This seems to be good news. Many of the recommendations in the original bill, Missouri HB 1138, seem to be intact. The only concern I do not see addressed is whether the citizens of Missouri will be able to request information from the Missouri Information Analysis Center under open government laws or freedom of information requests.
The battle is not yet over. Missouri HB 1138 is no longer under consideration, and a new bill would need to be filed for the 2010 session. Any Missourian reading this should contact Rep. Jim Guest, sponsor of the bill, and encourage him to refile it. According to the article, the filing of bills for the new session begins December 1.
Nonetheless, this is encouraging news...the fruit of much hard work by activists and legislators alike.
From the Springfield News-Leader, 16 October 2009:
A panel of state lawmakers is recommending the General Assembly provide greater oversight of the type of intelligence-gathering activities a controversial state agency can perform.
Since March, the Missouri Information Analysis Center has been under scrutiny for an intelligence report it sent law enforcement agencies across the state about the "modern militia movement."
The report suggested people who oppose abortion, resist paying federal income taxes and support third-party political candidates may be linked to violent militias. The report sparked outrage among social conservatives who believed it instructed police officers to target those exercising right-wing political speech as potential militia members.
Read more at:
http://www.news-leader.com/article/20091016/NEWS01/910160334/MIAC-changes-proposed-after-controversial-report
Tuesday, November 3, 2009
Saturday, October 31, 2009
Obama's "Individual Mandate": Why the Requirement to Purchase Health Insurance is Unconstitutional
Recently, provisions of the health care bill were discussed in the Senate Finance Committee. Senator Orrin Hatch asked whether the federal government under the Constitution could force all Americans to purchase health insurance, or face fines or additional taxes. Hatch claimed that the Commerce Clause of the Constitution could not be used to require citizens to purchase goods or services they may not want to buy. In an article in CNSNews.com, White House spokesman Robert Gibbs claimed there is no “veracity” to this argument and said that there is no federal court precedent to support Hatch’s claim on unconstitutionality.
Would such a requirement be constitutional? Let us begin by examining the Commerce Clause. This is Article I, Section 8 of the Constitution. Only 16 words long, it is succinct and a bit enigmatic: Congress shall have power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Over the years, the Supreme Court has interpreted the Commerce Clause in wildly divergent ways. In some cases, the Court has given Congress almost unlimited power to regulate almost all interstate commerce--to the exclusion of the states--but, in other cases, the federal and state governments are seen as having mutually exclusive, separate rights to regulate commercial activity. And this isn’t even a complete representation of the interpretations the Supreme Court has offered.
The proposal to mandate all Americans to purchase health insurance can similarly be defended or undermined using the Commerce Clause. Particularly at question would be persons who decide either not to purchase health insurance or who pay for health services out of pocket.
A case justifying the requirement might be Wickard v. Filburn (1942). Unbelievably, the Court held that a farmer who grew wheat on his own property--for his own exclusive use--was a threat to interstate commerce and therefore violated federal agricultural regulations. If other farmers did the same thing, the Court reasoned, they would not need to purchase wheat on the open market, which would have an impact on interstate economies and commerce. It is not much of a logical leap to think that large numbers of people who choose not to buy health insurance would have a similar impact.
Andrew Napolitano, in an editorial for the Wall Street Journal, cites a Supreme Court case that would invalidate Obama’s proposal for an individual mandate to buy health insurance. In U.S. v. Lopez (1995), a public school student who carried a gun to school was charged with violating a federal law, the Gun-Free School Zones Act of 1990. The student appealed the conviction, saying that this law was unconstitutional under the Commerce Clause--and the conviction was overturned by the federal Court of Appeals for the Fifth Circuit. The Supreme Court upheld this decision, saying that this statute “was a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms“ (U.S. v. Lopez). As Napolitano points out, the primary work of physicians and other health care professionals is to heal the sick, and is not at its heart a commercial activity--so it may be argued that federal regulation of health insurance and healthcare is unconstitutional.
There may be yet other constitutional issues with the individual mandate proposal. The Federalist Society for Law and Public Policy Studies points out that some people may not choose to buy insurance for religious reasons; these people would not seek health care at all. Requiring them to purchase insurance would violate their free exercise of religion under the First Amendment. It is even more troubling to consider that this proposal may represent the unconstitutional “taking” of property; under the Fifth Amendment, persons cannot be “deprived of life, liberty, or property, without due process of law.”
Although I have not found this explicitly stated, this mandate shows a disregard for state sovereignty, something which is supposed to be protected under the Tenth Amendment. I believe this is what Rehnquist meant when he alluded to Wickard v. Filburn and similar cases. He voiced concern that Congress could have too much power in regulating commerce between the states; its power “may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them…would effectively obliterate the distinction between what is national and what is local and create a completely centralized government” (U.S. v. Lopez). This scenario is downright chilling.
If the White House spokesman is looking for federal court precedent showing that Obama’s individual mandate is unconstitutional, the Lopez case would argue powerfully against the proposal. And of course, if our representatives and senators were required to show constitutional justification for all the bills they wrote, we might never contend with legislation as disastrous as this.
Sources:
CNSNews.com: "White House Says No 'Veracity' to Argument that Forcing Individuals to Buy Health Insurance is Unconstitutional
http://www.cnsnews.com/news/article/56264
Commerce Clause Limitations on State Regulation
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/statecommerce.htm
Andrew Napolitano, “Health-Care Reform and the Constitution”
http://online.wsj.com/article/SB10001424052970203917304574412793406386548.html
United States v. Lopez
http://www.law.cornell.edu/supct/html/93-1260.ZO.html
Federalist Society for Law and Public Policy Studies, “Constitutional Implications of an ‘Individual Mandate’ in Health Care Reform”
http://www.fed-soc.org/publications/pubid.1502/pub_detail.asp
\
Would such a requirement be constitutional? Let us begin by examining the Commerce Clause. This is Article I, Section 8 of the Constitution. Only 16 words long, it is succinct and a bit enigmatic: Congress shall have power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Over the years, the Supreme Court has interpreted the Commerce Clause in wildly divergent ways. In some cases, the Court has given Congress almost unlimited power to regulate almost all interstate commerce--to the exclusion of the states--but, in other cases, the federal and state governments are seen as having mutually exclusive, separate rights to regulate commercial activity. And this isn’t even a complete representation of the interpretations the Supreme Court has offered.
The proposal to mandate all Americans to purchase health insurance can similarly be defended or undermined using the Commerce Clause. Particularly at question would be persons who decide either not to purchase health insurance or who pay for health services out of pocket.
A case justifying the requirement might be Wickard v. Filburn (1942). Unbelievably, the Court held that a farmer who grew wheat on his own property--for his own exclusive use--was a threat to interstate commerce and therefore violated federal agricultural regulations. If other farmers did the same thing, the Court reasoned, they would not need to purchase wheat on the open market, which would have an impact on interstate economies and commerce. It is not much of a logical leap to think that large numbers of people who choose not to buy health insurance would have a similar impact.
Andrew Napolitano, in an editorial for the Wall Street Journal, cites a Supreme Court case that would invalidate Obama’s proposal for an individual mandate to buy health insurance. In U.S. v. Lopez (1995), a public school student who carried a gun to school was charged with violating a federal law, the Gun-Free School Zones Act of 1990. The student appealed the conviction, saying that this law was unconstitutional under the Commerce Clause--and the conviction was overturned by the federal Court of Appeals for the Fifth Circuit. The Supreme Court upheld this decision, saying that this statute “was a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms“ (U.S. v. Lopez). As Napolitano points out, the primary work of physicians and other health care professionals is to heal the sick, and is not at its heart a commercial activity--so it may be argued that federal regulation of health insurance and healthcare is unconstitutional.
There may be yet other constitutional issues with the individual mandate proposal. The Federalist Society for Law and Public Policy Studies points out that some people may not choose to buy insurance for religious reasons; these people would not seek health care at all. Requiring them to purchase insurance would violate their free exercise of religion under the First Amendment. It is even more troubling to consider that this proposal may represent the unconstitutional “taking” of property; under the Fifth Amendment, persons cannot be “deprived of life, liberty, or property, without due process of law.”
Although I have not found this explicitly stated, this mandate shows a disregard for state sovereignty, something which is supposed to be protected under the Tenth Amendment. I believe this is what Rehnquist meant when he alluded to Wickard v. Filburn and similar cases. He voiced concern that Congress could have too much power in regulating commerce between the states; its power “may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them…would effectively obliterate the distinction between what is national and what is local and create a completely centralized government” (U.S. v. Lopez). This scenario is downright chilling.
If the White House spokesman is looking for federal court precedent showing that Obama’s individual mandate is unconstitutional, the Lopez case would argue powerfully against the proposal. And of course, if our representatives and senators were required to show constitutional justification for all the bills they wrote, we might never contend with legislation as disastrous as this.
Sources:
CNSNews.com: "White House Says No 'Veracity' to Argument that Forcing Individuals to Buy Health Insurance is Unconstitutional
http://www.cnsnews.com/news/article/56264
Commerce Clause Limitations on State Regulation
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/statecommerce.htm
Andrew Napolitano, “Health-Care Reform and the Constitution”
http://online.wsj.com/article/SB10001424052970203917304574412793406386548.html
United States v. Lopez
http://www.law.cornell.edu/supct/html/93-1260.ZO.html
Federalist Society for Law and Public Policy Studies, “Constitutional Implications of an ‘Individual Mandate’ in Health Care Reform”
http://www.fed-soc.org/publications/pubid.1502/pub_detail.asp
\
Tuesday, October 27, 2009
An Answer to a Comment on "Detecting Thoughtcrime," Posted on American Buddhist Net
A few weeks back, I wrote the article, "Detecting Thoughtcrime: DHS FAST Technology, Orwellian Fantasy Made Reality." I posted the article to the Daily Paul and got exactly zero comments, so I stopped thinking about it.
This morning I was bumping around the Internet and discovered that a site had found my article and had posted it. The site, interestingly enough, was not a political or civil liberties site at all, but a site called American Buddhist Net. This was a bit exciting to me; when I am not researching and reading for this blog, one of the things I love to read best are books about Zen Buddhism. So I was very curious to see what might have been said about this article.
The article received one comment, signed ABN. I am not sure if this was the work of the site owner or a member of the site. This person had a very curious response to the concept of using technology to read thoughts:
I definitely see all the problems with this technology in the hands of the DHS, but let's put that aside for a moment.
Technology like this will surely become cheaper, smaller, and more accurate. The day will soon come, I hope, when portable units will be sold as consumer items.
Imagine having one of these things in your home. Or one so portable a person could wear it all the time, allowing others to constantly check on their honesty, moods, true feelings, and so on.
This may sound horrible, but I think it would be wonderful. The really massive elephant in the room today is so many of us are lying or hiding our feelings so much of the time. With technology like this, all that will be over (assuming it works well). No one will be able to lie or pretend to feel something they don't.
It will take the world a few years to get used to it, but after a while I think people will love it. In a short time, we will all learn that human emotions and social presentations are filled with fake nonsense that no one will need to care about any more. I have a feeling there will be peals of laughter as we all start realizing that most of us are completely full of it and only play the games we play because we think we have to.
People will probably look back at the way we are now in the same way - though magnified many times - that we look back on the 1950s and earlier when no one dared to admit they had ever masturbated.
Moreover, imagine using this thing on members of Congress, police, and other government officials. ABN
(Source: American Buddhist Net http://www.americanbuddhist.net/detecting-thoughtcrime-dhs-fast-technology-orwellian-fantasy-made-reality).
Well, ABN, I am not so sure this response was presented in the best Buddhist spirit. Let me begin by not setting aside the fact that this technology, intended to detect malicious thoughts of potential terrorists, is being developed by the Department of Homeland Security. DHS intends to use FAST technology at airports and border crossings, and they intend to use it on everyone who is being screened. That means that all people, no matter who they are, are considered to be potential terrorists until they pass through this "FAST room" without setting off an alarm. Lao Tzu, in the Tao Te Ching--written about 500 B.C.--had something relevant to say about the reaction of people who believe themselves to be oppressed by government:
If a country is governed with tolerance,
the people are comfortable and honest.
If a country is governed with repression,
The people are depressed and crafty.
(Tao Te Ching, 58)
Many people, it is true, will respond to repression by bowing their heads, doing their best not to be remarkable, doing nothing to attract attention. But others, no matter how government tries to shape their morals or behavior using law, will feel oppressed and answer with rebellion. Indeed, in some people, this weighty force will only produce undesirable behavior; it is as the repression itself forcefully separates people from finding their true selves, and whatever source of happiness and good behavior they might naturally have discovered on their own. This is what Lao Tzu meant when he wrote of the limitations of the "will to power":
When the will to power is in charge,
the higher the ideals, the lower the results.
Try to make people happy,
and you lay the groundwork for misery.
Try to make people moral,
and you lay the groundwork for vice.
(Tao Te Ching, 58)
Nothing is more invasive than the use of technology to read thoughts. Western thinkers would say that the mind is our most private of homes; of course Eastern philosophy denies this concept of the mind as separate from the rest of the world. But even if we live in the great stream that is everything, does this give us the right to examine the thoughts of others? (In fact, your idea that this "thought-reading box" would be a great idea seems to be suspiciously based on a Western concept of the mind as separate. But I will set this aside). Our minds and our thoughts should be what we most want to remain free; the state can imprison our bodies, but if we possess Liberty for ourselves, the state cannot imprison or examine our thoughts. This is why the works of Anne Frank and Alexander Solhenitsyn are so remarkable; they endured inhuman conditions, but their minds remained free and unfettered.
But you want this technology for yourself, assuming it becomes more portable and more accurate. I can't speak for you--I can only speak for myself--but I cannot imagine wanting to examine everyone's most intimate thoughts for the purpose of exposing their falseness or self-deception. I have enough difficulty understanding my own relationship to the world, and the influence of my delusions, desires, and self-deceptions. And my own path involves working to discover these things about myself and those I care about, not using a little electronic box to find these things for me.
What, ultimately, is the spiritual purpose of examining deception, honesty, and the true feelings of others? Lao-Tzu tells us that we should be good to those who are good and to those who are not good, and trust people who are trustworthy and who are not trustworthy. In a world of compassion and openness, would anyone want to examine the shortcomings of others simply in order to ridicule them?
In Lao-Tzu's "country governed with tolerance," it is unlikely that the government would want to use technology like this. Dominance, coercion, fear and spying make no sense if everything is seen as intimately interconnected.
Perhaps you agree, because I suspect your desire for a "portable FAST unit" wasn't real at all. You were looking for a clever way of exposing the absurdity of the thoughts and feelings of the rest of us--the ones you've decided aren't nearly so sage and wise as you.
This morning I was bumping around the Internet and discovered that a site had found my article and had posted it. The site, interestingly enough, was not a political or civil liberties site at all, but a site called American Buddhist Net. This was a bit exciting to me; when I am not researching and reading for this blog, one of the things I love to read best are books about Zen Buddhism. So I was very curious to see what might have been said about this article.
The article received one comment, signed ABN. I am not sure if this was the work of the site owner or a member of the site. This person had a very curious response to the concept of using technology to read thoughts:
I definitely see all the problems with this technology in the hands of the DHS, but let's put that aside for a moment.
Technology like this will surely become cheaper, smaller, and more accurate. The day will soon come, I hope, when portable units will be sold as consumer items.
Imagine having one of these things in your home. Or one so portable a person could wear it all the time, allowing others to constantly check on their honesty, moods, true feelings, and so on.
This may sound horrible, but I think it would be wonderful. The really massive elephant in the room today is so many of us are lying or hiding our feelings so much of the time. With technology like this, all that will be over (assuming it works well). No one will be able to lie or pretend to feel something they don't.
It will take the world a few years to get used to it, but after a while I think people will love it. In a short time, we will all learn that human emotions and social presentations are filled with fake nonsense that no one will need to care about any more. I have a feeling there will be peals of laughter as we all start realizing that most of us are completely full of it and only play the games we play because we think we have to.
People will probably look back at the way we are now in the same way - though magnified many times - that we look back on the 1950s and earlier when no one dared to admit they had ever masturbated.
Moreover, imagine using this thing on members of Congress, police, and other government officials. ABN
(Source: American Buddhist Net http://www.americanbuddhist.net/detecting-thoughtcrime-dhs-fast-technology-orwellian-fantasy-made-reality).
Well, ABN, I am not so sure this response was presented in the best Buddhist spirit. Let me begin by not setting aside the fact that this technology, intended to detect malicious thoughts of potential terrorists, is being developed by the Department of Homeland Security. DHS intends to use FAST technology at airports and border crossings, and they intend to use it on everyone who is being screened. That means that all people, no matter who they are, are considered to be potential terrorists until they pass through this "FAST room" without setting off an alarm. Lao Tzu, in the Tao Te Ching--written about 500 B.C.--had something relevant to say about the reaction of people who believe themselves to be oppressed by government:
If a country is governed with tolerance,
the people are comfortable and honest.
If a country is governed with repression,
The people are depressed and crafty.
(Tao Te Ching, 58)
Many people, it is true, will respond to repression by bowing their heads, doing their best not to be remarkable, doing nothing to attract attention. But others, no matter how government tries to shape their morals or behavior using law, will feel oppressed and answer with rebellion. Indeed, in some people, this weighty force will only produce undesirable behavior; it is as the repression itself forcefully separates people from finding their true selves, and whatever source of happiness and good behavior they might naturally have discovered on their own. This is what Lao Tzu meant when he wrote of the limitations of the "will to power":
When the will to power is in charge,
the higher the ideals, the lower the results.
Try to make people happy,
and you lay the groundwork for misery.
Try to make people moral,
and you lay the groundwork for vice.
(Tao Te Ching, 58)
Nothing is more invasive than the use of technology to read thoughts. Western thinkers would say that the mind is our most private of homes; of course Eastern philosophy denies this concept of the mind as separate from the rest of the world. But even if we live in the great stream that is everything, does this give us the right to examine the thoughts of others? (In fact, your idea that this "thought-reading box" would be a great idea seems to be suspiciously based on a Western concept of the mind as separate. But I will set this aside). Our minds and our thoughts should be what we most want to remain free; the state can imprison our bodies, but if we possess Liberty for ourselves, the state cannot imprison or examine our thoughts. This is why the works of Anne Frank and Alexander Solhenitsyn are so remarkable; they endured inhuman conditions, but their minds remained free and unfettered.
But you want this technology for yourself, assuming it becomes more portable and more accurate. I can't speak for you--I can only speak for myself--but I cannot imagine wanting to examine everyone's most intimate thoughts for the purpose of exposing their falseness or self-deception. I have enough difficulty understanding my own relationship to the world, and the influence of my delusions, desires, and self-deceptions. And my own path involves working to discover these things about myself and those I care about, not using a little electronic box to find these things for me.
What, ultimately, is the spiritual purpose of examining deception, honesty, and the true feelings of others? Lao-Tzu tells us that we should be good to those who are good and to those who are not good, and trust people who are trustworthy and who are not trustworthy. In a world of compassion and openness, would anyone want to examine the shortcomings of others simply in order to ridicule them?
In Lao-Tzu's "country governed with tolerance," it is unlikely that the government would want to use technology like this. Dominance, coercion, fear and spying make no sense if everything is seen as intimately interconnected.
Perhaps you agree, because I suspect your desire for a "portable FAST unit" wasn't real at all. You were looking for a clever way of exposing the absurdity of the thoughts and feelings of the rest of us--the ones you've decided aren't nearly so sage and wise as you.
Sunday, October 18, 2009
Being An American Essay Contest
This was passed on to me by one of my blogwatchers, a homeschooling mom named Megan. This is one of the biggest essay contests in the country, with about 31,000 high school students from all 50 states participating last year. This is sponsored by the Bill of Rights Foundation, along with some corporate sponsors, and the top prize is $5,000!
This year's essay topic: "What civic value do you believe is most essential to being an American?"
Students nowadays don't spend much time thinking about their identity as Americans--what a wonderful way to get them started. Feel free to share this information with any highschooler you know.
Read more here:
http://www.beinganamerican.org/
This year's essay topic: "What civic value do you believe is most essential to being an American?"
Students nowadays don't spend much time thinking about their identity as Americans--what a wonderful way to get them started. Feel free to share this information with any highschooler you know.
Read more here:
http://www.beinganamerican.org/
Wednesday, October 14, 2009
Detecting Thoughtcrime: DHS FAST Technology, Orwellian Fantasy Made Reality
Imagine a technology that would allow DHS and TSA to detect a potential terrorist before he enters the country or boards an aircraft--a technology designed not to detect explosives or weapons, but anyone with a malicious thought. Science fiction?
In 2007, the Department of Homeland Security’s Science and Technology Directorate began development of a new terrorist screening tool, Future Attribute Screening Technology (FAST). Developed by DHS and the Draper Laboratory, FAST would read involuntary physiological cues that indicate “malintent.” Various sensors would detect eye movements and pupil dilation, heart rate and rhythm, breathing, speech patterns, thermal changes on the face, and even pheromones. Researchers also modified a Wii balance board to detect fidgeting.
Two years and 20 million dollars later, the first real demonstration of this technology was staged at Boston’s Draper Laboratory, a lab with several Nobel laureates. Actors entered a room with the sensors, where they were asked questions such as “do you plan to detonate an explosive?” and their physiological responses were measured and evaluated for criminal intent. In a test done a year earlier, subjects were asked to act shifty and think hostile thoughts--and FAST detected malintent 78% of the time, and deception 80% of the time.
Once perfected, DHS would like to use FAST in airport screenings and at border crossings. A recent report on CNN.com says FAST is the technology that would allow the return of the “days of being able to walk through airport security checkpoints while wearing shoes and a jacket.” But at what price convenience?
At the current error rate of 20 percent, many people could be detained for further questioning or screening. For this secondary screening, DHS would use machinery designed to detect facial expressions too tiny for any human observer to notice. But this assumes that the technology really detects hostile terrorist intentions to begin with--and some behavioral scientists, such as Stephen Fienberg of Carnegie Mellon University, are skeptical that signals from the autonomic nervous system can be used to determine criminal intent. FAST is too similar to the technology used in lie detector tests, long considered to be unreliable and not admissible as evidence in courts.
Civil libertarians complain that FAST’s use of a person’s physiological processes is an invasion of privacy. DHS counters that they protect individual privacy by erasing results after each screening. Indeed, Homeland Security believes that this technology would make profiling obsolete, and in a privacy impact assessment touts FAST as “non-invasive.”
DHS believes that this screening is non-invasive because the sensors would not physically touch those who are being screened. But it is very invasive to use the body’s signals to read the minds of passengers. FAST is a severe test of the Fourth Amendment, which assures the “right of the people to be secure in their persons…against unreasonable searches and seizures.” The measure of criminal intent, indeed, stretches the concept of “probable cause” beyond credulity. These are not persons with weapons or explosives that would be detained and questioned; these are persons who set off an alarm--some indeed may have had thoughts of committing terrorism, but others might have simply come to the airport in a hurry or in a foul mood. Now concerned with catching Thoughtcrime, DHS has become Orwell's Thought Police. Air travelers will pay the price for security by allowing their thoughts to be searched.
References:
New Scientist, "Pre-Crime" Detector Shows Promise:
http://www.newscientist.com/blogs/shortsharpscience/2008/09/precrime-detector-is-showing-p.html
Boston Globe, 18 September 2009, "Spotting a Terrorist":
http://www.boston.com/news/science/articles/2009/09/18/spotting_a_terrorist/
CNN, "Will Airports Screen For Body Signals? Researchers Hope So":
http://edition.cnn.com/2009/TECH/10/06/security.screening/index.html#cnnSTCText
R-Tech Newsletter, vol 1, issue 9, December 2008, "Actions Speak Louder Than Words: Physiological Sensors Help Security Screeners Improve Travel Safety":
http://www.firstresponder.gov/NewsLetters/December%202008.pdf
Department of Homeland Security, Privacy Impact Assessment for the Future Attribute Screening Technology (FAST) Project, 15 December 2008:
http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_st_fast.pdf
Draper Laboratory Website:
http://www.draper.com/
In 2007, the Department of Homeland Security’s Science and Technology Directorate began development of a new terrorist screening tool, Future Attribute Screening Technology (FAST). Developed by DHS and the Draper Laboratory, FAST would read involuntary physiological cues that indicate “malintent.” Various sensors would detect eye movements and pupil dilation, heart rate and rhythm, breathing, speech patterns, thermal changes on the face, and even pheromones. Researchers also modified a Wii balance board to detect fidgeting.
Two years and 20 million dollars later, the first real demonstration of this technology was staged at Boston’s Draper Laboratory, a lab with several Nobel laureates. Actors entered a room with the sensors, where they were asked questions such as “do you plan to detonate an explosive?” and their physiological responses were measured and evaluated for criminal intent. In a test done a year earlier, subjects were asked to act shifty and think hostile thoughts--and FAST detected malintent 78% of the time, and deception 80% of the time.
Once perfected, DHS would like to use FAST in airport screenings and at border crossings. A recent report on CNN.com says FAST is the technology that would allow the return of the “days of being able to walk through airport security checkpoints while wearing shoes and a jacket.” But at what price convenience?
At the current error rate of 20 percent, many people could be detained for further questioning or screening. For this secondary screening, DHS would use machinery designed to detect facial expressions too tiny for any human observer to notice. But this assumes that the technology really detects hostile terrorist intentions to begin with--and some behavioral scientists, such as Stephen Fienberg of Carnegie Mellon University, are skeptical that signals from the autonomic nervous system can be used to determine criminal intent. FAST is too similar to the technology used in lie detector tests, long considered to be unreliable and not admissible as evidence in courts.
Civil libertarians complain that FAST’s use of a person’s physiological processes is an invasion of privacy. DHS counters that they protect individual privacy by erasing results after each screening. Indeed, Homeland Security believes that this technology would make profiling obsolete, and in a privacy impact assessment touts FAST as “non-invasive.”
DHS believes that this screening is non-invasive because the sensors would not physically touch those who are being screened. But it is very invasive to use the body’s signals to read the minds of passengers. FAST is a severe test of the Fourth Amendment, which assures the “right of the people to be secure in their persons…against unreasonable searches and seizures.” The measure of criminal intent, indeed, stretches the concept of “probable cause” beyond credulity. These are not persons with weapons or explosives that would be detained and questioned; these are persons who set off an alarm--some indeed may have had thoughts of committing terrorism, but others might have simply come to the airport in a hurry or in a foul mood. Now concerned with catching Thoughtcrime, DHS has become Orwell's Thought Police. Air travelers will pay the price for security by allowing their thoughts to be searched.
References:
New Scientist, "Pre-Crime" Detector Shows Promise:
http://www.newscientist.com/blogs/shortsharpscience/2008/09/precrime-detector-is-showing-p.html
Boston Globe, 18 September 2009, "Spotting a Terrorist":
http://www.boston.com/news/science/articles/2009/09/18/spotting_a_terrorist/
CNN, "Will Airports Screen For Body Signals? Researchers Hope So":
http://edition.cnn.com/2009/TECH/10/06/security.screening/index.html#cnnSTCText
R-Tech Newsletter, vol 1, issue 9, December 2008, "Actions Speak Louder Than Words: Physiological Sensors Help Security Screeners Improve Travel Safety":
http://www.firstresponder.gov/NewsLetters/December%202008.pdf
Department of Homeland Security, Privacy Impact Assessment for the Future Attribute Screening Technology (FAST) Project, 15 December 2008:
http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_st_fast.pdf
Draper Laboratory Website:
http://www.draper.com/
Saturday, September 26, 2009
Introduction to the Series: Laws on Forced Vaccination, Quarantine and Isolation
My original question was simple. I wanted to see what laws pertain to forced vaccination and quarantine, and whether fears concerning forced vaccination were justified. I began with federal laws, continued with an examination of the Model State Emergency Health Powers Act, and ended with an examination of the laws of my own state, Maryland.
What did I learn from this exercise? Though the powers of the federal government are limited by the Tenth Amendment, the ability of the federal government to control movement of infected individuals into this country and from state to state, along with the powers of the state of Maryland, nonetheless makes for severe limitations on the civil liberties of the masses during a time of pandemic health emergency. Those who are believed to have been exposed to contagious disease can be restricted from travel, and also may be confined to their own homes or sent to common areas of quarantine and isolation--and these restrictions may be enforced by militia power. The civil rights of health care workers would be especially compromised during such a time of emergency. In Maryland, they would be required to follow the directives of the Governor, regardless of what objections they may have to enforcing provisions of compulsory medical treatment, vaccination, or quarantine.
The fullest discussion of this issue would have also included the influence of the Stafford Act, which outlines the powers of FEMA during emergencies--including pandemic health emergencies--and a consideration of the Supreme Court case Jacobson v. Massachusetts (1905). In this case, Jacobson resisted mandatory smallpox vaccination, saying that he had already had adverse reactions to the vaccine in the past, but the Supreme Court upheld that the public health needs of the state outweighed his right to remain free of the vaccination. Even though this is a case over 100 years old, it still has the force of precedent and has been used as such in cases as diverse as Buck v. Bell (1927), which justified the involuntary sterilization of persons in mental institutions, and Roe v. Wade (1973). We'll see if I add articles on these in the future--I need a break from research on public health law.
If you are reading this and you are not from Maryland, I encourage you to research the laws of your own state. And to those who have seen the many YouTube videos about forced vaccination and quarantine concerning the impending swine flu outbreak, I make no judgement about their accuracy. My intention is to provide information about the laws regarding these matters. Once you read this series, perhaps you may decide civil disobedience is the best option to protect your civil liberties--or perhaps you will prefer to work within your state's laws to assure your freedom from the arbitrary enforcement of public health laws.
Here are the articles in order, with the links:
1. Can the Federal Government Force Vaccination or Quarantine?
http://periculosae.blogspot.com/2009/08/can.html
2. Can the Federal Government Force Vaccination or Quarantine: A Brief Addendum, Regarding Presidential Executive Orders:
http://periculosae.blogspot.com/2009/08/can-federal-government-force.html
3. Politico: Obama Team Mulls New Quarantine Regulations:
http://periculosae.blogspot.com/2009/08/politico-obama-team-mulls-new.html
4. The Model States Emergency Health Powers Act: A Civil Liberties Nightmare:
http://periculosae.blogspot.com/2009/09/model-state-emergency-health-powers-act.html
5. 10 States and 1 U.S. Territory Have Declared Public Health Emergencies:
http://periculosae.blogspot.com/2009/09/10-states-and-1-us-territory-have.html
6. Fear and Contagion: Current Maryland Law on Forced Quarantine, Isolation and Vaccination:
http://periculosae.blogspot.com/2009/09/fear-and-contagion-current-maryland-law.html
What did I learn from this exercise? Though the powers of the federal government are limited by the Tenth Amendment, the ability of the federal government to control movement of infected individuals into this country and from state to state, along with the powers of the state of Maryland, nonetheless makes for severe limitations on the civil liberties of the masses during a time of pandemic health emergency. Those who are believed to have been exposed to contagious disease can be restricted from travel, and also may be confined to their own homes or sent to common areas of quarantine and isolation--and these restrictions may be enforced by militia power. The civil rights of health care workers would be especially compromised during such a time of emergency. In Maryland, they would be required to follow the directives of the Governor, regardless of what objections they may have to enforcing provisions of compulsory medical treatment, vaccination, or quarantine.
The fullest discussion of this issue would have also included the influence of the Stafford Act, which outlines the powers of FEMA during emergencies--including pandemic health emergencies--and a consideration of the Supreme Court case Jacobson v. Massachusetts (1905). In this case, Jacobson resisted mandatory smallpox vaccination, saying that he had already had adverse reactions to the vaccine in the past, but the Supreme Court upheld that the public health needs of the state outweighed his right to remain free of the vaccination. Even though this is a case over 100 years old, it still has the force of precedent and has been used as such in cases as diverse as Buck v. Bell (1927), which justified the involuntary sterilization of persons in mental institutions, and Roe v. Wade (1973). We'll see if I add articles on these in the future--I need a break from research on public health law.
If you are reading this and you are not from Maryland, I encourage you to research the laws of your own state. And to those who have seen the many YouTube videos about forced vaccination and quarantine concerning the impending swine flu outbreak, I make no judgement about their accuracy. My intention is to provide information about the laws regarding these matters. Once you read this series, perhaps you may decide civil disobedience is the best option to protect your civil liberties--or perhaps you will prefer to work within your state's laws to assure your freedom from the arbitrary enforcement of public health laws.
Here are the articles in order, with the links:
1. Can the Federal Government Force Vaccination or Quarantine?
http://periculosae.blogspot.com/2009/08/can.html
2. Can the Federal Government Force Vaccination or Quarantine: A Brief Addendum, Regarding Presidential Executive Orders:
http://periculosae.blogspot.com/2009/08/can-federal-government-force.html
3. Politico: Obama Team Mulls New Quarantine Regulations:
http://periculosae.blogspot.com/2009/08/politico-obama-team-mulls-new.html
4. The Model States Emergency Health Powers Act: A Civil Liberties Nightmare:
http://periculosae.blogspot.com/2009/09/model-state-emergency-health-powers-act.html
5. 10 States and 1 U.S. Territory Have Declared Public Health Emergencies:
http://periculosae.blogspot.com/2009/09/10-states-and-1-us-territory-have.html
6. Fear and Contagion: Current Maryland Law on Forced Quarantine, Isolation and Vaccination:
http://periculosae.blogspot.com/2009/09/fear-and-contagion-current-maryland-law.html
Tuesday, September 22, 2009
Fear and Contagion: Current Maryland Law on Forced Quarantine, Isolation and Vaccination
Enforced Quarantine: The Lessons of History
Few people recall the actions of government during a time of true pandemic--the great influenza of 1918 was ninety years ago, and the last U.S. case of smallpox was in 1949--but history is still instructive. In the late nineteenth century, public health officials regularly used quarantine and forced vaccination as a means to contain pandemic disease. In a famous case in 1893, in Muncie, Indiana, public health officials reacted to an outbreak of smallpox by forcing citizens to remain in their homes, thereby keeping the infected contained with the uninfected, and sending armed patrols through entire neighborhoods that were quarantined. The people of Muncie did not agree with home quarantine--many believed the outbreak to be chickenpox--and anger grew when mandatory vaccination began. Infected rags were thrown over fences. When home quarantine did not stay the spread of smallpox, ambulance attendants were sent to bring the infected to hospital, but citizens shot them. Public officials were shot as well.
In an similar incident in 1893 in Milwaukee, Wisconsin, officials were forced to give up evacuation of patients ill with smallpox:
“On Saturday evening, August 25th, between four and five o’clock, one of the officers of the health department was sent to remove a patient, a child, from 561 Fifteenth Avenue, from the rear. The party of this place…had notified the quarantine officers that any person coming there to remove the child would be shot, and he procured a revolver and lay in wait for the health officer. A mob congregated, and when the ambulance drove up with a squad of twelve policemen violent demonstrations began, stones were thrown, the horses struck with the missiles, and a general melee commenced. The official in charge of the police stated to the health officer that he had not sufficient force to disperse the mob and he would not undertake to do so. The mob was armed with clubs and missiles, the horses were being constantly struck, the health officials resisted, and it was therefore impossible in the absence of a sufficient number of police to remove the patient.”
What drives behavior such as this? Is it fear of disease or anger at the interventions of an overbearing government? Such questions linger in the minds of current public health scholars such as Lawrence Gostin, one of the authors of the Model State Emergency Health Powers Act. In an article published in the Journal of the American Medical Association just days before the release of the second draft of the Model Act, the story of the Muncie, Indiana quarantines is related in a section entitled “Mistrust in Government Recommendations Led to Violence.”
In the article, Gostin and his seven coauthors, giving legal, civil liberties, public health and scientific reasons, conclude that “imposition of large-scale quarantine…should not be considered a primary public health strategy in most imaginable circumstances" (Gostin, p. 1). They call for a more precise definition of quarantine and for more flexible, scientifically based quarantine options in state laws. They also recognize that in a more populous, less isolated society with many forms of rapid transportation, the traditional mode of quarantine, in which the movement of individuals is restricted, may not be effective anyway.
It is true that the Model State Emergency Health Powers Act (MSEHPA) shows some concern for the civil rights and liberties of individuals, which they hope to “protect to the fullest extent possible consistent with the primary goal of controlling serious health threats.” But the emergency powers of the governor as outlined by MSEHPA are so extreme that one wonders about Gostin’s motivations in drafting such an act. His fear of the mob is so great that one can envision him holding civil liberties protections in one open hand; the other, a closed fist poised to strike with militia and police powers.
Maryland Law and the Influence of MSEHPA
After the final draft of the Model Act was released on December 31, 2001, legislators in many states moved to adopt provisions from the Act into their own public health laws. At that time, the Heritage Foundation characterized Maryland’s laws concerning public health emergencies as among “the worst in the country.” While this description is not entirely fair--Maryland did not adopt the Model Act wholesale--it is certainly true that the powers of the Governor are extensive under a declared state of public health emergency, and many of these powers were established by legislation clearly influenced by the Model Emergency Health Powers Act.
The 2002 legislative session saw the passage of three bills based on the Model Act. These were Senate 234, “Catastrophic Health Emergencies--Powers of the Governor and the Secretary of Health and Mental Hygiene;” Senate Bill 303, “Governor’s Emergency Powers;” and Senate Bill 240, “State Government--Access to Public Records--Public Security Documents.” Together, these three bills established much of the statutory powers of the Governor during times of catastrophic health emergency, as well as restricting the public’s access to certain public records during these times.
I will be referring not only to the bills, but to the current laws as written in the Annotated Code of Maryland. Though some of the Code has been reorganized and renumbered since 2002, much of the language in these bills has been adopted intact into the existing Annotated Code. What Maryland laws, then, apply during times of a pandemic health emergency?
I will begin, as in the Model Act and Senate Bill 234, with definitions. A “catastrophic health emergency…means a situation in which extensive loss of life or serious disability is threatened imminently because of an exposure to a deadly agent” (Health--General, 14-3A-01 [b]). What is a "deadly agent"? The Annotated Code gives a veritable laundry list of diseases, but also extends this to mean any “viral agent” or “biological agent,” or radiation (14-3A-01, [c] [1 and 2]). Clearly, this list encompasses not only agents used in terrorism, but also covers pandemics, and even the “accidental chemical release” described in the Model Act.
The Governor would then have the power to issue a proclamation--in the form of an executive order--of a catastrophic health emergency. (As we have seen in the previous article I posted, Maryland has already declared such a state of emergency back in May, in response to the H1N1 "swine flu" virus). These proclamations last for 30 day intervals, though the Code allows the Governor to renew the order for “successive periods” of 30 days. Startlingly, there is no mention of a limit to these renewals (Public Safety, 14-107, [3] and [4]).
Still closely following the Model State Emergency Health Powers Act, Senate Bill 234 goes on to outline the Governor’s emergency powers--extensive powers, largely beyond the control of other elected officials and the citizens. By order of the Governor, the Secretary of Health and Mental Hygiene can “seize immediately anything needed to respond…to the catastrophic health emergency (Public Safety, 14-3A-03 [b] [2] [i and ii]). This control over private property can extend to rationing, the “creating and distributing [of] stockpiles," and the power to “gain access to a facility needed to respond to the catastrophic health emergency” (14-3A-03 [b] [2] [i and ii]). The could include any health care facility, as the Model Act envisioned.
The control over persons would be similarly broad. The Governor can order “individuals to submit to medical testing or treatment,” “submit to vaccination,” and “go to an remain in places of isolation or quarantine,” but if an individual refuses to submit to testing, treatment, medical examination, or vaccination, he or she would be required to submit to isolation or quarantine (14-3A-03 [3] [ii]; 13-3A-04).
An aside here. Firstly, what is the difference between quarantine and isolation? I have been unable to find explicit definitions of either term in the Annotated Code. In the Model Act, however, “quarantine” is defined as “the physical separation and confinement of an individual…who may have been exposed to a…disease;” “isolation” is a similar separation and confinement of persons who “are infected…with a contagious disease” (MSEHPA, section 104). The Maryland Code does not use these terms interchangeably, though it always seems to use them together.
Also, the law gives the Governor the power to “establish places of treatment, isolation, and quarantine” (14-3A-03 [3] [iii]). Is it likely that a large proportion of the public will be herded into camps for this purpose? If the Governor follows the law as stated in the Code, it is not. Under Health, General, 18-211, “Moving Infected Individuals,” it is clear that staying at home is preferred; the infected can be moved only if he is “staying in a room occupied by more than 1 family” or “otherwise does not have proper housing” (18-211 [2] [i and ii]). Yet Senate Bill 234 and the Code do not adopt the language of the Model Act, which says that “isolation and quarantine must be by the least restrictive means necessary” (MSEHPA, Section 604 [b] [1]). Even if the law has the same effect as this language--and it may be argued that it does not--its omission perhaps tells us something about the intent of the State in these matters.
Persons who are quarantined or isolated do have some legal recourse, as was proposed in the Model Act, though again, it is questionable what rights any individual may really have under Maryland law. A person may request a hearing in Maryland circuit court to contest the order, but filing such a request “does not stay or enjoin an isolation or quarantine directive” (Public Safety, 14-3A-05). The state has the right to quarantine or isolate for a period of up to 30 days, unless the Secretary determines that the quarantine is needed for “additional 30-day periods” (14-3A-05, [d] [2]), and no limit to these extensions are mentioned. If the State determines that representation of a large number of persons “makes individual participation impractical,” their claims may be consolidated by the State. These claims would be heard by the Maryland Court of Appeals, who also may “adopt emergency rules of procedure to facilitate the efficient adjudication” of these hearings (14-3A-05, [f] [1] [I]; [f] [3]). Taken together, these provisions severely limit the rights of individuals who are made subject to quarantine. Not only must they endure the conditions of quarantine while they are waiting for an appeal, any person who wishes to have her own particular case heard may be denied simply because she shares the same symptoms with large numbers of other people. Worse yet, the expedited procedures sought by the Court of Appeals may mean that in practice, directives of quarantine and isolation would be enforced swiftly and without much true expectation for an appeal. This part of Senate Bill 234 was adopted almost wholesale from Section 605 of the Model States Emergency Health Powers Act.
House Bill 303, also adopted in 2002, gives the Governor even more dramatic powers during times of public health emergency, including “direct operational control…over…emergency management” (Public Safety, 14-106, [2]), and power to coordinate emergency management with the federal government and with all political subdivisions in the State (14-106, [1]; [2] [iii and iv]). The Governor can also activate the militia under such circumstances (Public Safety, 13-301).
This bill also introduces penalties for not complying with orders issued during a public health emergency--something not contemplated at all by the authors of the Model Act. Part of the bill does not seem to have survived into current Maryland law. The bill gives penalties of 6 months in jail and a $1,000 fine for anyone who “violates any order, rule, or regulation “--but for anyone who is a “willful” violator, the penalty is up to one year in jail and a $5,000 fine. There must have been some opposition to these penalties; the $5,000 fine had been originally been proposed as a $10,000 fine. In the Code (14-3A-08), only imprisonment and fines are mentioned only for those who “knowingly and willfully fail to comply.”
Other penalties for noncompliance are not included in this bill, but are included in the Health-General section of the Annotated Code. These include penalties for noncompliance with orders of vaccination and quarantine, and the requirement that healthcare professionals cooperate with orders from the Secretary of Health and Mental Hygiene. Penalties for persons who disobey orders for vaccination, quarantine, or isolation may serve up to a year in prison and be fined $3,000. Health care practitioners who do not comply with orders during a pandemic health emergency can have their licenses suspended or revoked, and can receive a civil penalty of up to $3,000 for each offense (Health-General, 18-907, [2] and [2] [c]).
Open Hand or Closed Fist?
It is instructive to see what parts of the Model Act were not adopted into Maryland law. In the 2001 article in the Journal of the American Medical Association, Gostin, author of the Model Act, criticizes the “lack of a precise definition of quarantine.” This term historically meant “enforced segregation” of persons who had been exposed to a contagious disease. The authors of the article go on to point out the problems associated with enforced quarantine. Even in diseases which are dangerous and highly communicable, such as smallpox, the incubation period is sufficiently long (10-17 days) that many persons who had been exposed would have traveled away from the original site of exposure, so quarantine would not be entirely effective. If government decides to quarantine entire neighborhoods as a reaction to an outbreak, it is also likely that many individuals who had never been exposed to the disease would be restricted from travel as well.
Indeed, the reaction of government in response to potential bioterrorism has been needlessly oppressive and not at all based on science. Some jurisdictions have imposed quarantine in response to anthrax hoaxes--when anthrax is not even a communicable disease. Governmental reaction to outbreaks needs to be scientifically based on the characteristics of the particular disease, and Gostin reminds “political leaders…that a single strategy for limiting the spread of all contagious diseases is not appropriate and will not work” (p. 7). The Maryland Code does not define quarantine and isolation and makes no clear distinction between them. It also groups together diseases such as anthrax, ebola, smallpox, and plague (Public Safety, 14-3A-01), without acknowledging that some of these are not even transmissible from person to person, and all have varying incubation times and modes of transmission. It seems that Maryland legislators would rather simply have the laws in place for their arbitrary use, and it is difficult to predict how they would be used when the times require it.
The Annotated Code also completely ignores Section 604 (b) of the Model Act. This provision was meant to protect the health and civil liberties of persons who are isolated and quarantined. The Model Act recommends “isolation and quarantine must be by the least restrictive means necessary.” Because isolated persons are presumed to be infected, they are to be “confined separately from quarantined individuals.” This section also provides for the physical needs of the quarantined, their need for communication with the outside world, and accommodation “to the extent possible [of] the religious and cultural beliefs” of persons who have been confined. In the JAMA article, Gostin recognizes that quarantine which ignores these principles would likely be unconstitutional and would not survive challenge in the courts (Gostin, p. 4).
Why, then, did Maryland legislators choose to adopt almost nothing from this provision of the Model Act into its laws? Driven by fear of the mob, lawmakers sought to impose the most oppressive aspects of the Model Act, and further, tried to coerce the masses into submission using the threat of prison and large fines. And if Maryland law proves ineffective in staying the spread of disease, or in calming the fearful and rebellious, the Governor has one power to trump them all. The Governor may “suspend the effect of any statute or rule or regulation of an agency of the State or a political subdivision” (Public Safety, 14-107, [1] [I]). This provision gives the Governor nearly complete power over state and local government. The protections of the law and regulations that citizens ordinarily rely upon would be gone. The only way this power can be undone under emergency circumstances would be for the General Assembly to issue a joint resolution ending the state of emergency. But in a state with a Democratic governor and a largely Democratic assembly, is this likely?
Finally, Gostin writes of a “public health contract,” in which “individuals agree to forgo certain rights and liberties…to prevent a significant risk to other persons” (Gostin, p. 3). But this ignores the classical definition of a contract, in which a contract is offered by one party and accepted by the other. If more citizens knew of these laws, would they accept this contract as offered by the state of Maryland? Is the price of security--bought at the cost of our dearly held liberties--simply too great?
References:
Gostin, Lawrence, et al. "Large-Scale Quarantine Following Biological Terrorism in the United States." Journal of the American Medical Association, v. 286, no. 21, 5 December 2001:
http://jama.ama-assn.org/cgi/content/full/286/21/2711?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&fulltext=large+scale+quarantine+following+biological+terrorism&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT
Chapin, Charles Value. Municipal Sanitation in the United States. Providence, RI: The Providence Press, 1901, p. 502:
http://books.google.com/books?id=RJlLAAAAMAAJ&dq=municipal+sanitation+in+the+united+states+chapin&printsec=frontcover&source=bl&ots=pfia3LwjfW&sig=59FdcHpCs7tJ4m0GEGGzefyhuyM&hl=en&ei=EGe9SqK_FoeV8Aai_9W5AQ&sa=X&oi=book_result&ct=result&resnum=1#v=onepage&q=&f=false
Blevins, Sue. "The Model State Emergency Health Powers Act: An Assault on Civil Liberties in the Name of Homeland Security":
http://www.heritage.org/research/homelandsecurity/hl748.cfm
Model State Emergency Health Powers Act:
http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf
Annotated Code of Maryland:
http://www.michie.com/maryland/lpext.dll?f=templates&fn=main-h.htm&cp=
MD Senate Bill 234, 2002 Session:
http://mlis.state.md.us/2002rs/billfile/SB0234.htm
MD Senate Bill 303, 2002 Session:
http://mlis.state.md.us/2002rs/billfile/hb0303.htm
MD Senate Bill 240, 2002 Session:
http://mlis.state.md.us/2002rs/billfile/SB0240.htm
Few people recall the actions of government during a time of true pandemic--the great influenza of 1918 was ninety years ago, and the last U.S. case of smallpox was in 1949--but history is still instructive. In the late nineteenth century, public health officials regularly used quarantine and forced vaccination as a means to contain pandemic disease. In a famous case in 1893, in Muncie, Indiana, public health officials reacted to an outbreak of smallpox by forcing citizens to remain in their homes, thereby keeping the infected contained with the uninfected, and sending armed patrols through entire neighborhoods that were quarantined. The people of Muncie did not agree with home quarantine--many believed the outbreak to be chickenpox--and anger grew when mandatory vaccination began. Infected rags were thrown over fences. When home quarantine did not stay the spread of smallpox, ambulance attendants were sent to bring the infected to hospital, but citizens shot them. Public officials were shot as well.
In an similar incident in 1893 in Milwaukee, Wisconsin, officials were forced to give up evacuation of patients ill with smallpox:
“On Saturday evening, August 25th, between four and five o’clock, one of the officers of the health department was sent to remove a patient, a child, from 561 Fifteenth Avenue, from the rear. The party of this place…had notified the quarantine officers that any person coming there to remove the child would be shot, and he procured a revolver and lay in wait for the health officer. A mob congregated, and when the ambulance drove up with a squad of twelve policemen violent demonstrations began, stones were thrown, the horses struck with the missiles, and a general melee commenced. The official in charge of the police stated to the health officer that he had not sufficient force to disperse the mob and he would not undertake to do so. The mob was armed with clubs and missiles, the horses were being constantly struck, the health officials resisted, and it was therefore impossible in the absence of a sufficient number of police to remove the patient.”
What drives behavior such as this? Is it fear of disease or anger at the interventions of an overbearing government? Such questions linger in the minds of current public health scholars such as Lawrence Gostin, one of the authors of the Model State Emergency Health Powers Act. In an article published in the Journal of the American Medical Association just days before the release of the second draft of the Model Act, the story of the Muncie, Indiana quarantines is related in a section entitled “Mistrust in Government Recommendations Led to Violence.”
In the article, Gostin and his seven coauthors, giving legal, civil liberties, public health and scientific reasons, conclude that “imposition of large-scale quarantine…should not be considered a primary public health strategy in most imaginable circumstances" (Gostin, p. 1). They call for a more precise definition of quarantine and for more flexible, scientifically based quarantine options in state laws. They also recognize that in a more populous, less isolated society with many forms of rapid transportation, the traditional mode of quarantine, in which the movement of individuals is restricted, may not be effective anyway.
It is true that the Model State Emergency Health Powers Act (MSEHPA) shows some concern for the civil rights and liberties of individuals, which they hope to “protect to the fullest extent possible consistent with the primary goal of controlling serious health threats.” But the emergency powers of the governor as outlined by MSEHPA are so extreme that one wonders about Gostin’s motivations in drafting such an act. His fear of the mob is so great that one can envision him holding civil liberties protections in one open hand; the other, a closed fist poised to strike with militia and police powers.
Maryland Law and the Influence of MSEHPA
After the final draft of the Model Act was released on December 31, 2001, legislators in many states moved to adopt provisions from the Act into their own public health laws. At that time, the Heritage Foundation characterized Maryland’s laws concerning public health emergencies as among “the worst in the country.” While this description is not entirely fair--Maryland did not adopt the Model Act wholesale--it is certainly true that the powers of the Governor are extensive under a declared state of public health emergency, and many of these powers were established by legislation clearly influenced by the Model Emergency Health Powers Act.
The 2002 legislative session saw the passage of three bills based on the Model Act. These were Senate 234, “Catastrophic Health Emergencies--Powers of the Governor and the Secretary of Health and Mental Hygiene;” Senate Bill 303, “Governor’s Emergency Powers;” and Senate Bill 240, “State Government--Access to Public Records--Public Security Documents.” Together, these three bills established much of the statutory powers of the Governor during times of catastrophic health emergency, as well as restricting the public’s access to certain public records during these times.
I will be referring not only to the bills, but to the current laws as written in the Annotated Code of Maryland. Though some of the Code has been reorganized and renumbered since 2002, much of the language in these bills has been adopted intact into the existing Annotated Code. What Maryland laws, then, apply during times of a pandemic health emergency?
I will begin, as in the Model Act and Senate Bill 234, with definitions. A “catastrophic health emergency…means a situation in which extensive loss of life or serious disability is threatened imminently because of an exposure to a deadly agent” (Health--General, 14-3A-01 [b]). What is a "deadly agent"? The Annotated Code gives a veritable laundry list of diseases, but also extends this to mean any “viral agent” or “biological agent,” or radiation (14-3A-01, [c] [1 and 2]). Clearly, this list encompasses not only agents used in terrorism, but also covers pandemics, and even the “accidental chemical release” described in the Model Act.
The Governor would then have the power to issue a proclamation--in the form of an executive order--of a catastrophic health emergency. (As we have seen in the previous article I posted, Maryland has already declared such a state of emergency back in May, in response to the H1N1 "swine flu" virus). These proclamations last for 30 day intervals, though the Code allows the Governor to renew the order for “successive periods” of 30 days. Startlingly, there is no mention of a limit to these renewals (Public Safety, 14-107, [3] and [4]).
Still closely following the Model State Emergency Health Powers Act, Senate Bill 234 goes on to outline the Governor’s emergency powers--extensive powers, largely beyond the control of other elected officials and the citizens. By order of the Governor, the Secretary of Health and Mental Hygiene can “seize immediately anything needed to respond…to the catastrophic health emergency (Public Safety, 14-3A-03 [b] [2] [i and ii]). This control over private property can extend to rationing, the “creating and distributing [of] stockpiles," and the power to “gain access to a facility needed to respond to the catastrophic health emergency” (14-3A-03 [b] [2] [i and ii]). The could include any health care facility, as the Model Act envisioned.
The control over persons would be similarly broad. The Governor can order “individuals to submit to medical testing or treatment,” “submit to vaccination,” and “go to an remain in places of isolation or quarantine,” but if an individual refuses to submit to testing, treatment, medical examination, or vaccination, he or she would be required to submit to isolation or quarantine (14-3A-03 [3] [ii]; 13-3A-04).
An aside here. Firstly, what is the difference between quarantine and isolation? I have been unable to find explicit definitions of either term in the Annotated Code. In the Model Act, however, “quarantine” is defined as “the physical separation and confinement of an individual…who may have been exposed to a…disease;” “isolation” is a similar separation and confinement of persons who “are infected…with a contagious disease” (MSEHPA, section 104). The Maryland Code does not use these terms interchangeably, though it always seems to use them together.
Also, the law gives the Governor the power to “establish places of treatment, isolation, and quarantine” (14-3A-03 [3] [iii]). Is it likely that a large proportion of the public will be herded into camps for this purpose? If the Governor follows the law as stated in the Code, it is not. Under Health, General, 18-211, “Moving Infected Individuals,” it is clear that staying at home is preferred; the infected can be moved only if he is “staying in a room occupied by more than 1 family” or “otherwise does not have proper housing” (18-211 [2] [i and ii]). Yet Senate Bill 234 and the Code do not adopt the language of the Model Act, which says that “isolation and quarantine must be by the least restrictive means necessary” (MSEHPA, Section 604 [b] [1]). Even if the law has the same effect as this language--and it may be argued that it does not--its omission perhaps tells us something about the intent of the State in these matters.
Persons who are quarantined or isolated do have some legal recourse, as was proposed in the Model Act, though again, it is questionable what rights any individual may really have under Maryland law. A person may request a hearing in Maryland circuit court to contest the order, but filing such a request “does not stay or enjoin an isolation or quarantine directive” (Public Safety, 14-3A-05). The state has the right to quarantine or isolate for a period of up to 30 days, unless the Secretary determines that the quarantine is needed for “additional 30-day periods” (14-3A-05, [d] [2]), and no limit to these extensions are mentioned. If the State determines that representation of a large number of persons “makes individual participation impractical,” their claims may be consolidated by the State. These claims would be heard by the Maryland Court of Appeals, who also may “adopt emergency rules of procedure to facilitate the efficient adjudication” of these hearings (14-3A-05, [f] [1] [I]; [f] [3]). Taken together, these provisions severely limit the rights of individuals who are made subject to quarantine. Not only must they endure the conditions of quarantine while they are waiting for an appeal, any person who wishes to have her own particular case heard may be denied simply because she shares the same symptoms with large numbers of other people. Worse yet, the expedited procedures sought by the Court of Appeals may mean that in practice, directives of quarantine and isolation would be enforced swiftly and without much true expectation for an appeal. This part of Senate Bill 234 was adopted almost wholesale from Section 605 of the Model States Emergency Health Powers Act.
House Bill 303, also adopted in 2002, gives the Governor even more dramatic powers during times of public health emergency, including “direct operational control…over…emergency management” (Public Safety, 14-106, [2]), and power to coordinate emergency management with the federal government and with all political subdivisions in the State (14-106, [1]; [2] [iii and iv]). The Governor can also activate the militia under such circumstances (Public Safety, 13-301).
This bill also introduces penalties for not complying with orders issued during a public health emergency--something not contemplated at all by the authors of the Model Act. Part of the bill does not seem to have survived into current Maryland law. The bill gives penalties of 6 months in jail and a $1,000 fine for anyone who “violates any order, rule, or regulation “--but for anyone who is a “willful” violator, the penalty is up to one year in jail and a $5,000 fine. There must have been some opposition to these penalties; the $5,000 fine had been originally been proposed as a $10,000 fine. In the Code (14-3A-08), only imprisonment and fines are mentioned only for those who “knowingly and willfully fail to comply.”
Other penalties for noncompliance are not included in this bill, but are included in the Health-General section of the Annotated Code. These include penalties for noncompliance with orders of vaccination and quarantine, and the requirement that healthcare professionals cooperate with orders from the Secretary of Health and Mental Hygiene. Penalties for persons who disobey orders for vaccination, quarantine, or isolation may serve up to a year in prison and be fined $3,000. Health care practitioners who do not comply with orders during a pandemic health emergency can have their licenses suspended or revoked, and can receive a civil penalty of up to $3,000 for each offense (Health-General, 18-907, [2] and [2] [c]).
Open Hand or Closed Fist?
It is instructive to see what parts of the Model Act were not adopted into Maryland law. In the 2001 article in the Journal of the American Medical Association, Gostin, author of the Model Act, criticizes the “lack of a precise definition of quarantine.” This term historically meant “enforced segregation” of persons who had been exposed to a contagious disease. The authors of the article go on to point out the problems associated with enforced quarantine. Even in diseases which are dangerous and highly communicable, such as smallpox, the incubation period is sufficiently long (10-17 days) that many persons who had been exposed would have traveled away from the original site of exposure, so quarantine would not be entirely effective. If government decides to quarantine entire neighborhoods as a reaction to an outbreak, it is also likely that many individuals who had never been exposed to the disease would be restricted from travel as well.
Indeed, the reaction of government in response to potential bioterrorism has been needlessly oppressive and not at all based on science. Some jurisdictions have imposed quarantine in response to anthrax hoaxes--when anthrax is not even a communicable disease. Governmental reaction to outbreaks needs to be scientifically based on the characteristics of the particular disease, and Gostin reminds “political leaders…that a single strategy for limiting the spread of all contagious diseases is not appropriate and will not work” (p. 7). The Maryland Code does not define quarantine and isolation and makes no clear distinction between them. It also groups together diseases such as anthrax, ebola, smallpox, and plague (Public Safety, 14-3A-01), without acknowledging that some of these are not even transmissible from person to person, and all have varying incubation times and modes of transmission. It seems that Maryland legislators would rather simply have the laws in place for their arbitrary use, and it is difficult to predict how they would be used when the times require it.
The Annotated Code also completely ignores Section 604 (b) of the Model Act. This provision was meant to protect the health and civil liberties of persons who are isolated and quarantined. The Model Act recommends “isolation and quarantine must be by the least restrictive means necessary.” Because isolated persons are presumed to be infected, they are to be “confined separately from quarantined individuals.” This section also provides for the physical needs of the quarantined, their need for communication with the outside world, and accommodation “to the extent possible [of] the religious and cultural beliefs” of persons who have been confined. In the JAMA article, Gostin recognizes that quarantine which ignores these principles would likely be unconstitutional and would not survive challenge in the courts (Gostin, p. 4).
Why, then, did Maryland legislators choose to adopt almost nothing from this provision of the Model Act into its laws? Driven by fear of the mob, lawmakers sought to impose the most oppressive aspects of the Model Act, and further, tried to coerce the masses into submission using the threat of prison and large fines. And if Maryland law proves ineffective in staying the spread of disease, or in calming the fearful and rebellious, the Governor has one power to trump them all. The Governor may “suspend the effect of any statute or rule or regulation of an agency of the State or a political subdivision” (Public Safety, 14-107, [1] [I]). This provision gives the Governor nearly complete power over state and local government. The protections of the law and regulations that citizens ordinarily rely upon would be gone. The only way this power can be undone under emergency circumstances would be for the General Assembly to issue a joint resolution ending the state of emergency. But in a state with a Democratic governor and a largely Democratic assembly, is this likely?
Finally, Gostin writes of a “public health contract,” in which “individuals agree to forgo certain rights and liberties…to prevent a significant risk to other persons” (Gostin, p. 3). But this ignores the classical definition of a contract, in which a contract is offered by one party and accepted by the other. If more citizens knew of these laws, would they accept this contract as offered by the state of Maryland? Is the price of security--bought at the cost of our dearly held liberties--simply too great?
References:
Gostin, Lawrence, et al. "Large-Scale Quarantine Following Biological Terrorism in the United States." Journal of the American Medical Association, v. 286, no. 21, 5 December 2001:
http://jama.ama-assn.org/cgi/content/full/286/21/2711?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&fulltext=large+scale+quarantine+following+biological+terrorism&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT
Chapin, Charles Value. Municipal Sanitation in the United States. Providence, RI: The Providence Press, 1901, p. 502:
http://books.google.com/books?id=RJlLAAAAMAAJ&dq=municipal+sanitation+in+the+united+states+chapin&printsec=frontcover&source=bl&ots=pfia3LwjfW&sig=59FdcHpCs7tJ4m0GEGGzefyhuyM&hl=en&ei=EGe9SqK_FoeV8Aai_9W5AQ&sa=X&oi=book_result&ct=result&resnum=1#v=onepage&q=&f=false
Blevins, Sue. "The Model State Emergency Health Powers Act: An Assault on Civil Liberties in the Name of Homeland Security":
http://www.heritage.org/research/homelandsecurity/hl748.cfm
Model State Emergency Health Powers Act:
http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf
Annotated Code of Maryland:
http://www.michie.com/maryland/lpext.dll?f=templates&fn=main-h.htm&cp=
MD Senate Bill 234, 2002 Session:
http://mlis.state.md.us/2002rs/billfile/SB0234.htm
MD Senate Bill 303, 2002 Session:
http://mlis.state.md.us/2002rs/billfile/hb0303.htm
MD Senate Bill 240, 2002 Session:
http://mlis.state.md.us/2002rs/billfile/SB0240.htm
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