[Ed. Note: this is the third in a series of blog posts addressing a range of technology and civil liberties issues we believe America's next President and Congress will have the chance to take a fresh look at, and the opportunity to set a policy course for the Internet that will keep it open, innovative and free.]

Americans are increasingly living their lives online and taking advantage of all the benefits that the Internet has to offer. Consumers do things online today that were unthinkable even a handful of years ago: shopping for houses, maintaining personal medical records, or searching for friends sitting at nearby coffee shops. But they remain justifiably apprehensive about the privacy and security of the information they share with companies and divulge online.

It has become more and more difficult for consumers to keep track of when, where, how, and to whom their information is disclosed. That difficulty is exacerbated by the trend towards greater distribution and data-sharing (part of the “Web 2.0� revolution). Meanwhile, high-tech scammers are seizing on these trends, capitalizing on consumers’ access to more content from more sources on an increasing array of devices, to find new opportunities to commit fraud. Left unchecked, these developments may leave consumers open to privacy invasion while undermining the trust necessary for commerce to thrive online.
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War, financial crisis and the fate of a nation hanging in the balance. It sounds like a back-of-the-envelope outline for a spy novel, but it’s actually the current political climate in the U.S. Given that, it’s no surprise that discussion of Internet and technology issues is adrift, and that civil liberties protection has been pushed to the margins during this intense political season.

And yet this election cycle provides a great window of opportunity. The President and Congress will have a chance to take a fresh look at the challenges and opportunities of the Internet and set a policy course for this vital medium that will keep it open, innovative and free.

We often take the Internet for granted. In a short time it has become a powerful engine for innovation, economic growth and democratization. The Internet has changed the way we “do” politics. Ordinary Americans are making their voices heard and organizing online. Political candidates are building online networks of supporters, raising unprecedented funds from small donors, and educating the public on their policies and visions.

A few months ago CDT started a dialogue on what we believe are the key issues impacting the digital work-a-day world where most of us are spending an increasing amount of time. The ideas and feedback flowing from that discussion will help us craft a kind of blueprint for technology policy for use by the new Administration, noting things that can be done right now while also providing a strategy for achieving longer term goals.

Starting this week and following through until the election, CDT will focus on specific issue areas and write about each of them here on our Policy Beta blog. Our President, Leslie Harris, will add another level of insight and commentary on the issue in a companion article published in her Huffington Post column. And for those that want a daily dose of policy prognostication —in 140 characters or less—you can follow our efforts via Twitter.

We encourage you to push these blog postings out to your friends, family, forums and social networks. We welcome comments, criticisms and suggestions, all of which will help us sharpen our message and hone our suggestions for the next Administration and Congress.

An article in the Washington Post today reported on the use by health and life insurers of identifiable prescription drug records to make coverage decisions. This data is actually acquired by companies that act as data brokers or analysts on behalf of insurers, and individuals applying for insurance consent to having their prescription drug data gathered and used for this purpose. The article further notes that the gathering of this data will be even easier when this information is stored in electronic health records.

This article exposes the limits of relying on individual consent to protect sensitive health information. The companies mentioned in the article (Ingenix, Milliman) who mine this data all claim to have relied on consent to obtain sensitive prescription drug histories. It’s no surprise that these individuals consented to having this information gathered about them – they had no other choice. When you need health or life insurance, or if you are seeking medical care, you will sign whatever form is put in front of you.

The article also exposes the limits of the federal privacy rules under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which gives the federal government no basis to go after Ingenix or Milliman or any other intermediary entity for any misuse of health information or data breaches.

If the public doesn’t trust that electronic health record systems will protect their privacy, we will never make further progress toward achieving an interconnected health data system that improves care. This article demonstrates clearly that patient consent is not the answer. Instead, we need clear limits on uses of an individual’s health information that are applicable to “downstream� entities that use or hold this information, as well as aggressive monitoring and enforcement of the law.