911 Broadcasts: A Privacy Invasion?

911 Broadcasts: A Privacy Invasion?

Why Recordings of Emergency Calls Need to Stay Private

By Howard Anderson, February 1, 2012. Follow Howard @HealthInfoSec
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The extensive news media coverage of a 911 emergency call about actress Demi Moore is calling attention to an important issue: The need to protect privacy.

Here's my point of view: 911 tapes that identify an individual and their healthcare condition should not be released to the public. It's a privacy violation. And even if it may not technically violate the Health Insurance Portability and Accountability Act's privacy rule as it's now written, it sure feels like a HIPAA violation, doesn't it?

 The time has come for federal regulators to spell out very clearly that releasing 911 call tapes or transcripts that contain personally identifiable health information is a HIPAA violation. 

The time has come for federal regulators, who are putting the finishing touches on HIPAA modifications, to spell out very clearly that publicly releasing 911 call tapes or transcripts containing personally identifiable health information is a HIPAA violation.

The Evening News

CBS News, and many other news outlets, aired audio tapes of the 911 call from Demi Moore's home in which a friend described her medical condition and asked for help. I was sitting at home watching the news, and immediately wondered: "Why is this audio public?" Then again, I hear 911 tapes on the national and local news all the time. But why?

The celebrity gossip website TMZ quotes sources as saying a Los Angeles deputy city attorney redacted certain information from the Moore tape before releasing it because that information would be an "invasion of privacy." But isn't releasing any information on the tape a privacy invasion? It sure seems that way to me.

Daniel Solove, professor at the George Washington University Law School, wrote in a blog that the release of 911 calls violates the constitutional right to privacy. He also argues that although 911 call centers are not HIPAA-regulated, like a hospital or a physician, they often provide healthcare advice.

Solove writes: "If the call from Demi Moore's home had been to a hospital or a doctor or any other type of healthcare provider, public disclosure of the call would be forbidden. Why isn't a 911 call seen in the same light?" And that, indeed, is a good question.

Deborah Peel M.D. of Patient Privacy Rights argues that release of a 911 tape or transcript should be considered a HIPAA violation because the 911 operators "are in effect working on behalf of hospitals and emergency centers as part of the patient's treatment team."

Peel highlights another risk involved in publicizing 911 calls: "If the public realizes that 911 calls can be made public, then anyone with a medical emergency they don't want the information to be seen by the local media or read by everyone in the city or state will stop calling and risk their lives."

A HIPAA Violation?

So why are audio tapes of 911 calls broadcast so commonly on TV? Well, technically, 911 services aren't covered entities under HIPAA because they don't directly deliver or bill for healthcare, says attorney Robert Belfort of Manatt, Phelps & Phillips LLP.

Security expert Rebecca Herold notes that HIPAA also allows exceptions for providing personal health information to law enforcement for certain purposes, and this provision "is often used by lawyers to validate the release of 911 recordings."

Herold, of Rebecca Herold & Associates, notes: "I speculate that the [LA city attorney's] redaction of information form the Demi Moore recording had more to do with keeping any information they wanted to use for a possible investigation from being made public, more than any privacy concern."

Here's Herold's view on how 911 recordings should be handled: "Personally, I do not think 911 recordings, for anyone, should be released to the public since they involve very personal information and are very privacy-invading, under many different possible legal rights and laws."

Some might argue that making 911 calls public provides transparency about the responsiveness of 911 call centers. "But this can be done in other ways without violating the privacy of individuals," Solove notes in his blog.

So when you turn on the TV news this evening, and you hear yet another 911 recording, think about this: Would you want a 911 call about your health condition broadcast? I think not.

Follow Howard Anderson on Twitter: @HealthInfoSec

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