[Congressional Record Volume 144, Number 60 (Wednesday, May 13, 1998)]
[Senate]
[Page S4841]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      ANTI-SLAMMING AMENDMENTS ACT

 Mr. LEAHY. Mr. President, yesterday, an amendment offered by 
Senator Feinstein to the anti-``slamming'' bill, S. 1618, was passed 
without debate. While this amendment was intended to enhance the 
privacy rights of patients, the consequence of this amendment would be 
far different. Specifically, this amendment would change current 
federal law and put patients at risk of criminal liability if they 
record their conversations with health providers and health insurers 
without first alerting and obtaining the consent of those providers and 
insurers.
  This Feinstein amendment modifies the wiretap law, in title 18 of the 
United States Code, but was never considered by the Committee of the 
Judiciary, which has jurisdiction over this law. The risk of passing 
legislation quickly and bypassing the Committee with jurisdiction over 
the subject matter is amply revealed by the unintended consequence of 
this amendment.
  If this amendment becomes law, the minority rule adopted by only a 
small number of States--sixteen--requiring the consent of all parties 
for the lawful interception of telephone calls, would be applied to all 
conversations that take place between patients and health insurers or 
providers. There are a number of legitimate reasons for patients to 
want to record their calls with a health provider or insurer: medical 
instructions can be complicated. Insurers' explanations of coverage or 
decisions regarding reimbursement may be complicated. Patients may have 
sound reasons for recording those conversations if they are unable to 
take notes or want to keep the oral instructions for future reference. 
For example, patients, especially Alzheimer sufferers, may want to 
record their calls as a memory aid, and be too embarrassed to say so.
  A more carefully crafted amendment would have reduced the unwarranted 
risk of criminal liability to patients. If this provision were to 
become law, we would have to revisit this issue promptly.

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