Medical and Workplace Privacy

1. Medical and WorkplacePrivacy Michael I. Shamos, Ph.D., J.D. Institute for Software Research International Carnegie Mellon University

2. Outline • Medical privacy stakeholders: • patient • heath care provider • insurer • federal government • (sometimes) employer • what is the basis for privacy? • Workplace privacy stakeholders: • employee • employer • what is the basis for privacy?

3. U.S. Privacy Law • Privacy law is a patchwork of state and federal statutes and judicial decisions. There is little consistency • The Federal government has limited powers to protect privacy • “Interstate commerce” (Federal Trade Commission) • There are three Federally protected categories of personal data: • financial (Gramm-Leech-Bliley) • educational (FERPA) • medical (HIPAA) • Plus some narrow protections, e.g. video rental data

4. Cliff Notes Version of HIPAA • Covered Entities (healthcare providers, health plans, insurance companies, healthcare clearinghouses) • May Not Use or Disclose Protected Health Information (PHI) • Except with the Written Consent or Authorization of the Employee • Or Unless Required or Permitted by Law • or to the Minimum Extent Necessary or Allowed to Accomplish the Purpose of Treatment SOURCE: LITTLER, MENDELSON

5. Protected Health Information (PHI) • Information created or received by a health plan or healthcare provider; and • Relates to the condition or care of an individual; or • Relates to the payment for care; and • Permits identification of the individual (or creates a reasonable basis upon which to identify the individual)45 CFR §164.501 SOURCE: LITTLER, MENDELSON

6. HIPAA: Health Insurance Portability and Accountability Act of 1996 • A covered entity may not use or disclose protected health information, except as permitted or required … • pursuant to … a consent … to carry out treatment, payment, or health care operations • pursuant to … an authorization • pursuant to … an agreement (opt-in) • [other provisions]45 CFR §164.502 • Health information that meets … specifications for de-identification … is considered not to be individually identifiable health information45 CFR §164.502(d) REGULATIONS

7. De-Identification • A covered entity may determine that health information is not individually identifiable only if: … the following identifiers of the individual or of relatives, employers, or household members of the individual are removed: • Names; • All geographic subdivisions smaller than a State, including street address, city, county, precinct, zip code, …, except for the initial three digits of a zip code if … • All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89… • Telephone numbers; Fax numbers; email addresses; URLs; IP addresses • Social security numbers; Medical record numbers; Health plan beneficiary numbers; Account numbers; • Certificate/license numbers; vehicle identifiers, serial numbers, plate numbers; • Device identifiers and serial numbers; • Biometric identifiers, including finger and voice prints; • Full face photographic images and any comparable images; and • Any other unique identifying number, characteristic, or code; and • The covered entity does not have actual knowledge that the information could be used alone or in combination with other information to identify an individual who is a subject of the information. 45 CFR §164.514

8. Wrongful Disclosure Under HIPAA • A person who knowingly …uses or causes to be used a unique health identifier; • obtains individually identifiable health information relating to an individual; or discloses individually identifiable health information to another person, • shall be fined not more than $50,000, imprisoned not more than 1 year, or both; • if the offense is committed under false pretenses, be fined not more than $100,000, imprisoned not more than 5 years, or both; and • if the offense is committed with intent to sell, or use information for commercial advantage, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both 42 U.S.C. §1320d-6 BUT: no private lawsuit

9. Genetic Privacy • Federal Executive Order 13145 (Clinton) • “Nondiscrimination in Federal Employment on the Basis of Protected Genetic Information” • State • Cal Gov Code § 12940 (Unlawful employment practices) • It shall be an unlawful employment practice … for an employer ... to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic. • Cal Gov Code § 10148 (Test for genetic characteristic) • No insurer shall require a test for the presence of a genetic characteristic for the purpose of determining insurability other than for those policies that are contingent on review or testing for other diseases or medical conditions SOURCE: KARL MANHEIM, LAWRENCE SLOCUM

10. Employee Polygraph Protection Act • Makes it illegal for an employer in interstate commerce to require an employee or prospective employee to take a lie detector test • to use the results of a lie detector test • to use the refusal to take a test to discharge the employee • Exceptions: • governments • employer investigations of theft where the employer has reasonable suspicions the employee was involved • security personnel29 U.S.C. §2002

11. Fourth Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Adopted December 15, 1791

12. O’Connor vs. Ortega480 U.S. 709 (1987) • Search warrants are generally not needed by employers • Why? What about the Fourth Amendment? • Executive director O’Connor of a state hospital suspected Dr. Ortega of management improprieties • Searched his office, found incriminating evidence • Was his expectation of privacy violated? • Reality of workplace may vitiate some expectations Standard of “reasonableness” is sufficient for work-related intrusions by public employers • 5-4 decision by the Supreme Court

13. Skinner vs. Railway Labor Executives Assoc., 489 U.S. 602 (1989) • Federal Railroad Administration (FRA) implemented regulations requiring mandatory blood and urine tests of employees involved in certain train accidents • Expectations of privacy by employees engaged in an industry regulated to ensure safety are diminished • Testing procedures pose only limited threats • Rights of the individual are superseded by the rights of the organization to conduct business. • Government's interest in assuring safety on the nation's railroads constitutes a “special need” SOURCE: CAYLEN TICHENOR

14. Computer Surveillance • In general, surveillance by the employer is legal if • the computer being monitored belongs to the employer; or • the computer is connected to the employer’s network; and • even if communications are encrypted • McLaren v. Microsoft Corp.,No. 05-97-00824 (Tex. Ct. App. May 28, 1999). • Employee used private password to encrypt email messages stored on office computer. • Company decrypted and viewed files. • Email account and workstation were provided for business use, so Microsoft could legitimately access data stored there.

15. Computer Surveillance • Even spyware installed by the employer is legal • Notice of Electronic Monitoring Act (Connecticut and Delaware) • Versions introduced in other states and Congress • None have passed

16. Connecticut Dept. of Labor Form

17. Office Snooping? • Doe v. SEPTA, 72 F.3d 1133 (3d Cir. 1995) • Doe (not identified in the case) was awarded $125,000 when his co-employees learned from his prescription records he has being treated for AIDS • The appeals court reversed • The information was learned in a routine audit of the company’s health plan for fraud, drug abuse, and excessive costs • No prohibition against employers making use of medical records in employment decisions • All co-employees had a “need to know”

18. CMU Policy on the Privacy of Faculty Offices • The employer may give up its rights by contract • “No one may enter a faculty member's office, or search a faculty member's files, or examine or remove work products or documentary material (e.g., research data, notes on interviews, drafts of publications or lectures, notes used in the preparation of publications or lectures, audio and visual tapes, films, outtakes, mental impressions, opinion and other material intended for dissemination of information to students, colleagues or the general public) without permission, even if the faculty member is absent.” • “Exceptions: employee terminated, building maintenance, space planning, emergencies, retrieval of joint work or routine documents where the faculty member is not readily available to grant permission.” • “Under any conditions of entry the occupant of the office shall immediately afterwards be furnished a list of, and/or copies of, the property or things copied or taken, if any.”

19. Phone Calls and Email • Omnibus Crime Control Act of 1968 prohibits monitoring of employee phone calls unless • it occurs in the regular course of business; or • the employee consents to the monitoring • 1986 Electronic Communications and Privacy Act • Allows employers the same access to employee emails on the job • IF employees are informed that their emails can and will be monitored, there is no reasonable expectation of privacy

20. Ontario v. Quon (U.S. Supreme Court, June 17, 2010) • Jeff Quon was a policeman in Ontario, California • The city provided Quon with a pager for text messages • Arch Wireless, the pager service company, imposed a monthly character limit on each pager • Quon exceeded the maximum for several months • The city asked Arch Wireless for transcripts of Quon’s text messaged. Arch provided them

21. Ontario v. Quon (U.S. Supreme Court, June 17, 2010) • Many of Quon’s messages were not work-related, even though sent during work hours, and were sexually explicit, in violation of police policy • In fact, only a few of his messages overall were work-related • Quon was disciplined by Internal Affairs • Quon sued Arch and the city for violating the Stored Communications Act • Quon also sued the city for violating his civil rights under the Fourth Amendment (that the search was no reasonable)

22. Stored Communications Act (SCA) • The provider of an electronic communication service may not • knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service • knowingly divulge a record or other information pertaining to a subscriber to or customer of such service to any governmental entity. 18 U.S.C. §2701 • Many exceptions, e.g. to a recipient, with consent, to provide or maintain service, protect the property (such as the network) of the provider, child abuse, inadvertently obtained material can be given to law enforcement …

23. City of Ontario“Computer Usage, Internet and E-Mail Policy” • The City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” • In 2000, Quon signed a statement acknowledging that he had read and understood the policy. • However, pagers are not mentioned • The City told police officers that messages sent on the pagers are considered e-mail messages and are subject to audit

24. Ontario v. Quon • When Quon exceeded usage the first time, he was told about the overage and reminded that messages could be audited • No audit occurred, and Quon wrote a check to pay for the overage • He has overages for severel months, and paid the City each time • Quon’s boss got tired of being a “bill collector” and decided to do an audit • Of 456 messages in August 2002, only 57 were work-related

25. Ontario v. Quon • The jury found the search reasonable • The 9th Circuit Court of Appeals reversed: • Quon had a reasonable expectation of privacy in his text messages • The search was not reasonable even though it was conducted on a legitimate, work-related rationale. • The were many less intrusive ways to learn of Quon’s usage than transcripts • Arch Wireless violated the SCA by giving the City the transcript.

26. Ontario v. Quon • The Supreme Court reversed: • The 4th Amendment guarantees a person’s privacy, dignity, and security against arbitrary and invasive governmental acts • A court must consider the operational realities of the workplace to determine if an employee’s constitutional rights are being violated • An employer’s intrusion on a legitimate privacy expectation for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.

27. Ontario v. Quon • The search was reasonable • The Supreme Court declined to resolve the parties’ disagreement over expectation of privacy: • “Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.

28. Q A &

29. Tiberino v. Spokane County13 P.3d 1104 (2000) • Gina Tiberino worked for Spokane County, WA • She misused her office computer for personal email and was fired • She threatened to sue; Spokane printed out her email (551 messages; 467 were personal) • The media requested copies • Tiberino sued to prevent disclosure • Held, the emails were “public records” but the contents were exempt from disclosure. The fact of the emails, not their contents, were of public interest

30. U.S. vs. Simons, 206 F.3d 392 (4th Cir. 2000) • Simons was a subcontractor to the CIA. • Agency policy stated: • employees could use Internet for official government business only • Accessing unlawful material prohibited • Agency would conduct electronic audits to ensure compliance • Firewall detected queries containing “sex” from Simon’s computer • Simons’ office and computer were searched; child porno found; Simons tried and convicted • Employee cannot maintain expectation of privacy when there is a monitoring policy in place.