HIPAA on Privacy: Its Unintended and Intended Consequences

Abstract

The single most conspicuous growth industry in Washington D.C. is regulation and the administrative structure it spawns. The number of programs in Washington that start big is relatively small. The dominant strategy in all cases is to identify some failure in the private sector and then to propose some well-tailored government program to combat it. At the stage of inception, everyone is sensitive to the risks of overreaching through regulation. But the mood shifts on implementation of the program. The key question is what attitude is brought to the two kinds of error that must be confronted by any system of social control: too much or too little. Within this new context, the risks of under inclusion are always high on the agenda. The risks of over inclusion tend to be neglected. To give but one example, the 1964 Civil Rights Act was sold as a statute that was intended to remove a particular form of irrationality in the market place by refusing to allow employers to make invidious distinctions on grounds of race, sex, and national origin. At the time everyone disclaimed any effort to impose prohibitions when employers did not resort to conscious differences in treatment. No one thought that employers could be held responsible for the background conditions in society at large that contributed to differential levels of preparation of, for example, black and white