Branko Marcetic is an editorial intern at The American Prospect.
The powerful, largely unregulated technology poses significant privacy and civil liberty risks.Branko MarceticOct 11, 2016
By Branko Marcetic | Aug 08, 2016
Earlier this year, nearly 400 patients’ groups signed onto two separate letters criticizing a recent Medicare proposal aimed at bringing down the cost of prescription drugs. Warning that there would be dire consequences for patients if the proposal moves forward, patients’ groups including the Partnership to Improve Patient Care and the Quality Cancer Care Alliance urged congressional leaders and the head of the Centers for Medicare and Medical Services to “permanently withdraw” what they viewed as “flawed policy.” In doing so, patients' groups had joined bottom-lined focused pharmaceutical companies in their opposition to the plan, a move that appeared to bolster the argument against the proposal.
But a recent Public Citizen report “Patients’ Groups and Big Pharma” suggests that the story is more complicated. The report shows that at least three-quarters of the 147 patients’ groups who signed on to the letters received funding from the pharmaceutical industry.
Public Citizen combed through websites and documents to determine which patients’ organizations had received pharmaceutical dollars. Some groups had websites emblazoned with pharmaceutical sponsors’ logos or featured specific companies listed as benefactors in reports, while others were featured in pharmaceutical companies’ public disclosures.
“When patients’ groups side with the pharmaceutical industry against proposed policy reforms, they lend credibility and a sympathetic voice to industry lobbying efforts,” the report says, going on to note that such groups’ reliance on industry money “should complicate the view that patients’ groups’ interest in such policy battles is categorically different from the industry’s financial interest.”
The patients’ groups had warned that discouraging medical professionals from prescribing more costly drugs is a “one-size-fits-all” policy that could force them to prescribe cheaper drugs that are also less effective. Such a policy could even lead to an “abrupt halt” in treatment altogether, they argued. One group also cautioned that the measure would particularly hurt patients with disabilities, who had more diverse treatment needs.
It’s not the first time the pharmaceutical industry and patients’ groups have worked together fight this Medicare plan. Last month, USA Today reported that the Community Oncology Alliance (a patients’ group that signed onto one of the Medicare prescription drug letters) used language nearly identical to talking points disseminated by the Pharmaceutical Research and Manufacturers Association in its public comments on the proposal. The pharmaceutical association is also one of oncology alliance’s corporate members.
The Public Citizen report notes that its findings are likely understated, since they are based largely on voluntary disclosures by drug companies and the groups in question. While the Affordable Care Act mandated that drug companies disclose their payments to physicians beginning in 2013, the law did not apply to health advocacy organizations.
The ties between the pharmaceutical industry and patients’ groups are well known. After Senator Chuck Grassley, the Iowa Republican, started investigating pharmaceutical companies’ links to these organizations in 2009, The New York Times reported that the National Alliance on Mental Illness took in around 75 percent of its donations, or about $23 million, from drug manufacturers from 2006 to 2008, a sum that even the group’s executive director admitted was too much.
Patients’ groups rarely talk about high drug prices, a possible consequence of their reliance on industry money. A 2006 study of the issue noted: “Just as gifts (monetary or in kind) may induce feelings of loyalty and indebtedness in physicians which can influence medical decision-making, one may expect patient groups also to be caught between two masters.” Smaller organizations that relied heavily on industry donations to help fund their operations were particularly at risk, the study found.
Public Citizen’s report comes less than a month after the watchdog group issued a separate report on the matter, which found that members of Congress who criticized the Medicare proposal had received significant contributions from the pharmaceutical industry.
By Branko Marcetic | Jul 11, 2016
Alarmed by a new Centers for Medicare and Medicaid Services (CMS) pilot program that aims to bring down the cost of drugs to patients, lawmakers on both sides of the aisle have lined up against it, citing concerns ranging from rationing of care to reduction in rural patients’ access to affordable providers. But a Public Citizen report released Monday shows that many of the members of Congress who opposed the pilot are also bankrolled by the pharmaceutical and health-products industry—major opponents of the proposal.
The “Pharma’s Orders” study by the nonprofit watchdog group examines the contributions received by the 310 members of Congress (240 Republicans and 70 Democrats) who signed two letters, as well as by the 124 members who did not sign either. (One letter opposed the CMS Medicare Part B demonstration project; a second expressed “concerns” about it.) Signers received 82 percent more in contributions during 2016 than those who didn’t sign.
“The contrast here is pretty stark and shows a case where influence is pretty clear,” says Rick Claypool, a Public Citizen research director and the author of the report.
The signers received a combined total of more than $7 million from the pharmaceutical and health-products industry, with an average of $23,344 per individual. Those who didn’t sign either letter got nearly $1.6 million from the industry in total, with an average of $12,789.
It’s not only the signers who are top recipients of pharmaceutical money. Many lawmakers who have otherwise come out publicly against the measure have also been targeted by the industry.
Senator Ron Wyden, an Oregon Democrat, has criticized the proposal for potentially driving seniors in rural areas toward hospital treatment, which is more costly. So far this year, Wyden has received $365,441 from the pharmaceutical and health industry. Senator Chuck Grassley, an Iowa Republican who called it “an ill-conceived experiment” that amounted to human research, received $130,100. Senator Tom Carper, a Delaware Democrat who questioned why it was so large and expansive, received $226,310. And Senator Orrin Hatch, a Utah Republican and one of the plan’s fiercest opponents, received a massive $693,377 from the industry.
The vast majority of the industry’s contributions have gone to Republicans, but Claypool believes this case reflects the current make-up of Congress, which is 56 percent Republican. Historically, the pharmaceutical and health-products industry has tended to steer most of its congressional contributions to members of the party that effectively controls Congress.
The pilot program proposed by CMS Deputy Administrator Dr. Patrick Conway would test how changing the drug-reimbursement system affects doctors’ prescribing behavior. Critics charge that the existing system incentivizes doctors to prescribe more expensive drugs.
Currently, Medicare reimburses physicians the average sale price plus 6 percent for each drug that they prescribe. The proposed measure would lower this percentage to 2.5 percent, and replace the average sales price with a flat payment of $16.80 per drug per day.
“In a way, we’re trying to reduce monetary influence in this process just as we’re trying to reduce it in the political process,” says Claypool.
Following the volley of criticism from members of Congress, Conway told the Senate Finance Committee that CMS intends to go forward with plan, albeit with modifications.
By Branko Marcetic | Jul 01, 2016
The House Homeland Security Committee released a report Wednesday acknowledging what the technology industry has been telling the federal government for more than a year: It’s impossible to give law enforcement a “back door” to encryption technologies without giving bad actors the same access to people’s phones and other devices. The “Going Dark, Going Forward: A Primer on the Encryption Debate” report is the product of more than 100 meetings and briefings that the committee held over the past year with privacy and civil liberties experts, the technology, computer science, and cryptology industries, as well as law enforcement and the intelligence community.
“As a result of our robust investigation, the Committee staff has come to understand that there is no silver bullet regarding encryption and ‘going dark,’” said the report’s authors.
The report covers “end-to-end” encryption technologies: Encryption transmits messages by scrambling them into a series of digits, which are then unscrambled by the use of a key. End-to-end encryption means no one but the people communicating have access to this key, not even the company that owns the communication tool. In other words, only those people can read the messages, which the FBI fears will result in “going dark”—that is, law enforcement will be unable to collect crucial information about potential terrorists.
The report reframes the problems surrounding encryption. Rather than “privacy versus security”—that is, encryption pits law enforcement’s need to access electronic data against individuals’ right to have their personal matters free from being surveyed by the state—the real issue is “security versus security,” according to the report. Creating a means to law enforcement to get access to the data stored in Google or Apple phones “would naturally be exploited by the bad guys—and not just benefit the good guys,” the authors said.
The report contradicts what Obama administration and law enforcement officials have been telling the public for years. Spurred on by a number of recent high-profile terrorist attacks here and abroad, FBI Director James Comey wants technology companies to insert special “back doors”—or security flaws—into encryption software that would allow only law enforcement officials to bypass the encryption and access the data. In March, President Obama chided the industry for its defiant response to Comey’s demands, adding that critics of the government’s views were “fetishizing our phones above every other value.”
The debate leaves technology experts frustrated. They believe that federal government officials do not understand the problems involved in letting law enforcement bypass encryption. Susan Landau, a cyber security expert, has called the idea of a back door “magical thinking,” while Guardian technology reporter Cory Doctorow wrote that “any politician caught spouting off about back doors is unfit for office anywhere but Hogwarts.” Creating a back door for the “good guys” would create that same door for “bad guys”—hackers, identity thieves, foreign governments, and others, just as the House report now acknowledges.
Encryption may not be as great of a security threat as law enforcement officials believe. Although the November 2015 Paris terror attacks were initially reported to have been planned using encrypted apps, it turned out the attackers used burners—prepaid and quickly disposable cell phones that are difficult to track. After turning the San Bernardino shooting and the FBI’s inability to access one of the shooter’s iPhones into a case for weakening encryption, the FBI found another way into the phone and found nothing of value.
Federal officials’ claims are also undercut by a report released on Thursday by the Administrative Office of U.S. Courts that found that the number of government wiretaps that ran up against encryption fell from 22 in 2014 to seven in 2015, even though the number of wiretaps increased.
By Branko Marcetic | Jun 29, 2016
Recent foreign and domestic terrorist attacks have tilted the advantage on surveillance toward law enforcement and security agencies, which are using these incidents to push for broader powers. Civil liberties advocates can take heart, however, in a privacy victory that has largely gone unnoticed.
In early June, Vermont Governor Peter Shumlin signed a sweeping privacy bill into law that curtails the ability of state law enforcement agencies to collect residents’ personal data. The law is modeled on a broad privacy protection bill that California state lawmakers passed last September.
The Green Mountain State forbids the use of “stingrays,” or simulated cell phone towers, except in cases where a fugitive is on the run. Stingrays, whose use by law enforcement agencies only came to light in 2013 after a Freedom of Information Act request by the ACLU of Northern California, are controversial because they can be used to indiscriminately sweep up all cell phone calls, texts, tracking data, and other electronic information within a given radius.
In restricting their use, Vermont follows the lead of Washington state and Virginia. The Old Dominion was the first jurisdiction to require a warrant to use stingrays to obtain personal data.
Additionally, if Vermont law enforcement agencies want to obtain residents’ electronic communications and records, such as phone calls, emails, location data, or bank records, they can now only do so with a warrant, subpoena, court order, or the consent of the individual. Previously in Vermont, such records were obtained through the use of “inquests,” secret court hearings that only police and prosecutors attend.
“Because the hearings are secret, it’s been hard to find out whether a judge was present in all cases,” explains ACLU Vermont Executive Director Allen Gilbert. “Some people said yes, others no. There are no publicly available records of these proceedings.”
The law also requires Vermont law enforcement agencies to obtain a warrant before using drones for investigations or other purposes, such as monitoring protesters. At least other 20 states have passed laws regulating drone use in the past 18 months.
In recent years, the domestic use of drones has gradually spread. The Pentagon has admitted to deploying spy drones on U.S. territory in a “rare and lawful” way over the last decade. In 2015, the Justice Department acknowledged the FBI, DEA, and other federal agencies have used drones for domestic surveillance purposes. In 2013, the federal government gave seven local law enforcement agencies and nonprofit organizations $1.2 million to purchase drones. Still, there has been little public debate about their use in the United States, and state and federal lawmakers have been slow to enact regulations.
Although the Vermont bill restricts the actions of state law enforcement officials, state law does not apply to federal agencies like the NSA or FBI, which might choose to conduct surveillance on Vermont residents. For that, privacy advocates must continue to look to federal law.
Despite its limitations, the Vermont measure is an important milestone for privacy rights.
“For a first go-round, I thought it was adequate,” says Vermont Senate Minority Leader Joe Benning, a Republican who was one of the bill’s sponsors. “There’s always the possibility of improving things, but we were starting from scratch. We’re trying to get ahead of technology.”
Indeed, as the pace of technological change continues to ramp up, state officials have to stay vigilant. “Vermont or any other state can always go further, as electronic issues are constantly evolving,” says Gilbert.