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< | 4th Amendment Privacy Rights and Covid 19 Contact Tracing | >
> | Privacy Issues Associated with the Collection of Medical Data by Government and Private Entities | | | | |
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< | -- By JalilMuhammad - 14 Mar 2022 | >
> | -- By JalilMuhammad - 11 May 2022 | | | | |
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< | Since the start of the Covid 19 pandemic in the early spring of 2019, over one million people have died from the coronavirus. The disease has permeated every element of our society and government response to it has challenged traditional views of the fourth amendment. Although, governments around the world have employed a variety of techniques to counter the spread of the virus, no mechanism employed by local and state government has been scrutinized by privacy advocates more than mobile phone-based contact tracing and for many, the unprecedented use of digital contact tracing technology implicates serious 4th amendment violation concerns. | >
> | Access to the health information of private citizens in the United States has become a highly sought-after data. This paper explores some of the privacy issues implicated when patient medical information is compiled by government entities, their affiliates and/or employers and shared with others for purposes the individual did not consent to. This paper will briefly examine two important instances where the privacy interest of patients is frequently jeopardized. These two instances are: Mandatory reporting of diseases by health care providers to public health agencies and the use of medical data by medical service providers and or employers for purposes that the patient did not provide consent. | | | | |
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< | The Supreme Court has determined that every individual has a reasonable expectation of privacy and that the constitution protects them as long as their individual expectation of privacy remains consistent with what society would consider reasonable. In Katz, the Court noted that the protection of the 4th amendment transcended the physical space of an individual to follow the individual regardless of where they were. The Court stated, “the Fourth Amendment protects people and not simply ‘areas’-against unreasonable searches and seizures… [and] that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” | >
> | Like most states, New York requires newborns at birth to be screened for approximately sixty genetic disorders. Screening takes place within the first 24 to 36 hours of birth by pricking the child’s heel for a small sample of blood. The testing is crucial because collection of the genetic information not only helps medical experts identify the existence of rare diseases among newborns, but it’s also because it affords health officials the opportunity to provide early treatment for diseases that, if left unaddressed, could adversely affect the child for life. However, these genetic tests raise significant privacy interest concerns because in most states, patients are unable to opt out. In her article, Reconsidering Constitutional Protection for Health Information Privacy, Wendy Mariner examines the relationship between the Supreme Court’s Third-Party Doctrine and state mandatory reporting laws and assesses to what extent the doctrine insulates states from fourth amendment violation claims. In Miller and Smith , the Court famously determined that plaintiffs had no legitimate expectation of privacy when they voluntarily turn over information to third parties. However, that case focused on the governments right to seize private information in a criminal investigation under circumstances where the plaintiffs clearly had no expectation of privacy and voluntarily handed over information to third parties. Here, where information is compiled by the government for civil purposes and patients are compelled to participate in genetic testing, the facts are different. Mariner writes, “mandatory reporting laws directly compel the third party to turn data over to government. Thus, mandatory reporting laws can be seen as government-compelled, continuous, suspicion less searches of an entire population’s data, which Miller and its progeny never considered. Although, the constitutionality of mandatory reporting laws for public health purposes is unquestionable under the 10th amendment and other forms of constitutional analysis, Mariner’s observation is interesting because, in some ways, it does draw a chilling resemblance to the continuous collection of telephone data by the NSA which we learned about earlier in the semester. | | | | |
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< | In Jones, the Court examined the 4th amendment implication of law enforcement’s use of GPS technology when attached to a suspect’s vehicle for tracking purposes. The Court noted that despite the GPS tracking only occurring during the time in which the suspect travelled on public roads, the act of surveillance was a violation of the 4th Amendment because it infringed on the individual’s reasonable expectations of privacy. Moreover, the Court determined that the initial attachment of the device to the suspects vehicle within his driveway “encroached on a protected area” and indeed “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Finally, in Carpenter, the Court examined the unique challenges cell site location information technology pose to the protection of the 4th amendment. The Court noted that the “tracking a person’s past movements through Cell-Site Location Information (CSLI) partakes of many of the qualities of GPS monitoring considered in Jones_—it is detailed, encyclopedic, and effortlessly compiled.” However, the Court acknowledged that CSLI went beyond GPS monitoring technology because it revealed an individual’s past location information to wireless service providers on a continuous basis. The Court noted that the government was prohibited from acquiring CLSI data from “third parties” without a warrant, stating “Whether the Government employs its own surveillance technology as in _Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” | >
> | In 2010 the Texas Tribune published an exposé detailing how Texas Health officials stored infant genetic material and shared it with the federal and private entities without parental consent. Like New York, Texas screened newborn children for a variety of genetic disorders, and for years the genetic material was usually discarded soon thereafter. However, at some point in the early part of the last decade, the state changed its policy, developed a partnership with Texas A&M University for research purposes and begin collected all the genetic material of newborns without ever discarding them for “undisclosed purposes unrelated to the purposes for which the blood was originally drawn. Over the course of seven years, over 5 million infant blood spots were collected by the State of Texas with a significant fraction of that amount being turned over to the federal governments Armed Forces DNA Identification laboratory . The purpose of the latter was to create a national mtdna database to help aid in law enforcement and anti- terrorism efforts. Ultimately, as a part of a largely undisclosed settlement with parents, Texas destroyed the genetic material. | | | | |
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< | Proponents of contact tracing argue that while general privacy concerns might be implicated, the Court’s rulings would insulate the practice against a claim of unconstitutionality because the pandemic has reduced the publics expectations of privacy. As a result, they reason, that a government surveillance program, like contact tracing, would be consistent with precedent because an individual’s reasonable expectation of privacy does not outweigh the public’s the public health benefits of contact tracing. Moreover, proponents would argue that even if the Court found that an individual’s reasonable expectation of privacy was violated, the constitutionality of the program would still be upheld if the government’s contact tracing program relied on data mobile users voluntarily provided to third parties. Proponents would argue that health data procured from third parties for public health purposes is distinguished from data procured from Cell-Site Location Information because the former is the least intrusive option available within the context of a global pandemic, is being conducted on an emergency basis only, and will only be used temporarily. | >
> | Similar privacy violations around the country have occurred by government agencies and medical service providers for years. This issue has become even more relevant in light of Covid 19 testing mandates. For instance, in December 2020, parents, students and employees of New York City Public Schools filed suit against the city claiming that the testing mandate violated their reasonable expectation of privacy because the test required parties to submit genetic material to a city testing contractor without a guarantee that specimens would not be analyzed and placed in an active DNA database or used for proprietary purpose. The plaintiffs noted that absent a felony conviction in the State of [[https://casetext.com/case/nicholas-v-goord-3[New York]] , “placement of DNA into such a database may not be done without the express consent of an individual…” Although the vendor claimed in public statements that no DNA would be extracted for such purposes, plaintiff’s reluctance to rely on the vendors unsubstantiated assurances was likely not unreasonable since DNA material can be extracted from testing swabs and used for proprietary and perhaps even worse purposes. | | | | |
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< | I challenge proponent’s position on the constitutionality of contact tracing. Even during the height of the pandemic Americans never adjusted their reasonable expectations of privacy to support the establishment of a comprehensive government contact tracing program. Nothing illustrates this point more than the diversity in which state’s responded to everything from mask mandates to compulsory vaccine regulations. In fact, one could argue that the American people never truly seemed to arrive at a consensus around any shared response to the pandemic, much less a shared expectation of privacy as required by Katz. Moreover, I argue that the Court would likely render almost any effort by the federal government to use health data from third parties for contact tracing purposes, whether mandated or not, as unconstitutional. In Carpenter, the main concern of the Court was the immense amount of CSLI data acquired by law enforcement officers without the consent of mobile device users. Those same concerns would be implicated here because the scope of information derived from CSLI would be dwarfed by the scope of information derived from a comprehensive contact tracing program. In the absence of a participants expressed consent to be tracked or an emergency “so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment”, public health officials would be unable to justify the use of location tracking technology as an element of a contact tracing program because, as noted in Carpenter, historical cell phone location data is not covered by the third-party exception to the Fourth Amendment. No one reasonably denies the danger associated with the Covid virus, but whether it did or currently amounts to an emergency compelling enough to justify enhancing the powers of the surveillance state to further scrutinize the movement, health status and personal decisions of the American people remains to be substantiated. This time the federal, state, and local government apparatus failed to effectively coordinate a comprehensive contact tracing program like those employed by other countries to surveil Americans to mitigate the spread of the virus. However, that does not mean that political will and coordination efforts will fail in the future. Therefore, it’s important that privacy advocates remain vigilant because once privacy rights are handed over, history illustrates that they are rarely returned.
This draft doesn't make sense to me. Where is the connection between the two parts of the subject? You don't show that access to public health data has been sought by law enforcement entities without warrant, or that suppression motions have been made in connection with searches of public health data, or that the question of public health investigation confidentiality has never been tested in relation to criminal process in the US, or that the legal approaches previously taken—about which you don't indeed present any information or cite any cases—are of changed relevance because this communicable disease is Covid rather than tuberculosis or syphilis.
In fact, technical contract tracing is now a fossil. It never took any hold in the US, and no one thinks broad-scale contract tracing is still useful with a pathogen as communicable as Sars-CoV-2. You might as well do contract tracing for influenza. Even South Korea has given up.
I think the way to improve the draft is to abolish all the general language about the epidemic The introduction should state clearly what the problem is you are learning about. If the subject is the constitutional limits on searching public health information compiled by government, then the law on that subject should be unearthed and presented in current context. What ideas that leads you too are then the purpose and conclusion of the next draft.
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> | The American people need to be assured that their private health information is secure and one meaningful way to fortify that security is ratifying legislation at the state level that protects the DNA of newborns from use by private actors without the consent of parents. After the Texas suit settled, Texas legislators updated its mandatory testing statue. The amended statue required parents be afforded the opportunity to object to the departments use of the genetic material for any purpose “other than the conduct of newborn screening tests” and required agencies to provide a public accounting genetic material extracted. Another way to fortify the security of patient medical information is to amend the HIPAA statue so that patients can directly sue covered entities who, without their consent, sell their genetic information to undisclosed parties. The past two years has shown that public health depends in large part on citizens willingness to participate in disease mitigation activities. To what extent the American people will be willing to voluntarily participate in public health mitigation activity in the future will in large part depend on how significantly they feel their private health information is protected. |
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