Obamacare Surveillence

By Gerard Emershaw

The Affordable Care Act (ACA) has drawn fire for its patent unconstitutionality, its corporatist nature, its website, and its high cost. Another reason to fear and loathe Obamacare is that it provides yet another way for Big Brother to spy on Americans. ACA includes the Federal Data Services Hub (FDSH) which is a “comprehensive database of personal information being established by the Department of Health and Human Services (HHS) to implement the federally facilitated health insurance exchanges.” According to the General Accountability Office (GAO), the purpose of this database is to “provide electronic, near real-time access to federal data, as well as provide access to state and third party data sources needed to verify consumer-eligibility information.” This database will allow the ACA health insurance exchanges to determine the eligibility of Americans for subsidies and to determine mandate penalties by accessing data from the Internal Revenue Service, the Social Security Administration, the Department of Homeland Security, the Veterans Health Administration, the Department of Defense, the Office of Personnel Management, and the Peace Corps. It will include “comprehensive personal information such as income and financial data, family size, citizenship and immigration status, incarceration status, social security numbers, and private health information.” Centralizing so much private information will allow American spy agencies like the FBI and CIA to do one stop shopping for vital information on citizens.

Even if the FDSH is not simply a candy store of private information on which the FBI or CIA can feast, the FDSH is likely going to be patently illegal. The Privacy Act of 1974 makes it illegal for government agencies to share individuals’ private information except in very specific instances such as for statistical purposes by the Census Bureau or Bureau of Labor Statistics, law enforcement purposes, routine use by federal agencies, or for congressional investigations. In addition, the Federal Information Security Management Act of 2002 (FISMA) mandates that federal government agencies develop and implement appropriate security to protect such information. The FDSH is not expected to be able to comply with FISMA by the time the insurance exchanges are scheduled to open.

Even if the FDSH becomes compliant with the law, the potential for misuse of the private information contained in this giant database is great. Even if the federal government does not use this information for nefarious purposes, it cannot ensure that the private entities which will access the information will not misuse it. The insurance exchanges will employ “Navigators” who are “community and consumer-focused nonprofit groups, to which exchanges award grants to provide fair and impartial public education” and “refer consumers as appropriate for further assistance.” There is no way to ensure that these “Navigators” will not misuse the information. It was recently revealed that no criminal background check is required for “Navigators.” Even if they conduct themselves honestly, there is no way to ensure that identity thieves or some other third party with bad intentions will not steal the information from the “Navigators.” Americans simply should not have to be caught between the Scylla of government surveillance and the Charybdis of identity theft when it comes to their confidential records held by government agencies.