Blog Archives

Law Enforcement Access [to Medical Records]

4/20/2019

Law Enforcement Access [to Medical Records]
Electronic Frontier Foundation no date

When exploring medical privacy issues, it's very useful to have an overview of the laws that affect control and privacy of medical information. We encourage you to read our legal overview.

Federal and state laws define some privacy rights for people who want to keep their medical records out of the hands of law enforcement. But law enforcement has many ways to access medical data when investigating crimes, identifying victims, or tracking down a fugitive. Often, the police are able to seek out sensitive medical records without an individual's consent—and sometimes without a judge's authorization.

To understand this, it's useful to compare the federal standards set by the Health Insurance Portability and Accountability Act (HIPAA) to the more privacy-protective legal standards in the State of California. We'll be jumping back and forth between the two throughout this discussion. Note: this discussion doesn’t cover access to health records relating to treatment in federally funded substance abuse facilities and programs under 42 U.S.C. § 290dd-2 and its “Part 2” regulations, which has stricter rules.

Disclosures of medical information to law enforcement by covered entities

The HIPAA Privacy Rule broadly defines law enforcement as "any government official at any level of government authorized to either investigate or prosecute a violation of the law."

Under HIPAA, medical information can be disclosed to law enforcement officials without an individual’s permission in a number of ways. Disclosures for law enforcement purposes apply not only to doctors or hospitals, but also to health plans, pharmacies, health care clearinghouses, and medical research labs. That's because under the HITECH Act, as implemented by the HIPAA Omnibus Rule, both a "covered entity" and any business associate (BA) are directly subject to these law enforcement access rules.

California has somewhat stronger privacy rules that require more court involvement, because HIPAA does not preempt more privacy-protective state laws. In California, search warrants for medical records are generally authorized under the Penal Code and require judicial approval based on probable cause. Less stringent court orders based on a showing of good cause can also be used. And in California, even if a mere administrative subpoena is used, the California Penal Code requires an authorizing court order.

By contrast, HIPAA permits 1 the police to use an administrative subpoena or other written request with no court involvement, as long as police include a written statement that the information they want is relevant, material, and limited in scope, and that de-identified information is insufficient. . . .

California,Federal, Electronic Frontier Foundation, Health Insurance Portability and Accountability Act (HIPAA), Health Records, Law Enforcement, Medical, Medical Records, Notice of Privacy Practices (NPP), Privacy, State

National Security and Medical Information

4/20/2019

National Security and Medical Information
Electronic Frontier Foundation (no date)

When exploring medical privacy issues, it's very useful to have an overview of the laws that affect control and privacy of medical information. We encourage you to read our legal overview.

The government has many options for obtaining your medical records on the grounds of national security. And if your medical records are swept up in a national security investigation, you likely won't be asked to consent and potentially won't ever know your medical records were accessed.

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule that went into effect in 2003 included a national security exception that permits doctors, hospitals, and any other "covered entity" to disclose individual health information "to authorized federal officials for the conduct of lawful intelligence, counter-intelligence, and other national security activities authorized by the National Security Act." This exception overrides the normal requirement that your authorization is needed before your medical information can be disclosed for anything other than your treatment, bill payment, or your health care provider’s business operations.

This national security exception appears to allow covered entities to disclose health records, at their own discretion, to any federal agency that plays a role in intelligence, counter-intelligence, and national security activities. This includes but isn't limited to the CIA, the FBI, and the NSA.

For example, a hospital could disclose any or all of the patient medical records in its possession to the NSA on the hospital’s own initiative, and could even allow the NSA or other federal agencies to access the hospital’s health record system on a permanent, ongoing basis. This could be done without a court order, without any procedural or substantive protections or barriers, and even without any request from the agency. . . .

Bio-terrorism, Central Intelligence Agency, Electronic Frontier Foundation, Federal, Federal Bureau of Investigation, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Health Insurance Portability and Accountability Act (HIPAA), Health Records, Intelligence Community, Medical, Medical Records, Military, National Security, National Security Act, National Security Agency, Notice of Privacy Practices (NPP), Patriot Act, President, Privacy, Section 215 of the Patriot Act, Secret Service, Surveillance

FBI’s Facial Recognition Programs Under Fire Over Privacy, Accuracy Concerns: The bureau has largely ignored the Government Accountability Office’s concerns about its use of facial recognition in criminal investigations.

4/18/2019

Nextgov APRIL 18, 2019 04:08 PM ET
Jack Corrigan

The FBI still has not assessed whether its facial recognition systems meet privacy and accuracy standards nearly three years after a congressional watchdog—the Government Accountability Office—raised multiple concerns about the bureau’s use of the tech.

Since 2015, the FBI and other law enforcement agencies have used the Next Generation Identification-Interstate Photo System, which uses facial recognition software to link potential suspects to crimes, pulling from a database of more than 30 million mugshots and other photos. . . .

Amazon, Civil Rights, Department of Justice, Facial Recognition Systems, Federal, Federal Bureau of Investigation, Government Accountability Office, Law Enforcement, Next Generation Identification-Interstate Photo System, Privacy, State, Surveillance

Coalition Letter on Reauthorization of Patriot Act's Section 215

4/15/2019

Letter from ACLU and 40 other groups requesting that Congress review Section 215 of the Patriot Act

March 18, 2019

The Honorable Jerrold Nadler
Chairman
Committee on the Judiciary
U.S. House of Representatives
2138 Rayburn House Office Building
Washington, DC 20515

The Honorable Doug Collins
Ranking Member Committee on the Judiciary
U.S. House of Representatives
2138 Rayburn House Office Building
Washington, DC 20515

Dear Chairman Nadler and Ranking Member Collins:

The undersigned organizations, which are dedicated to preserving privacy, civil liberties, and advancing transparency and accountability, write to request that you hold hearings and make public information critical to permit an informed debate over the reauthorization of Section 215 and other provisions of the Patriot Act, which are set to expire December 15, 2019. . . .

Access Now, ADC American-Arab Anti-Discrimination Committee, American Civil Liberties Union, American Library Association, Americans for Prosperity, Arab American Institute, Brennan Center for Justice at NYU School of Law, Call Detail Records, Carpenter v. United States 138 S.Ct. 2206, Cell Phones, Center for Democracy & Technology, Civil Liberties, Civil Rights, Color Of Change, Committee on the Judiciary, Consumer Action, Council on American-Islamic Relations, CREDO Action, Committee on Oversight and Reform, Defending Rights & Dissent, Demand Progress, Department of Homeland Security, Department of Justice, Electronic Frontier Foundation, Electronic Privacy Information Center, Fight for the Future, First Amendment, FISA Amendments Act, Foreign Intelligence Surveillance Court, Free Press Action, FreedomWorks, Government Accountability Project, Government Information Watch, Government Transparency, Human Rights Watch, Immigrant Legal Resource Center, Indivisible, Liberty Coalition, Million Hoodies Movement for Justice, Muslim Justice League, Muslim Public Affairs Council, NAACP, National Association of Criminal Defense Lawyers, National Coalition Against Censorship, National Immigration Law Center, National Security, National Security Agency, New America's Open Technology Institute, Open the Government, Patriot Act, PEN America, Privacy, Project on Government Oversight, Restore The Fourth Inc., Section 215 of the Patriot Act, Section 702 of FISA Amendments Act, TechFreedom, Telephones, Transparency International, “Unique Identifiers", USA Freedom Act, US House Permanent Select Committee on Intelligence

CHICAGO IS TRACKING KIDS WITH GPS MONITORS THAT CAN CALL AND RECORD THEM WITHOUT CONSENT: Cook County has a new contract for juvenile ankle monitors that critics say are an invasion of privacy.

4/8/2019

The Appeal Apr 08, 2019
Kira Lerner

This story was co-published with Citylab.

On March 29, court officials in Chicago strapped an ankle monitor onto Shawn, a 15-year-old awaiting trial on charges of armed robbery. They explained that the device would need to be charged for two hours a day and that it would track his movements using GPS technology. He was told he would have to be given permission to leave his house, even to go to school. But he found out that through his monitor, officers wouldn’t just be able to track his location, as most electronic monitors do. They would also be able to speak—and listen—to him.

“I feel like they are listening to what he’s saying,” said Shawn’s mother. “They can hear everything. We could be here talking about anything.”

Shawn, whose name has been changed to protect his identity, is one of hundreds of children in Chicago whose ankle monitors are now equipped with microphones and speakers. The stated purpose of these devices is to communicate with the children, but they are raising concerns among civil liberties watchers that they are actually a mechanism for surveilling the conversations of these kids and those around them—and potentially for using the recordings in criminal cases. . . .

Ankle Bracelets, Cell Phones, Chicago, Civil Rights, Children, Cook County, Criminal Justice, Electronic Monitoring, GPS, Illinois, Law Enforcement, Privacy, Probation, Sheriff, Surveillance

As Black Activists Protested Police Killings, Homeland Security Worried They Might Join ISIS

4/8/2019

As Black Activists Protested Police Killings, Homeland Security Worried They Might Join ISIS
Alice Speri, The Intercept_, April 8 2019, 8:23 a.m.

AS NATIONWIDE PROTESTS against police killings of black men began rolling across the country in 2014, federal and local law enforcement who were closely monitoring protesters’ online activities repeatedly expressed a bizarre concern: that the mostly black activists demanding an end to police violence in the U.S. might join with Islamic fundamentalist groups promoting violence abroad.

That concern was unequivocally baseless, and no evidence ever emerged to substantiate it. Still, documents obtained by the government transparency group Property of the People, which were shared exclusively with The Intercept, reveal that officials with the Department of Homeland Security and the Office of the Director of National Intelligence exaggerated the significance of isolated social media activity, mostly by foreign accounts, advocating for a connection between the domestic movement against police brutality and foreign terrorism. . . .

Activists, Al Qaeda, Baltimore, “Black Identity Extremists”, Black Lives Matter, Center for Constitutional Rights, Civil Rights, Conspiracy Theories, Dakota Access Pipeline Protest Movement, Department of Homeland Security, Domestic Terrorism, Ferguson, Fox News, Fusion Centers, Greater Cincinnati Fusion Center, Intelligence Agencies, Intercept, ISIL, ISIS, Islamophobia, Islamic Extremism, Islamic State, Islamic State of Iraq and the Levant, Law Enforcement, Maryland, Minneapolis, Minnesota, Missouri, Muslims, NAACP Convention, National Security, Office of the Director of National Intelligence, Palestinians, Private Security Companies, Police, Police Brutality, Property of the People, Riots, Standing Rock Protest Movement, St. Louis, Stereotyping, Terrorism

Two HPD officers indicted after allegedly making a homeless man lick a toilet: HPD officers John Rabago and Reginald Ramones were said to deprive an individual of his constitutional right to be free from an unreasonable seizure by a law . . .

4/5/2019

KITV4 Friday, April 5th 2019, 5:25 PM HST
Nicole Tam

HONOLULU - Two Honolulu Police officers were arrested and charged Friday for allegedly violating a man's civil rights. They're accused of forcing a homeless man to lick a urinal last year.

Myles Breiner is the attorney that represents Sam Ingall.

"As you often hear, people have said justice delayed is justice denied. This happened over a year ago," Breiner said.

Breiner says the incident happened last January in a private apartment building on Keeaumoku Street and a security guard on duty let his client in. Police got involved because Ingall was wanted for violating probation regarding a separate drug case.

"This really is unfortunate for so many police officers who put themselves at risk every single day to have two officers abuse their authority and create disrespect in the community for the police in general," Breiner said.

The Hawaii American Civil Liberties Union calls this a step in the right direction.

"These are just allegations. These officers are innocent until proven guilty but we're glad that action is being taken to defend the civil rights of the person who is violated," Josh Wisch, ACLU Hawaii executive director, said. "That's one of the things that's a real takeaway here is there's been this dehumanizing of the people who are house less across this state."

18 U.S. Code § 242 Deprivation of Rights Under Color of Law, American Civil Liberties Union, Hawaii, Homeless People, Honolulu, Justice Department, United States Criminal Code

America is fueling our age of impunity. Just look at Yemen: The US has the power to set a global standard on international human rights. Unfortunately, it is retreating from our global rules-based system

4/5/2019

The Guardian Fri 5 Apr 2019 08.47 EDT
David Miliband

The promise by Donald Trump to veto the bipartisan Congressional War Powers Resolution on Yemen is significant in and of itself. The decision is rightly drawing significant fire. The war in Yemen is a humanitarian disaster and a strategic failure, with precisely the forces the Administration says it opposes - Iran, jihadists, separatists - gaining ground on the back of the bankrupt Saudi-led war strategy.

However, there is a wider, ugly picture, beyond Yemen. It can be summarized as an Age of Impunity: where war crimes go unpunished and the laws of war become optional. This is not solely the responsibility of the United States, but the US has the power and position to set a global standard, and when it fails to do so the effects are felt worldwide, by innocent civilians feeling the brunt of lawless military tactics and humanitarian aid workers risking life and limb as they go about their work. . . .

Chemical Weapons, Civilians, Congress, Congressional War Powers Resolution on Yemen, Donald Trump, Global, Human Rights, Law, War Crimes, Yemen

The Government Had to Approve This Op-Ed: Prepublication review of the writings of current and former federal employees violates their First Amendment rights.

4/2/2019

The New York Times April 2, 2019
By Mark Fallon
Mr. Fallon worked for the federal government for 31 years.

Between the time I wrote these words and the time that you are reading them, a team of government censors decided how much of what I wrote you would get to see. Fortunately, it was cleared without redactions. But I haven’t always been so fortunate.

There are millions of others like me who face this scrutiny as present and former employees of the armed services and a dozen other government agencies, from the C.I.A. and F.B.I. to the State and Energy Departments. We have faithfully carried out our duties and upheld our oaths of allegiance to the Constitution. Many of us earned the highest trust of our country, serving in roles that brought us in contact with government secrets and classified material. We have honored and repaid that trust, guarding sensitive information and fulfilling the obligations associated with our security clearances. . . .

9/11 Terrorist Attacks, American Civil Liberties Union, Censorship, Central Intelligence Agency, Department of Defense, Department of Energy, Federal, Federal Employees, First Amendment, Government, Government Transparency, Knight First Amendment Institute, Lawsuits, Prisoners, State Department, Torture

California court: Old police misconduct records are public

4/2/2019

California court: Old police misconduct records are public
AP News, Kathleen Ronayne, April 2, 2019

SACRAMENTO, Calif. (AP) — Law enforcement agencies in California must release police misconduct records even if the behavior occurred before a new transparency law took effect, a state court of appeals has ruled.

The 1st District Court of Appeal’s decision released Friday settles for now a debate over whether records created before Jan. 1, when the law took effect, were subject to disclosure. Many police unions have sued to block the records release, while public information advocates argued the records should be disclosed.

The ruling applies to police agencies statewide, including the attorney general’s office, unless another appellate court steps in and rules differently, said David Snyder of the First Amendment Coalition. . . .

AP News, California, Government Transparency, Police, Police Misconduct Records

IN THE NEWS

Law Enforcement Access [to Medical Records]

National Security and Medical Information

FBI’s Facial Recognition Programs Under Fire Over Privacy, Accuracy Concerns: The bureau has largely ignored the Government Accountability Office’s concerns about its use of facial recognition in criminal investigations.

Coalition Letter on Reauthorization of Patriot Act's Section 215

CHICAGO IS TRACKING KIDS WITH GPS MONITORS THAT CAN CALL AND RECORD THEM WITHOUT CONSENT: Cook County has a new contract for juvenile ankle monitors that critics say are an invasion of privacy.

As Black Activists Protested Police Killings, Homeland Security Worried They Might Join ISIS

Two HPD officers indicted after allegedly making a homeless man lick a toilet: HPD officers John Rabago and Reginald Ramones were said to deprive an individual of his constitutional right to be free from an unreasonable seizure by a law . . .

America is fueling our age of impunity. Just look at Yemen: The US has the power to set a global standard on international human rights. Unfortunately, it is retreating from our global rules-based system

The Government Had to Approve This Op-Ed: Prepublication review of the writings of current and former federal employees violates their First Amendment rights.

California court: Old police misconduct records are public

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