Nov 162011
 
 November 16, 2011  Posted by  Breaches, Laws

Nora Muchanic of WPVI reports that a distraught New Jersey mother is fighting for legislation that would spare others the anguish she experienced when a first responder uploaded crash photos of her daughter’s accident online before she even knew that her daughter had been in a fatal crash.

Cathy Bates, 40, was killed in a head-on crash on Route 72 in Barnegat back in 2009.

While first responders were trying to save her, a member of the Pinewood Estates Volunteer Fire Company snapped pictures of her inside the car and posted the photos on Facebook.

Those pictures were published before Cathy’s family even knew she’d been in an accident.

“To take these pictures and post them on your personal website and make hard copies and show them around… This is unacceptable,” said Cathy’s mother, Lucille.

The photos were quickly taken down. The fire chief says there were no close-ups and the person who took the pictures has left the department.

Muchanic reports that the proposed law would prohibit first responders from taking graphic images at a scene and sharing them without the consent of the victim’s family. Violators could face fines and jail.

Read more on WPVI.

This is certainly not the first time I’ve reported a case like this involving first responders. I’ve previously noted cases involving the Umatilla Fire Department, the City of Casa Grande case, and the  and the Clinton-Hickman County Ambulance Service case as a few examples. And as I’ve noted in the past, there are a number of issues here. Some first responder units – but not all – are HIPAA-covered entities, so HIPAA’s privacy protections apply and no additional law should be needed. But what about non-covered entities?  In some cases, they may have their own policies, but violation of those policies would not be enforceable criminally. Should any proposed state law mirror federal consequences for violations?

Problematically from a privacy standpoint, most of these accidents happen in public spaces and it has been hammered into our heads that we have no reasonable expectation of privacy in public spaces. HIPAA-covered entities who respond to the public accident scene are still under HIPAA’s obligations, but what about everyone else?  Can you criminalize taking photos in a public space?  Will you say that reporters on the scene of an accident cannot take pictures, too?  Collisions can be terrible. In this case, we may have a collision between privacy interests and the First Amendment.  Can a state really enact such legislation that can withstand a constitutional challenge?  I tend to doubt it, even though I am sympathetic to the privacy issues and wish that more people showed self-restraint.

Okay, you argue, what about using such photos for training purposes?  Could such photos be helpful to emergency medical personnel in their courses?  Possibly, even probably for some situations. In my own emergency medical training, we were shown photos from real cases (although most of those photos were taken in a morgue).  But if it is okay to use photos of real cases in that context, then is it just one small slippery step to say that posting them on the Internet is being done for educational or training purposes for a broader audience?

So what’s the solution if we can’t give everyone a sense of decency or self-restraint?

My preference would be to bring all public emergency response units – including police, volunteer ambulance corps, and fire departments under HIPAA so that they would be bound by its privacy protections.  What do you think?

h/t,   Kirsch Gartenberg Howard LLP.

This post originally appeared on PHIprivacy.net

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