Courts Break New Ground on Privacy

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The courts continue to issue potentially expansive opinions about privacy. No need to panic yet because the limited holdings are not immediately relevant to marketing and profiling activities. Still, the developments provide useful intelligence.


One case arose from litigation involving the constitutionality of the federal law prohibiting so-called partial birth abortions. Several courts wrestled with discovery requests for medical records created by physicians testifying as expert witnesses that the prohibited technique is medically necessary.


The cases produced hand-wringing editorials about medical privacy, few of which showed understanding of the substantial lack of privacy protections in the federal medical privacy rule. The real issue involved discovery rules in civil litigation.


The Seventh Circuit Court of Appeals decided one of these cases in March. Surprisingly perhaps, Judge Richard Posner, a noted critic of privacy, wrote the majority pro-privacy opinion. He has written elsewhere that most of the demand for privacy is motivated by concealment of discreditable information by people who want to project an untrue image.


The case addressed the burden of compliance with requests for production of documents, a standard issue in civil discovery. A third party can object when the burden would exceed the value of the material to the litigation. Posner used this principle to decide the case by weighing the probative value of the records against the potential privacy loss that would result in a case in which the patient was not a party.


It's crucial to understand that the medical records at stake were not identifiable. The records were to be de-identified so that a patient's identity could not be reasonably ascertained. The federal medical privacy rule sets out a stringent de-identification procedure, and the dissent in the case argued, not without force, that no privacy interest remained after de-identification.


But Posner still found a privacy interest. Despite de-identification, he found, acquaintances or skillful "Googlers" might sift the available information to identify the women, thereby exposing them to "threats, humiliation, and obloquy." The conclusion about the ability of searchers is questionable, but Posner did not stop there. Even without any possibility of re-identification, he found that disclosure would be an invasion of privacy.


There is more to this opinion, but Posner's holding about the privacy interest in de-identified records is the most noteworthy aspect. Whether his opinion will be ignored, limited to abortion records or followed in other contexts remains to be seen. However, the notion of privacy for wholly de-identified records breaks new and perhaps dangerous ground.


A less-radical decision came from the Supreme Court in March. The case arose under the Freedom of Information Act. The records at issue were photographs of Vince Foster, the Clinton White House aide who committed suicide.


The FOIA allows for withholding records if disclosure would be an unwarranted invasion of personal privacy. Foster was dead, and his privacy interest was not at stake. Generally under the FOIA, dead people have no protectable privacy interest. But the court did not appear to exclude the possibility that a dead individual might have a privacy interest, and it remains to be seen whether agencies will find a new excuse for withholding records.


The issue was the privacy interest of Foster's surviving relatives, who, according to the court, sought to secure refuge from a sensation-seeking culture for their own peace of mind. Surely, if released, the photos would be all over the tabloids and the Internet.


The court accepted the interest of relatives and held that the FOIA recognizes surviving family members' right to personal privacy with respect to their close relative's death-scene images. This isn't entirely new ground for the FOIA, but it is the first time the court dealt with this aspect of privacy.


I have some trouble here. A living individual can disclose personal information that would embarrass family members, and the family cannot assert a right of privacy to stop it. Somehow, however, at the instant of death, the family acquires a privacy right that didn't exist before.


The result, however, is understandable in human terms. Like other high-ranking government officials, Supreme Court justices worry about their families. Change a few facts, and photos of dead judges could be at issue. The justices were protecting their own families. Frankly, had the case come out the other way, Congress probably would have passed worse legislation in short order.


The Supreme Court worked hard to issue the narrowest possible decision, seemingly limited to a surviving family's interest in death-scene photos. However, others will try to use the decision to expand privacy rights after death. They will be supported by the federal medical privacy rule, which says that an individual's right of privacy in medical information lasts until the sun runs out of hydrogen.


OK, but wait until we have disputes among family members about disclosure. Then the complications will arise.


One thing that I find disconcerting about both of these cases is the willingness to recognize new privacy interests while the courts have not been all that sympathetic to the privacy rights of living individuals regarding information held by third-party record keepers. In the end, both decisions are likely to create more problems than they solve, but probably not immediately.


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