Congress to reauthorize FBI access to records as part of Patriot Act

The House and Senate passed legislation in late July that would reauthorize sections of the USA Patriot Act that were set to expire at year's end, including a provision allowing the FBI to search confidential medical records during counterterrorism investigations.

Both the House and Senate bills would extend and modify key provisions of the federal antiterrorism law that Congress passed in 2001 in the wake of the Sept. 11 terrorist attacks. A House-Senate conference committee is expected to meet this fall to work out differences between the bills.

Despite some differences, both versions would renew a controversial provision that allows the FBI to conduct secret searches of private records, including library records, bookstore receipts and patients' medical records.

Physician groups have expressed concern that the Patriot Act as it is currently written does not ensure sufficient patient confidentiality protections and could undermine the integrity of the physician-patient relationship. Psychiatrists in particular are worried about the law's "gag order," which prohibits doctors from telling patients when the FBI searches their medical records as part of a counterterrorism or counterintelligence investigation. Neither the House nor the Senate bill would lift the gag order, so it remains a top concern among psychiatrists and other physicians.

"We see this as a major breach in the doctor-patient relationship," said Steven S. Sharfstein, MD, the American Psychiatric Assn. president.

He said it's understandable that the FBI might require access to a patient's record but that it would be "untenable" for a psychiatrist not to tell the patient about the search.

"It would completely undermine any confidence in the therapeutic enterprise," Dr. Sharfstein said.

Psychiatrist David Fassler, MD, agrees that the gag order puts physicians in an ethical bind, and he hopes that the issue can be addressed in the conference committee.

"Clearly, as a psychiatrist, you couldn't continue treating a patient without telling them their records had been accessed by the government," said Dr. Fassler, the American Academy of Child and Adolescent Psychiatry 's representative to the AMA House of Delegates. "It's a core ethical issue."

Advocating for change

Psychiatrist groups have been in the forefront of physician groups that have expressed concern about the Patriot Act's implications.

The APA and AACAP introduced a resolution at the 2004 AMA Interim Meeting asking the Association to study the Patriot Act's potential impact on patient confidentiality and to advocate for any necessary modifications. The resolution resulted in a Board of Trustees report approved at the AMA Annual Meeting in June.

In its report, the board recommended the AMA advocate that Section 215 of the Patriot Act -- the section that allows for secret searches -- be allowed to expire at the end of the year as scheduled. But if the section is reauthorized, the report suggests that the AMA call for amendments that would enhance confidentiality safeguards by making only specific, discrete and relevant portions of patient medical records disclosable and giving judges the discretion to refuse to issue a court order, particularly where there is no clear and convincing evidence or demonstration of probable cause that the requested information is necessary. It also suggests that the attorney general publicly disclose order requests and grants on a periodic basis.

With those concerns in mind, APA and AACAP leaders said they preferred the Senate version of the Patriot Act reauthorization bill. For starters, the Senate version reauthorizes Section 215 for only four years. The House version would extend the provision for 10 years.

"Improved protections, with an additional level of scrutiny," are among the other advantages of the Senate version, Dr. Fassler said.

The improved protections include tougher requirements that the FBI must meet before its agents can obtain a court order that allows them to search private records, which the Act defines as "any tangible things (including books, records, papers, documents, and other items)."

Currently, the Patriot Act requires that the FBI only certify to a secret court that the "tangible things" are sought for an authorized antiterrorism investigation. The FBI is not required to tell the court why it seeks certain items and records or how they relate to an investigation.

The Senate bill would add a new requirement that the FBI submit to the court a "statement of facts" that establishes reasonable grounds to believe the records sought are relevant to an authorized investigation into terrorist activities. But the House version would not require a statement of facts; it would only require the FBI to state that the items sought are "relevant" to an investigation.

The Senate bill also mandates that the FBI director or deputy director personally approve, in writing, any request to the court to search private records, including medical records. Currently, the Patriot Act does not require the director or deputy director's approval before a search. The House reauthorization bill requires prior written approval only for library records and bookstore receipts, not for other items such as medical records.

Enhanced legal options

Unlike the current Patriot Act, both the House and Senate bills would explicitly allow physicians and other holders of records to consult an attorney for legal advice if they are ordered to produce records pursuant to a counterterrorism investigation. Now, the Patriot Act prohibits people who receive such an order from disclosing that fact to anyone.

The House and Senate bills also would allow physicians and others to challenge the legality of a secret search order. The House version would allow a challenge only within very narrow parameters, before a special "petition review panel." But the Senate version would allow a challenge on much broader grounds.

APA, AACAP and other physician groups plan to monitor House-Senate negotiations to reconcile the two bills this fall. AACAP's Dr. Fassler said he remained "cautiously optimistic that our concerns will be addressed in the final version."

An AMA spokesman said the AMA continues to work with Congress to ensure that the confidentiality of patient records is protected.