Information advantage: liberal news consumers.
There is, of course, no way to know for sure why that language is there in the source code, but conservatives freaking out about it ought to at least be informed that (1) duh, invisible terms of service aren't binding! (2) Occam's razor says the language is there because someone cut and pasted boilerplate terms of service and then specifically deleted the parts about ceding privacy rights, which is what you'd want.
Complicating that Conclusion
It's easy to see how Igor Volsky at ThinkProgress would sum up this whole episode as follows:
Rather than focusing on the real problems plaguing HealthCare.gov, House Republicans sought to portray the website as an insecure portal that will endanger the privacy of American’s medical information during a House Energy and Commerce Committee hearing focusing on the implementation of the Affordable Care Act. The accusations led one Democratic lawmaker to label the hearing “a monkey court.”
After all, a Republican marshaled facts misleadingly stripped of their contest to portray Healthcare.gov as an insecure portal and scare conservatives about Obamacare.
What's particularly frustrating about that, for an Obamacare skeptic such as myself, is the fact that the legislation's implications for privacy are a totally valid concern. As ever, the highly reliable Peter Suderman of Reason offers a more sophisticated critique of the law than anything House Republicans ever manage:
Obamacare navigators and other enrollment aides could violate the privacy of exchange users: The health law budgets some $67 million for “navigators” to help people sign up for coverage. By necessity, these individuals will handle sensitive personal information required to apply for coverage through the law’s exchanges. That creates an enormous opportunity for fraud and deception. And yet the navigators, and the enrollment assisters working in state-run exchanges will receive only minimal oversight and training. They’ll be approved after just 20 or 30 hours of training. And the federal governmentwon’t provide navigators with IDs, or maintain a list of individuals who are approved by the program. That could make it easy for unscrupulous individuals to present themselves as navigators when they are not in order to steal personal data — a fraud that consumer advocates are already expecting.
Progressive blogs did not seize on his post en masse.
The Bush and Obama Administrations both showed with perfect clarity that they don't give a damn about the privacy rights of Americans; federal bureaucrats serving in both eras have broken the law to hoover up our private information; and every trend points to a federal government intent on expanding its ability to collect information on Americans and share it among agencies. The U.S. has also shown an inability to protect data it stores from being hacked or stolen. Given all that, it isn't paranoid to imagine that any health information handed over to the federal government won't remain private for long. A betting man would be wise to conclude that somehow or other, it will at least be seen more widely than Obama Administration officials are promising—especially if additional steps aren't taken to make the information better protected.
Now do you understand the unenviable place Americans occupy?
Republicans are so incompetent, and rely so heavily on transparent propaganda rather than substantive critiques, that they raised the privacy issue in ways that reasonable observers could easily dismiss—this despite the fact that a strong reality-based privacy critique is as easy to make as reading Suderman aloud.
The performance of Republicans and their media hacks inspired understandable mockery from progressive journalists. But their eye-rolling blinded at least some of them to totally reasonable privacy concerns that much of the country might harbor about Obamacare. The lesson for Republicans: Your serial hackery undermines everything a less incompetent opposition might accomplish. The lesson for progressives: outsmarting the most hackish Republicans isn't enough to fix the flaws in legislation that you championed and passed, substantial warts and all. Playing the Washington Generals does not make you the Harlem Globetrotters.