Privacy Research Group – NYU

By Siranya Rhuvattana

After the mass shootings in Colorado and Connecticut, President Barack Obama has attempted to curb the gun violence by, among other ways, improving the Federal government’s background check system for the sale or transfer of firearms by licensed dealers, called the National Instant Criminal Background Check System (NICS). The Department of Health and Human Services (HHS) is accordingly considering amending the Health Insurance Portability and Accountability Act (HIPAA) privacy rule to allow covered entities to disclose the identities of those deemed dangerous. (link: Link: http://www.courthousenews.com/2013/04/26/57104.htm)

NICS Index

The NICS Index is a database administered by the Federal Bureau of Investigation (FBI) established to collect and keep certain identifying information about individuals who are subject to one or more of the Federal prohibitors and thus, are ineligible to purchase firearms. In general, the Federal Firearms Licensees are required to request a background check through the NICS before selling guns to a buyer. The mental health prohibitors include those who have been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise have been determined, through a formal adjudication process, to have a severe mental condition that results in the individuals presenting a danger to themselves or others or being incapable of managing their own affairs.

The demographic information about the individual maintained in the NICS database is restricted to only the names of ineligible individuals and certain other identifying information, such as their dates of birth, and codes for the submitting entity and the prohibited category that applies to the individual. The underlying diagnoses, treatment records, and other identifiable health information is not provided to or maintained by the NICS. However, State agencies are not required to report to the NICS the identities of individuals who are prohibited from purchasing firearms. The NICS Index, thus, could not encompass the information of all mental health prohibitors.

HIPAA implications

Where the record of an involuntary commitment or mental health adjudication

originated with a HIPAA covered entity, or the HIPAA covered entity is the State

repository for such records, the records are subject to HIPAA. Nonetheless, due to the variety of State laws, there may be other parties such as State agencies, boards, commissions, or other lawful authorities outside the court system that are involved and to what extent these parties that order involuntary commitments or conduct mental health adjudications are HIPAA covered entities. Also, there may be some designated repositories by State laws that needs to be determined as to whether they are subject to HIPAA, such as State health agencies, to collect and report to the NICS the identities of individuals subject to the mental health prohibitor. Although HIPAA allows the State agency to designate itself a hybrid entity by labeling its health care components as separate from other components and documenting that designation, there may be administrative or other challenges to the creation of a hybrid entity.

As a result of unclear extent of covered entities and their obligations, many States still are not reporting essential mental health prohibitor information to the NICS. Some States may face practical difficulties in passing a State law requiring NICS disclosures, but primary concern is about the HIPAA Privacy Rule’s restrictions on covered entities’ disclosures of protected health information which may prevent certain them from reporting to the NICS the identities of individuals who are subject to the mental health prohibitor. (link: http://thehealthcareblog.com/blog/2013/04/25/what-does-hipaa-have-to-do-with-gun-control-maybe-more-than-you-think/)

In addition, the provided names will then be cross-checked against a state database of people who have registered their weapons. Law enforcement officials would then have the option of removing weapons from that individual, and suspending or revoking any gun permits they hold. Harvey Rosenthal, an executive director for the state Association of Psychiatric Rehabilitation Services (link: http://www.timesunion.com/local/article/Gun-law-vs-mental-health-4234056.php#ixzz2SA8ehuHA) was of concern that a danger that the information might fall into the wrong hands, or prejudice police or other authorities who come in contact with someone over a non-gun-related issue.

Thus, the HHS’s advance notice of proposed rulemaking (link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2013-09602.pdf) is seeking public comment on how HIPAA is preventing states from sharing such records, and how the law would be in place without discouraging individuals from reaching out for medical cares. Wide public recommendations would, expectantly, provide a balanced strike between the privacy interest and public security.

By: Albert Lin

As part of a reaction to the mass shootings in Aurora, Colorado and particularly Sandy Hook Elementary School, there has been strong push in recent weeks for stronger and stricter gun control laws to hopefully reduce the risk of future mass shootings. Much attention during debate over the proposed gun control legislation has rightfully been focused on their relation to the Second Amendment’s right to bear arms. One of the proposed alterations to the existing framework of gun control laws involves improving the background check system nationwide and enforcing a prohibition on selling guns to individuals found to be a danger to themselves, otherwise known as “mental health prohibitors.” One unintended potential consequence of the proposed reforms may clash with the current provisions of the Health Insurance Portability and Accountability Act (HIPAA), as well as other laws related to the privacy of personal health information (PHI).

HIPAA forbids “covered entities” such as medical clinics, hospitals, physician offices, and other health care organizations, from disclosing the identities of health care information of persons whose medical records they store. Additionally, numerous states have specific statutes providing civil and criminal protection against the disclosure of medical information. Some statutes restrict disclosure of medical data by certain entities, while others restrict the disclosure of particular types of medical data, including mental health information. While it is unclear what the exact mechanism of the proposed background checks is, it is clear that they will undoubtedly be in conflict with the relatively strict nondisclosure requirements under HIPAA.

Towards the end of April, the Department of Health and Human Services began soliciting public comments on improving the background check system and for potentially amending the privacy rule to allow covered entities to disclose the identities of those deemed dangerous. The DHHS has cautioned that they would not allow the disclosure of an individual’s treatment record or any related clinical or diagnostic information. In the issued statement, the DHHS also stated they would limit the information disclosed to only the demographic information (such as date of birth), and codes identifying the reporting entity and the relevant prohibitor. Depending on the relevant state laws, however, it is possible that Congress may have to amend HIPAA entirely to allow these increased background checks to move forward. As such, the clash of this prospective expansion to the background check system with HIPAA’s privacy rule must be resolved before the expansion of background checks may be implemented.

http://www.courthousenews.com/2013/04/26/57104.htm

http://www.allgov.com/news/controversies/would-gun-background-checks-clash-with-health-privacy-laws-130429?news=849885

http://www.gpo.gov/fdsys/pkg/FR-2013-04-23/html/2013-09602.htm

Anonymous

The use of drones on American soil came to the fore in March, when Sen. Rand Paul “talking filibuster[ed]”of the confirmation of John Brennan as Director of Central Intelligence. Mindful of the killing of al-Qaeda activist and U.S. citizen Anwar al-Awlaki by weaponized drone—after an Article II-only deliberative process—in Yemen, Sen. Paul insisted on a clear statement from the Obama Administration that it did not possess “the authority to use a weaponized drone to kill an American not engaged in combat on American soil.”

Sen. Paul’s particular focus on drones was curious: one would think that the chief concerns with executive killings of this sort would relate to the lack of Article III process and use of the substantive threshold of enemy combatant status, rather than whether the instrument was a drone or a SEAL teams. But the attention that Paul nonetheless drew to the potential use of drones in America raised a public debate about the proper usage and procedures for private and public drones alike. The debate particularly illuminated the scope of surveillance potentially enabled by a world of ubiquitous flying cameras, as well as its impact on what our reasonable privacy expectations are in the 21^st century.

Amidst increase awareness of the implications for privacy law raised by the drone future, several members of Congress have introduced legislation to regulate domestic drone use. The Center for Democracy and Technology has helpfully summarized bills targeting privacy issues raised by non-weaponized drones introduced by Reps. Ed Markey and Joe Barton, and Reps. Poe and Lofgren. Both bills would increase oversight of use of drones by law enforcement agencies and constrict the scope of private actors’ permissible use of drones. While both bills (and others) are still pending, they mark some of the first attempts by legislators considering drones’ potential to challenge bounds of privacy in the physical space just as the internet has challenged bounds of privacy in the communicative space.

For the Center for Democracy and Technology summary: https://www.cdt.org/blogs/gs-hans/0804drone-privacy-bills-attempt-protect-americans-governmental-commercial-surveillance

By Scott B.

Trying to make employees work more efficiently isn’t a new project – from Taylorism to 360-degree reviews, an entire industry has emerged to analyze and optimize workforce productivity. However, never before has the sheer amount of data, and immense processing power, been available in a way that allow companies to analyze employee performance in real-time, and without human intervention.

The New York Times reported last week about the growing trend of “employee informatics”, where companies are using employee data and the tools of big data to measure employee habits. “Today,” the Times reports, “every e-mail, instant message, phone call, line of written code and mouse-click leaves a digital signal. These patterns can now be inexpensively collected and mined for insights into how people work and communicate, potentially opening doors to more efficiency and innovation within companies.” These are the same types of tools that advertising companies use for behavioral ad targeting, but since the data available on employees is so much richer, the privacy risks are also greatly increased. Furthermore, the employee-employer relationship gives rise to a far greater risk of privacy harm.

IBM’s 1.3 billion dollar acquisition of Kenexa in August, 2012 appears to be a sign of things to come. According to Forbes.com, “Kenexa is a consulting, content, and technology company which plays in many different parts of the talent management market.” Through the purchase, IBM will be able to integrate its data processing power and know-how with the abundant data and HR industry connections that Kenexa has established. The Times article also reports that companies like Google, and organizations like the NYU Langone Medical Center, have utilized “constant measurement” to test employee traits.

How do the Fair Information Practices (FIPs) fare when corporations are tracking every move their employees make in the workplace? To prevent employee abuse, meaningful notice and consent should be important components of extensive workplace data collection and analysis. Employees should also be able to view and correct any data collected about them. It would also be beneficial to require that any measurement methodology used be disclosed to employees so that they can see why their work is being praised or criticized. Particularly when employee informatics leads to demotion or firing, reckless reliance on inaccurate employee analytics is deeply problematic. Furthermore, data security is a big concern, particularly when confidential employee data is shared with third parties such as IBM.
Employee creativity is also at risk when work is so closely monitored, and companies might find these monitoring strategies to be counterproductive when employees try to beat the system rather than produce their best work. Even the most mundane jobs include elements of creativity, such as process optimization. Will the chilling effect of constant workplace surveillance serve to chill employee creativity in the same way that public surveillance chills free speech and expression? While the workplace is not considered a particularly private environment, the extension of surveillance to the workplace represents another space where persistent surveillance is becoming the norm. As these surveillance programs become increasingly common, it would be useful for a government agency (presumably the Department of Labor) to oversee the regulation of these tools to ensure they are responsibly implemented.

By: Felipe Burgos

On April 9, 2013, the United States Court of Appeals for the Eleventh Circuit upheld the district court decision that the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) preempted a Florida law regarding the disclosure of patient records by nursing homes.

The nursing facilities were penalized by the Florida Agency for Health Care Administration (“AHCA”) for refusing to provide medical records to deceased residents’ spouse, guardian, surrogate, proxy, or attorney in fact, according with a 1987 state law allowing to provide that personal health information.

Florida’s nursing facilities filed the case against the AHCA in May 2012.

The plaintiffs argued if they followed the Florida law requiring them to provide medical records to these parties, they would violate HIPAA. Under HIPAA, nursing homes can only provide personal health information to officially designated “personal representatives”, which could include the executor, administrator or other person acting on behalf of an individual or his or her estate. Providers also may furnish medical records to deceased residents’ family members who helped pay for the resident’s care, but only if the records are pertinent to the requestor’s financial involvement.

The Court maintained the decision from the lower court that the Florida statute was too broad and it did not meet the stricter HIPAA definition of personal representative, but “authorizes sweeping disclosures, making a deceased resident’s protected health information available to a spouse or other enumerated party upon request, without any need for authorization, for any conceivable reason, and without regard to the authority of the individual making the request to act in a deceased resident’s stead”.

According to the Court, HIPAA and the Florida law “could not be reconciled” because the Florida law was “an obstacle to the accomplishment and execution of the full purposes and objectives of HIPAA in keeping an individual’s protected health information strictly confidential.” The court emphasized that HIPAA ensures the privacy protection of deceased individuals’ health information by generally prohibiting its use and disclosure except in certain circumstances or with authorization. In contrast, the court explained, the Florida law allowed for “sweeping disclosures, making a deceased resident’s protected health information available to a spouse or other enumerated party upon request, without any need for authorization, for any conceivable reason, and without regard to the authority of the individual making the request to act in a deceased resident’s stead.”

Based on this argument, the court concluded HIPAA preempted the Florida law.

Because HIPAA preempts any contradictory state laws, the Florida legislature must revise the statute at issue or it will not be enforceable, Judge Susan H. Black said.

Link: http://www.govhealthit.com/news/appeals-court-affirms-hipaa-preemption