Balancing act 

Liberty vs. security at Missoula's bio-terror conferences

Cold cuts and potato salad were scooped onto plates inside the Bitterroot Room of Missoula’s DoubleTree Hotel on Monday as approximately 200 representatives of local and federal law enforcement, public health officials, first responders and media gathered to think about the unthinkable—bio-terrorism in Montana. Under the Bush administration’s series of Homeland Security Presidential Directives, these groups are mandated to work together so that “the United States Government shall establish a single, comprehensive approach to domestic incident management.” All the Montana players necessary to make this vision a reality were present at the DoubleTree, faced with a simple question: Where and how do we start? The first consensus reached was that America has changed dramatically since Sept. 11, 2001, and many in attendance believe the recent interest in their operations is at least one positive to come out of that tragedy.

“We have more resources than most of us ever dreamed of, but it also came at a price most of us never dreamed of,” said Gail Gray, director of the Montana Department of Health and Human Services. U.S. Attorney for Montana Bill Mercer kicked off the gathering with a pitch for the USA PATRIOT Act, saying that the act will be an effective tool in fighting terrorism and that negative press reports have misled the public into an inaccurate impression.

But the meeting’s chief emphasis was on cohesive collaboration. If a streamlined domestic incident response is to be a viable goal, speaker after speaker said, law enforcement and public health officials will have to work together, and each will have to work with the media as well.

FBI Special Agent Chip Spencer, the weapons of mass destruction coordinator for the bureau’s Salt Lake City office (whose jurisdiction includes Montana and Idaho as well as Utah), said that he will rely on public health officials to share information on suspicious cases of disease to nip bio-terrorism in the bud.

“Who’s going to know first? You guys,” Spencer said.

But here, a stumbling block appeared. The Health Insurance Portability and Accountability Act of 1996, commonly known as HIPPA, contains stringent patient privacy rights, reinforcing “patient/doctor privilege.”

While Charles Russell, an emergency medical technician (EMT) from Libby, understands the reasons HIPPA was passed, he said the legislation ties his hands in terms of providing the kind of information that an agent such as Spencer is looking for. If Russell provides personal information about a patient, he said, he opens himself up to personal lawsuits.

“They’re saying we need info-sharing, but with HIPPA…” Russell said, trailing off and throwing up his hands in defeat.

Speaking to Agent Spencer, Russell said, “There’s no way to do it besides whispering in ears, and if that ever came out, you’re hung.”

This very catch-22 is addressed by the Criminal and Epidemiological Investigation Handbook, whose lead author, Mike Elliot, a law enforcement liaison with the Aberdeen, Md.-based Battelle Memorial Institute, was on-hand for the conference. According to Elliot’s handbook, a balancing system must be enacted whereby “the possible injury to the professional relationship [of patient and doctor] from the disclosure must be greater than the expected benefit to justice or the public in obtaining the information” in order for privacy rights to take precedent.

Yet the handbook itself acknowledges that even this balancing system is flawed. For example, if the general public is aware that doctors may share information with government officials in certain circumstances, patients may be less likely to give their health care provider valuable yet private information that could lead to the discovery of an outbreak.

A similar balancing act, this one between national security and the public’s “right to know” as guaranteed under the Montana Constitution, was discussed by Professor Douglas Starr, co-director of the Knight Center for Science and Medical Journalism in Boston, Mass. Starr encouraged law enforcement to “let citizens know what they need to know.” When the government fails to inform, Starr said, it backfires. As an example, Starr pointed to the Bush administration’s drive to have Americans vaccinated for small-pox.

“They were going to start small-pox vaccines in Albany. Why? No one knew.”

Starr said that when he asked local government and law enforcement officials, they grew upset with him.

“Don’t get mad at me for what Washington won’t tell you,” he said.

The lack of public information regarding the need for a small-pox vaccine caused the program to fail, Starr concluded.

But unlike the emergent link between public health officers and law enforcement, a similar bond with the media failed to materialize. Starr argued that is as it should be.

“You’re not going to find a good journalist being a team player” for the government, Starr says.

Indeed, as government and health officials put their heads together to prepare for a possible bio-terrorist attack, it will likely fall to media watchdogs to make sure the privacy/security pendulum doesn’t swing too far to one side or the other.

Sally Johnson, emergency preparedness manager for the Montana Department of Public Heath and Human Services, got to the crux of the bio-terrorism paradox by outlining the tough choice facing the health guardians of our society.

“Heads they win; tails we lose,” Johnson says. If a patient’s confidentiality is compromised or the public’s right to know abridged, critics will argue that civil liberties are being unnecessarily violated. However, if those liberties are protected and a possibly preventable attack occurs, the same people will be criticized for their inaction. The question, then, is not a new one: What’s more important—liberty or security?

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