powers now fight proxy wars like Vietnam and Afghanistan (the
1980 version, that is), rather than letting their rivalries expand into full-on, globe-spanning struggles against each other. Sure, accidents could happen, but the
nobody in power wants to be the cause of Armageddon. But what about a nonnuclear global war? Other changes — economic and social in nature — have made that highly unlikely too. The world has become much more
economically interconnected since the last global war. Economic cooperation treaties and free trade agreements
have intertwined the economies of countries around the world. This has meant there has been a huge rise in the volume of global trade since
possibility is incredibly remote. More importantly,
World War II, and especially since the 1980s. Today consumer goods like smartphones, laptops, cars, jewelery, food, cosmetics, and medicine are produced on a
global level, with supply-chains criss-crossing the planet. An example: The laptop I am typing this on is the cumulative culmination of thousands of hours of work, as
well as resources and manufacturing processes across the globe. It incorporates metals like tellurium, indium, cobalt, gallium, and manganese mined in Africa.
Neodymium mined in China. Plastics forged out of oil, perhaps from Saudi Arabia, or Russia, or Venezuela. Aluminum from bauxite, perhaps mined in Brazil. Iron,
perhaps mined in Australia. These raw materials are turned into components — memory manufactured in Korea, semiconductors forged in Germany, glass made in
the United States. And it takes gallons and gallons of oil to ship all the resources and components back and forth around the world, until they are finally assembled
in China, and shipped once again around the world to the consumer. In
a global war, global trade becomes a nightmare. Shipping becomes
more expensive due to higher insurance costs, and riskier because it's subject to seizures, blockades, ship sinkings. Many goods, intermediate components
or resources — including energy supplies like coal and oil, components for military hardware, etc, may become temporarily unavailable in certain areas. Sometimes
— such as occurred in the Siege of Leningrad during World War II — the
supply of food can be cut off. This is why countries hold strategic reserves
of things like helium, pork, rare earth metals and oil, coal, and gas. These kinds of breakdowns were troublesome enough in the economic landscape of the early
and mid-20th century, when the last global wars occurred. But in today's ultra-globalized and ultra-specialized economy? The level of economic
adaptation — even for large countries like Russia and the United States with lots of land and natural resources — required to adapt to a world
war would be crushing, and huge numbers of business and livelihoods would be wiped out. In other words, global trade interdependency has
become, to borrow a phrase from finance, too big to fail. It is easy to complain about the reality of big business influencing or controlling
politicians. But big business has just about the most to lose from breakdowns in global trade. A practical example: If Russian oligarchs make their money from
selling gas and natural resources to Western Europe, and send their children to schools in Britain and Germany, and lend and borrow money from the West's
financial centers, are they going to be willing to tolerate Vladimir Putin starting a regional war in Eastern Europe (let alone a world war)? Would the Chinese
financial industry be happy to see their multi-trillion dollar investments in dollars and U.S. treasury debt go up in smoke? Of course, world wars have been waged
despite international business interests, but the world today is far more globalized than ever before and well-connected domestic interests are more dependent on
access to global markets, components and resources, or the repayment of foreign debts. These are huge disincentives to global war. But what of the militaryindustrial complex? While other businesses might be hurt due to a breakdown in trade, surely military contractors and weapons manufacturers are happy with war?
Not necessarily. As the last seventy years illustrates, it is perfectly possible for weapons contractors to enjoy the profits from huge military spending without a
global war. And the uncertainty of a breakdown in global trade could hurt weapons contractors just as much as other industries in terms of losing access to global
markets. That means weapons manufacturers may be just as uneasy about the prospects for large-scale war as other businesses. Other changes have been social in
nature. Obviously, democratic
countries do not tend to go to war with each other, and the spread of liberal democracy is
correlated against the decrease in war around the world. But the spread of internet technology and social media has brought the world much
closer together, too. As late as the last world war, populations were separated from each other by physical distance, by language barriers, and by lack of mass
communication tools. This means that it was easy for war-mongering politicians to sell a population on the idea that the enemy is evil. It's hard to empathize with
people who you only see in slanted government propaganda reels. Today, people from enemy countries can come together in cyberspace and find out that the
"enemy" is not so different, as occurred in the Iran-Israel solidarity movement of 2012. More importantly, violent incidents and
deaths can be broadcast to the world much more easily. Public shock and disgust at the brutal reality of war broadcast over YouTube and
Facebook makes it much more difficult for governments to carry out large scale military aggressions. For example, the Kremlin's own pollster today released a
survey showing that 73 percent of Russians disapprove of Putin's handling of the Ukraine crisis, with only 15 percent of the nation supporting a response to the
overthrow of the government in Kiev. There are, of course, a few countries like North Korea that deny their citizens access to information that might contradict the
government's propaganda line. And sometimes countries ignore mass anti-war protests — as occurred prior to the Iraq invasion of 2003 — but generally a more
connected, open, empathetic and democratic world has
though, may be that the
made it much harder for war-mongers to go to war. The greatest trend,
world as a whole is getting richer. Fundamentally, wars arise out of one group of people deciding that they want whatever
another group has — land, tools, resources, money, friends, sexual partners, empire, prestige — and deciding to take it by force. Or they arise as a result of grudges
or hatreds from previous wars of the first kind. We don't quite live in a superabundant world yet, but the long march of human ingenuity is making basic human
wants like clothing, water, food, shelter, warmth, entertainment, recreation, and medicine more ubiquitous throughout the world. This
means that
countries are less desperate to go to war to seize other people's stuff. But the tendency toward inertia is strong. It is clear at least that the
incentives for world war are far lower than they were in previous decades, and the disincentives are growing. The apocalyptic
visions of a new world war between nations or empires that three generations of children have been raised into continue to diminish.
Empirics prove that mutually assured destruction prevents war because all actors are
rational and nuclear war is fundamentally unwinnable
Tepperman 9 (Jonathan Tepperman is an editor, writer, and analyst working on international affairs. He was appointed Managing
Editor of Foreign Affairs—the magazine published by the New York–based Council on Foreign Relations—in February 2011. Tepperman has a
BA in English Literature from Yale University and law degrees from Oxford and NYU. He is Vice Chairman of the Halifax International Security
Forum and a Fellow of the New York Institute of Humanities. “How Nuclear Weapons Can Keep You Safe” 8/28/9
http://www.newsweek.com/how-nuclear-weapons-can-keep-you-safe-78907)///CW
The argument that nuclear weapons can be agents of peace as well as destruction rests on two deceptively simple observations. First,
nuclear weapons have not been used since 1945. Second, there's never been a nuclear, or even a
nonnuclear, war between two states that possess them. Just stop for a second and think about that: it's hard to overstate
how remarkable it is, especially given the singular viciousness of the 20th century. As Kenneth Waltz, the leading "nuclear optimist" and a
professor emeritus of political science at UC Berkeley puts it, "We now have 64 years of experience since Hiroshima. It's striking and against all
historical precedent that for that substantial period, there has not been any war among nuclear states."¶ To understand why—and why the
next 64 years are likely to play out the same way—you need to start by recognizing that all states are rational on
some basic level. Their leaders may be stupid, petty, venal, even evil, but they tend to do things only when they're
pretty sure they can get away with them. Take war: a country will start a fight only when it's almost certain it can get what it
wants at an acceptable price. Not even Hitler or Saddam waged wars they didn't think they could win. The problem
historically has been that leaders often make the wrong gamble and underestimate the other side—and millions of innocents pay the price.¶
Nuclear weapons change all that by making the costs of war obvious, inevitable, and unacceptable. Suddenly, when
both sides have the ability to turn the other to ashes with the push of a button—and everybody knows it—the basic math shifts. Even the
craziest tin-pot dictator is forced to accept that war with a nuclear state is unwinnable and thus not worth the
effort. As Waltz puts it, "Why fight if you can't win and might lose everything?"¶ Why indeed? The iron logic of deterrence and mutually
assured destruction is so compelling, it's led to what's known as the nuclear peace: the virtually unprecedented stretch
since the end of World War II in which all the world's major powers have avoided coming to blows. They did fight proxy wars, ranging from
Korea to Vietnam to Angola to Latin America. But these never matched the furious destruction of full-on, great-power war (World War II alone
was responsible for some 50 million to 70 million deaths). And since the end of the Cold War, such bloodshed has declined precipitously.
Meanwhile, the nuclear powers have scrupulously avoided direct combat, and there's very good reason to think they always will. There have
been some near misses, but a close look at these cases is fundamentally reassuring—because in each instance, very different leaders all came
to the same safe conclusion.¶ Take the mother of all nuclear standoffs: the Cuban missile crisis. For
13 days in October 1962, the United
States and the Soviet Union each threatened the other with destruction. But both countries soon stepped back
from the brink when they recognized that a war would have meant curtains for everyone. As important as the fact that they did is the
reason why: Soviet leader Nikita Khrushchev's aide Fyodor Burlatsky said later on, "It is impossible to win a nuclear war, and both sides realized
that, maybe for the first time."¶ The record since then shows the same pattern repeating: nuclear-armed enemies
slide toward
war, then pull back, always for the same reasons. The best recent example is India and Pakistan, which fought three
bloody wars after independence before acquiring their own nukes in 1998. Getting their hands on weapons of mass
destruction didn't do anything to lessen their animosity. But it did dramatically mellow their behavior. Since
acquiring atomic
weapons, the two sides have never fought another war, despite severe provocations (like Pakistani-based terrorist attacks
on India in 2001 and 2008). They have skirmished once. But during that flare-up, in Kashmir in 1999, both countries were careful to keep the
fighting limited and to avoid threatening the other's vital interests. Sumit Ganguly, an Indiana University professor and coauthor of the
forthcoming India, Pakistan, and the Bomb, has found that on both sides, officials' thinking was strikingly similar to that of the Russians and
Americans in 1962. The prospect of war brought Delhi and Islamabad face to face with a nuclear holocaust, and leaders in each country did
what they had to do to avoid it.
No War – Nuclear Winter
Nuke war is unlikely – conventional weapons are prioritized and there is no impact to nuclear winter
Brian Dunning (co-founded and was chief technology officer for Buylink, technical editor for FileMaker
Advisor Magazine, hosted and produced Skeptoid: Critical Analysis of Pop Phenomenon, winner of the
2010 Parsec Award for "Best Fact Behind the Fiction Podcast".[14] In August 2010 he received an award
recognizing his contributions in the skeptical field from the Independent Investigations Group (IIG)
during its 10th Anniversary Gala) 2011 “Nuclear War and Nuclear Winter”
http://skeptoid.com/episodes/4244
Other cataclysmic events have proven that the nuclear winter scenario is not at all far-fetched. The eruption of Mt.
Pinatubo in the
some 17 million tons of particulates into the upper atmosphere that caused global
temperatures to drop by about a degree for several months. Sunlight dropped by 10%. This temperature drop did not,
however, have any long-term effect on agriculture. Pinatubo was only a blip compared the the K-T extinction event of some 65
Philippines, also in 1991, threw
million years ago, when a theorized asteroid hit us with one hundred million megatons of destructive force, lighting virtually the entire world on
fire. The evidence of this is called the K-T boundary, a layer of clay found all around the world. Sunlight was reduced by 10-20% for ten years,
which caused a massive cascading extinction of species from plants to herbivores to carnivores. But
we shouldn't expect anything
like this to happen from a nuclear war. Times continue to change, including the nature of warfare. Nations no longer
stockpile the megaton class weapons popular in the 1950s and 1960s; typical yields now are a fraction of a
megaton. The United States' conventional capability is now so good that it can effectively destroy an entire
nation's ability to wage large-scale war overnight, using only conventional weapons. But that doesn't mean the nuclear forces
are no longer needed. Should a superpower strike first against the United States with nuclear weapons, the response would more than likely be
nuclear, bringing Mutually Assured Destruction into play. But what about a small nation striking first? What about nukes in the trunks of cars
parked in major cities? In the modern era, it's much less clear that any superpower would necessarily have anyone to shoot back at. And so,
while the nuclear winter scenario is a good prediction of the effects of a worst-case scenario, when all the variables are at their least favorable,
the strongest probabilities favor a much less catastrophic nuclear autumn; and even those effects depend strongly
on variables like whether the war happens during the growing season. A bomb in Los Angeles might result in history's worst firestorm, while a
bomb in the mountains of Pakistan might create no fires at all. The simple fact is that there
are too many unpredictable
variables to know what kind of climate effects the smoke following nuclear fires will produce, until it actually happens. Obviously
we're all very mindful of the many terrible implications of nuclear combat, and if it ever happens, the prospect of a nuclear autumn will likely be
among the least of our concerns. The physicist Freeman Dyson perhaps described it best when he said "(TTAPS is) an absolutely atrocious piece
of science, but I quite despair of setting the public record straight... Who wants to be accused of being in favor of nuclear war?"
Nuclear winter can’t be proven—their studies are politically biased
AIP (American Institute of Physics) 2011 “Wintry Doom”
https://www.aip.org/history/climate/Winter.htm
Atmospheric scientists were well-placed to take up the question of smoke from a nuclear war.
Measurements like Crutzen's of the effects of soot and the like had greatly advanced since the 1975 study. Richard Turco and others, working
on the dinosaur extinction problem, had developed a computer model of a haze-filled atmosphere, and it had occurred to them that dust lofted
by the explosions of a nuclear world war might have effects comparable to the dust from an asteroid impact. Meanwhile the surprising
observation that a giant dust storm was cooling the atmosphere of Mars had inspired two more scientists, James Pollack and Brian Toon, into
new calculations of dust effects. This led them into work with Carl Sagan on how the aerosols emitted by volcanic eruptions could affect
climate. Now these scattered scientists
joined forces to calculate the consequences of an exchange of hydrogen
bombs. Their ominous conclusion was that the sooty smoke from burning cities could bring on a "nuclear
winter" — months or even years of cold so severe it would gravely endanger living creatures.(8) The scientists did this
work mainly for public consumption. When they announced their results in 1983, it was with the explicit
aim of promoting international arms control. Surely the likelihood that all-out nuclear war was literally suicidal would persuade
nations to reduce their arsenals? As a side effect, the studies helped to improve scientific understanding of how aerosols could affect
climate.(9) The computer models
were so simplified, and the data on smoke and other aerosols were still so
poor, that the scientists could say nothing for certain. Critics, mostly people opposed to nuclear disarmament, quickly pointed
out the deficiencies. In the mid 1980s, detailed studies confirmed that a nuclear war would probably alter global
climate temporarily. But as Schneider and a coauthor explained in a widely read article, it was not likely to bring an
apocalyptic winter, but it would bring a damaging "nuclear fall." (According to more recent research, smoke following even a limited,
regional war would probably dim sunlight enough to kill many more people through starvation than would die directly under the bombs.)(10)
No War - A2 Irrational Actors
Even the wildest leaders are deterable – if Mao and Stalin didn’t start a nuclear war
then nobody will
Tepperman 9 (Jonathan Tepperman is an editor, writer, and analyst working on international affairs. He was appointed Managing
Editor of Foreign Affairs—the magazine published by the New York–based Council on Foreign Relations—in February 2011. Tepperman has a
BA in English Literature from Yale University and law degrees from Oxford and NYU. He is Vice Chairman of the Halifax International Security
Forum and a Fellow of the New York Institute of Humanities. “How Nuclear Weapons Can Keep You Safe” 8/28/9
http://www.newsweek.com/how-nuclear-weapons-can-keep-you-safe-78907)///CW
Nuclear pessimists—and there are many—insist that even if this pattern has held in the past, it's crazy to rely on it in the future, for
several reasons. The first is that today's nuclear wannabes are so completely unhinged, you'd be mad to trust
them with a bomb. Take the sybaritic Kim Jong Il, who's never missed a chance to demonstrate his battiness, or Mahmoud
Ahmadinejad, who has denied the Holocaust and promised the destruction of Israel, and who, according to some respected Middle East
scholars, runs a messianic martyrdom cult that would welcome nuclear obliteration. These regimes are the ultimate rogues, the thinking
goes—and there's no deterring rogues.¶ But are Kim and Ahmadinejad really scarier and crazier than were
Stalin and Mao? It might look that way from Seoul or Tel Aviv, but history says otherwise. Khrushchev, remember, threatened to "bury"
the United States, and in 1957, Mao blithely declared that a nuclear war with America wouldn't be so bad because even "if half of mankind died
… the whole world would become socialist." Pyongyang and Tehran support terrorism—but so did Moscow and Beijing. And as for seeming
suicidal, Michael Desch of the University of Notre Dame points out that Stalin and Mao are the real record holders here: both were responsible
for the deaths of some 20 million of their own citizens.¶ Yet
when push came to shove, their regimes balked at nuclear
suicide, and so would today's international bogeymen. For all of Ahmadinejad's antics, his power is limited, and the clerical
regime has always proved rational and pragmatic when its life is on the line. Revolutionary Iran has never started a war, has done
deals with both Washington and Jerusalem, and sued for peace in its war with Iraq (which Saddam started) once it realized it couldn't win.
North Korea, meanwhile, is a tiny, impoverished, family-run country with a history of being invaded; its overwhelming
preoccupation is survival, and every time it becomes more belligerent it reverses itself a few months later (witness last week, when
Pyongyang told Seoul and Washington it was ready to return to the bargaining table). These countries may be brutally oppressive, but
nothing in their behavior suggests they have a death wish.
Yes War - General
Nuclear war is possible – India, Pakistan, China, North Korea, and terrorism
Duz 14 (Sergei Duz is a writer for the Voice of Russia, “Nuclear war more likely than ever: threat comes from South Asia and nuke
terrorists” 1/2/14 http://sputniknews.com/voiceofrussia/2014_01_02/Nuclear-war-more-likely-than-ever-threat-comes-from-South-Asia-andnuke-terrorists-1915/)
The main reason for this is the ongoing erosion of the non-proliferation regime, experts say. The Non-Proliferation Treaty has been
continuously bashed as "unfair," but it is in fact the exclusive geopolitical environment and ensuing
nuclear responsibility of a
handful of states that has so far kept mankind away from the total wipeout.¶ The theory of reciprocal
deterrence wasn’t there all the time. A long two decades after the A-bomb was invented, the powers who had it in their arsenals
thought of it as fair game, a weapon you could actually use in a conflict, rather than a deterrent.¶ The Cuban Missile Crisis came as a
wakeup call. It brought home the danger of nuclear weapons and led to the non-proliferation regime as conceived by the socalled "nuclear club," which included the Soviet Union, the US, Britain, France and China. Under the NPT, only countries that made and set off a
nuclear bomb prior to January 1, 1967 were granted the status of a nuclear power. Washington, London and Moscow were the first to sign the
treaty in 1968, with Paris and Beijing committing themselves to it years later. But all of the signatories abided by the rules.¶ Those
times
have passed. NPT controls have become so loose and new nuclear powers so numerous, there’s no counting them anymore. India,
Pakistan, Israel and North Korea have never even applied for "nuclear club" membership. On the contrary, they created their own shadow club
with no rules. The official club with all its nukes poses less threat to the human race than this bunch of neophytes. Volatility has spread,
though South Asia plays a separate role in it.¶ "Some South Asian countries have a full arsenal of nukes," says Pyotr Topychkanov, a senior
researcher at the International Security Center of the Institute of World Economy and International Relations at the Russian Academy of
Sciences. "They have enough nuclear warheads and vehicles. They have only one equal in the Middle East, which is Israel. Iran has no nuclear
weapons yet."¶ "The same is true of North
Korea, which has weapon-grade fissile nuclear materials. They have built and tested
explosive devices, but it’s still a long way to fully-fledged nukes for them."¶ "The countries that really cause concern are
India, Pakistan and China. China and Pakistan are longtime partners, including their nuclear agenda. India borders on China and
Pakistan and is certainly aware of this partnership. It doesn’t have faith in either. Were a conflict to spark off, it would be trilateral and include
not only India and Pakistan, but India, Pakistan and China."¶ About 30 to 40 countries are on their way towards nuclear status. Many of them
are inches away, like Germany, Japan and Canada, who could have had an A-bomb long ago – but simply didn’t wish to. The Sunni Saudi Arabia
has hinted it will make a bomb the moment the Shiite Iran lays its hands on one.¶ The principle of uncontrolled nuclear proliferation was
formulated back in 1965, when Pakistan’s foreign chief Zulfikar Ali Bhutto said: "There’s a Christian bomb, a Jewish bomb and now even a Hindu
bomb. It’s high time we got a Muslim bomb."¶ Nuclear terrorism
is yet another problem. Terrorists can’t make a nuke. But
they do know how to pit countries and eventually provoke them to an inadequate response. There’s no lacking of
short-sighted politicians who can take that last step, for instance Republican Senator Steve Buyer who nudged the government after 9/11 to
nuke Tora Bora caves, instead of sending a task force to Afghanistan.¶ In that sense, the
threat of a full-scale nuclear war has
transformed into the menace of a local nuclear conflict, or even a string of them. You shouldn’t be lulled by their seeming
locality though, since a precise nuclear strike will be felt globally, says PIR Center Internet Project Director Andrei Baklitsky.¶ "A nuclear
conflict will have dramatic consequences for all of us, because nuclear weapons are weapons of mass
destruction. They are not selective. A nuclear attack in the Middle East would be most tragic, first of all, because of its huge oil fields, and a
burning oil field is a big trouble. Secondly, any strike on the Middle East will skyrocket oil prices across the world and plunge the global
economy back into an even worse economic crisis that before.¶ The consequences of using an A-bomb in an Indo-Pakistani conflict would be
just as grave for these densely populated countries, driving millions of refugees out of their homes and turning agriculture lands into barren
wastes."¶ Unfortunately, the world is home to many paradoxes. Despite a
drop in amounts of nuclear weapons
worldwide, the collapse of the bipolar world has made the risk of a manmade apocalypse palpable.
Nuclear war is possible – accidents and poor risk calculation
Gobry 14 (Pascal-Emmanuel Gobry is a writer and fellow at the Ethics and Public Policy Center. His writing has appeared at Forbes, The
Atlantic, First Things, Commentary Magazine, The Daily Beast, The Federalist, Quartz, and other places, “The end of nuclear deterrence”
12/12/14 http://theweek.com/articles/441584/end-nuclear-deterrence)///CW
Since the end of the Cold War, the public mind has pretty much forgotten about the existence of nuclear
weapons, except
in the Middle East. And yet, they still exist — thousands and thousands of them, ready to destroy all of human civilization several
times over. In response, a new nuclear disarmament movement is getting underway.¶ This week, I attended the Vienna conference on the
Humanitarian Impact of Nuclear Weapons. (Full disclosure: one of the sponsoring organizations, the Nuclear Threat Initiative, invited me all
expenses paid.) The conference was striking in describing the utter, absolute
destruction that can be caused by nuclear
weapons.¶ I came in as a supporter of the doctrine of nuclear deterrence, which says that the world's major power-brokers should have
nuclear weapons as a way of preventing a new world war. Advocates of this doctrine point to the Cold War, which never went hot, as a success
for deterrence.¶ But supporters of disarmament — including the Red Cross, Pope Francis, and, believe it or not, Henry Kissinger — say that's
wrong. These are serious, sober-minded people, not just pie-in-the-sky activists, and they say that deterrence
doesn't work in a
multipolar world. Instead, the presence of nuclear weapons just creates an incentive for more proliferation, as
small countries try to one-up their regional adversaries.¶ What's more — and this was the most striking thing at the
conference — they point to the risks inherent in the existence of nuclear weapons. History has recorded many close calls in which
nuclear weapons were almost fired. (This, in turn, could have led to a nightmare scenario where an accidental strike is met with a riposte,
triggering Armageddon.) For example, in
2007, six U.S. nuclear warheads went missing because of a bureaucratic mistake.
Then there's the story of the U.S. nuclear missile launch officer with the drug problem.¶ If this stuff can happen in the
U.S., which has the oldest, best-funded, and most sophisticated nuclear force, one shudders to think about what might be
going on in Russia or Pakistan. Given the way human nature and technology works, advocates warn, it is not a matter of if, but when
a catastrophic accicent will occur. The only solution is simply to ban nuclear weapons for good.¶ This is where I started rethinking
my position. A lot of research has shown that human brains are wired in such a way that it is very difficult for us to
rationally process risks that have a very low probability but a very high cost. This is essentially what
caused the 2008 financial crisis: a very low risk was treated as non-existent, so that when the event occurred, the system collapsed.
This is exactly the kind of risk we are talking about with nuclear weapons.
Peace isn’t inevitable – framing it as such increases the risk of conflict by altering
threat perceptions
Jehangir 12 {Hamza, Research Associate on a National Priorities Research Project (Texas A&M –
Qatar), Masters of Arts, International Relations and Globalization (University of Salford, UK) and
Bachelor of Social Science, International Relations (SZABIST, Islamabad, Pakistan), “Realism, Liberalism
and the Possibilities of Peace,” E-IR, 2/19, http://www.e-ir.info/2012/02/19/realism-liberalism-and-thepossibilities-of-peace/}
When Plato said that only the dead have seen the end of war, his remarks echoed the history of his
time. War was all too often of an occurrence in ancient Greece, so much so that it might’ve been
considered a necessity in some cases but a menace in others. From Plato’s time to the contemporary
period of political science and international relations theorizing, philosophers and theorists have been
primarily concerned with discovering human nature, its role in social and political life as well as ways
and means of giving meaning to human life. Peace has been central to this process of inquiry and
thought which has led humanity to its present condition. Theories of peace and war have been central
to this cognitive exercise. However, in the last three centuries, relations between nation-states have
taken the central stage. Theories have come to light which illuminate our understanding of how nations
interact, what causes them to go to war, what motivations might they have to establish peace and how
these causes and motivations might be managed to reach a stage where peace is not “an armistice in a
war” as Thucydides (431BCE) stated but “a virtue, a state of mind, a disposition for benevolence,
confidence, justice” as Baruch Spinoza (1670) considered it to be. Nonetheless, there are still
considerable obstacles that remain in the pursuit of peace. Theorists have outlined them and literature
has shed light on these hurdles whereas in some cases the pre-occupation with peace has also led
towards a more hostile state of international affairs amongst nations as well as peoples.
Yes great power war – realism, fear of worse alts, failed political processes, violent
human nature – their evidence twists definitions to exclude our scenarios
Lyon 14 {Rod, director of the strategy and international program at the Australian Strategic Policy
Institute, executive editor of The Strategist, “No, Great Power War Isn’t Obsolete,” The Diplomat, 8/22,
http://thediplomat.com/2014/08/no-great-power-war-isnt-obsolete/}
August has seen a wave of reflection on major war. It’s a question we seem to revisit every time the key anniversaries of WWI and WWII roll around, but especially
this year because its the 100th anniversary of the outbreak of WWI. Some pundits
are keen to draw parallels between 1914 and
2014—though on its face it’s not apparent to me why 2014 should be more like 1914 than 2013.¶ Academic
strategists familiar with their disciplinary history will know that the issue of whether major war’s obsolete received a detailed
coverage back in Survival magazine in the late 1990s. To save readers the trouble of digging through their archives, one contributor, John
Mueller, argued that it was obsolete—gone the way of slavery and dueling—while others wrestled partly over how to define obsolescence and
even more over how to define major war. Was the Vietnam War “major?” Was the Cold War a “war?” Michael Mandelbaum argued that perhaps
major war was just a poor policy option nowadays—because of the steep rise in the costs and the thin rewards
for success.¶ It’s intriguing that the question about the obsolescence of war is typically qualified by the adjective
“major.” No one seems particularly keen to claim that nasty little wars—in particular, nasty little wars in faraway places—
are obsolete, perhaps because they patently aren’t. From memory, Mueller didn’t want to call those conflicts “wars,”
though; he saw those more as “opportunistic predation” (That’s the reason the cover of his book, The Remnants of War, features an image—from the Balkan
conflict in 1991—of a thug swigging from a bottle.)¶ Then
9/11 came along and sideswiped that whole debate. The nasty
little wars of the 1990s didn’t stay in faraway places. A superpower got up and marched off to war—albeit
a war against al Qaeda, its supporters, and all its works. Somewhere along the line the mission became conflated with a host of
other problems, and Washington ended up obsessing about the Global War on Terror for longer than it probably
should have done. But Washington’s behavior at least answered one question related to the Big One: did great powers
still go to war? Yes. Now, the question still unanswered—unanswered since 1945 if you think major war has to be hot; unanswered
since 1991, if you think major war can be cold—is whether or not major powers still go to war with each other.¶ Psychologist
Steven Pinker has recently argued that the better angels of our nature are making us turn away from violence.
I’m not wholly convinced by his argument—the better angels of our nature seem pretty militant to me, and always
have been. (See Ephesians, 6:12.) But academic research from a few decades back suggests that great-power wars against each other aren’t common. Jack
Levy in his research on war in the international system between 1495 and 1975 found only nine of what he would call “world wars”—wars where almost all great
powers were involved. Much more commonly, he found “interstate wars”—113 of which engaged a great power.¶ I cite those figures to underline two points. First,
if world wars are rare, maybe we don’t need special explanations to say why there hasn’t been one since 1945 (hot) or 1991 (cold). Second, that definition of major
war is still a problem.¶ Let’s
put aside the academic arguments and look straight at the case that most worries
us. Is a great-power war between the U.S. and China possible? I think we could answer that question directly: possible, yes;
likely, no. Great powers, especially nuclear-armed ones, don’t go to war with each other lightly. But sometimes wars
happen. And they aren’t accidents. They’re about international order. They’re about, as Raymond Aron said, the
life and death of states. And the principal reason for fighting them is that not doing so looks like a
worse alternative.¶ Moreover, the paths to war—including rare major-power war—are not reserved solely
for conventionally-armed states. Where both powers are nuclear-armed we should expect a conflict, even one at the
lower rungs of the escalation ladder, to be fought with a high degree of political control, and an understanding that the objectives of the conflict are
limited. Naturally, it would help if both sides shared a common understanding of where the firebreaks were
between conventional and nuclear conflict, and already had in place a set of crisis-management procedures, but
it’s possible that neither of
those conditions might exist. (Neither would prevent a war, but both would provide a better sense of the likely escalation dynamics of a particular
conflict.) Indeed, it’s because major war is possible that we retain such a keen interest in war termination.
Unconstrained escalation doesn’t lead to a happy place.
Yes War – A2 Interdependence
Trade doesn’t solve war – empirics prove it only applies for two Western nations
Hafner-Burton and Montgomery 12 (Emilie M. Hafner-Burton PhD is a professor at the University of California, San
Diego. Alexander H. Montgomery is Department Chair and Associate Professor of Political Science at Reed College. He has a B.A. 1996, Physics,
University of Chicago. M.A. 1999, Energy and Resources, University of California at Berkeley. M.A. 2003, Sociology, Stanford University. Ph.D.
2006, Political Science, Stanford University. He has published articles on dismantling proliferation networks and on the effects of social
networks of international organizations on interstate conflict. His research interests include political organizations, social networks, weapons of
mass disruption and destruction, social studies of technology, and interstate social relations. “War, Trade, and Distrust: Why Trade Agreements
Don’t Always Keep the Peace”)///CW
Many before us have been skeptical of the claim that interdependence promotes¶ peace among states. It is well understood that
international institutions can have¶ adverse effects on conflicts among member states, mismanaging
crisis situations¶ and worsening conflict intensity (Gallarotti, 1991), or producing rivalry among¶ states due to their relative social
positions (Hafner-Burton and Montgomery,¶ 2006). We are nevertheless among the first to directly tackle the principal claims¶ supporting the
liberal thesis that trade institutions dampen conflict, and to propose¶ an explanation for why conflict often characterizes outcomes.¶ This is
important because we observe significant instances of violent conflict4¶ between PTA members: the 1990s alone
included border clashes between¶ Armenia and Azerbaijan, members of the Commonwealth of Independent¶ States (CIS); the outbreak of war
in the Great Lakes, with foreign involvement¶ in the Democratic Republic of Congo from Angola, Namibia, Rwanda, Uganda,¶ and Zimbabwe, all
members of the Common Market for Eastern and Southern¶ Africa (COMESA); the Iraqi invasion of Kuwait and violent border clashes¶ between
Egypt and Sudan, all members of the Council of Arab Economic Unity¶ (CAEU); and fighting between India and Pakistan, members of the South¶
Asian Association for Regional Cooperation (SAARC). North and South¶ Korea frequently are involved in violent incidents; both are members of
the¶ Global System of Trade Preferences Among Developing Countries (GSTP). A¶ majority of these disputants are also members of the WTO.
Powers contends¶ that in Africa, 16% of all militarized international disputes registered by the¶ Correlates of War data from 1950 to 1992
occurred between PTA members¶ (Powers, 2003, 2004). These
examples show clearly that members of the same¶ trade
institution can and do conflict, that conflict often breaks out into violence,¶ and that commerce is
frequently not enough to keep the peace. They stand in¶ sharp contrast to the liberal expectation that trade institutions
dampen conflict¶ through an increase in trust.¶ Trade institutions do increase repeated contact between members;
however,¶ contact does not necessarily build trust or a sense of community. The lessons of¶ European integration
theory suggest that building community through upgrading¶ the common interest between PTA members requires a minimum level of
homogeneity:¶ a pluralist social structure, a high level of economic and industrial development,¶ and ideological similarity (Haas, 1960).
Security communities are also¶ most likely to develop through economic relations among Western nations, as ¶ even the most institutionalized
forms of integration in the developing world cannot be said to create the mutual identification at the core of the concept ¶ (Bearce, 2003).
Although evidence suggests that economic integration has led to¶ the formation of a collective identity and trust among member states of the¶
European Union over time, it is well understood that ‘‘democratic features of liberal¶ democracies enable the community in the first place’’
(Russett and Oneal,¶ 2001: 166). The
liberal argument that trade institutions dampen conflict by building¶ trust among
leaders to overcome commitment problems consequently chiefly¶ applies to the Western world of advanced democratic nations. Yet
the overwhelming¶ majority of trade institutions manage trade between partners that include at¶ least one
developing or nondemocratic state, and there is no evidence to show¶ that these institutions build trust over asymmetrical
distribution of gains.¶ Boehmer, Gartzke, and Nordstrom cogently argue that states that belong to many¶ different international institutions
may have a greater number of international¶ interests to competitively defend and a greater array of opportunities to enact¶ aggressive
behavior in defense of those perceived interests (Boehmer et al., 2002).¶ We extend this argument one step further; trade
institutions
create and shape¶ states’ interests, affecting not only the number of potential issues for dispute, but¶ also
establishing conditions that can lead to distrust. Institutions do this by placing¶ states in social positions of power within
international relations, which shape¶ expectations for behavior by defining which issues are legitimate for contestation¶ via military means and
enable states to coerce, bribe, reward, or punish each¶ other. We address this possibility in the next section.
Leaders value short-term benefits of aggression over long-term economic harms –
economic MAD fails
Solomon 15 (Jon Solomon is a writer at Information Dissemination, a naval information blog. He is citing Eric Lorber and Jacquelyn
Schneider. Eric Lorber is a PhD candidate in Political Science at Duke and a JD candidate at the University of Pennsylvania Law School. His
research focuses on civil-military relations, the use of force against non-state actors, and the credibility of security guarantees. He has been a
fellow at the Duke University American Grand Strategy Program, worked for the RAND Corporation, and is currently an adjunct staff member at
the Institute for Defense Analyses. Jacquelyn Schneider is a PhD student in Political Science at George Washington University. Her research
focuses on the intersection of national security, technology, and political psychology and covers a diverse range of topics from intelligence to
unmanned technologies to cyber policy. She has won awards for Best Graduate Student Paper at both the International Studies Association
Annual Meeting (Foreign Policy Section and International Security Studies Section) and the Southwestern Social Sciences Association Annual
Meeting and is a two-time award winner of the AFCEA National Intelligence Writing Contest. She holds a B.A. in Economics and Political Science
from Columbia University and a M.A. in Political Science from Arizona State University. “The Fallacy of “Mutually Assured Economic
Destruction” 4/24/15 http://www.informationdissemination.net/2015/04/the-fallacy-of-mutually-assured.html)///CW
In an excellent War on the Rocks article last week, Eric Lorber and Jacquelyn Schneider argued that economic
sanctions cannot
serve as standalone deterrents against aggression by another state. They noted in particular how prospect theory and credibility
considerations affect the utility of threatened economic punishments as a deterrent within an opponent’s decision-making: ¶ “…while these
new, sophisticated sanctions often cause medium- and long-term damage to a country’s economy, the
prospect of such damage may
not deter aggressive actors from taking immediate actions contrary to U.S. interests. For example, in the case of
Russia, while the sanctions have certainly taken a toll, the Russian economy, when supported by capital reserves, is sufficiently resilient to put
off the worst impacts of the sanctions for a few years. In the short-term, however, Russia has been able to annex Crimea and exercise
significant influence in rebel-controlled areas deep in Eastern Ukraine. Thus, while
the prospect of economic damage may
loom down the road, this risk may be insufficient to deter an aggressive actor from pursuing short-term
benefits...¶ …Likewise and in the Russia context, given the discord among European Union member states about how to respond to
additional Russian aggression, Russia may not believe that the United States and the European Union will impose additional, extremely painful
sanctions on the country, and therefore may not be deterred from engaging in additional destabilizing action in Ukraine.” ¶ They conclude that a
defender must understand “the aggressive actor’s intentions and motivations” in order to determine whether deterrence by economic
punishment is likely to succeed:¶ “Policymakers in Washington need to do better than conclude that ‘these sanctions will cause economic pain,
therefore they will deter.’ Rather, they must analyze whether the particular sanctions on the table will influence a malicious actor’s decisionmaking.”¶ In other words, the opponent’s leaders’ political objectives and perceptions of the strategic circumstances (including pressures
stemming from domestic popular passions) are central variables in determining a deterrence policy’s probable efficacy.¶ While all deterrence
policies face this challenge to some degree, it tends to especially impact deterrence by punishment. The
amount of threatened pain
must significantly exceed the opponent’s discomfort with continuing to honor the status quo. A threat of
certain national economic catastrophe is not sufficient if opponent’s leaders value some other political objective more highly or suffer from
exceptional ‘strategic desperation.’ Japanese leaders proved that exact point in their decision for war during the late summer and early fall of
1941.¶ This
does not change if a threatened economic catastrophe would affect both the aggressor and
the defender. This is the premise behind ‘mutually assured economic destruction,’ a concept rooted in
the longstanding idea that the likelihood of war between competing states decreases as their economic
interdependence increases. In theory, two competing countries should be mutually restrained by the risk of devastating their
entwined economies. One does not have to look that far back into history to see the fallacy in this thinking: the
aggressors in both World Wars valued other objects more highly than the prospects of economic disaster (to
the extent economics factored into their calculus at all).
Trade doesn’t solve war
Martin et. al. ‘8 (Phillipe, University of Paris 1 Pantheon—Sorbonne, Paris School of Economics, and
Centre for Economic Policy Research; Thierry MAYER, University of Paris 1 Pantheon—Sorbonne, Paris
School of Economics, CEPII, and Centre for Economic Policy Research, Mathias THOENIG, University of
Geneva and Paris School of Economics, The Review of Economic Studies 75, 2008)
Does globalization pacify international relations? The “liberal” view in political science argues that increasing trade flows and
the spread of free markets and democracy should limit the incentive to use military force in interstate relations. This vision, which can partly be
traced back to Kant’s Essay on Perpetual Peace (1795), has been very influential: The main objective of the European trade integration process
was to prevent the killing and destruction of the two World Wars from ever happening again.1 Figure 1 suggests2 however, that during
the 1870–2001 period, the correlation between trade openness and military conflicts is not a clear cut one.
The first era of globalization, at the end of the 19th century, was a period of rising trade openness and multiple
military conflicts, culminating with World War I. Then, the interwar period was characterized by a
simultaneous collapse of world trade and conflicts. After World War II, world trade increased rapidly,
while the number of conflicts decreased (although
the risk of a global conflict was obviously high). There is no clear
evidence that the 1990s, during which trade flows increased dramatically, was a period of lower prevalence
of military conflicts, even taking into account the increase in the number of sovereign states.
Yes War – A2 Deterrence
Deterrence fails – correlation isn’t causation and complex situations mean nuclear war
is always possible – prefer magnitude to probability
Pelopidas 15 (Benoît Pelopidas is a lecturer (assistant professor with tenure) in international relations at the University of Bristol
(Global Insecurities Center) and an affiliate of the Center for International Security and Cooperation at Stanford University. He has been
awarded two international prizes for his research, from the International Studies Association and the James Martin Center for Nonproliferation
Studies. His research focuses on the global politics of nuclear vulnerability, cases of near-use of nuclear weapons, and lessons learned from
global nuclear history and French nuclear policies. His is currently completing an edited volume on the experience of the Cuban missile crisis
worldwide as an early set of experiences of global nuclear vulnerability and its implications for security, responsibility, and alliance dynamics.
“Challenging the Assumptions of Classical Nuclear Deterrence Theory: The War That Must Never Be Fought” 3/12/15, can be downloaded at
http://www.hoover.org/research/challenging-assumptions-classical-nuclear-deterrence-theory)///CW
We cannot know for sure what caused the absence of great-power wars¶ over the last seventy years.17 We
are left with dueling counterfactuals and¶ the need to bet and trust.18 The opponents of the goal of a world without¶ nuclear weapons create a
false dichotomy between what we know for¶ a fact and what we hypothesize. On the one hand, they argue, is the hard¶ fact of the nuclear
peace; on the other hand are other hypotheses or counterfactual¶ reasonings. But the nuclear
peace is not a fact. It is a hypothesis¶
trying to link two observable facts: the existence of nuclear weapons in¶ the world since 1945 and the absence of war between the
United States¶ and the Soviet Union during the same period. The fact is that the idea of¶ the nuclear peace and competing
explanations share the same status: all¶ are hypotheses, requiring a rerun of the history of the last seventy years¶ without nuclear
weapons to see whether war would have broken out. The¶ nuclear peace hypothesis is no less a counterfactual than its rivals.19 It¶ faces the
challenge of proving a negative. In these circumstances, faith
in¶ the nuclear peace becomes a bet or a matter of trust.20¶
Moreover, we know that complex and tightly coupled systems like¶ nuclear weapons are doomed to fail
eventually, even if the frequency of¶ failure is very low. This is because their complexity and tight coupling¶ don’t
allow for anticipating and testing of every possible failure.21 Given¶ this epistemological challenge, which
relies ultimately on the trust one¶ puts in one potential cause of peace at the expense of the others and on¶ the expected timing of
nuclear versus non-nuclear disasters, at least one¶ question arises: is seventy years a high enough standard of
evidence for¶ us to surrender our fate to nuclear weapons forever?22
Multiple factors complicate nuclear deterrence
Lyon 15 (Dr Rod Lyon is a Fellow - International Strategy. Rod was most recently a Senior Analyst with ASPI. He has previously lectured in
International Relations at the University of Queensland where he taught courses on conflict, international security, and civil-military relations.
His research interests focus on a range of problems associated with global security, nuclear strategy and Australian security. He previously
worked in the Strategic Analysis Branch of the Office of National Assessments between 1985 and 1996. As a Fulbright scholar in 2004, he was a
visiting research fellow at Georgetown University in Washington DC, researching a project on the future of security partnerships in the postSeptember 11 environment. He was appointed to the National Consultative Committee on International Security Issues in April 2005. “The New
Dilemmas of Nuclear Deterrence” 7/3/15 http://thediplomat.com/2015/07/the-new-dilemmas-of-nuclear-deterrence/)///CW
With nuclear modernisation programs under way across a range of countries, Russia
asserting its right to deploy nuclear
weapons in the Crimea, NATO reviewing the role of nuclear weapons in the alliance, and a recent report in the US arguing for a
more versatile arsenal of tactical nuclear weapons, it’s clear the world’s revisiting an old problem: how to build effective
nuclear deterrence arrangements.¶ Since the end of the Cold War, thinking about deterrence issues has been mainly confined to the academic
and think-tank world. But policymakers are now having to re-engage with those issues. And the problem has a new twist: we
no longer
enjoy the luxury of a bipolar world. Indeed, as Therese Delpech observed in her RAND monograph Nuclear deterrence in the 21st
century, nowadays ‘the actors are more diverse, more opaque, and sometimes more reckless’.¶ Done properly,
deterrence is a contest in threats and nerve, or—to use Thomas Schelling’s phraseology—‘the manipulation of risk’. (The chapter so titled in
Schelling’s Arms and influence is a great starting point for anyone wanting to think through the broader deterrence problem.) That helps
explain why some thought the concept ‘ugly’. It’s hard to make a policy threatening massive damage to societies and civilians sound noble and
aspirational. Still, the bad news is that the alternatives are worse. And if deterrence is going to remain the dominant approach in nuclear
weapon strategy, we need to fit the strategy to the contemporary geopolitical environment.¶ Historical experience of the deterrence problem is
greatest in relation to two competing superpowers, separated by intercontinental distances, endowed with the resources to manage
challenges, and both knowing well the costs of major war. We’ve
had relatively little experience of nuclear deterrence in
contests between giants and midgets (US v North Korea), between established and fast-rising powers (US v
China), and amongst players in a multipolar system. Even our understanding of the role nuclear deterrence plays in relations between regional
rivals (think South Asia) remains under-developed. It’s entirely possible that the
old superpower deterrence model might not
fit those new challenges well. Indeed, maybe the old model doesn’t even fit the US–Russian strategic relationship well these days:
Russia’s no longer governed by a sclerotic CPSU.¶ Some years back INSS’ Elaine Bunn (now a senior official in the Obama administration) wrote
a paper unpacking the notion of ‘tailored’ deterrence introduced in the 2006 Quadrennial Defense Review. True, deterrence has always been
characterized by particular strategic wrinkles, but Bunn’s paper was an attempt to bring those wrinkles to the fore in relation to the possibility
of a nuclear-armed North Korea, Iran, or transnational terrorist group. Her exploration of three different forms of tailoring—tailoring to specific
actors and specific situations; tailoring capabilities; and tailoring communications—helps to illustrate the growing complexity of the deterrence
challenge.¶ It now seems likely that we’re headed back into a set of complicated deterrence debates. A strategy that might make sense in one
strategic setting—for example, a
degree of restraint by a giant engaged in a conflict with a midget—might well
risk flagging unintended messages in another. In the giant–midget case, almost any crossing of the nuclear
threshold by the giant risks imposing a set of desperate choices on the midget’s leadership, and desperate
choices tend not to be good ones.¶ Deterrence in the context of an established power versus a fast-rising power has a different wrinkle. One
effect of a deterrence-dominated world is to reward passivity over initiative. As Schelling notes, in the world of the
arthritic, passivity tends to be the default choice. But fast-rising powers aren’t arthritic. Turning one aside from a revisionist
agenda will probably be more challenging than deterring another established player.¶ Multipolarity brings its own wrinkles, including a
more mixed set of adversarial relationships, asymmetrical contests, inadvertent signalling, and third-party exploitation of
bilateral rivalries. Capability issues become more vexed: actors require the capabilities to deter and defend against another, but also the
residual capabilities to remain a player in other contests. The pressure must surely be towards larger rather than smaller arsenals. And
reputational issues become more dominant: just as Margaret Thatcher fought the Falklands War in part to show the Soviet Union that the West
wouldn’t buckle in the face of force, so too players in a multipolar nuclear world will want to show resolve in one contest because of its
implications for others.¶ Finally, and perhaps most controversially, deterrence
turns upon a credible threat to cross the
nuclear threshold if push comes to shove. During the 1960s the US advocated a doctrine of flexible response, arguing
for a model of deterrence that would fail in small packets rather than in one catastrophic breakdown. Notwithstanding the giant–midget
problem outlined above, there’s usually good sense behind such a doctrine: it makes deterrent threats more credible, avoids global annihilation
in any initial crossing of the nuclear threshold, maintains a degree of ‘intra-war deterrence’ from the options still on the table, and optimizes
prospects for negotiated war termination. But historically
the doctrine invited questions about the relative balance
between usability and credibility in US nuclear policy—questions buried rather than resolved by the end of the Cold War.¶
Tailoring, messaging, usability, credibility, and thresholds: I suspect policymakers will soon be thinking about all those questions again, across a
range of deterrence relationships.¶
Asymmetry of multipolar world takes out deterrence theory
Goodby 15 (James E. Goodby has served in the US Foreign Service, achieving the rank of Career Minister, and was appointed to five
ambassadorial-rank positions by Presidents Carter, Reagan, and Clinton, including ambassador to Finland. He taught at Georgetown, Syracuse,
and Carnegie Mellon Universities and is Distinguished Service Professor Emeritus at Carnegie Mellon. Ambassador Goodby has worked with
former Secretary of State George Shultz at Hoover since 2007. He is a research fellow at the Hoover Institution and a senior fellow with the
Center for Northeast Asia Policy Studies at the Brookings Institution.¶ He was a Distinguished Service Professor at Carnegie Mellon University
from 1989 to 1999 and is now a professor emeritus. Selected for the US Foreign Service through competitive examinations in 1952, Goodby
rose to the rank of career minister in the Senior Foreign Service and was given five presidential appointments to ambassadorial rank, including
ambassador to Finland (1980–81). During his Foreign Service career he was involved as a negotiator or as a policy adviser in the creation of the
International Atomic Energy Agency, the negotiation of the limited nuclear test ban treaty, START, the Conference on Disarmament in Europe,
and cooperative threat reduction (the Nunn-Lugar program).¶ Goodby’s awards include the Presidential Distinguished Service Award, the State
Department’s Superior and Distinguished Honor Awards, and the Commander’s Cross of the Order of Merit of Germany. He was named a
Distinguished Fellow of the US Institute of Peace in 1992. He was the recipient of the inaugural Heinz Award in Public Policy in 1995. In 1996, he
was awarded an honorary doctor of laws degree by the Stetson University College of Law. “The New Dilemmas of Nuclear Deterrence” 7/3/15
http://thediplomat.com/2015/07/the-new-dilemmas-of-nuclear-deterrence/)///CW
During the Cold War, nuclear deterrence was essentially a US-Soviet calculation.¶ After the Cold War, China began to loom larger in US
planning,¶ but the premise that deterrence was essentially a bilateral interaction¶ remained. In the future, situations that
are not
demonstrably bilateral may¶ become the norm. Even now, but especially in the event global nonproliferation¶ efforts fail to
meet current challenges, the nuclear deterrence¶ calculations of the United States and other states armed with nuclear¶ weapons will
have to be based on a much more complex set of global¶ and regional dynamics.¶ In such a system, if nuclear
weapons were used or even if their use¶ were threatened, there would be an action-and-reaction effect that
might¶ involve several nations, not just two as in the Cold War paradigm. For¶ example, the alert status of nuclear delivery systems
probably would be¶ changed to a higher level of readiness by several nations. There might¶ be movements of air and naval forces
equipped with nuclear weapons.¶ A great deal of ambiguity can be expected in the event of a nuclear¶
explosion as to which nation had detonated a nuclear weapon. Once¶ nuclear weapons attacks occurred,
terminating the war could be difficult.¶ Conceivably, three or four nuclear-armed states could become engaged¶
in hostilities that might have originated with just one nation initiating a¶ nuclear attack. The dynamics of
nuclear conflict in the Middle East, South¶ Asia, or Northeast Asia would require qualitatively different
deterrent calculations¶ from those the five Non-Proliferation Treaty nuclear weapons¶ states have been accustomed to making.¶
“Catalytic” nuclear war was one of the worries of the Kennedy and¶ Johnson administrations. It meant that the United States could become¶
engaged in a nuclear war because a nuclear-armed US ally had used¶ a nuclear weapon and their common adversary, the Soviet Union, had¶
decided to use nuclear weapons in response. Those worries would also¶ figure in a complex world of perhaps fifteen or so nuclear-armed
states,¶ which would also include the unknown capabilities of terrorist groups¶ and the likelihood that cyber-mischief would accompany any
nuclear¶ attack. How does one measure strategic stability in such a situation?
Luck, not deterrence, accounts for nuclear peace
Pelopidas 15 (Benoît Pelopidas is a lecturer (assistant professor with tenure) in international relations at the University of Bristol
(Global Insecurities Center) and an affiliate of the Center for International Security and Cooperation at Stanford University. He has been
awarded two international prizes for his research, from the International Studies Association and the James Martin Center for Nonproliferation
Studies. His research focuses on the global politics of nuclear vulnerability, cases of near-use of nuclear weapons, and lessons learned from
global nuclear history and French nuclear policies. His is currently completing an edited volume on the experience of the Cuban missile crisis
worldwide as an early set of experiences of global nuclear vulnerability and its implications for security, responsibility, and alliance dynamics.
“Challenging the Assumptions of Classical Nuclear Deterrence Theory: The War That Must Never Be Fought” 3/12/15, can be downloaded at
http://www.hoover.org/research/challenging-assumptions-classical-nuclear-deterrence-theory)///CW
Luck is too often taken as a confirmation that nuclear deterrence¶ kept the peace.28 But luck should not be misread as
successful deter-¶ rence.29 More accurately, as Thomas Schelling noted, leaders of nuclearweapon¶ states can make threats that
“leave something to chance”30—¶ recognizing that things could spiral out of control and nuclear weapons¶ could
be used even if they do not intend to use them—to make¶ those threats more credible. But including luck in a successful
deterrence¶ strategy, as if you could control it, is both a conceptual confusion¶ and a retrospective illusion.31 Luck was
on our side this time, but¶ this is not a consequence of purposeful action. For example, during the¶ night of October 26–27, 1962, at the
height of the Cuban missile crisis,¶ an American U-2 spy plane strayed into Soviet airspace over the Arctic.¶
Soviet fighter jets scrambled to intercept the U-2 while F-102 interceptors¶ were sent to escort it home and prevent Soviet MIGs from freely
entering¶ US airspace. Given the circumstances, the F-102s conventional air-to-air¶ missiles
had been replaced with nuclear-
tipped ones and their pilots¶ could decide to use nuclear weapons. According to Scott Sagan in The¶ Limits of Safety,
“the interceptors at Galena were armed with the nuclear¶ Falcon air-to-air missiles and, under existing safety rules, were authorized¶ to carry
the weapons in full readiness condition in any ‘active air defense’¶ mission.”32 Fortunately, the spy plane turned back and the
Soviet jets held¶ their fire.33 There are many other instances in which deterrence cannot¶ account for favorable outcomes.34 Robert
McNamara was direct about the¶ role of luck during the Cuban missile crisis:¶ According to former Soviet military leaders, at the height of the
crisis,¶ Soviet forces in Cuba possessed 162 nuclear warheads, including at¶ least 90 tactical warheads. [And the United States. was not aware¶
of that at the time.] At about the same time, Cuban President Fidel¶ Castro asked the Soviet ambassador to Cuba to send a cable to Soviet¶
Premier Nikita Khrushchev stating that Castro urged him to counter¶ a U.S. attack with a nuclear response. Clearly, there was a high risk¶ that in
the face of a U.S. attack, which many in the U.S. government¶ were prepared to recommend to President Kennedy, the Soviet forces¶ in Cuba
would have decided to use their nuclear weapons rather than¶ lose them. Only a few years ago did we learn that the four Soviet¶
submarines trailing the U.S. Naval vessels near Cuba each carried¶ torpedoes with nuclear warheads. Each
of the sub commanders had¶ the authority to launch his torpedoes. The situation was even more¶ frightening because,
as the lead commander recounted to me, the¶ subs were out of communication with their Soviet bases, and they¶ continued their patrols for
four days after Khrushchev announced the¶ withdrawal of the missiles from Cuba. The lesson, if it had not been¶ clear before, was made so at a
conference on the crisis held in Havana¶ in 1992. . . . Near the end of that meeting, I asked Castro whether he¶ would have recommended that
Khrushchev use the weapons in the¶ face of a U.S. invasion, and if so, how he thought the United States¶ would respond. “We started from the
assumption that if there was¶ an invasion of Cuba, nuclear war would erupt,” Castro replied. “We¶ were certain of that. . . . [W]e would be
forced to pay the price that¶ we would disappear.” He continued, “Would I have been ready to¶ use nuclear weapons? Yes, I would have agreed
to the use of nuclear¶ weapons.” And he added, “If Mr. McNamara or Mr. Kennedy had been¶ in our place, and had their country been invaded,
or their country¶ was going to be occupied . . . I believe they would have used tactical¶ nuclear weapons.” I hope that President Kennedy and I
would not have¶ behaved as Castro suggested we would have. . . . Had we responded¶ in a similar way the damage to the United States would
have been¶ unthinkable. But human beings are fallible [emphasis added].35¶ This fascinating account shows how lack of information,
misperception,¶ and ideology could have led to disaster if we had not been lucky. But¶ false information, lack of information, and
misperceptions were not the¶ only reason why luck was the decisive cause of the positive outcome of¶ the Cuban missile crisis. Limits of safety,
limits of command and control,¶ and organizational problems also have to be taken into account. As Scott¶ Sagan wrote:¶ Many
serious
safety problems, which could have resulted in an accidental¶ or unauthorized detonation or a serious
provocation to the¶ Soviet government, occurred during the crisis. None of these incidents¶ led to inadvertent escalation or an accidental
war. All of them,¶ however, had the potential to do so. President Kennedy may well have¶ been prudent. He did not, however, have
unchallenged final control¶ over U.S. nuclear weapons.36¶ Most-recent studies show that sloppy
practices in nuclear weapons¶
management have occurred at all levels of decision-makers, leaders,¶ nuclear safety and security teams, and top-level
military personnel in¶ most nuclear-weapon states. They also show the limits of learning from¶ past sloppy practices. Confidence in perfect
nuclear safety is still a matter¶ of wishing for the best and relying on luck.37 One telling example¶ of this occurred at Minot Air Force Base in
North Dakota in 2007. This¶ offers a well-documented case of multiple sloppy practices and suggests¶ the limits of learning after the incident
was identified. On August 29–30,¶ 2007, six US
nuclear-armed cruise missile warheads were mistakenly¶ flown to
Barksdale Air Force Base in Louisiana. They had been placed by¶ mistake under the wings of a B-52; the weapons had not been
guarded¶ appropriately during a thirty-six-hour period. Had the plane experienced¶ any problems in flight, the crew would not have
followed the proper¶ emergency procedures.38 After this widely publicized case of sloppy¶ practices,39 US Secretary of Defense Robert Gates
emphasized the need¶ for responsibility in handling nuclear weapons: “The problems were the¶ result of a long-standing slide in the Service’s
nuclear stewardship. . . . For¶ your part, you must never take your duties lightly. There is simply no room¶ for error. Yours is the most sensitive
mission in the entire US military.”40¶ Change and improvement were supposed to follow, but even on the base¶ where the incident took place
and where the Secretary of Defense came¶ to give his speech, it was necessary to repeat the order to leave no room¶ for error. In April 2013,
one officer from the 91st Missile Wing at the same¶ Air Force Base in North Dakota was punished for sleeping on the job¶ while having the blast
door open behind him. (Sleeping wasn’t prohibited¶ on a twenty-four-hour shift, but leaving the blast door open was.) He was¶ one of two
missile officers sanctioned that year for such a fault and he¶ told his superiors that it wasn’t the first time.41 Air Force officers told the¶
Associated Press that such violations of the safety procedures had happened¶ more often than just in the two documented cases.42 The limits
of¶ safety, the limits of command and control, and the persistence of sloppy¶ practices even in the US nuclear forces suggest that the role of
luck is¶ likely to have been even more important than we can document here.¶ three different groups) of the payload
installed in those cruise missiles, those procedures¶ were not followed.” The quotes for the account of this particular accident are¶ taken from
the unclassified account available in the February 2008 report from the¶ Defense Science Board Permanent Task Force on Nuclear Weapons
Surety, entitled¶ Report on the Unauthorized Movement of Nuclear Weapons.¶ There are no reliable records of nuclear weapons accidents or
close calls¶ in most nuclear-weapon states.
A2 Tepperman
Tepperman’s thesis ignores complexities and accidents – expert consensus
Shaw 9 (Douglas B. Shaw serves as the Associate Dean for Planning, Research, and External Relations at the George Washington
University’s Elliott School of International Affairs with a concurrent appointment as an Assistant Professor of International Affairs. Doug
previously served as Director of Policy Planning in the Office of the President at Georgetown University, on the U.S. Department of Energy’s
Nuclear Material Security Task Force, at the U.S. Arms Control and Disarmament Agency, and in leadership roles for a number of nongovernmental organizations including Physicians for Social Responsibility, the Lawyers Alliance for World Security, and the Institute on Religion
and Public Policy. Doug holds a Ph.D. in international relations from Georgetown University and has lectured on nuclear nonproliferation and
disarmament on four continents. “Newsweek misrepresents nuclear weapons scholarship” 9/1/9
http://nukesonablog.blogspot.com/2009/09/newsweek-misrepresents-nuclear-weapons.html)///CW
Jonathan Tepperman’s thesis in his September 7th Newsweek article “Why Obama should Learn to Love the Bomb” that “a growing and
compelling body of research suggests that nuclear weapons may not, in fact, make the world more dangerous” badly
misrepresents
the state of scholarship on this crucial topic.¶ First, Tepperman references a handful of scholars to make
his argument while dismissing the majority who disagree with him. George P. Shultz, William J. Perry, Henry A.
Kissinger, and Sam Nunn opposed this view in two op-eds in the Wall Street Journal and other leading scholars and practitioners participated in
a 2007 conference at Stanford University, now memorialized as a 500-page volume, Reykjavik Revisited. Scores of experts are summarily
excluded from Tepperman’s article.¶ Second, Tepperman
suggests a robust understanding of how deterrence relates
to today’s challenges where none exists. Nuclear deterrence scholar Sir Lawrence Freedman observed a “lost
generation” of nuclear weapons specialists in remarks at the Elliott School of International Affairs this spring and Commander
of the U.S. Strategic Command, General Kevin Chilton, observed this summer “we have allowed an entire generation to skip class, as it were, on
the subject of strategic deterrence.” More
scholarship is needed to translate “nuclear optimism” and other Cold
War concepts into the Twenty-first Century.¶ Third, in over 2,700 words on deterrence, not one of them is
“accident.” This is a catastrophic flaw in characterizing scholarly debate on nuclear weapons. Kenneth Waltz,
cited by Tepperman as “the leading nuclear optimist” underlines this point by co-authoring a book titled The Spread of Nuclear Weapons: A
Debate Renewed with Stanford University’s Scott Sagan who has done decades of careful scholarship to demonstrate the relevance of accidents
to nuclear deterrence.¶ Tepperman’s
“iron logic” of deterrence is undermined by a more unstable plutonium
logic that can only be understood by the combined lights of physics, engineering, political science,
economics, and at least more than a dozen other disciplines that James Doyle of Los Alamos National Laboratory
argues constitute “nuclear security science.” The nuclear future ahead of us is long, imperfect, and badly
in need of more research and more informed public debate.¶
A2 Empirics
Their empirics argument is historically false
Pelopidas 15 (Benoît Pelopidas is a lecturer (assistant professor with tenure) in international relations at the University of Bristol
(Global Insecurities Center) and an affiliate of the Center for International Security and Cooperation at Stanford University. He has been
awarded two international prizes for his research, from the International Studies Association and the James Martin Center for Nonproliferation
Studies. His research focuses on the global politics of nuclear vulnerability, cases of near-use of nuclear weapons, and lessons learned from
global nuclear history and French nuclear policies. His is currently completing an edited volume on the experience of the Cuban missile crisis
worldwide as an early set of experiences of global nuclear vulnerability and its implications for security, responsibility, and alliance dynamics.
“Challenging the Assumptions of Classical Nuclear Deterrence Theory: The War That Must Never Be Fought” 3/12/15, can be downloaded at
http://www.hoover.org/research/challenging-assumptions-classical-nuclear-deterrence-theory)///CW
The limits of nuclear deterrence as a peacemaker23¶ Critics of abolition portray a world without nuclear weapons as warprone¶ and believe
that nuclear weapons are a necessary and sufficient¶ cause for great-power peace. This
is only the latest instance of an idea¶
that has repeatedly been proven wrong, since at least 1860: the expectation¶ that the unprecedented
destructiveness of a new weapon system¶ and the threat of its use will put an end to war. This was wrong for
dynamite,¶ submarines, artillery, smokeless powder, the machine gun, and poison¶ gas.24 Was nuclear
deterrence a necessary and sufficient cause for¶ peace among great powers? Most critics of the idea of a world without¶ nuclear weapons
maintain that it was. They
argue that the nuclear-armed¶ states never fought a war against each other.25 This can now
clash between China and Russia26 and, more¶ recently, the 1999 Kargil crisis
between India and Pakistan show that¶ the conventional wisdom that a nuclear-armed state cannot be attacked¶ is historically
inaccurate. Moreover, nuclear-armed states have been¶ attacked by non-nuclear-weapon states on multiple
occasions. US troops¶ were attacked by Chinese forces in 1950 in Korea and by Vietnamese¶ forces in the 1960s and 1970s;
Israel was attacked by Syria and Egypt¶ in 1973 and by Iraq in 1991; and in 1982, Argentina invaded the British¶
be proven¶ wrong. The 1969 border
Falkland Islands.27 This narrows down the claims for nuclear weapons¶ as peacemakers. More importantly, even this narrower claim needs¶ to
be reexamined taking into account two facts: (1) avoidance of several¶ nuclear disasters was due to luck and cannot be explained by¶ nuclear
deterrence; and (2) deterrence as a strategy has favored more¶ risk-prone strategies and in some cases made war possible instead of¶
preventing it.
High-Magnitude, Low Probability = Good
High magnitude, low probability events first
Bostrom 13
[Nick, Philosopher and professor (Oxford), Ph.D. (LSOE), director of The Future of Humanity Institute and
the Programme on the Impacts of Future Technology, of course, he’s also the inaugural recipient of “The
Eugene R. Gannon Award for the Continued Pursuit of Human Advancement,” “Existential Risk
Prevention as Global Priority,” Global Policy, Vol 4, Issue 1, http://www.existentialrisk.org/concept.html]
existential risk is one that threatens the premature extinction of Earth-originating
Although it is often difficult to assess the
probability of existential risks, there are many reasons to suppose that the total such risk confronting humanity over the
next few centuries is significant. Estimates of 10-20% total existential risk in this century are fairly typical among those who have examined the issue,
though inevitably such estimates rely heavily on subjective judgment.1 The most reasonable estimate might be substantially higher or lower. But perhaps the strongest reason
for judging the total existential risk within the next few centuries to be significant is the extreme
magnitude of the values at stake. Even a small probability of existential catastrophe could be highly
practically significant (Bostrom 2003; Matheny 2007; Posner 2004; Weitzman 2009). Humanity has survived what we might call natural
existential risks for hundreds of thousands of years; thus it is prima facie unlikely that any of them will do us in within the next hundred.2 This
1. The maxipok rule 1.1. Existential risk and uncertainty An
intelligent life or the permanent and drastic destruction of its potential for desirable future development (Bostrom 2002).
conclusion is buttressed when we analyze specific risks from nature, such as asteroid impacts, supervolcanic eruptions, earthquakes, gamma-ray bursts, and so forth: Empirical impact
In contrast, our
species is introducing entirely new kinds of existential risk — threats we have no track record of surviving. Our longevity as a
species therefore offers no strong prior grounds for confident optimism. Consideration of specific existential-risk scenarios bears out the
suspicion that the great bulk of existential risk in the foreseeable future consists of anthropogenic existential risks —
distributions and scientific models suggest that the likelihood of extinction because of these kinds of risk is extremely small on a time scale of a century or so.3
that is, those arising from human activity. In particular, most of the biggest existential risks seem to be linked to potential future technological breakthroughs that may radically expand our
ability to manipulate the external world or our own biology.
As our powers expand, so will the scale of their potential consequences
— intended and unintended, positive and negative. For example, there appear to be significant existential risks in some of the advanced forms of biotechnology, molecular nanotechnology,
The bulk of existential risk over the next century may thus reside
in rather speculative scenarios to which we cannot assign precise probabilities through any rigorous statistical or scientific
method. But the fact that the probability of some risk is difficult to quantify does not imply that the risk is
negligible. Probability can be understood in different senses. Most relevant here is the epistemic sense in which probability is construed
as (something like) the credence that an ideally reasonable observer should assign to the risk's materializing based on currently available evidence.4 If something cannot
presently be known to be objectively safe, it is risky at least in the subjective sense relevant to decision
making. An empty cave is unsafe in just this sense if you cannot tell whether or not it is home to a hungry lion. It would be rational for you to avoid the cave if you reasonably judge that
the expected harm of entry outweighs the expected benefit. The uncertainty and error-proneness of our first-order assessments of
risk is itself something we must factor into our all-things-considered probability assignments. This factor often
dominates in low-probability, high-consequence risks — especially those involving poorly understood natural
phenomena, complex social dynamics, or new technology, or that are difficult to assess for other reasons. Suppose that some
scientific analysis A indicates that some catastrophe X has an extremely small probability P(X) of occurring. Then the
probability that A has some hidden crucial flaw may easily be much greater than P(X).5 Furthermore, the
conditional probability of X given that A is crucially flawed, P(X|¬A), may be fairly high. We may then find that
most of the risk of X resides in the uncertainty of our scientific assessment that P(X) was small (figure 1) (Ord, Hillerbrand and
and machine intelligence that might be developed in the decades ahead.
Sandberg 2010).
Possibilistic thinking best for decision-making
Clarke 5
[Lee, member of a National Academy of Science committee that considered decision-making models,
Anschutz Distinguished Scholar at Princeton University, Fellow of AAAS, Professor Sociology (Rutgers),
Ph.D. (SUNY), “Lee Clarke's Worst Cases: An Interview with Lee Clarke,” UChicago press,
http://www.press.uchicago.edu/Misc/Chicago/108597in.html]
Why focus on worst cases? They probably won’t happen, right? Why not focus on scenarios that have a greater
degree of probability? Lee Clarke: One of the main ideas in Worst Cases is that we can use possibilistic thinking to balance
probabilistic thinking. Over the past couple of hundred years probabilism has come to be thought of as the only way to
reason rationally. But I think that it sometimes makes perfectly good sense to take worst case
consequences into account when people are making decisions. For example, the chances of getting into a commercial airline
crash are extremely low. People who fly know that, and that’s why they’re willing to defy gravity every day. But they also know what happens
if the plane gets into serious trouble at thirty thousand feet. That’s worst case, possibilistic thinking. It is
reasonable to worry about both. It is true, in a sense, that worst cases probably won’t happen. Still, as the political scientist
Scott Sagan has said, things that have never happened before happen all the time. Just think of Chernobyl or
9/11. They had a low probability of occurring at any given time, but who would say now that we should have ignored
them? It’s the same kind of thing as when you buy life insurance. Is it likely that you will die today? Probably not. But if you have life insurance you’re actually
betting the insurance company that, in fact, you will die today. Is that irrational? Not at all. We say that people who don’t buy life
insurance are irresponsible.
Question:
Consequentialism Good
Public Health surveillance requires consequentialist framing- public health outweighs
minor violations of rights most of the time
Petrini 13 (Carlo Petrini. Unità di Bioetica, Presidenza, Istituto Superiore di Sanità.“Ethics in Public
Health Surveillance.” 2013. P. 352. http://www.scielosp.org/pdf/aiss/v49n4/v49n4a05.pdf)EMerz
The ethical problems posed by public health surveillance have been specifically addressed in numerous
studies in the past, and various factors have led to an increase in this interest in recent years, including
the diffusion of new and unforeseen epidemics and a greater awareness of and sensitivity towards the
issues involved [57]. The checklists shown above can help to assess the compatibility of public health
surveillance programmes with ethical principles. One of the major problems highlighted by these tools is
the fact that, given the virtual impossibility of obtaining informed consent, programmes for public health
surveillance frequently necessitate an infringement of the principle of autonomy. Today it is widely
accepted that “Overriding individual autonomy must be justified in terms of the obligation of public
health to improve population health, reduce inequities, attend to the health of vulnerable and
systematically disadvantaged persons, and prevent harm. In addition, data elements collected without
consent must represent the minimal necessary interference, lead to effective public health action, and
be maintained securely” [15]. Returning to Childress and co-authors, they suggest five useful “conditions
intended to help determine whether promoting public health warrants overriding such values as
individual liberty or justice in particular cases”. These conditions encapsulate the key criteria referred to
in the various checklists. They are: effectiveness; proportionality; necessity; least infringement; public
justification” [55]. In summarising the criteria listed above it may also be helpful to refer to a proposal
formulated by the noted biolaw expert Lawrence Gostin on the spread of Severe Acute Respiratory
Syndrome (SARS). His concise proposal makes a suitable and practical conclusion: “Coercive measures,
which violate individual rights, are acceptable when: - the risk to public health is demonstrable; - the
intervention is likely to be effective, cost-effective, not overly invasive, fairly distributed; - the process
for pursuing intervention is just and publicly transparent” [58].
Utilitarianism Good
Adopt a framework of public health utilitarianism – this avoids the traditional trap of
sacrificing the few for the many but maintains the best possible consequences
Gostin 10 (Lawrence O. Gostin has more qualifications than any other card put out in the past 30 years. He is University Professor,
Georgetown University's highest academic rank conferred by the University President. Prof. Gostin directs the O'Neill Institute for National
and Global Health Law and was the Founding O'Neill Chair in Global Health Law. He served as Associate Dean for Research at Georgetown
Law from 2004 to 2008. He is Professor of Medicine at Georgetown University, Professor of Public Health at the Johns Hopkins University,
and Director of the Center for Law & the Public's Health at Johns Hopkins and Georgetown Universities. Prof. Gostin is the Director of the
World Health Organization Collaborating Center on Public Health Law & Human Rights. He also serves on the WHO Director-General's
Advisory Committee on Reforming the World Health Organization. In 2007, the WHO Director-General appointed Prof. Gostin to the
International Health Regulations (IHR) Roster of Experts and the Expert Advisory Panel on Mental Health. In a 2012 systematic empirical
analysis of legal scholarship, independent researchers ranked Prof. Gostin 1st in the nation in productivity among all law professors, and
11th in in impact and influence. “Public Health Law, Ethics, and Human Rights:
Mapping the Issues” http://www.publichealthlaw.net/Reader/ch1/ch1.htm)///CW
The application of general ethical principles to public health decisions can be difficult and complicated. Since the mission of public
health is
to achieve the greatest health benefits for the greatest number of people, it draws
from the traditions of utilitarianism or
consequentialism. The “public health model,” argue Buchanan (2000) and his colleagues, uncritically assumes that the appropriate mode
of evaluating options is some form of cost-benefit (or cost-effectiveness) calculation— the aggregation of goods and bads (costs and benefits)
across individuals. Public
health, according to this view, appears to permit, or even require, that the most
fundamental interests of individuals be sacrificed in order to produce the best overall outcome.¶ This
characterization misperceives, or at least oversimplifies, the public health approach. The field of public health is
interested in securing the greatest benefits for the most people. But public health does not simply aggregate benefits
and burdens, choosing the policy that produces the most good and the least harm. Rather, the overwhelming majority of public
health interventions are intended to benefit the whole population, without knowingly harming
individuals or groups. When public health authorities work in the areas of tobacco control, the environment, or occupational safety, for
example, their belief is that everyone will benefit from smoking cessation, clean air, and safe workplaces. Certainly, public health
focuses almost exclusively on one vision of the “common good” (health, not wealth or prosperity), but this is not
the same thing as sacrificing fundamental interests to produce the best overall outcome.¶ The public
health approach, of course, does follow a version of the harm principle. Thus, public health authorities regulate
individuals or businesses that endanger the community. The objective is to prevent unreasonable risks that jeopardize the public’s health and
safety— e.g, polluting a stream, practicing medicine without a license, or exposing others to an infectious disease. More controversially,
public health authorities often recommend paternalistic interventions such as mandatory seat belt or motorcycle
helmet laws. Public health authorities reason that the sacrifice asked of individuals is relatively minimal and the
communal benefits substantial. Few public health experts advocate denial of fundamental interests in the name of paternalism. In
the public health model, individual interests in autonomy, privacy, liberty, and property are taken seriously, but
they do not invariably trump community health benefits.¶ The public health approach, therefore, differs from modern
liberalism primarily in its preferences for balancing— public health favors community benefits, while liberalism favors liberty interests.
Characterizing public health as a utilitarian sacrifice of fundamental personal interests is as unfair as
characterizing liberalism as a sacrifice of vital communal interests. Both traditions would deny this kind of
oversimplification.
Bioethics in the context of health surveillance requires that the government value
public health over individual interests
Childress 2 (James Childress. University Professor and the John Allen Hollingsworth Professor of Ethics
at the University of Virginia. “Public Health Ethics: Mapping the Terrain.” 2002. P. 171.
file:///C:/Users/Emily/Downloads/Childress_et_al-2002The_Journal_of_Law,_Medicine_&_Ethics.pdf)//EMerz
In view of public health’s goal of producing net health benefits for the population, this meaning of public
is very important. In measurement and analysis, the “numerical public” reflects the utilitarian view that
each individual counts as one and only one. In this context, ethical analysis focuses on issues in
measurement, many of which raise considerations of justice. For example, how should we define a
population, how should we compare gains in life expectancy with gains in health-related quality of life,
and whose values should be used in making those judgments? Second, public is what we collectively do
through government and public agency - we can call this “political public.” Government provides much
of the funding for a vast array of public health functions, and public health professionals in
governmental roles are the focal point of much collective activity. In the United States, as Lawrence
Gostin notes, government “is compelled by its role as the elected representative of the community to
act affirmatively to promote the health of the people,” even though it “cannot unduly invade
individuals’ rights in the name of the communal The government is a central player in public health
because of the collective responsibility it must assume and implement. The state’s use of its police
powers for public health raises important ethical questions, particularly about the justification and limits
of governmental coercion and about its duty to treat all citizens equally in exercising these powers. In a
liberal, pluralistic democracy, the justification of coercive policies, as well as other policies, must rest on
moral reasons that the public in whose name the policies are carried out could reasonably be expected
to accept.I Third, public, defined as what we do collectively in a broad sense, includes all forms of social
and community action affecting public health - we can call this “communal public.” Ethical analysis on
this level extends beyond the political public. People collectively, outside of government and with
private funds, often have greater freedom to undertake public health interventions since they do not
have to justify their actions to the political public. However, their actions are still subject to various
moral requirements, including, for instance, respect for individual autonomy, liberty, privacy and
confidentiality, and transparency in disclosure of conflicts of interest.
Using a cost benefit analysis to address health surveillance is key to balance conflict of
interests
Childress 2 (James Childress. University Professor and the John Allen Hollingsworth Professor of Ethics
at the University of Virginia. “Public Health Ethics: Mapping the Terrain.” 2002. P. 171.
file:///C:/Users/Emily/Downloads/Childress_et_al-2002The_Journal_of_Law,_Medicine_&_Ethics.pdf)//EMerz
Conceptions of morality usually recognize a formal requirement of universalizability in addition to a
substantive requirement of attention to human welfare. Whatever language is used, this formal feature
requires that we treat similar cases in a similar way. This requirement undergirds casuistical reasoning in
morality as well as in law. In public health ethics, for example, any recommendations for an HIV
screening policy must take into account both past precedents in screening for other infectious diseases
and the precedents the new policy will create for, say, screening for genetic conditions. Much of the
moral argument will hinge on which similarities and differences between cases are morally relevant, and
that argument will often, though not always, appeal to general moral considerations.* We can establish
the relevance of a set of these considerations in part by looking at the kinds of moral appeals that public
health agents make in deliberating about and justifying their actions as well as at debates about moral
issues in public health. The relevant general moral considerations include: producing benefits; avoiding,
preventing, and removing harms; producing the maximal balance of benefits over harms and other costs
(often called utility); distributing benefits and burdens fairly (distributive justice) and ensuring public
participation, including the participation of affected parties (procedural justice); respecting autonomous
choices and actions, including liberty of action; protecting privacy and confidentiality; keeping promises
and commitments; disclosing information as well as speaking honestly and truthfully (often grouped
under transparency); and building and maintaining trust. Several of these general moral considerations especially benefiting others, preventing and removing harms, and utility - provide a prima facie warrant
for many activities in pursuit of the goal of public health. It is sufficient for our purposes to note that
public health activities have their grounding in general moral considerations, and that public health
identifies one major broad benefit that societies and governments ought to pursue. The relation of
public health to the whole set of general moral considerations is complex. Some general moral
considerations support this pursuit; institutionalizing several others may be a condition for or means to
public health (we address this point later when we discuss human rights and public health); and yet, in
particular cases, some of the same general moral considerations may limit or constrain what may be
done in pursuit of public health. Hence, conflicts may occur among these general moral considerations
Utilitarianism Bad
Health care should use a deontological approach – the ends don’t justify the means
MM 07 (Morning’s Minion is a Catholic blog, “Utilitarianism in Health Care” 8/23/07 http://vox-nova.com/2007/08/23/utilitarianismin-health-care/)///CW
On all three grounds, she argues that social justice considerations do not support a transfer from the young and healthy to the old and sick on
social justice grounds. As I read this, I felt there was something very wrong with her reasoning. Personally, I am in favor of single payers
systems, and on the record as saying so. But I’m the first to admit that there are valid Catholic arguments against single payer systems. There is
nothing intrinsically evil about choosing to fund health care in a different manner.¶ But still, at least from a Catholic perspective, there is
something fundamentally flawed in McArdles’s reasoning. Here is the problem: it treats social justice not from the point of view of the common
good, but from an individualist ethic ultimately derived from
utilitarianism. Like all teleological philosophies, it is only outcomes
that matter, and these outcomes are defined in terms of maximum utility, or happiness (utilitarianism is of course, a
special application of consequentialism). The main problem, of course, is that it takes no account of whether an act is
inherently right or wrong, irrespective of consequences. This kind of thinking arose directly from the Enlightenment, and a flawed
concept of rationality based on what can be demonstrated empirically. As Pope Benedict noted, in a world based on calculations, it is the
calculation of consequences that determines what should be considered moral and immoral.¶ I think this
manner of thinking owes as much to Thomas Hobbes as it does to classic utilitarians like Bentham. It was Hobbes who, more than anybody else,
led to the idea of social contracts overtaking the common good as the object of policy. Hobbes did not see humanity as an organic community
underpinned by the common good; he saw instead a collection of individuals all seeking mastery over each other, necessitating some form of
“social contract” to keep the peace. The
individual is everything, the community, nothing. It follows naturally that social
common
good stems from the dignity, unity and equality of all people, not some mechanical calculation. It refers to
justice flows from the aggregation of individual happiness, rather than an organic conception of the common good. But the
“the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfilment more fully and more easily”. It
is the social and community dimension of the moral good. While it is underpinned by the dignity of the human person, it is not an individualist
ethic; rather, it recognizes that there is no fulfilment if the individual does not recognize that he or she exists “with” others and “for” others.¶
To see the bankruptcy of the contracts approach to justice, consider abortion. Clearly, the unborn are not agents that can participate in a social
contract. Clearly, their welfare must therefore be discounted, and subjugated to the welfare of others, who are proper contracting agents. It is
this notion that underpins the pro-abortion position today, and it stems from a failure to understand the encompassing and organic nature of
the common good.¶ Back to health care. McArdle engages in a
classic utilitarian calculus to argue that social welfare is not
increased by a transfer from the young and healthy to the old and sick. It’s all about individuals, and “welfare” is
limited to wealth. Whereas the right to health care is regarded by the Church as basic to the common good, the utilitarian approach
instead sees only a collection of individuals out for themselves, and therefore largely responsible for their
own health care. Within this individualist ethic, a social contract can indeed justify redistribution, but this is based on extremely limited
characteristics, such as luck and personal worthiness. Nowhere in sight is the core principle of solidarity, a “a firm and persevering
determination to commit oneself to the common good”. Nowhere
is the idea that our interdependence coupled with
the right to health care may call for the young and healthy to look after the needs of the old and infirm,
irrespective of circumstances. And that is what troubled me most about McArdle’s reasoning.
Evaluate the debate through the lens of personalism – utilitarianism alone fails but
combining it with an ethic for constant respect for a human’s dignity solves
Petrini and Gaintoti 08 (Carlo Petrini PhD is with the Bioethics Unit, Office of the President, Italian National Institute of Health,
Rome, Italy. Sabina Gainotti works at The National Center for Rare Diseases in Rome and focuses on Qualitative Social Research,
Quantitative Social Research, and Ethics. “A personalist approach to public-health ethics”
http://www.who.int/bulletin/volumes/86/8/08-051193/en/)///CW
Philosophical theories are also applied to bioethics and public-health ethics. In public health, some positions are more common: positions based
on outcomes (utilitarianism), positions focused on rights and opportunities (Kantian theories), views that emphasize sociality and solidarity
(communitarianism).1 Utilitarianism asserts that decisions should be judged by their consequences, in particular by their effect on the
total sum of individual wellbeing. Following this view, public-health policies must be aimed to produce “the greatest happiness of the greatest
number”.35 This approach is very intuitive in public health but
has some limitations. Difficulties arise for example in the
measurement of wellbeing which can be defined with reference to an individual’s personal experiences or to more objective and
measurable components, e.g. quality-adjusted life years (QALYs) or disability-adjusted life years (DALYs).36 However, the most
important critique to utilitarianism is grounded on the view that it easily leads to unfairness and to the
sacrifice of individual rights and freedoms to warrant the public utility.37 Individual rights and freedoms are
the main good to be preserved in Kantian theories. Kant argued that human beings ought to be treated with
respect, as ends in themselves, not as means to another individual’s ends.38 This assertion has important consequences in publichealth policies, but is not without ambiguities. Indeed two kinds of liberalism can be drawn: libertarians and egalitarians.39 Libertarians believe
that only negative rights deserve protection to warrant individual freedom. By contrast, egalitarian liberals argue that the right to choice is
meaningless without adequate resources. Respectively, the two perspectives entail a minimal or, vice versa, a strong state intervention for the
sake of individual health.¶ Critics
of utilitarianism and liberalism point out that these theories neglect the
collective dimension of public-health ethics that is strongly valued in communitarianism. Communitarianism values
highly the social dimension of health-care policies and involves visions of the appropriate social order and
the virtues that will maintain such an order in a particular community. However, a basic question in
communitarianism is: who decides what is virtuous? Every community could define its own norms or, by contrast, a single
form of good society may serve as a reference for all communities. Ethics-of-care feminism can also be mentioned. Ethics-of-care
proponents argue that real people live in families and real caring relationships are not impartial, impersonal
or equal. Health-care policies must hence consider the factual dimension of caring, which is mostly carried out by women, and must be
more supportive towards caring roles.39 All the outlined theories in our view may offer a contribution to a continuing discussion
about how to deal ethically with public-health matters and how to organize society. What is missing in these theories is a clear definition of the
concept and value of the human person: a primary point in personalism.¶ From traditional philosophy to personalism¶ Personalism
may
offer some compensation for the conflicts and shortcomings of principlism. For reasons of comprehensiveness, it
might be useful here to mention its most elementary, and possibly obvious, aspects. Personalism should not be confused with individualism,
which considers auto-decisions as the main (or only) constitutive feature of person. Personalism
is based upon our common
shared human nature. It takes as its primary ethical principle that all human beings deserve respect. A human is the only being capable
of self-reflection and comprehension of the meaning of life.40¶ The principles of ontologically- based personalism in bioethics may be summed
up as follows:31the defence, intangibility and sacredness of human life; the therapeutic principle whereby any intervention on life is justified
only if it has a therapeutic purpose; the freedom and responsibility principle, where freedom recognizes respect for life as its objective
limitation; the sociality and subsidiarity principle, consisting of the achievement of common good through individual well-being.Some consider
the traditional value of the person as a cumbersome dimension. Hence some modern thinkers focus on the individual but not on the person.
Post modern philosophers not only dissolve the concept of person but also that of subject.41 Excessive positions like these are also present in
bioethics. Still bioethics, especially when applied to clinical and experimental issues, is generally attentive to the individual person. The problem
arises in defining the person and the moment when he/she begins and ends, from the status of the human embryo to the dignity of the dying.
Personalism strongly emphasizes the need to protect the weakest and the sickest persons in society. In a
personalistic view, the being and dignity of the person are fundamental and inalienable values. Moral actions can thus be measured
in respect of the person’s being and dignity.42 This can be stated through a formulation that is similar to the second Kantian
imperative: the person “should never be treated as a simple means, as an instrument that can be used for the purpose of achieving any other
end: on the contrary, the person should be treated as an end, or – more specifically – respecting, and in some cases promoting, its own
ends”.43 In Kant’s philosophy, however, this imperative has a negative connotation.44 Personalism does not simply exclude negative
behaviours but requires positive attitudes.¶ Personalism and its application to public health¶ When applied to public health, personalistic
principles include a set of duties which derive from respect of the person. These include respect of the
individual’s autonomy, the safeguard of confidentiality within a collective and potentially depersonifying framework, the effort to guarantee equity and equal opportunities for everyone in the
allocation of health-care resources.45,46 Personalism is not opposed to other ethical theories as it can have both points in
common and divergences with them. In a personalist view, for example, the consequentialist-utilitarian approach can
certainly be part of a public-health policy as long as the lives and well-being of individuals are
preserved.47¶ Respect for individual rights and freedom is also an essential requisite of human coexistence if it comes with regard to the
“correct exercising” of freedom that is bonded to respect for life. In public health there might be cases where freedom must be sacrificed to the
advantage of the common good. A
minimum limit however should never be exceeded and decisions should never
heavily penalize a person’s living conditions. If the wellbeing of the community is at stake, personalism does not
exclude “moderate patronizing.” Gerald Dworkin defines patronizing as “the interference with a person’s freedom of action for
reasons which exclusively refer to the wellbeing, good, happiness, needs, interests or values of a person who is subjected to the coercion”.48 A
moderate form of patronizing is justified both in serious or emergency circumstances (such as during epidemics where persons need to be
isolated to prevent the spread of a disease), and in routine conditions where the subject may not be in full charge of the situation and hence it
becomes necessary to force certain behaviours (such as the compulsory wearing of seatbelts).¶ Cautionary policies based on the precaution
principle are also significant in terms of public-health ethics. When scientific data are contradictory or quantitatively scarce, it is possible to
appeal the precautionary principle. This principle shows the need for making temporary decisions that may be modified on the basis of new
facts that eventually become known.49¶ Some authors have singled out the precautionary principle as one fundamental value in public-health
ethics, alongside justice, transparency and the choice of the least restrictive alternative for people’s autonomy.50 Special importance has been
attached to the precautionary principle by European ethics.51 Its relevance is also underlined by the Italian Committee on Bioethics and the
Pontifical Council for Justice and Peace, with reference to the ethics of social and collective problems and to environmental issues.52,53
Personalism strongly values principles of sociality and solidarity. However, the individual’s good is the basis for common good. The social
dimension of personalism, which was highly emphasized at the beginning of the 1920s, contributed to the renewal of classical personalism and
the foundation of the modern personalism of Emmanuel Mounier and Jacques Maritain.54,55¶
Utilitarian framing of health surveillance is flawed- it overlooks individual health
issues and autonomy
Rubel 12 (Alan Rubel. Ph.D., Department of Philosophy, University of Wisconsin-Madison; J.D., magna
cum laude, University of Wisconsin Law School Assistant Professor. “Justifying Public Health
Surveillance: Basic Interests, Unreasonable Exercise, and Privacy.” 2012. P. 9-10.
https://kiej.georgetown.edu/home_files/22.1.rubel.pdf)//EMerz
Parmet provides some important guidance in applying this perspective to assessing the health of
populations when she compares and contrasts the population perspective with utilitarianism. In her
view, utilitarianism provides some support for the population perspective insofar as it is a maximizing
theory. The difference between the two is that the good to be maximized on the population perspective
is much narrower—health within a defined group instead of utility among all individuals (2009, p. 15).
However, the view that the population perspective, and hence public health generally, “seeks to
maximize group health” (Parmet 2009, p. 16) is problematic. The comparison with utilitarianism shows
why. Utilitarianism is a moral theory that is consequentialist, welfarist, and sum-ranking: it is concerned
with the consequences of actions (rather than with, for example, virtues or respect for autonomy), the
consequence that matters is individual welfare, and the best state of affairs is the one in which the
aggregate welfare of all relevant individuals is maximized. The population perspective mimics
utilitarianism insofar as it is consequentialist and sumranking (i.e., maximizing) and differs only in that
the consequence that matters is health within a population (presumably measured in terms of qualityadjusted life years, disability-adjusted life years, or the like). The problem comes in using the population
perspective to determine policy. It is true that public health interventions can at times be justified
insofar as they can maximize health within a population in cases in which individuals acting alone or
along with health care providers would fail—consider the efficacy of public sanitation measures relative
to individual efforts to drink clean water absent such measures. But if our guiding principle is health
maximization, interventions at the individual level will be justified if they do in fact increase aggregate
health. The state of affairs with such an individual intervention will rank ahead of the state of affairs
without it. In other words, a sum-ranking view fails to distinguish individual and population health and
therefore is liable to opt for individual health interventions on the grounds that they increase population
health, independently of whether they comport with individuals’ own senses of good. A related problem
is that a consequentialist view that maximizes the particular good of health within a population will
necessarily subordinate nonhealth interests. Some individual behaviors decrease aggregate health only
insofar as the decision-maker’s health decreases (e.g., avoiding doctors, being sedentary, not flossing).
Surely, though, some efforts to change those behaviors would be unwarranted on the grounds that
people are within their rights to engage in them.7 Thus, coercive measures to increase aggregate health
require at least some justification to override individual autonomy. That justification might be the
negative effects of individual behaviors on others’ health, sufficient risk to individual health to warrant
strongly paternalistic actions, or something else altogether, but simple appeal to marginal increase in
aggregate health would not suffice.
Utilitarianism is bad in the context of public health surveillance – substitutes
individual welfare for state affairs
Rubel 12 (Alan Rubel. Ph.D., Department of Philosophy, University of Wisconsin-Madison; J.D., magna
cum laude, University of Wisconsin Law School Assistant Professor. “Justifying Public Health
Surveillance: Basic Interests, Unreasonable Exercise, and Privacy.” Kennedy Institute of Ethics Journal,
Volume 22, Number 1, March 2012, pp. 1-33 (Article). John Hopkins University Press, DOI:
10.1353/ken.2012.0001. Card from P. 9-11. )//ASMITH
Although the research/practice distinction fails to provide an adequate guide for resolving conflicts
between public health surveillance and privacy, another approach, which takes the proper scope of
public health into account, may be more promising. Just how to understand the term “public health” is
the subject of significant debate. For instance, there is a question as to whether factors that affect
health—such as education, homelessness, and human rights—are constitutive of public health
(Rothstein 2002). Nonetheless, for the purposes of this article, it is promising to begin with the
traditional view that public health should be understood as population health. The Institute of Medicine
states that public health is what a society does “collectively to assure the conditions for people to be
healthy” (Committee for the Study of the Future of Public Health 1988, p. 19; Rothstein 2002, p. 145). A
full articulation of this kind of view comes in a recent book by Wendy Parmet. Parmet offers an account
of public health that centers on what she calls the “population perspective.” According to this view,
health is understood from a social or community perspective, and the “health of populations qua
populations is an important goal of social life” ( 2009, p. 14). Parmet provides some important guidance
in applying this perspective to assessing the health of populations when she compares and contrasts the
population perspective with utilitarianism. In her view, utilitarianism provides some support for the
population perspective insofar as it is a maximizing theory. The difference between the two is that the
good to be maximized on the population perspective is much narrower—health within a defined group
instead of utility among all individuals (2009, p. 15). However, the view that the population perspective,
and hence public health generally, “seeks to maximize group health” (Parmet 2009, p. 16) is
problematic. The comparison with utilitarianism shows why. Utilitarianism is a moral theory that is
consequentialist, welfarist, and sum-ranking: it is concerned with the consequences of actions (rather
than with, for example, virtues or respect for autonomy), the consequence that matters is individual
welfare, and the best state of affairs is the one in which the aggregate welfare of all relevant individuals
is maximized.6 The population perspective mimics utilitarianism insofar as it is consequentialist and
sumranking (i.e., maximizing) and differs only in that the consequence that matters is health within a
population (presumably measured in terms of quality-adjusted life years, disability-adjusted life years, or
the like). The problem comes in using the population perspective to determine policy. It is true that
public health interventions can at times be justified insofar as they can maximize health within a
population in cases in which individuals acting alone or along with health care providers would fail—
consider the efficacy of public sanitation measures relative to individual efforts to drink clean water
absent such measures. But if our guiding principle is health maximization, interventions at the individual
level will be justified if they do in fact increase aggregate health. The state of affairs with such an
individual intervention will rank ahead of the state of affairs without it. In other words, a sum-ranking
view fails to distinguish individual and population health and therefore is liable to opt for individual
health interventions on the grounds that they increase population health, independently of whether
they comport with individuals’ own senses of good. A related problem is that a consequentialist view
that maximizes the particular good of health within a population will necessarily subordinate nonhealth
interests. Some individual behaviors decrease aggregate health only insofar as the decision-maker’s
health decreases (e.g., avoiding doctors, being sedentary, not flossing). Surely, though, some efforts to
change those behaviors would be unwarranted on the grounds that people are within their rights to
engage in them.7 Thus, coercive measures to increase aggregate health require at least some
justification to override individual autonomy. That justification might be the negative effects of
individual behaviors on others’ health, sufficient risk to individual health to warrant strongly
paternalistic actions, or something else altogether, but simple appeal to marginal increase in aggregate
health would not suffice. Fortunately, there is a better way to interpret public health from the
population perspective and using it to guide action, which I refer to as the basic interests approach,
following a framework developed by Alex London (2003).8 Even though one natural interpretation of
population health—the one Parmet explicitly makes and which Mark Rothstein argues is implicit in other
accounts—is aggregative and sum-ranking, it need not be (Rothstein 2002, pp. 145–46; Parmet 2009, p.
16). A different approach is to see public health as securing a set of interests that is public in the sense
that the interests are shared by all members of a society, just in virtue of the fact that they are
reasonable, rational persons.9 To see why, it is useful to consider John Rawls’s understanding of primary
goods. People in a modern, liberal democracy have widely diverging interests and projects. Some people
will want opportunities for certain types of athletic recreation, others will seek intensive religious
experiences, still others will look to intellectual or artistic projects, and many will order their lives
around interest or social groups. Often these will conflict. For example, creating the opportunity for
people to play baseball on a new field might undermine others’ opportunity to hunt in the location
where the field would be placed, and vice versa. That is exactly as we would expect in a pluralistic
society. These interests are personal interests. However, the existence of such a society requires social
cooperation, which on Rawls’s view demands that citizens in the society be able to exercise two moral
powers: the ability to form and revise a conception of the good (i.e., to be rational) and the ability to
form a sense of justice and what is right and hence the ability to abide by fair terms of cooperation (i.e.,
to be reasonable) (1996, pp. 301–2). Based on this conception of a citizen, Rawls posits that each citizen
has a number of fundamental interests (or primary goods) regardless of his or her particular conception
of the good and personal interests. Among these are basic rights, liberties, and opportunities, and social
bases for self-respect. They also include certain “natural goods,” among them health, which are only
partly a function of the basic structure of society (1999, p. 54). The important point here is the idea that
there are basic interests that every person in a society would want more of, and those interests must be
treated as basic in a liberal, pluralistic society. Being deprived of the basic goods undermines persons’
ability to form their own conceptions of the good and to be reasonable such that they can abide fair
terms of social cooperation. Moreover, restriction of a person’s basic interests (e.g., deprivation of basic
rights and liberties, curtailment of opportunities, imperilment of health) gives rise to a claim on the rest
of society to ameliorate these restrictions.
Utilitarianism justifies viewing people as only valuable for their contribution to larger
society which justifies discrimination and destroys value to life
Hunnell 15 (Dr. Denise Jackson Hunnell is a Fellow of Human Life International. She graduated from Rice University with a BA in
biochemistry and psychology. She earned her medical degree from The University of Texas Southwestern Medical School. She went on to
complete a residency in family medicine at Marquette General Hospital, Marquette, Michigan. She also teaches anatomy and physiology at
Northern Virginia Community College Woodbridge Campus. Other affiliations include the American Academy of Family Physicians, The
Catholic Medical Association, and the National Catholic Bioethics Center. She received her certification in health care ethics from the
National Catholic Bioethics Center in 2009. “When Utilitarianism Designs a Healthcare System…”
http://www.truthandcharityforum.org/when-utilitarianism-designs-a-healthcare-system/)///CW
Ezekiel Emanuel, the architect of President Obama’s signature health care legislation, has penned a provocative piece published in The
Atlantic and entitled Why
I Hope to Die at 75. In this essay he argues that people over the age of 75 are a drain on
society and it would serve the common good if they would just die sooner rather than later. He is very clear that he is not advocating for
euthanasia or assisted suicide. But what he is doing is laying the groundwork for age-based rationing of health
care.¶ It must be understood that Dr. Emanuel is a utilitarianist. He believes that the value of a person lies in his contribution to the
economic structure of a society. Non-contributors are worth less than those who are economically productive and
are therefore entitled to less of the community resources, including health care.¶ Nurse_in_geriatryEmanuel argues that age associated
declines in mental-processing speed and creativity make older individuals a burden. He notes that most great scientists, writers, composers,
and artists have made their most significant contributions by the time they are in their late forties or early fifties. He declares that it is a rare
individual who still has the intellectual capacity to produce great work past the age of 75, so we should stop striving for longevity at that point
and refuse all life-prolonging medical care.¶ It
is quite disturbing to read his cold assessment of those with even the
most minor disabilities associated with age. He has no respect for the elderly enjoying their golden years and pursuing
avocations instead of professional excellence:¶ The American immortal, once a vital figure in his or her profession and community, is happy to
cultivate avocational interests, to take up bird watching, bicycle riding, pottery, and the like. And then, as walking becomes harder and the pain
of arthritis limits the fingers’ mobility, life comes to center around sitting in the den reading or listening to books on tape and doing crossword
puzzles. And then …¶ Of course, many
of us would counter his arguments with a discussion of the non-economic
benefits the elderly provide. I have had the good fortune to know several centenarians in my lifetime. They provided a window to the
past that could not be captured in any history textbook. I think of my relationships with several of my grandparents and great-grandparents
who lived well past the age of 75 and know that my life was immeasurably enriched by these encounters with my elders, even when they were
challenged by infirmities and disabilities. I hope to similarly influence my own grandchildren.¶ Ezekiel Emanuel discounts any value to familial
relationships. In fact he states, “Our living too long places real emotional weights on our progeny…there is much less pressure to conform to
parental expectations and demands after they are gone.” His further explanation of this reveals a prideful, self-centered motivation. He
is
concerned that if he lives past the age of 75, he will be remembered as a burden instead of as someone
who was vibrant and a joy to be around.¶ After laying out his arguments for why life after age 75 is just not worth living,
Emanuel goes on to outline the health care policy implications of his position. After the age of 75 he
advocates for virtually no health care. No screening tests, no treatment for cancer, no flu shots, no antibiotics. Palliative care to
keep the elderly comfortable is all that he sees as reasonable.¶ Here is where Emanuel errs most dramatically. He is judging the patient as to his
worthiness for treatment, instead of judging the treatment as to its worthiness for the patient. There is no question that there are many
medical tests and treatments that are not appropriate for patients over the age of 75. Following cholesterol levels, screening mammograms in
asymptomatic women, screening colonoscopies for colon cancer are all tests that can be discontinued by this age. However, the reason is not
that patients over the age of 75 are not valuable enough to receive this medical care. It is that the burden these tests impose on the elderly is
not justified by the expected benefit of these tests. Decisions about the appropriateness of any medical test or intervention need to be made
on an individual basis, taking into account the specific burden to benefit analysis for a given treatment in a given patient. Arbitrarily declaring
that all those over the age of 75 are unworthy of anything but palliative medical care is unjust ageism.¶ Caring for an elderly relative can
present physical, emotional, and financial challenges. But facing
these challenges is an opportunity for great spiritual
growth. We are better people and create a better society when we generously love and care for those with infirmities and disabilities.
Through their lives, the elderly generously offer us the opportunity to cultivate virtue. As Pope Francis said, “A population that does not take
care of the elderly and of children and the young has no future, because it abuses both its memory and its promise.Ӧ Emanuel
explicitly
rejects such thinking as existential nonsense:¶ Many of us have suppressed, actively or passively, thinking about God, heaven
and hell, and whether we return to the worms. We are agnostics or atheists, or just don’t think about whether there is a God and why she
should care at all about mere mortals. We also avoid constantly thinking about the purpose of our lives and the mark we will leave. Is making
money, chasing the dream, all worth it? Indeed, most of us have found a way to live our lives comfortably without acknowledging, much less
answering, these big questions on a regular basis. We have gotten into a productive routine that helps us ignore them.¶ I actually feel sorry for
Ezekiel Emanuel that he cannot see the value of human life in any terms other than economic productivity .
How sad that he does not cherish the rich dimensions the elderly add to our lives. We learn from their experiences, their faith, and, yes, even
their suffering. The question before us in American health care policy is whether or not we will value each human life from the moment of
conception to the moment of natural death and treat each individual according to his individual needs. Or, will
we follow the
utilitarian approach and declare whole classes of the population as economically unproductive and
therefore unworthy of medical care?
Social injustices worsen health- recognizing human rights is a step in the right
direction that allows us to make effective policy changes
Childress 2 (James Childress. University Professor and the John Allen Hollingsworth Professor of Ethics
at the University of Virginia. “Public Health Ethics: Mapping the Terrain.” 2002. P. 177.
file:///C:/Users/Emily/Downloads/Childress_et_al-2002The_Journal_of_Law,_Medicine_&_Ethics.pdf)//EMerz
We have noted potential and actual conflicts between promoting the good of public health and other
general moral considerations. But it is important not to exaggerate these conflicts. Indeed, the societal
institutionalization of other general moral considerations in legal rights and social-cultural practices
generally contributes to public health. Social injustices expressed in poverty, racism, and sexism have
long been implicated in conditions of poor health. In recent years, some evidence suggests that
societies that embody more egalitarian conceptions of socioeconomic justice have higher levels of
health than ones that do not.20 Public health activity has traditionally encompassed much more than
medicine and health care. Indeed, historically much of the focus of public health has been on the poor
and on the impact of squalor and sanitation on health. The focus today on the social determinants of
health is in keeping with this tradition. The data about social determinants are impressive even though
not wholly uncontroversial. At any rate, they are strong enough to warrant close attention to the ways
conditions of social justice contribute to the public’s health. Apart from social justice, some in public
health argue that embodying several other general moral considerations, especially as articulated in
human rights, is consistent with and may even contribute to public health. For example, Jonathan Mann
contended that public health officials now have two fundamental responsibilities - protecting and
promoting public health and protecting and promoting human rights. Sometimes public health
programs burden human rights, but human rights violations “have adverse effects on physical,
mental, and social well-being” and “promoting and protecting human rights is inextricably linked with
promoting and protecting health.”2’ Mann noted, and we concur, that, ultimately, “ethics and human
rights derive from a set of quite similar, if not identical, core values,” several of which we believe are
captured in our loose set of general moral considerations.22 Often, as we have suggested, the most
effective ways to protect public health respect general moral considerations rather than violate them,
employ voluntary measures rather than coercive ones, protect privacy and confidentiality, and, more
generally, express rather than impose community. Recognizing that promoting health and respecting
other general moral considerations or human rights may be mutually supportive can enable us to create
policies that avoid or at least reduce conflicts. While more often than not public health and human
rights - or general moral considerations not expressed in human rights - do not conflict and may even be
synergistic, conflicts do sometimes arise and require resol~tion.~~ Sometimes, in particular cases, a
society cannot simultaneously realize its commitments to public health and to certain other general
moral considerations, such as liberty, privacy, and confidentiality. We have tried to provide elements of
a framework for thinking through and resolving such conflicts. This process needs to be transparent in
order to engender and sustain public trust.
Disease Outweighs
Disease is the greatest impact- more people die from disease than all wars combineddisease spread is the root cause of structural prejudice and the biggest threat to
security
Selgelid 9 (M.J. Selgelid. Center for Applied Philosophy and Public Ethics (CAPPE), The Australian
National University, Canberra, Australia. “Public Health: Pandethics.” 2009.
http://www.sciencedirect.com/science/article/pii/S0033350608003314)//EMerz
The ethical importance of infectious diseases is partly revealed by the fact that their consequences are
almost unrivalled.1 Historically, they have caused more morbidity and mortality than any other cause,
including war.2 The Black Death eliminated one-third of the European population over the course of a
few years during the mid 14th Century; tuberculosis killed 1 billion people from 1850 to 1950; the 1918
flu killed between 20 and 100 million people; and smallpox killed between 300 and 500 million people
during the 20th Century alone, i.e. three times more than were killed by all the wars of that period.
Infectious diseases are currently the biggest killers of children and young adults, and the continuing
threat of infectious diseases is revealed by the emergence of many new infectious diseases during
recent decades [including human immunodeficiency virus/acquired immunodeficiency syndrome
(HIV/AIDS), Ebola, severe acute respiratory syndrome (SARS) and avian influenza], the growing problem
of drug resistance and the spectre of bioterrorism. Second, infectious diseases raise difficult ethicophilosophical questions of their own. Although measures such as surveillance, mandatory treatment and
vaccination, isolation and quarantine may sometimes be important to the protection of public health,
they may each involve infringement of basic rights and liberties, i.e. the right to privacy, informed
consent to medical intervention, and freedom of movement. Given that most deny that either the goal
to promote public health or the goal to protect individual rights and liberties should always take
absolute priority over the other, a difficult ethical question is how to strike a balance between these two
types of goals in cases of conflict. Third, the topic of infectious disease is closely connected to the topic
of justice. Malnutrition, dirty water, overcrowded living and working conditions, lack of sanitation and
hygiene, poor education, and lack of access to health care make poor people more likely to become
infected and more likely to suffer poor outcomes when infection occurs. As bad health, in turn,
exacerbates poverty, a vicious cycle promotes both poverty and disease. Fourth, infectious diseases are
prone to promote fear, panic, stigma, discrimination, and emotional and irrational decision and policy
making. Fifth, and finally, infectious diseases pose threats to security. Security dangers are associated
with fast-moving infectious disease outbreaks that overwhelm response capacity and cause chaos. In
2007, the World Health Organization described pandemic influenza as ‘the most feared security
threat’,8 and former US President George W. Bush suggested that a military response may be necessary
in the event of a flu pandemic. Security may also be jeopardized for economic reasons in the case of
slower-moving epidemics. HIV/AIDS, for example, has brought numerous African societies to the verge
of economic collapse. Historical studies reveal that factors such as high infant mortality, low life
expectancy and decreasing life expectancy – especially salient in sub-Saharan Africa at present, largely
as a result of HIV/AIDS – are among the most reliable indicators of societal upheaval.
Prefer a focus on non-communicable chronic diseases
Zarocostas 10 (John Zarocostas is a Geneva-based independent international correspondent and broadcaster, with more than 20 years
experience in covering international global issues, including world health, development and humanitarian issues. His news dispatches have
been published in The Lancet, The BMJ, McClatchy Newspapers, the International Herald Tribune, The National Law Journal, The New York
Times, The Straits Times, Lloyd's List, The Canberra Times, The Globe & Mail, The Times, The Irish Times,The Journal of Commerce, and the
South China Morning Post. “Need to increase focus on non-communicable diseases in global health, says WHO”
http://www.bmj.com/content/341/bmj.c7065)///CW
Governments worldwide need to increase the priority given to fighting non-communicable diseases
especially in the poorest nations, the World Health Organization says.¶ The sense of urgency by WHO is driven by the high and projected
increases in the prevalence rates of non-communicable diseases—cardiovascular diseases, cancers, diabetes, and
chronic lung diseases.¶ These four major groups of diseases share four risk factors—tobacco use, unhealthy diet, physical inactivity, and the
harmful use of alcohol.¶ Ala Alwan, WHO’s top official for non-communicable diseases and mental health, said, “The reason for the focus on
these four major group of diseases is because they are responsible for about 80-85% of mortality due to chronic diseases, and because they
also share the same risk factors.Ӧ Dr Alwan told reporters the magnitude
is increasing globally. Non-communicable
diseases are currently responsible for 60% of all deaths, or more than 35 million deaths every year, of which 80% occur in
low and middle income countries.¶ Up to 25% of deaths from non-communicable diseases occur in people under 60 years of age, he said.¶
“They are not only an enormous health problem, but they are also a problem that has very negative socioeconomic consequences,” he added.¶
Dr Alwan said that according to mortality estimates in all regions except Africa more than 50% of deaths are caused by non-communicable
diseases and among these, the leading cause of death is cardiovascular disease.¶ The WHO predicts that global mortality from noncommunicable diseases will increase by 17.6% during 2006 to 2015; by more than 24% in some regions such as Africa, and by 23% in the
Western Pacific and South East Asia.¶ The treatment
and health care for people with non-communicable diseases is
also expensive, and increasing, Dr Alwan said. In poor populations a substantial proportion of families with a
relative with cancer or heart disease will experience catastrophic expenditure, which will drive the family below
the poverty line.¶ “We see higher levels of risk factors like tobacco, and overweight and obesity in the lower social-economic class[es] and we
also see the highest prevalence of diabetes occurring in developing populations,” he said.¶ Dr Alwan, a former minister of health of Iraq, also
highlighted that non-communicable diseases are “largely preventable if we address risk factors with tobacco control,
address unhealthy diet and physical inactivity.Ӧ He said international efforts to implement a global strategy to control and prevent noncommunicable diseases is leading to the development of indicators similar to the millennium development goals together with a monitoring
mechanism. Greater priority needs to be given to non-communicable diseases in health and broader development
agendas, he said.¶ Dr Alwan added that the private sector, including the food and beverages industries, also has to provide some solutions.
These include responsible marketing, especially for children, and a greater emphasis on more healthy products.
Prefer chronic disease – media creates a bias toward ISIS and nuclear war
Fisher 14 (Max Fisher is a writer at Vox, “Threats to Americans, ranked (by actual threat instead of media hype” 8/17/14
http://www.vox.com/2014/10/17/6988377/threats-to-americans-ranked-ebola-isis-russia-furniture)///CW
Americans are inundated with media coverage and politicians warning them of dire threats: Ebola, the Islamic
State of Iraq and Syria (ISIS), the war on Christmas.¶ The truth, though, is that the most-hyped threats are often not
actually that threatening to Americans, while larger dangers go mostly ignored. That should tell you something
about how our political system and media can distort threats, leading Americans to overreact to minor dangers while ignoring the big,
challenging, divisive problems — like climate change — that we should actually be worried about.¶ ¶ An actual poll featured on Fox News (Nick
Martin)¶ Obsessing
about possible threats is something of a beloved national past-time here in America,
which is objectively one of the safest places on Earth, so we want to help you do it right. Here, then, is a highly un-scientific
and incomplete ranking of threats to the United States — sorted by the current danger to Americans, worst-case danger to Americans, and how
freaked out you should be.¶ 9) Ebola¶ Threat to Americans: If you are an American in West Africa in close proximity with Ebola victims, the
threat is moderate. If you are an American health worker in the US assisting an Ebola victim or someone who frequently comes into physical
contact with one, the threat of infection is minor if you use proper protective equipment. Otherwise, the threat is pretty close to zero.¶ Worstcase scenario: The outbreak could get much worse in West Africa, but even in that scenario the disease will remain unlikely to affect many
Americans outside of the region.¶ How freaked out should you be: If you have loved ones in Liberia, Sierra Leone, or Guinea, it is not
unreasonable to urge them to take all possible precautions. Otherwise, you would do better to worry about the other items on this list.¶ ¶ A
health worker demonstrates Ebola treatment practices in London (Dan Kitwood/Getty)¶ 8) Your own furniture¶ Threat to Americans: According
to a report by the Consumer Product Safety Commission, just under 30 Americans are killed every year by "tip-over," which is when
"televisions, furniture, and appliances" fall onto their owners. The report also found that over 40,000 Americans receive "emergency
department-treated injuries" from tip-over every year.¶ Worst-case scenario: This is America. We can always find ways to make a bigger,
heavier, deadlier TV.¶ How freaked out should you be: Council on Foreign Relations scholar Micah Zenko found that tip-over kills about as many
Americans per year as terrorism does, and injures many more. In theory, then, you should be just as freaked out by tip-over as you are by
terrorism. Based on the fatality rate, you should be much more freaked out about tip-over than you are about Ebola.¶ 7) ISIS¶ Threat to
Americans: Presently, the threat to Americans outside of Iraq and Syria is extremely low, as ISIS
has no demonstrated intent or
capability to launch such an attack. And since 2001, the US has gotten much, much better at preventing
terror plots.¶ Worst-case scenario: ISIS does control a giant stretch of territory, boast thousands of fighters (some with Western passports),
earn lots of oil revenue, and field heavy US-made weapons seized from the Iraqi army. Oh, and it now has access to rotting but still-deadly
chemical weapons. They could decide to use those resources to try to attack the US, or could allow other terrorists to use their territory as a
safe haven.¶ How freaked out should you be: Not very. If ISIS decides to turn its attention to attacking the US, the prospect it might succeed is
real, but remote. And even if it did pull off a successful attack, it would almost certainly kill only a small fraction of the number of Americans
that guns and cars are virtually certain to kill every single year.¶ ¶ Smoke from a battle between Iraqi Kurds and ISIS (SAFIN HAMED/AFP/Getty)¶
6) The flu¶ Threat to Americans: The flu kills thousands of Americans every year, many times more people than Ebola. The elderly and infirm are
especially at risk.¶ Worse-case scenario: An especially bad outbreak in 2004 killed 48,000 Americans.¶ How freaked out should you be: If you're
elderly, very young, or immunosuppressed, you should get a flu shot or nasal spray immediately. (Even if you're not, you should still get off your
lazy butt and get a flu shot, unless you are some kind of monster who doesn't care about herd immunity.) But if you're young and otherwise
healthy, you'll probably be fine even if you do catch the flu.¶ 5) World War III breaking out in the Baltics¶ Threat to Americans: No
one
wants a global thermo-nuclear war between the West and Russia, including Vladimir Putin. But his meddling in Baltic NATO
countries like Estonia, which the US and Western Europe are committed to defend, could inadvertently trigger what we avoided throughout the
Cold War: open military conflict between the major nuclear powers. Both Putin and President Obama have threatened as much to try to scare
one another out of acting aggressively.¶ Worst-case scenario: Russia does in Estonia what it did in Ukraine, that snowballs into war between
Russia and the US/NATO, and the nukes start falling.¶ How freaked out should you be: To be very clear: the
odds of this happening
are extremely low. But the danger is real enough that everyone is taking it seriously (Russia is holding major nuclear exercises). If it did
happen, it would be many, many times worse than every other item on this list combined.¶ ¶ Russian tanks in a military parade in St. Petersburg
(OLGA MALTSEVA/AFP/Getty)¶ 4) Climate change¶ Danger to Americans: Potentially dire. The greatest near-term harm may be from a rise in
extreme weather events. Over the next 100 years, that could include deadly heat waves, droughts, flooding, and a rise in sea levels that would
affect coastal cities.¶ Worst-case scenario: The world is trying to limit the global temperature rise to 2°C, because any more than that is
considered dangerous. A temperature rise of 4°C would cause "substantial species extinctions" and "large risks to global and regional food
security," as well as rising sea levels, according to the Intergovernmental Panel on Climate Change. In other words, a total catastrophe.¶ How
freaked out should you be: If you care about the world your kids and grandkids will grow up in, pretty freaked out. Averting disaster requires
immediate, massive, global cuts to carbon emissions. With the US and China particularly dragging their feet, it may simply be too late.¶ 3) Guns¶
Danger to Americans: Guns kill more than 30,000 Americans every year, about as many deaths as caused by motor vehicles. But only about one
in three of those deaths is a homicide. A few thousand are from accidents but most are due to suicide.¶ Worst-case scenario: We have already
chosen to live in a society with the world's highest gun ownership rate and some of its loosest gun control laws, so the worst-case scenario is
pretty much here. Still, gun deaths per year are on the rise.¶ How freaked out should you be: It all depends on whether you see America's
uniquely permissive gun laws as worth the trade-off. But you — and, yes, your children — are at risk, regardless of your views about gun
regulations.¶ ¶ A customer inspects a totally legal AR-15 assault rifle at a gun store in Wendell, North Carolina (Chuck Liddy/Raleigh News &
Observer/MCT via Getty)¶ 2) Traffic accidents¶ Danger to Americans: Very high. About 34,000 deaths in 2011 (the last year with complete data),
more than one in four of all deaths related to unintentional injures.¶ Worst-case scenario: Drunk driving. Don't do it.¶ How freaked out should
you be: The motor vehicle death rate is declining, but getting in your car is still dangerous. Stay alert and don't drink.¶ 1)
Heart disease
and cancer (tie)¶ Danger to Americans: The number-one and number-two killers in the US, collectively
responsible for just over 50 percent of all American deaths.¶ Worst-case scenario: These could become even
deadlier as Americans get unhealthier. Heart disease correlates with rising obesity. Cancer rates also
correlate with obesity, smoking, and other unhealthy practices.¶ How freaked out should you be: The odds are that one
of these two things will kill you, so you should be thinking about this. The good news: it's pretty easy to reduce that risk by
making healthy lifestyle choices and screening regularly for cancer. Much easier for any given American, at least, than
combatting West African Ebola outbreaks or Middle Eastern terrorist groups.
Extinction- engineered pathogens
Sandberg, 8 -- Oxford University Future of Humanity Institute research fellow
[Anders, PhD in computation neuroscience, and Milan Cirkovic, senior research associate at the
Astronomical Observatory of Belgrade, "How can we reduce the risk of human extinction?" Bulletin of
the Atomic Scientists, 9-9-2008, thebulletin.org/how-can-we-reduce-risk-human-extinction, accessed 813-14]
The risks from anthropogenic hazards appear at present larger than those from natural ones. Although
great progress has been made in reducing the number of nuclear weapons in the world, humanity is still
threatened by the possibility of a global thermonuclear war and a resulting nuclear winter. We may face
even greater risks from emerging technologies. Advances in synthetic biology might make it possible to
engineer pathogens capable of extinction-level pandemics. The knowledge, equipment, and materials needed
to engineer pathogens are more accessible than those needed to build nuclear weapons. And unlike other
weapons, pathogens are self-replicating, allowing a small arsenal to become exponentially destructive.
Pathogens have been implicated in the extinctions of many wild species. Although most pandemics "fade out"
by reducing the density of susceptible populations, pathogens with wide host ranges in multiple species can
reach even isolated individuals. The intentional or unintentional release of engineered pathogens with high
transmissibility, latency, and lethality might be capable of causing human extinction . While such an event
seems unlikely today, the likelihood may increase as biotechnologies continue to improve at a rate
rivaling Moore's Law.
Emerging diseases and bioterrorism are comparatively the largest impact
Milne 4 – Formerly a practicing veterinarian in New Jersey and Maryland, Dr. Milne attended Johns
Hopkins University in 1987-88 where he earned a master's degree in public health with a concentration
in epidemiology. For six years, he worked for the New Jersey Department of Health in risk assessment as
well as legislative and regulatory review, and finally served as Emergency Response Coordinator. Dr.
Milne joined Tufts University's Center for the Study of Drug Development in 1998 as a Senior Research
Fellow, after graduation from law school. His research interests include the evaluation of regulatory
initiatives affecting the pharmaceutical and biotechnology industries, and incentive programs for the
development of new medicines for neglected diseases of the developing world. Dr. Milne is currently
Assistant Director at the Center and a member of the bar in New Hampshire
(Christopher, “Racing the Globalization of Infectious Diseases: Lessons from the Tortoise and the Hare,”
11 New Eng. J. Int'l & Comp. L. 1)
Although we have faced planet-killing events such as nuclear brinkmanship during the Cold War and mega-meteors colliding with earth in prehistory, the most imminent threat is one we face everyday from the globalization of infectious diseases. Leading authorities in
government, medical institutions, and schools of public health have been ringing the warning bell for over a decade about the major threats to global public health. 2Link to the text of the note
infectious diseases in the developing world, drug resistant bacteria, and the problem of multiple HIV strains, remain
unaddressed. The public health community lacks answers to key scientific questions for an AIDS vaccine, and needs to press harder on research for a tuberculosis (TB) vaccine, a
process which could take twenty to fifty years. 3Link to the text of the note Experts believe that the threat warning level has risen from
orange to red, comparing the circumstances favoring a pandemic today to the "Perfect Storm," due to the continuing increase of
worldwide antimicrobial resistance, diminished U.S. capacity to recognize and respond to microbial threats, and the likelihood of
intentional releases of biological agents.¶ The sources of this public health challenge derive from a panoply of emerging and re-emerging natural plagues,
Threats such as
thirty of which have been recognized just in the last few decades with thirteen occurring in North America. 4Link to the text of the note According to Anthony Fauci, Director of the National
Institutes [3] of Allergies and Infectious Diseases (NIAID), emerging diseases are defined as ones that have not been previously recognized, such as acquired immunodeficiency syndrome (AIDS)
or severe acute respiratory syndrome (SARS). Comparatively, re-emerging disease has usually been in existence for a long time but has changed location, as did the West Nile Virus. Dr. Fauci
considers bioterrorism to be a part of the continuum of emerging and re-emerging diseases, and points out that when it comes to bioterror: "The Worst Bioterrorist May be Nature Itself."
5Link to the text of the note¶
Infectious diseases with the potential to be global killers come in two basic forms: the "slow
epidemic," taking months or years to reach pandemic status, with an insidious onset and long latency, that resists treatment - the archetypical example being AIDS, 6Link to the text of
and the "fast epidemic," rapidly spreading from country to country, typically aerosol-borne, with fairly
quick onset, and high mortality and morbidity - most recently manifested in pandemic SARS. 7Link to the text of the note Both forms have
potential uses as bioweapons, although most of the counter-terror attention focuses on the SARS-like diseases.¶ Part II of this article will discuss the scenarios for a
the note
global pandemic presented by SARS, AIDS, or bioweaponized incarnations - what they have done, what they could do, and why it is so hard to stop them. Part III will describe the scope of the
public health problem, particularly the globalization factors that serve as enablers of the pandemic potential of these diseases, as well as a host of ill-defined "x" factors that have served to
further complicate the dynamics of dealing with these global killers. Part IV will consider solutions to the problem by discussing what we have versus what we need. Part V will present
recommendations for how government, pharmaceutical and biotechnology industries, as well as international non-governmental organizations can be part of the solution. Lastly, Part VI
provides a conclusion.¶ "Ring around the rosie, pocket full of posies,¶ Ashes, ashes - we all fall down!" - According to legend, a children's rhyme dating from the time of the plague in medieval
Europe.¶ II. Scenes from a Plague¶ SARS has been compared to the bubonic plague of the Middle Ages, but the Black Death was not a "fast epidemic" due to the limitations of its [4] mode of
transmission, as well as the modes of medieval transportation. While SARS is somewhat comparable to flu epidemics of the last century and to the putative bioterror agents of today, AIDS has
the dubious distinction of being closer to the experience of the Black Death. However, unlike that ancient pandemic, which was more limited temporally and geographically, AIDS is embarking
upon what, Dr. Peter Piot, executive director of UNAIDS, refers to as a "true globalization phase." 8Link to the text of the note¶ A. Black Death Redux¶ The superlatives used to describe the
public health impact of AIDS never seem to be exhausted. One commentator noted that AIDS will soon exceed the death toll of the Bubonic Plague, making it the most "numerically lethal
pandemic" the world has ever known. 9Link to the text of the note The World Health Organization (WHO) refers to it more prosaically, but with similar notoriety, as the "toughest health
assignment the world has ever faced." 10Link to the text of the note Even after twenty years, AIDS is still something of a medical and scientific conundrum. Diversity of the virus increases with
duration of infection, further complicating drug treatment. 11Link to the text of the note Vaccine development is similarly complicated due to existence of ten major genetic types or clades of
HIV-1, each with a distinct geographical spread. 12Link to the text of the note¶ What we do know is that AIDS is caused by an infection with the human immunodeficiency virus (HIV),
transmitted through unprotected sex, sharing hypodermic needles, transfusions of contaminated blood, or from mother to child during pregnancy, labor, delivery, or breast-feeding. The virus
attacks the immune system by infecting white blood cells, known as CD4+ cells, making it difficult for the body to fight off infections. AIDS itself is considered the final stage of HIV disease.
13Link to the text of the note Without treatment, HIV will progress to full-blown AIDS within nine to eleven years, and is usually fatal within two years after that point. 1