Friday, January 11, 2013

Filming Police Encounter . . . A HIPAA Violation? - COTW #125

The St. Paul Pioneer Press reports Little Canada man videotaped sheriff's deputies, and got charged for it (HT: Volokh Conspiracy). A man recorded an encounter between police and a bloody-faced man outside of his apartment building. The police officer confiscated the camera, allegedly stating that she was just taking it for "evidence." The filmer was later charged with obstruction of legal process and disorderly conduct.

What possible justification could the police have for such an action? Did you say HIPAA? Probably not, because that wouldn't make any sense . . . wait . . . oh dear:
The deputy wrote on the citation, "While handling a medical/check the welfare (call), (Henderson) was filming it. Data privacy HIPAA violation. Refused to identify self. Had to stop dealing with sit(uation) to deal w/Henderson."
Let's see what a Stanford law professor has to say about that:
The allegation that his recording of the incident violated HIPAA . . . is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School.
The rule deals with how health care providers handle consumers' health information.
"There's nothing in HIPAA that prevents someone who's not subject to HIPAA from taking photographs on the public streets," Granick said. "HIPAA has absolutely nothing to say about that."
That sounds about right to me.

Now, you may be thinking "Phil, what does this have to do with employment law? Wait, is this just another shameless ploy to promote your Medical Records Law seminar?" Absolutely Nope, it's a solid reminder about one of the first things you should do when accused of violating a law: Check to see if the law even applies to you! Or, in HIPAA parlance, are you a "covered entity?" Also, some of you may remember that I have a personal interest in the right to photograph and film public places!