Comments on: Electronic Discovery and Electronic Decisions Highlight Privacy Issues in Litigation http://www.slaw.ca/2009/06/01/electronic-discovery-and-electronic-decisions-highlight-privacy-issues-in-litigation/ Canada's online legal magazine Thu, 09 Feb 2012 23:12:15 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Peter S. Chamberlain http://www.slaw.ca/2009/06/01/electronic-discovery-and-electronic-decisions-highlight-privacy-issues-in-litigation/comment-page-1/#comment-705149 Peter S. Chamberlain Thu, 04 Jun 2009 10:52:25 +0000 http://www.slaw.ca/?p=9045#comment-705149 Here in Texas (USA), after a long time, our Supreme Court recognized a fundamental right of personal privacy, which it described as "of constitutioanl significance" although the specific term "privacy" is not in our written state or federal Constitutions, and has adopted parts, but only parts, of ALI Restatement of Torts on Privacy. This specifically includes medical information the publication of which a person of ordinary sensibilities would find highly offensive, which would appear to cover the material in the case cited. We are also now recognizing identity theft risks of publication in open court records, typically picked up by commercial data miners and sellers, of identifiers such as date of birth, Social Security and Driver's License numbers, etc. Some of this is also now recognized in legislation including state medical and mental health codes, etc. US federal HIPAA medical privacy law still has big loopholes driven by marketers, etc. Serious questions currently exist whether the law will cover electronic medical records held by third party records entities, which may have links to credit reporting and other data brokers, when these, pushed by both political parties etc. as a health care cost control and improvement measure, which seems legitimate, are implemented. We've come a long way. When I started working on this issue in the mid nineteen sixties and early seventies, and testified before a state senate committee, they did not realize Texas did not yet have a doctor-patient privacy law. Federal fair credit reporting, etc., laws that limited how long certain records could be kept and published have effectively been nullified because, once on Internet, they're there and readily available forever. Also, if you challenge the accuracy of a record, it stays live under the law longer than if you don't, discouraging challenges, as intended by the big reporting agencies. When the law set a $25,000 USD salary minimum for jobs for which an "investigative" credit report was permitted to be made and used, that was what big city bank presidents made, now that covers legal secretaries and school teachers. Under our First Amendment freedom of press jurisprudence, it is almost impossible to win a case against a credit reporting or data broker, etc. Years after Texas Supreme Court (civil) found privacy a fundamental right, Texas Court of Criminal Appeals, our highest state criminal appellate court, found, with little support and no testimony, that we had "no tradition of personal privacy." Some results are appalling to everyone I know, conservatives and liberals alike, except big companies who want to hire people cheap because of such impediments to employment and those aligned with them. I've found myself onboth sides of the natural tension between open public records and privacy law, but open records law is really about how our officials and government entities do their job, not about access to the intimate detials of ordinary citizens' lives. Here in Texas (USA), after a long time, our Supreme Court recognized a fundamental right of personal privacy, which it described as "of constitutioanl significance" although the specific term "privacy" is not in our written state or federal Constitutions, and has adopted parts, but only parts, of ALI Restatement of Torts on Privacy. This specifically includes medical information the publication of which a person of ordinary sensibilities would find highly offensive, which would appear to cover the material in the case cited. We are also now recognizing identity theft risks of publication in open court records, typically picked up by commercial data miners and sellers, of identifiers such as date of birth, Social Security and Driver's License numbers, etc. Some of this is also now recognized in legislation including state medical and mental health codes, etc.

US federal HIPAA medical privacy law still has big loopholes driven by marketers, etc. Serious questions currently exist whether the law will cover electronic medical records held by third party records entities, which may have links to credit reporting and other data brokers, when these, pushed by both political parties etc. as a health care cost control and improvement measure, which seems legitimate, are implemented.
We've come a long way. When I started working on this issue in the mid nineteen sixties and early seventies, and testified before a state senate committee, they did not realize Texas did not yet have a doctor-patient privacy law.
Federal fair credit reporting, etc., laws that limited how long certain records could be kept and published have effectively been nullified because, once on Internet, they're there and readily available forever. Also, if you challenge the accuracy of a record, it stays live under the law longer than if you don't, discouraging challenges, as intended by the big reporting agencies. When the law set a $25,000 USD salary minimum for jobs for which an "investigative" credit report was permitted to be made and used, that was what big city bank presidents made, now that covers legal secretaries and school teachers. Under our First Amendment freedom of press jurisprudence, it is almost impossible to win a case against a credit reporting or data broker, etc.
Years after Texas Supreme Court (civil) found privacy a fundamental right, Texas Court of Criminal Appeals, our highest state criminal appellate court, found, with little support and no testimony, that we had "no tradition of personal privacy." Some results are appalling to everyone I know, conservatives and liberals alike, except big companies who want to hire people cheap because of such impediments to employment and those aligned with them. I've found myself onboth sides of the natural tension between open public records and privacy law, but open records law is really about how our officials and government entities do their job, not about access to the intimate detials of ordinary citizens' lives.

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