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Legal Issues in Sharing Information Across Borders

This article discusses the legal considerations when sharing public health data across borders, including constitutional structures, federalism, emergency response, and international health regulations.

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Legal Issues in Sharing Information Across Borders

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  1. Legal Issues in Sharing Information Across Borders Jennifer Ray HHS Office of the General Counsel

  2. U.S. Constitutional Structure • U.S. is a federal system of government • States are independent, sovereign governments in and of themselves • Retain all powers not expressly delegated to the U.S. – 10th Amendment • Public health is a “police power” retained by the States under the 10th Amendment • Inherent authority to enact laws and regulations to promote health, safety, and welfare of citizens

  3. U.S. Constitutional Structure • Federal government has limited powers • Powers enumerated in the Constitution and those implied powers necessary to carry out enumerated powers • Regulate interstate and foreign commerce (historically courts have defined broadly) • Collect taxes and spend revenue • National Defense • Supremacy Clause • If there is a conflict between Federal and State law, Federal law is supreme

  4. Federalism and Emergency Response • National Response Framework • Responsibility for responding to incidents begins at local level, with individuals and public officials affected by the incident • A primary role of States is to supplement and facilitate local efforts before, during, and after incidents • When incident exceeds or is anticipated to exceed local or State resources or when incident is managed by Federal departments or agencies acting under their authorities, the Federal government uses the NRF to involve all necessary agencies and capabilities, organize the Federal response, and ensure coordination with response partners

  5. Sharing Public Health Data • Data may be identifiable or population based • Variety of mutual aid agreements or initiatives between U.S. and Canada and between certain U.S. states and Canadian provinces • Great Lakes Border Health Initiative (GLBHI) • International Emergency Management Assistance Compact (IEMAC) • Pacific Northwest Emergency Management Arrangement (PNEMA) • North American Leaders Summit (formerly Security and Prosperity Partnership of North America)

  6. Legal Issues in Sharing Public Health Data • U.S. Constitution prohibits a state from entering into any agreement or compact with a foreign power without the consent of Congress • State Department permits agreements between States and Canadian provinces that contain nonbinding language • A binding cross-border compact would require Congressional approval • GLBHI data sharing agreement – “…nothing in this Agreement is intended to create binding international law…This Agreement is subject to the laws of the United States of America, Canada, and the several signatories…”

  7. Legal Issues in Sharing Public Health Data • Does the entity sharing the data have authority to do so? • Are there Federal and/or state laws that prohibit or affect the entity’s ability to share the data? • Privacy Act • HIPAA • State privacy/confidentiality laws • Are there Federal and/or state laws that affect the receiving entity’s ability to keep the data confidential? • Freedom of Information Act (FOIA) • State FOIA or open government laws

  8. International Health Regulations • International legal instrument giving rise to obligations among member countries • U.S. participates in WHO pursuant to Joint Resolution of Congress authorizing President to accept membership (22 USC § 290) • Purpose: Maximum protection of people against the international spread of diseases, while minimizing interference with world travel and trade

  9. International Health Regulations • Obligation to assess and notify WHO of a Public Health Emergency of International Concern (PHEIC) defined as event that poses a public-health risk through the international spread of disease and may require a coordinated response (Article 6, Annex 2) • List of diseases leading to immediate notification: smallpox, SARS, wild polio viruses, new subtype human influenza • List of diseases leading to use of algorithm: e.g., cholera, pneumonic plague, yellow fever • Algorithm: • Serious impact? • Unusual or unexpected? • Risk of international spread?

  10. Selected References • CDC Public Health Law Program: Menu of suggested provisions for public health mutual aid agreements and inventory of agreements and related resources: http://www2.cdc.gov/phlp/mutualaid/ • Daniel D. Stier and Richard A. Goodman. Mutual Aid Agreements: Essential Legal Tools for Public Health Preparedness and Response. American Journal of Public Health 2007;97(S1):S62-S68.

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