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A rather remarkable case is beginning in Wichita, Kansas. From the Wichita Eagle:

A 15-year-old girl tells her doctor she needs birth control because she and her boyfriend are having sex.

Kansas Attorney General Phill Kline says the law requires the doctor to report the girl to child protective services.

A group of doctors, nurses, counselors and other health-care providers across Kansas say it’s none of the state’s business.

U.S. District Judge J. Thomas Marten will have to decide who’s right during a trial beginning Monday in Wichita that’s being watched across the country by legal, women’s and health-care groups. . . .

Kline touched off what has become a lengthy court battle with a controversial legal opinion in 2003. Kansas law makes sexual contact with anyone under 16 a crime. Kline said that means doctors, psychologists, nurses and other health-care providers should report all suspected sexual activity involving anyone younger than 16.

The plaintiffs’ complaint is here. And here is their memorandum in support of their motion for a preliminary injunction. I believe that the plaintiffs may have a good case.

The plaintiffs first raise a constitutional right to information privacy claim. In a case called Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court stated that the constitutional right to privacy protected two “different kinds of interests” — (1) “the individual interest in avoiding disclosure of personal matters” and (2) “the interest in independence in making certain kinds of important decisions.” The first interest has become known as the constitutional right to information privacy. The Court only addressed this right in one other case, Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Since then, however, the Court has done little to clarify the right. A few courts have concluded that the right is just dicta, but most federal courts of appeal have recognized the right, including the 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, and 10th Circuits.

It is unclear how the constitutional right to information privacy claim will be resolved. Courts assess constitutional right to information privacy claims by balancing the privacy interests against the governmental interests. The 3rd Circuit has set forth seven factors to consider in the balancing: (1) “the type of record requested”; (2) “the information it does or might contain”; (3) “the potential for harm in any subsequent nonconsensual disclosure”; (4) “the injury from disclosure to the relationship in which the record was generated”; (5) “the adequacy of safeguards to prevent unauthorized disclosure”; (6) “the degree of need for access”; and (7) “whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.” United States v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir.1980). These factors are used by many courts outside of the 3rd Circuit.

Looking at the facts of Whalen suggests that the plaintiffs might have an uphill battle in establishing a violation of the constitutional right to information privacy. Whaleninvolved a reporting requirement that doctors inform the state whenever they prescribed certain dangerous drugs (opium derivatives, cocaine, methadone, amphetamines, and others). The Court then balanced the privacy interest against the state interest in requiring reporting and concluded that the reporting scheme passed constitutional muster because the information would be kept secure and would not be disclosed to the public. If one applied Whalen rather formalistically, one might conclude that so long as Kansas officials provided adequate security for the information and did not publicly disclose it, the reporting requirement would not violate the right to information privacy. But the Kansas reporting requirement differs in its more significant breadth — it goes beyond the original purpose of the law, which is really a sexual abuse and statutory rape law, not a general anti-teen sex law. The court may thus find that this broad reporting requirement is not justified — the state interest in reporting might not be compelling enough. On the other side of the balance, the privacy interests are quite strong. Such a reporting requirement might deter teenagers from seeking medical care for STDs or from obtaining contraception.

The plaintiffs do not devote much attention to the Fourth Amendment in their papers, but I believe that the plaintiffs may have a strong Fourth Amendment argument. Kansas might immediately point to the third party doctrine, in which the Supreme Court has held that whenever information is exposed to a third party, a person lacks an expectation of privacy in that information, and hence there is no Fourth Amendment protection. I blogged about the third party doctrine in more detail in another post. The Supreme Court has yet to confront the most difficult question regarding the third party doctrine – whether it applies to the patient-physician relationship. The logic of the third party doctrine appears to apply to information held by health care providers — after all, they are third parties. On the other hand, there is a longstanding tradition of doctors maintaining patient confidentiality, dating back to the Hippocratic Oath (circa 400 BC). It would be hard to imagine courts concluding that people have no reasonable expectation of privacy in the information they tell their doctor. If there is a reasonable expectation of privacy in one’s medical data maintained by one’s doctor, then the Fourth Amendment might require a warrant supported by probable cause in order for the state to obtain it. This would mean that the automatic reporting requirement (which does not involve a warrant or probable cause) would violate the Fourth Amendment and be struck down.

Kansas may argue that the disclosure of the information falls under the “special needs” doctrine, a limited set of contexts where the Supreme Court has stated that search warrants and probable cause are not required by the Fourth Amendment. In these cases, courts look to the “reasonableness” of the search, and this involves a balancing of the privacy interests against the state interest in disclosure. I think that there is a strong argument that the Kansas disclosure requirement is unreasonable. For example, in Ferguson v. City of Charleston, 432 U.S. 67 (2001), a hospital tested the urine of pregnant patients suspected of drug use. The Supreme Court concluded that the testing was unreasonable:

The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent. . . .

[In other drug testing cases] the “special need” that was advanced as a justification for the absence of a warrant or individualized suspicion was one divorced from the State’s general interest in law enforcement. . . . In this case, however, the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment. This fact distinguishes this case from circumstances in which physicians or psychologists, in the course of ordinary medical procedures aimed at helping the patient herself, come across information that under rules of law or ethics is subject to reporting requirements, which no one has challenged here.

The problem with the hospital’s program was that it was done for law enforcement purposes. The same is true for the Kansas teen sex reporting requirement. In Ferguson, the Court concluded:

While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal. . . . Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of “special needs.”. . . .

As respondents have repeatedly insisted, their motive was benign rather than punitive. Such a motive, however, cannot justify a departure from Fourth Amendment protections, given the pervasive involvement of law enforcement with the development and application of the MUSC policy. . . . The Fourth Amendment’s general prohibition against nonconsensual, warrantless, and suspicionless searches necessarily applies to such a policy.

I believe that the plaintiffs have a strong case under the Fourth Amendment.

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:
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