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Home > Privacy and Business > Medical Privacy > Select Laws and Regulations > HIPAA Privacy Regulations > Where the HIPAA Privacy Regulations Came From > HIPAA and the Privacy "Right"

HIPAA and the Privacy "Right"

The "preamble" to the Health Insurance Portability and Accountability Act privacy regulations the section that describes their basis and purpose calls privacy a "fundamental right" and discusses how the Fourth Amendment allows people to be "secure in their persons, houses, papers and effects . . . ."

While there is no question that privacy is very important, it is not clear that privacy is a constitutional or fundamental "right".

The Fourth Amendment is also a poor example to illustrate the importance of privacy in a regulation of the private sector. The Fourth Amendment, after all, was designed by the Founders to protect citizens from governments, which they recognized to have powers that are rightly to be feared and distrusted. The Fourth Amendment does not apply to the private sector.

There are fundamental differences between government and the private sector, differences which make the government a much clearer threat to Americans' privacy. Reciting the Fourth Amendment as if it applies to the private sector can only confuse the public, and distort future enforcement of HIPAA privacy regulations.

Further evidence that the HIPAA regulations will be enforced without a clear founding in basic principles is the fact that the Secretary of Health and Human Service delegated responsibility for enforcement to HHS' Office for Civil Rights. As important as privacy protection is, it is not a traditional civil right. Better that HHS' Office for Civil Rights should be working to protect freedom of speech and worship, and ensuring an end to government-sponsored racial discrimination.


Office for Civil Rights; Statement of Delegation of Authority, Office of the Secretary, Department of Health and Human Services (December 28, 2000)

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[updated 01/02/01]

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