Personal Privacy in an Information Society. Endnotes

07/12/1997

1 American Council of Life Insurance, Life Insurance Fact Book, (New York: American Council of Life Insurance, 1976), p. 9.

2Health Insurance Institute, The Source Book of Health Insurance Data 1974 - 1975, (New York: Health Insurance Institute, 1975), p. 19.

3 American Council of Life Insurance, op. cit., p. 38.

4 Automobile Insurance Plan Services Organization, A IPSO Insurance Facts for 1977, (New York: Automobile Insurance Plan Services Organization, 1977), p. 4.

5 American Council of Life Insurance, op. cit., p. 55.

6 Insurance Information Institute, Insurance Facts, (New York: Insurance Information Institute, 1976), p. 12.

7 American Council of Life Insurance, op. cit., pp. 9 and 52; information obtained orally from A.M. Best and Co.

8 Business life insurance is life insurance purchased for the benefit of the business itself, e.g.: (i) to indemnify the business for the loss of a key employee; (2) as a source of funds to buy back or purchase ownership of a firm upon the death of a partner or key employee; or (3) as a source of funds in order to discharge financial responsibility pursuant to a contractual agreement.

9 Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.

10 Written statement of the Medical Information Bureau (hereinafter cited as "MIB"), Insurance Records, Hearings before the Privacy Protection Study Commission, May 19, 1976, p.11 (hereinafter cited as "Insurance Records Hearings").

11Ibid., pp. 5-6.

12Ibid

13 According to the report of a 1975 interview with then MIB Executive Director, Joseph C. Wilberding, the information companies were reporting to the Bureau came from the following sources: 33 percent from physicians, hospitals, or medical organizations; 15 percent from inspection bureau reports; and 53 percent from insurance forms filled out by the applicant himself or by the insurance agent, or from medical exams required by the companies. Mark Reutter, "Private Medical Records Aren't So Secret," Baltimore Sun, July 13, 1975, "Trend" Section, pp. 1-4.

14 MIB, "General Rules," Handbook and Directory, 1971, Rule 9. Since the Privacy Protection Study Commission hearings, the MIB has changed its rules. Rule 9 has been replaced by Rule D.2, which states that: "Underwriting information involving any impairments listed in the MIB Code Book and received by members from original medical or other sources, from official medical records, or from the applicant during the course of an application for personal life or health insurance must be reported to MIB regardless of the underwriting decision."

15 Written statement of the MIB, Insurance Records Hearings, May 19, 1976, p. 10.

16lbid., p. 3.

17Ibid., p. 4.

18Ibid., p. 5.

19 Testimony of the MIB, Insurance Records Hearings, May 19, 1976, pp. 236 - 38. 20 Ibid, p. 240.

21 Letter from Neil M. Day, Executive Director and General Counsel, MIB, to the Privacy Protection Study Commission, September 30, 1976.

22 Testimony of the MIB, Insurance Records Hearings, May 19, 1976, p. 279; Letter from Neil M. Day, MIB, to the Privacy Commission, September 30, 1976, p. 4.

23 Letter from Neil M. Day, MIB, to the Privacy Commission, September 30, 1976, p. 4.

24 Letter from Neil M. Day, MIB, to the Privacy Commission, October 28, 1976, p. 4.

25 Ibid. 26 Ibid.

27Ibid, p. 5.

28 Written Statement of the MIB, Insurance Records Hearings, May 19, 1976, p. 5.

29 MIB, "General Rules," Handbook and Directory, 1971, Rule 14. This is now Rule D.4, which reads: "Underwriting information received from MIB shall be used to alert members of the need for further investigation of the applicants insurability. In the interest of sound underwriting and to avoid unfair competitive ractices in the underwriting of risks, MIB record information shall not be used as the basis for establishing an applicant's eligibility for insurance." MIB, "General Rules," 1977, Rule D.4.

30 Written statement of the MIB, Insurance Records Hearings, May 19, 1976, p. 13.

31 Testimony of the MIB, Insurance Records Hearings, May 19, 1976, p. 250.

32 Written statement of the MIB, Insurance Records Hearings, May 19, 1976, p.7.

33Ibid, p. 16.

34 Testimony of the MIB, Insurance Records Hearings, May 19, 1976, p. 235.

35 Letter from Neil M. Day, MIB, to the Privacy Commission, September 30, 1976, pp. 2, 5.

36 Testimony of the MIB, Insurance Records Hearings, May 19, 1976, pp. 245-47.

37 Letter from Neil M. Day, MIB, to the Privacy Commission, October 28, 1976, pp. 1-3.

38 This description of the Impairment Bureau is based on a letter from Charles A. Davis, Executive Director, National Insurance Association, to the>Privacy Commission, May 17, 1976; and a Privacy Commission staff interview with Clarise Hall, National Insurance Association, August 27, 1976.

39 Testimony of the American Insurance Association (hereinafter cited as "AIA"), Insurance Records Hearings, May 21, 1976, pp. 755, 764 - 66.

40Ibid, pp. 764- 65.

41Ibid, p. 765.

42Ibid

43>Ibid, p. 766.

44Ibid, p. 756.

45 American Insurance Association, "The Index System: Instructions for Subscribers," May, 1974, p. 2; Testimony of AIA, Insurance Records Hearings, May 21, 1976, p. 757.

46 AIA, "Instructions for Subscribers," p. 3.

47Ibid., p. 3.

48Ibid

49Ibid, p. I.

50 Testimony of AIA, Insurance Records Hearings, May 21, 1976, p. 755.

51Ibid., p. 769.

52Ibid, p. 773.

53 Ibid, p. 756.

54Ibid, pp. 760 - 61.

55 A witness told the Commission that the loss indexes receive about 100 subpoenas a year from government agencies and that while for many they have no information to disclose, when they do have information they comply. Ibid, p. 776.

56 Ibid, p. 769.

57 Ibid, p. 768.

58Ibid, p. 772.

59 Statement of the Insurance Crime Prevention Institute (hereinafter cited as "ICPI"), Insurance Records Hearings, May 21, 1976, p. 1.

60 ICPI, "By-Laws," Art. III, § 1.

61 Written statement of ICPI, Insurance Records Hearings, May 21, 1976, p. 1; Testimony of ICPI, Insurance Records Hearings, May 21, 1976, p. 776.

62 Written statement of ICPI, Insurance Records Hearings, May 21, 1976, p. 1; ICPI, "ICPI 1975," p. 2; ICPI, "By-Laws," Art. I.

63 Written statement of ICPI,Insurance Records Hearings, May 21, 1976, p. 1.

64Ibid.

65 Testimony of ICPI, Insurance Records Hearings, May 21, 1976, pp. 776 - 77; ICPI, "ICPI - 1975."

66 Written statement of ICPI, Insurance R cords Hearings, May 21, 1976, p. 2.

67 ICPI, "A Prosecutor's Introduction to ICPI," r°. 4.

68 Written statement of ICPI, Insurance Records 14.= :rings, May 21, 1976, p. 2.

69Ibid, citing Burrows v. Superior Court, 13 Cal. 3d. 238, 245 (1975) as by analogy providing an exception from the rule of confidentiality.

70 Testimony of ICPI, Insurance Records Hearings, May 21, 1976, pp. 784 - 85.

71Ibid, p. 778; Written statement of ICPI, Insurance Records Hearings, May 21, 1976, p. I; ICPI, "ICPI-1975," p. 9.

72 Testimony of ICPI, Insurance Records Hearings, May 21, 1976, pp. 786-87.

73 A Factual Service Bureau advertising flyer asks, "Have you been denied medical authorization by a claimant? Does the claimant's attorney withhold medical information from you, or submit only 'partial' medical records? If either of the above is true, let Factual Service develop the true medical picture. We have specialized in background medical investigations for over two decades.

74 William J. Giacofci and John A. Andryszak, "Summary of State Insurance Laws and Regulations Serving to Protect the Individual's Right to Privacy," Maryland Casualty Company, July 1976.

75 Testimony of the MIB, Insurance Records Hearings, May 19, 1976, pp. 265-67. The Federal Trade Commission believes that the MIB is subject to the Fair Credit Reporting Act and thus must give access. While the MIB denies this, it nonetheless grants access and thus the issue has not been brought to a head.

76 Written statement of Federal Insurance Administration, Department of Housing and Urban Development, Insurance Records Hearings, May 20, 1976, pp. 6 - 11; Department of Transportation Study, "Motor Vehicle Crash Losses and Their Compensation in the United States;" Testimony of Benjamin Lipson, Insurance Records Hearings, May 20, 1976, pp. 407-09.

77 Written statement of Federal Insurance Admininstration, Department of Housing and Urban Development, Insurance Records Hearings, May 20, 1976, p. 9; Department of Transportation Study, "Motor Vehicle Crash Losses: Their Compensation in the United States." p. 68.

78 Testimony of the MIB, Insurance Records Hearings, May 19, 1976, p. 263.

79Ibid, pp. 235-36; 244-58.

80 Testimony of the AIA, Insurance Records Hearings, May 21, 1976, p. 771.

81 MIB, "General Rules," Handbook and Directory, Rule 14. Rule 14 is now Rule D.4.

82 Testimony of the MIB, Insurance Records Hearings, May 19, 1976, pp. 234-36; 244-58. The Commission has no testimony from the Impairment Bureau on this issue, but problems no doubt exist with its subscribers as well. This would seem especially true since the Impairment Bureau lacks even those safeguards and rules under which the Medical Information Bureau operates.

83 Written statement of Benjamin Lipson, Insurance Records Hearings, May 20, 1976, p. 7.

84 Ibid, p. 8: Testimony of Jerome S. Beigler, American Psychiatric Association, Insurance Records Hearings. May 20, 1976. pp. 358-360.

85 Testimony of Jerome S. Beigler, American Psychiatric Association, Insurance Records Hearings. May 20, 1976, pp. 370-73.

86 Testimony of the Index System. Insurance Records Hearings, May 21, 1976, p. 769; Testimony of Jerome S. Beigler, Insurance Records Hearings, pp. 361, 372; Written statement of the Blue Cross Organizations. Insurance, Records Hearings, May 20, 1976, p. 5.

87 Note: e.g., Cal. Ins. Code §§ 790.01, et seq. ; Mass. Gen. Laws Ann., ch. 93a; Vt. Stat. Ann. tit. 63, § 2451; Ill. Rev. Stat., ch. 121 1/2, § 261.

88 Testimony of the California Department of Insurance, Insurance Records Hearings, May 20, 1976, pp. 496-98.

89 5 U.S.C. 552a(eXI).

90 See, for example, Vital Statistics of the United States, 1972, Vol. 11-Morality, Part A. Table 5-3, Expectation of Life at Single Years of Age by Color and Sex, United States, 1972 (pp. 5-8), published by U.S. Department of Health, Education and Welfare, Public Health Service, Health Resources Administration, National Center for Health Statistics, Rockville, Maryland: 1976.

91 5 U.S.C. 552a(eX7).

92 Testimony of the California Department of Insurance, Insurance Records Hearings, May 20, 1976, p. 497; Letter from Angele Khachadour, California Department of Insurance, to the Privacy Commission, July 30, 1976. California Department of Insurance, Ruling No. 204.

93Ibid.

94 Testimony of Dale Tooley, District Attorney, Denver, Colo., Medical Records, Hearings before the Privacy Protection Study Commission, June 11, 1976, pp. 456 - 511.

95 See, e.g., Milton v. Missouri Pacific Ry. Co., 193 Mo. 46, 91 S.W. 949 (1906); Inscoe Y. Globe Jewelry Co., 200 N.C. 580, 157 S.E. 794 (1932). However, recent decisions in a few jurisdictions indicate that under certain circumstances, one who contracts with a private investigator may not thereby insulate himself from liability for unlawful acts committed by the investigator by merely arguing that they were outside the scope of the contract. Ellenberg v. Pinkerton's, to c., 124 Ga. App. 648, 188 S.E. 2d 911 (1972); Noble v. Sears, Roebuck and Co., 33 Cal. App. 3d 654, 109 Cal. Rptr. 269,73 A.L.R.3d 1164 (1973).

96 The Act's definition of "maintain" includes all four record-keeping functions: collection, maintenance, use, and dissemination.

97 For more detailed discussion of this requirement, and the problems agencies have had implementing it, see Chapter 13.

98 Testimony of MIB, Insurance Records Hearings, May 19, 1976, pp. 244-54; 274-77.

99 Submission of MIB, "Official Code List of Impairments - 1962," Insurance Records Hearings, May 19, 1976, p. 1.

100 For a discussion of the doctor-patient testimonial privilege to most medical record-keeping situations, see Chapter 7.

101 Subrogation is the substitution of one party in place of another with reference to a lawful claim or right.