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OpEdNews Op Eds    H2'ed 10/6/09

Your Privacy Matters: Daniel Ellsberg, the USA PATRIOT Act & You

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In other words, patient records come under the purview of the USAPA in several different ways. By virtue of its existance, this law jeopardizes the privacy of every person who sees a mental health professional.

After learning about this issue, I joined Therapists for Peace and Justice, which has grown from 5 people to more than 150. My colleagues and I understand the anger that people feel knowing that their library records can be viewed by the government without their knowledge or consent. We also understand that most people might not care about government intrusion into medical records of a scraped knee from a bicycle fall, a broken arm from a skydiving adventure or even information about their cancer treatment. But the confiscation of clinical process notes about a broken heart, family problems or an arrest at an anti-government protest is a whole other order of business.

People have said, "Oh, it would never happen." But how would we know? Under the USAPA, as opposed to ordinary criminal law, the authorities can operate in secret and no proof of criminal activity is required.

People have said, "Oh, I've not done anything wrong, so I'm not at risk." Tell that to the Portland man whose false arrest was eventually acknowledged by the FBI as influenced in part because he had converted to Islam. Say that to any number of people who are on terrorist watch lists despite having never done anything criminally wrong.

People have said, "Oh, psychotherapy patients are not at risk. They're dealing with personal stuff, not political issues." Tell that to every person who has ever been arrested in a civil disobedience action or anti-war protest and who is also currently seeing a counselor, has been in psychotherapy in the past, or might seek these services sometime in the future. Tell that to those who were detained post-9/11 because they knew someone who was suspected of being a terrorist even though they themselves hadn't done anything wrong.

People have said, "Oh, it wouldn't happen to that many people, so why should I worry?" The problem is that all mental health treatment has one essential requirement: The expectation of privacy. Healing is hard enough, but without privacy, healing cannot even begin. Without the ability to trust that their privacy will be honored, people who need support won't seek help, or if they do, they'll be reluctant to say what needs to be said. The very existence of a law that threatens the privacy of one, threatens the privacy of all.

People have said, "Oh, this is just a new exception to confidentiality like those that already exist in mental health, so what's the big deal?" However, the common exceptions to confidentiality involve narrowly defined circumstances and are reasonably intended to prevent the abuse of children, elders and disabled adults, as well as the suicide of the patient. They even include the prevention of harm to someone else from injury or homicide, which would apply to any act of terrorism. These laws protect practitioners from legal retribution when they report their "reasonable suspicion" of a problem, and they don't prohibit professionals from seeking clinical consultation or, especially, from discussing these situations with their patients.

Section 215 of the USAPA offers no new protection to society because the exceptions to confidentiality that already exist would cover any case of suspected terrorism, making the extraordinary rules required by Section 215 unwarranted. At the same time, these stipulations violate the very ethical basis of psychotherapy, have a chilling effect on clinical practice, and, therefore, on the lives of ordinary citizens. As informed psychotherapists say, "Privacy rules. Stay away from our consulting rooms."

Atty. Gen. Eric Holder wants to renew the sunsetting provisions of the USAPA and FBI Director Robert Mueller agrees. This is a very big concern, but options exist that were not possible under the second Bush administration. In a letter to Senate Judiciary Chair Patrick Leahy, the Justice Department itself has opened the door to adjustments, stating awareness "that Members of Congress may propose modifications to provide additional protection for the privacy of law abiding Americans." Also, the JUSTICE Act, introduced by Sen. Russ Feingold (D-WI) could create strong oversight over the use of Section 215 and other provisions of the USAPA that threaten civil rights, including privacy rights.

In the early 1970s, the nation was stunned at the lengths taken by Nixon and his gang to preserve their power and maintain their deceptions. But in an extraordinarily historical moment, Ellsberg was freed and it was Nixon's henchmen, high and low, who eventually went to prison instead. Nixon's actions against Ellsberg and his other political opponents played a powerful role in his own disgrace. Four of the men who were involved in the Ellsberg break-in were also part of the Watergate break-in nine months later. Nixon's two top aides were convicted and imprisoned for their actions in these matters. To this day, the word "Watergate" colors our very language as a cultural icon to such an extent that the term "gate" is routinely linked to political scandal and often considered laughable.

But this shadow of overreaching by the powerful is nothing to laugh at. Watergate and the Pentagon Papers gave us an example of government abuse of power over its own citizens. The fear-mongering of George W. Bush's presidency just represented extra-legal infringements that his predecessors had honed for years. While the current administration shows a more mature temperament and style, red flags abound as Barack Obama's team presses to keep the power it has inherited.

As we revisit Daniel Ellsberg's story, we should not forget that what happened illegally to him in 1971 can now happen lawfully to anyone of us.

The people should not rest.

Michael Anne Conley is a former journalist, health educator and licensed marriage and family therapist who is interested in the intersection of personal life and public policy. She writes from the San Francisco Bay Area. She is a member of the leadership team of Therapists for Peace and Justice and is president of the California chapter of the American Mental Health Alliance. Both are groups of mental health professionals concerned about protecting the privacy of people who seek mental health services.

Learn more about the mental health implications of the USAPA:

Read more about the JUSTICE Act:

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Michael Anne Conley is a former journalist, health educator and licensed marriage and family therapist who is interested in the intersection of personal life and public policy. She writes from the San Francisco Bay Area.
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Your Privacy Matters: Daniel Ellsberg, the USA PATRIOT Act & You

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