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The U.S. Supreme Court ruled that the possible presence of health data on cellphones protects the devices from warrantless search.

Health data privacy helped fuel Supreme Court cellphone ruling


By Joseph Conn
Posted: June 26, 2014 - 2:30 pm ET
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The possible presence of healthcare data on cellphones helped put the devices in a legal class worthy of heightened constitutional protections from warrantless searches by police, the U.S. Supreme Court ruled Wednesday.

That unanimous decision, while narrowly focused on balancing the privacy rights of individuals and the “legitimate government interests” needed to enforce the law at the time of a person's arrest, could have broader healthcare implications, healthcare privacy specialists contend.

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The decision could be used as a reference point, highlighting the special nature of healthcare information, as the healthcare industry wrestles to find a similar balance between patients' consent rights over disclosure of their medical records and the interests of healthcare providers, researchers and other commercial entities in getting less-fettered access to those records.

The ruling reversed a California state appeals court decision following a criminal conviction in Riley v. California, and affirmed a federal appeals court decision, vacating a criminal conviction in a second case, United States v. Wurie.

Both convictions—and in Riley's case, his stiffer sentence for gang-related activity—were obtained based on information gathered by police through searches of the defendants' cellphones seized at the time of their arrests. At issue on appeal to the high court was whether the searches ran afoul of 4th Amendment protections, which provide: “The right of the people to be secure in their persons, houses and effects against unreasonable searchers and seizures, shall not be violated.”

Previous Supreme Court decisions have upheld the admissibility of evidence gained by police in searching an individual's pockets, wallet, purse, cigarette pack and even their cars, at the time of arrest, according to the opinion written by Chief Justice John Roberts. But cellphones are different, based in part on their massive storage capacity and their links to the Web servers and virtually limitless cloud-based storage systems, Roberts wrote. In addition, their data are “also qualitatively different,” he said.

“An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual's private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD,” Roberts said. The collection of precise geographical location information, he said, has been, “a standard feature,” on smartphones, which can “reconstruct someone's specific movements down to the minute, not only around town, but also within a particular building.”

Apps on the phone, meanwhile, manage detailed information “about all aspects of a person's life,” including political party affiliations, “alcohol, drug and gambling addictions” and “tracking pregnancy symptoms.”

“It is true that this decision will have some impact on the ability of law enforcement to combat crime,” Roberts said, adding. “Privacy comes at a cost. But the court's holding is not that the information on a cellphone is immune from search; it is that a warrant is generally required before a search.”

“That should be very good news for those of us who do believe patients should have control over who sees their healthcare information,” said Jim Pyles, a principal in the Washington, D.C., law firm, Powers Pyles Sutter & Verville, who challenged the constitutionality of HHS' 2002 relaxation of the HIPAA privacy-rule consent provisions before the Supreme Court.

Pyles frequently represents the American Psychoanalytic Association in healthcare privacy matters.

Pyles said the ruling should affect ongoing deliberations by the Substance Abuse and Mental Health Services Administration at HHS to possibly amend special privacy protection afforded by what's known as 42 CFR Part 2 to accommodate sharing of drug and alcohol abuse patients' records without their consent to accommodate accountable care organizations, patient-centered medical homes and other healthcare payment reform models of care.

“I think you can take the comment about how much information on someone's cellphone tells you about their lives and apply that to your medical records,” Pyles said. “This also illustrates as SAMHSA is considering weakening the consent requirement, the Supreme Court thinks that consent and control over who sees your healthcare information is relevant. So you can bet some lawyer like me will forward this decision to SAMHSA.”

“I certainly didn't see any immediate potential impact for the healthcare industry, but I did find it interesting in demonstrating the court's continuing commitment to health information privacy,” said Adam Greene, a privacy lawyer with Davis Wright Tremaine in Washington. “It sets up precedent in the government having a very strong stake in protecting patient privacy above other interests.”

Greene said that special status goes beyond healthcare information covered under 42 CFR Part 2.

“Part 2 is just one of numerous examples” that healthcare information is “most sensitive,” Greene said. “Whether it be Part 2, or HIV, as we move toward consumer-directed health, this sets the stage that all of this information to be treated as very sensitive and needs to be protected.”

In a footnote, Roberts sought to limit the opinion to searches incident to an arrest, which may preclude broader considerations such as broader surveillance or data-mining of healthcare data, adding that “these cases do not implicate the question whether the collection or inspection of aggregate digital information amounts to a search under other circumstances.”

Follow Joseph Conn on Twitter: @MHJConn


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