Doctors as Government Snoops

Via the Politech list comes notice of an FBI pilot program in which emergency-room physicians report to the feds suspicious injuries or illnesses that might have resulted from terrorist activities.

We’ll have to wait and see how it turns out, but from the article’s description of the program there appear to be some potential pitfalls. The program’s use of non-police agents raises the same questions as did the now-defunct homeland-security plan to deputize meter readers and cable-TV installers to report suspicious activities. The incentives in such schemes tend to be for massive over reporting. Given that there are probably very few terrorists among the population that uses emergency rooms, the odds of a very high percentage, and high absolute number, of false positives seem significant. The cost to the people who are incorrectly fingered will be high, and nobody knows if any terrorists will be caught. There will also be a temptation, as Declan McCullagh notes, to expand the program to report drug use and other activities that are unrelated to terrorism.

This program is a bit like the system for reporting child abuse, except that there are probably several orders of magnitude more child abusers in the health-care-seeking population than there are terrorists, and deciding which medical problems result from terrorist activity is probably much less clear cut than deciding whether a child has been abused. I don’t know if the FBI is up to the task. (The Bureau is still trying doggedly to make a case against Steven Hatfill, for supposedly mailing the anthrax-laced letters that to some of us seem more likely to have been sent by the Sept. 11 hijackers.) It’s difficult for me not to be skeptical that the benefits of this program will exceed the costs even if it does catch the occasional terrorist.

There is also the matter of the spirit in which this program is being promoted.

That approach, Allswede acknowledges, sometimes raises issues with the constitutional right of being presumed innocent until proven guilty.

“That was in the days of our founding fathers when the worst thing that could happen to you was your horse was stolen,” he said. “We were willing to give up a few horses in order to prevent innocent people from going to jail. But in the era of bio terrorism, when you could lose a city, the threshold has changed.”

This is the new justification for government snooping and bureaucratic empire building: with the existence of WMD, the stakes are so high that safeguarding the rights of individuals (life, liberty, and property are contemptuously dismissed as “a few horses”) is secondary. This is a dangerous idea.

I’d like to give the FBI the benefit of the doubt but I can’t. It never accounted adequately for its abuses at Waco and Ruby Ridge; its leaders stymied proper analysis of pre-Sept. 11 intelligence and didn’t take responsibility for their failure (they still have jobs); it has bungled major investigations and covered up malfeasance (the Crime Lab). Its competence is questionable. This snooping plan deserves more scrutiny.

Remember William Pitt’s apothegm:

Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.