As predicted, the Repug SC disfavors individuals against institutions

[boutons_]

High Court Limits Whistleblower Lawsuits
By GINA HOLLAND
The Associated Press
Tuesday, May 30, 2006; 11:12 AM


WASHINGTON -- The Supreme Court on Tuesday made it harder for government employees to file lawsuits claiming they were retaliated against for going public with allegations of official misconduct.

By a 5-4 vote, justices said the nation's 20 million public employees do not have carte blanche free speech rights to disclose government's inner-workings. New Justice Samuel Alito cast the tie-breaking vote.

Justice Anthony M. Kennedy, writing for the court's majority, said the First Amendment does not protect "every statement a public employee makes in the course of doing his or her job."

The decision came after the case was argued twice this term, once before Justice Sandra Day O'Connor retired in January, and again after her successor, Alito, joined the bench.

The ruling sided with the Los Angeles District Attorney's office, which appealed an appellate court ruling which held that prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff's deputy had lied in a search warrant affidavit.

Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.

Dissenting justices said Tuesday that the ruling could silence would-be whistleblowers who have information about governmental misconduct.

"Public employees are still citizens while they are in the office," wrote Justice John Paul Stevens. "The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong."

The ruling is significant because an estimated 100 whistleblower retaliation lawsuits are filed each year.

The Bush administration had urged the high court to place limits on when government whistleblowers can sue, arguing that those workers have other options, including the filing of civil service complaints.

( ... take YEARS to be processed, and end up in the hands of politcal appoinitees )


Kennedy noted in his ruling that there are whistleblower protection laws. The ruling, which had the votes of the court's conservatives including new Chief Justice John Roberts, showed great deference to the government.

"Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission," Kennedy wrote.

He said government workers "retain the prospect of constitutional protection for their contributions to the civic discourse." They do not, Kennedy said, have "a right to perform their jobs however they see fit."

The case is Garcetti v. Ceballos, 04-473.


© 2006 The Associated Press


========================

A key, fundamental difference between the US and French republics has always been the primacy of the individual citizen in the US compared with the primacy of institutions in France.

The Repug SC is turning the USA into France. The trend here is for US govt to have more secrecy in ALL its workings (not just Nat Sec workings).

If the govt hide nothing to hide (as the red-staters like to say when supporting NSA fishing ALL US citizens), then why is the Repug govt so intent on secrecy?

The entire gist of the DI/Const is "individual" (we the people) to be protected against attacks from the govt. ie, if the govt is to err, it's better to err in favor of the individual.

The Repugs are reversing that gist entirely. The Repugs are not only un-Conservative, they are un-Libertarian, as well as being un-Christian. The Repugs are EXCLUSIVELY, to the exclusion of all else, PRO-Repug. The fundamental "value" of the Repugs is to game the system even further to the advantage of those already at the top of the system.

[MannyIsGod]

Not nearly a big a deal as you're making it out to be, but ok.

[FromWayDowntown]

It's a curious decision from a doctrinal standpoint. The rule articulated in the case is one that says that if what you say arises from the carrying-on of your job duties, you have no constitutional protection. Apparently, though, if you go beyond your job duties and blow the whistle, you retain 1st Amendment protections -- for now, at least. The Court distinguished Ceballos' case from one involving a school teacher who complained about racism in the school's hiring policy. The school teacher, whose job responsibilities didn't entail reporting about hiring trends, has First Amendment protections; Ceballos, who was acting within his job responsibilities in reporting that a deputy may have lied about the information giving rise to a search warrant, does not. It's also curious because the Court allows that had Ceballos written a letter to a local newspaper about this concern, he would likely have more First Amendment protection than he did by reporting his concern directly to his supervisor.

I don't think its a momentous decision necessarily, but it's some pretty solid evidence to favor the concerns that some expressed about the willingness of Chief Justice Roberts and Justice Alito to defer to the Executive Branch on certain matters.

[xrayzebra]

Have we seen the fine print yet?

Better yet, those in the private sector "blows the whistle" on the boss, he gets
fired. Company secrets are company secrets and could subject you to a lawsuit
for spilling the beans.

[FromWayDowntown]

Have we seen the fine print yet?

Better yet, those in the private sector "blows the whistle" on the boss, he gets
fired. Company secrets are company secrets and could subject you to a lawsuit
for spilling the beans.

The fine print is in the opinion. Anyone who bothers to read it will have all the information available. The full text of the opinion and all dissents is available on the Supreme Court's website: www.supremecourtus.gov.

The private sector analogy works only because of the result of the opinion, but it isn't particularly apt in this context, largely because many Constitutional protections don't extend to private employment. The Constitution -- the Bill of Rights, to be more specific -- is meant to protect individual rights from governmental infringement. Ceballos worked for the city government of Los Angeles (IIRC) and therefore, was employed by the government. When he was fired, there was governmental action. He claimed that such governmental action infringed his First Amendment right to free speech, but the Court disagreed. The Court's decision essentially says that where a governmental employee is acting in the scope of his job responsibilities, he has diminished First Amendment protection.

This also isn't a case in which a person discloses secret information that might be harmful to a business. In the first place, again, most of those situations implicate private sector employment where the First Amendment is essentially absent. But, more importantly, even if there were some broad First Amendment issues in that context, there are other bodies of tort law that prohibit the dissemination of trade secrets and allow employers to recoup damages from those who disclose that information.

[Aggie Hoopsfan]

Considering they can get more through a civil suit than a government one, what's the big deal exactly/

[boutons_]

you blow a whistle, you lose your job.

It's blatant intimidation of indivuduals by institutions, to keep govt institutions proceedings secret, which is the whole thrust of dickhead/Repug regime.

We're not talking about divulging trade secrets or national security, but about whistles for illegalities and ethics.

[FromWayDowntown]

Considering they can get more through a civil suit than a government one, what's the big deal exactly/

I think the major import of the decision is that it limits whistleblower suits signficantly. A governmental employee has an action against the government only where the government isn't immune -- if you work for the government, you can't sue the government under most tort or contract theories without running headlong into the defense of sovereign immunity. One area in which that immunity is generally waived is a whistleblower (or a wrongful termination) action (though in those actions, the damages available are often limited by statute; for instance, in most cases under Texas law, a person suing the government has his damages capped at $200,000, no matter what the actual damages are). And generally, in whistleblower and wrongful termination actions, the employee has been entitled to rely on the First Amendment as a defense of sorts -- the governmental employer can't claim that the employee's termination was justified by what he said.

The import of the decision today -- if there is one -- is that First Amendment "defense" isn't available any longer to governmental employees who are discharged for things they say in the course and scope of their job responsiblities.

From the standpoint of a law dork, the decision is more interesting, I think, for the fact that it is difficult to reconcile with existing doctrine concerning the application of the First Amendment in governmental employment. It creates some odd exceptions that don't make much sense on the surface -- the Court acknowledges that had Ceballos made his complaint known in a letter to a newspaper, he would have the First Amendment "defense" available, but because he made his complaint in a memorandum to his supervisor, he loses that "defense." There is an effort in the opinion to reconcile those situations, but from the standpoint of legal scholarship, the distinction seems strained.

I think the opinion will prove to be significant if it is the signal that First Amendment jurisprudence is fair game and will be revisited as the cases warrant. And, like I say, I think it suggests pretty strongly that Chief Justice Roberts and Justice Alito are willing to join Justices Scalia and Thomas in listening intently to the arguments the current Administration makes on policy issues.

[MannyIsGod]

I actually think the ruling makes sense. If you write a memo to your employer in the capcity of your position, you are not excercising free speech persay you are doing your job. And if you do your job in a way that your supervisors do not find to their liking, you can be fired. Doing your job and writing to an outside source to bring into light a situation of wrongdoing are not the same. I would imagine a firing's legitimacy would be determined by the state employment laws at that point.

[boutons_]

http://images.ucomics.com/comics/bs/2006/bs060530.gif

[FromWayDowntown]

I actually think the ruling makes sense. If you write a memo to your employer in the capcity of your position, you are not excercising free speech persay you are doing your job. And if you do your job in a way that your supervisors do not find to their liking, you can be fired. Doing your job and writing to an outside source to bring into light a situation of wrongdoing are not the same. I would imagine a firing's legitimacy would be determined by the state employment laws at that point.

And that's pretty much the way that Justice Kennedy's opinion makes its point, Manny. I just think it's odd that the protections of the First Amendment would apply differently depending on the mode used to communicate an idea. Like I say, I don't think that this opinion, standing alone, is terribly significant -- it may be more significant for what it suggests than for what it actually says.

[fyatuk]

You mean there are consequences for divulging information your employer doesn't want divulged? Oh my... Who'd have thunk it...

You have the right to say whatever you want, as long as you accept the consequences for your actions. THAT is the true spirit of free speech, not the ability to say whatever you want with impunity.

That concept is especially important in public positions.

[FromWayDowntown]

Here's one scholarly criticism of Garcetti v. Ceballos:Balkinization on Garcetti (http://balkin.blogspot.com/2006/05/ceballos-court-creates-bad-information.html)

I'm looking for a similar column supporting the decision; the commentators are slow on this one, perhaps indicative of the fact that it really isn't that significant.

[FromWayDowntown]

You mean there are consequences for divulging information your employer doesn't want divulged? Oh my... Who'd have thunk it...

You have the right to say whatever you want, as long as you accept the consequences for your actions. THAT is the true spirit of free speech, not the ability to say whatever you want with impunity.

That concept is especially important in public positions.

But that's not entirely true. Again, if Ceballos had taken his complaints to a local newspaper, he would have had First Amendment protections in the context of a claim that he was wrongfully terminated; because he voiced his complaints in a memorandum to his supervisor, he lost those protections.

It's an uneven doctrine, I think, but that's just my opinion.

[DarkReign]

You mean there are consequences for divulging information your employer doesn't want divulged? Oh my... Who'd have thunk it...

You have the right to say whatever you want, as long as you accept the consequences for your actions. THAT is the true spirit of free speech, not the ability to say whatever you want with impunity.

That concept is especially important in public positions.

I trust WayDownTown, so I am not going to make a big deal about this. Nor am I personally attacking you (which peeps are quick to assume).

Tell that to the guy who had his warrant served because a cop lied in the act of aquiring said warrant. His basic rights have been violated and now there are precedents being set that there isnt an internal way of dealing with these problems.

[fyatuk]

But that's not entirely true. Again, if Ceballos had taken his complaints to a local newspaper, he would have had First Amendment protections in the context of a claim that he was wrongfully terminated; because he voiced his complaints in a memorandum to his supervisor, he lost those protections.

It's an uneven doctrine, I think, but that's just my opinion.

No you're right. I didn't look close enough at the details of the case. I'd have to assume he followed proper channels with the passing a memo to his supervisor on suspected wrong-doing. If that's the case, it's absurd that there would be consequences for him.

I think this is inverted. He should be protected for things within the duties of his job, and this certainly falls in that vein.

Now if he had taken the issue directly to the newspaper, there should have been consequences for him. That's just the price to be paid.

That's how I ethically feel anyway. And we all know right and wrong has nothing to do with the law.

[xrayzebra]

Whithout the Memo we don't really know what we are talking about.
We have only the popular media's reporting what was supposedly
said in the memo. I assume the guy who wrote the memo was a
lawyer. So going against my better judgement. Just maybe his
lawyering was that great and he made a complete ass out of his,
the lawyers, assumptions about the cops. It is just a thought.
And just maybe his boss said, he cant be that stupid.

[DarkReign]

Whithout the Memo we don't really know what we are talking about.
We have only the popular media's reporting what was supposedly
said in the memo.

Good point. But! Downtown is on this. If he cares enough, he could possibly get what you seek.

Mind you, he made it clear it isnt a case of serious interest to him.

[xrayzebra]

^^Well going back reading what I posted, obviously my typing
was maybe as bad as his memo....LOL Anyhow you got the idea.

[FromWayDowntown]

The commentary about the opinion doesn't rely on what the "popular media" have written about the facts of this case. The commentary about the facts grows from the statement of facts included in the Supreme Court's opinion, which is drawn not from newspapers, but from the record of the case; that is, what the parties have said and proven about the facts.

Like I say, I think this is much ado about very little, other than a doctrinal quirk that will eventually be remedied one way or another. The anomalous result has created a minor uproar -- it seems that there is very little support for the result, so far at least, in legal academic circles (and, FWIW, law professors tend (on the whole) to be much more conservative than undergraduate professors).

Anyway, to satisfy xray's question, here's the statement of facts from Garcetti v. Ceballos:

Respondent Richard Ceballos has been employed since 1989 as a deputy district attorney for the Los AngelesCounty District Attorney’s Office. During the periodrelevant to this case, Ceballos was a calendar deputy inthe office’s Pomona branch, and in this capacity he exer-cised certain supervisory responsibilities over other law-yers. In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informed Ceballos that he had filed a motion to traverse, or challenge, the warrant, but he also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases.

After examining the affidavit and visiting the location itdescribed, Ceballos determined the affidavit contained serious misrepresentations. The affidavit called a long driveway what Ceballos thought should have been re-ferred to as a separate roadway. Ceballos also questioned the affidavit’s statement that tire tracks led from a stripped-down truck to the premises covered by the war-rant. His doubts arose from his conclusion that the road-way’s composition in some places made it difficult or im-possible to leave visible tire tracks.

Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff’s Department, but he did not receive a satisfactory explana-tion for the perceived inaccuracies. He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a dispositionmemorandum. The memo explained Ceballos’ concerns and recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt for his review. A few days later, Ceballos presented Sundstedt with an-other memo, this one describing a second telephone con-versation between Ceballos and the warrant affiant.

Based on Ceballos’ statements, a meeting was held to dis-cuss the affidavit. Attendees included Ceballos, Sundstedt, and Najera, as well as the warrant affiant and other em-ployees from the sheriff’s department. The meeting alleg-edly became heated, with one lieutenant sharply criticiz-ing Ceballos for his handling of the case.

Despite Ceballos’ concerns, Sundstedt decided to pro-ceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant.

Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar dep-uty position to a trial deputy position, transfer to anothercourthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was deniedbased on a finding that he had not suffered any retaliation. Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. §1979, 42 U. S. C.§1983. He alleged petitioners violated the First and Four-teenth Amendments by retaliating against him based on his memo of March 2.

Petitioners responded that no retaliatory actions weretaken against Ceballos and that all the actions of which he complained were explained by legitimate reasons such asstaffing needs. They further contended that, in any event, Ceballos’ memo was not protected speech under the FirstAmendment. Petitioners moved for summary judgment,and the District Court granted their motion. Noting that Ceballos wrote his memo pursuant to his employmentduties, the court concluded he was not entitled to First Amendment protection for the memo’s contents. It held in the alternative that even if Ceballos’ speech was constitu-tionally protected, petitioners had qualified immunitybecause the rights Ceballos asserted were not clearlyestablished.

The Court of Appeals for the Ninth Circuit reversed, holding that “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the FirstAmendment.” 361 F. 3d 1168, 1173 (2004). In reaching its conclusion the court looked to the First Amendment analysis set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and Connick, 461 U. S. 138. Connick instructs courts to begin byconsidering whether the expressions in question were madeby the speaker “as a citizen upon matters of public concern.” See id., at 146–147. The Court of Appeals determined that Ceballos’ memo, which recited what he thought to be gov-ernmental misconduct, was “inherently a matter of publicconcern.” 361 F. 3d, at 1174. The court did not, however, consider whether the speech was made in Ceballos’ capacity as a citizen. Rather, it relied on Circuit precedent rejecting the idea that “a public employee’s speech is deprived of FirstAmendment protection whenever those views are expressed, to government workers or others, pursuant to an employ-ment responsibility.” Id., at 1174–1175 (citing cases including Roth v. Veteran’s Admin. of Govt. of United States, 856 F. 2d 1401 (CA9 1988)).

Having concluded that Ceballos’ memo satisfied the public-concern requirement, the Court of Appeals pro-ceeded to balance Ceballos’ interest in his speech against his supervisors’ interest in responding to it. See Pickering, supra, at 568. The court struck the balance in Ceballos’ favor, noting that petitioners “failed even to suggest dis-ruption or inefficiency in the workings of the DistrictAttorney’s Office” as a result of the memo. See 361 F. 3d, at 1180. The court further concluded that Ceballos’ First Amendment rights were clearly established and thatpetitioners’ actions were not objectively reasonable. See id., at 1181–1182.

Judge O’Scannlain specially concurred. Agreeing that the panel’s decision was compelled by Circuit precedent, he nevertheless concluded Circuit law should be revisited and overruled. See id., at 1185. Judge O’Scannlain em-phasized the distinction “between speech offered by a public employee acting as an employee carrying out his orher ordinary job duties and that spoken by an employee acting as a citizen expressing his or her personal views on disputed matters of public import.” Id., at 1187. In his view, “when public employees speak in the course of carry-ing out their routine, required employment obligations, they have no personal interest in the content of that speechthat gives rise to a First Amendment right.” Id., at 1189.

We granted certiorari, 543 U. S. 1186 (2005), and we now reverse.

[xrayzebra]

Thanks FWD. Appears Ceballos’ memo stated his, Ceballos', belief's
and others, including the court, disagreed and he kicked up a fuss
in the meeting. But who knows, but what you gave us explains
alot more than the press did. Thanks.

[FromWayDowntown]

Thanks FWD. Appears Ceballos’ memo stated his, Ceballos', belief's
and others, including the court, disagreed and he kicked up a fuss
in the meeting. But who knows, but what you gave us explains
alot more than the press did. Thanks.

You should be aware, xray, that every time one of these Supreme Court issues comes up and you want to know something about the case, the best source is almost always the Court's opinion.

[xrayzebra]

^^Yeah, I know, but you are resident lawyer and soooooooooo.....
just kidding...LOL (I'm getting old and lazy).(read too damn much
now and get myself all worked up)

[boutons_]

Medical Privacy Law Nets No Fines

Lax Enforcement Puts Patients' Files At Risk, Critics Say

By Rob Stein
Washington Post Staff Writer
Monday, June 5, 2006; A01

In the three years since Americans gained federal protection for their private medical information, the Bush administration has received thousands of complaints alleging violations but has not imposed a single civil fine and has prosecuted just two criminal cases.

Of the 19,420 grievances lodged so far, the most common allegations have been that personal medical details were wrongly revealed, information was poorly protected, more details were disclosed than necessary, proper authorization was not obtained or patients were frustrated getting their own records.

The government has "closed" more than 73 percent of the cases -- more than 14,000 -- either ruling that there was no violation, or allowing health plans, hospitals, doctors' offices or other entities simply to promise to fix whatever they had done wrong, escaping any penalty.

( ie, Repugs refusing to enforce the law protecting individuals right to privacy with the violators were large instiutions, which are most often Repug financiers. )

"Our first approach to dealing with any complaint is to work for voluntary compliance. So far it's worked out pretty well," said Winston Wilkinson, who heads the Department of Health and Human Services Office of Civil Rights, which is in charge of enforcing the law.

While praised by hospitals, insurance plans and doctors, the approach has drawn strong criticism from privacy advocates and some health industry analysts. They say the administration's decision not to enforce the law more aggressively has failed to safeguard sensitive medical records and made providers and insurers complacent about complying.

"The law was put in place to give people some confidence that when they talk to their doctor or file a claim with their insurance company, that information isn't going to be used against them," said Janlori Goldman, a health-care privacy expert at Columbia University. "They have done almost nothing to enforce the law or make sure people are taking it seriously. I think we're dangerously close to having a law that is essentially meaningless."

The debate has intensified amid a government push to computerize medical records to improve the efficiency and quality of health care. Privacy advocates say large centralized electronic databases will be especially vulnerable to invasions, making it even more crucial that existing safeguards be enforced.

The highly touted Health Insurance Portability and Accountability Act -- known as HIPAA -- guaranteed for the first time beginning in 2003 that medical information be protected by a uniform national standard instead of a hodgepodge of state laws.

The law gave the job of enforcement to HHS, including the authority to impose fines of $100 for each civil violation, up to a maximum of $25,000. HHS can also refer possible criminal violations to the Justice Department, which could seek penalties of up to $250,000 in fines and 10 years in jail.

Wilkinson would not discuss any specific complaints but said his office has "been able to work out the problems . . . by going in and doing technical assistance and education to resolve the situation. We try to exhaust that before making a finding of a technical violation and moving to the enforcement stage. We've been able to do that."

( anything but punish the institutions that break the law. A few hundred serious fines would do wonders to stimulate comliance. Institutions know they can comply, if ever, when they get around to it since the Feds aren't enforcing the law. non-compliance is cost-free. Individuals fucked over again )

About 5,000 cases remain open, and some could result in fines, Wilkinson said. "There might be a need to use a penalty. We don't know that at this stage."

( anybody holding their breath? )

His office has referred at least 309 possible criminal violations to the Justice Department. Officials there would not comment on the status of those cases other than to say they would have been sent to offices of U.S. attorneys or the FBI for investigation. Two cases have resulted in criminal charges: A Seattle man was sentenced to 16 months in prison in 2004 for stealing credit card information from a cancer patient, and a Texas woman was convicted in March of selling an FBI agent's medical records.

( right. Two INDIVIDUALS prosecuted, while NO (Repug campaign donor) INSTITUTIONS prosecuted )

Representatives of hospitals, insurance companies, health plans and doctors praised the administration's emphasis on voluntary compliance, saying it is the right tack, especially because the rules are complicated and relatively new.

( voluntary compliance and self-regulation NEVER work. Compliance costs, and non-compliance costs nothing. Which way does the business decision go? non-compliance )

"It has been an opportunity for hospitals to understand better what their requirements are and what they need to do to come into compliance," said Lawrence Hughes of the American Hospital Association.

( are they so stupid that the hospitals and their million-dollar law firms can't understand the fucking law and figure out how to comply?)

"We're more used to the government coming down with a heavy hand where it's unnecessary," said Larry S. Fields, president of the American Academy of Family Physicians. "I applaud HHS for taking this route."

( of course, non-compliance means no cost to the doctors )

But privacy advocates say the lack of civil fines has sent a clear message that health organizations have little to fear if they violate HIPAA.

( exactly )

"It's not being enforced very vigorously," said William R. Braithwaite of the eHealth Initiative and Foundation, an independent, nonprofit research and advocacy organization based in Washington. "No one is afraid of being fined or getting bad publicity. . . . As long as they respond, they essentially get amnesty."

The approach has made health-care organizations complacent about protecting records, several health-care consultants said. A recent survey by the American Health Information Management Association found that hospitals and other providers are still not fully complying, and that the level of compliance is falling.

"They are saying, 'HHS really isn't doing anything, so why should I worry?' " said Chris Apgar of Apgar & Associates in Portland, Ore., a health-care industry consultant.

Goldman and others also questioned why the government is not conducting more independent audits of compliance in addition to investigating complaints.

"It's like when you're driving a car," said consultant Gary Christoph of Teradata Government Systems of Dayton, Ohio. "If you are speeding down the highway and no one is watching, you're much more likely to speed. The problem with voluntary compliance is, it doesn't seem to be motivating people to comply."

Wilkinson's office has conducted just a "handful" of compliance reviews, an HHS spokesman said, and completed only one -- a case involving a radiology center that was dumping old files of patients into an unsecured trash bin. The center agreed to hire a company to dispose of records and no fine was levied, the spokesman said.

Wilkinson said the size of his staff limits their ability to do much more than respond to complaints.

"We've had challenges with our resources investigating complaints," he acknowledged, saying they are complaint-driven. Wilkinson added, "We've been successful with voluntary compliance so there's has not been a need to go out and look."

But other government regulators take a different approach, privacy advocates say.

"The Securities and Exchange Commission, the Federal Trade Commission -- they find significant and high-profile cases and send a message to industry about what is permitted and what isn't," said Peter Swire, an Ohio State University law professor who helped write the HIPAA regulations during the Clinton administration.

Goldman and other privacy advocates point to numerous reports of health information being made public without patients' consent, such as the recent theft of millions of veterans records that included some medical information, a California health plan that left personal information about patients posted on a public Web site for years, and a Florida hospice that sold software containing personal patient information to other hospices.

In the meantime, Goldman said, surveys continue to show that for fear that their medical information will be used against them, people avoid seeking treatment when they are sick, pay for care out of pocket, or withhold important details about their health from their doctors.

"The law came about because there was a real problem with people having their privacy violated -- they lost jobs, they were embarrassed, they were stigmatized. People are afraid. The law was put in place so people wouldn't have to choose between their privacy and getting a job or going to the doctor," said Goldman, who also heads the Health Privacy Project, a Washington-based advocacy group. "That's still a huge problem."

© 2006 The Washington Post Company

=======================

A fundamental role of the fed govt to protect individuals and their rights against attacks from institutions, inviduals rights so otherwise championed and celebrated, in theory only, by conservatives and libertarians. But the Repugs will EVERY TIME let instituions fuck over individuals, and protect institutions from individuals. ie, the Repugs are only interestd in gaming the system in favor of instituions/corps and the rich.