While clients who ought to know better frequently ask us to get banking and cell phone records, a request for a medical record is far more rare.
All three are illegal for us to obtain without a court order by federal statute in nearly any circumstance, as we’ve written about many times on the privacy section of this blog.
If your investigator says otherwise, have a look at HIPAA (42 USC 1320d), the Gramm Leach Bliley Act (15 USC 6821) and the Telephone Records and Privacy Protection Act (18 USC 1039) for starters.
Maybe because we sign so many privacy forms every time we visit a doctor, it seems that everyone knows that medical records ought to stay private except when we explicitly release them to specialist doctors or insurance companies. HIPAA violations can get you serious jail time.
Now there is word that Facebook wants to get into the business of health information. The Reuters report is here.
We won’t go into what Facebook could do with your information, which is dealt with by Bradley Shear on his social media blog here. In summary, he thinks putting medical records on Facebook is a terrible idea, and we certainly wouldn’t do it. But others disagree.
Our point is that once something is on Facebook, it’s often more easily accessible by other people with access to Facebook. While we can’t ethically “friend” a person under false pretenses, people sometimes put things on the public portion of their Facebook account that’s available to any Facebook user.
Plus, interviews with anyone who is a friend of someone we’re looking at are fair game as long as they don’t violate the no-contact rule. Hearsay evidence of someone’s medical condition probably won’t be admissible evidence, but sometimes admissibility isn’t the only objective in gathering information.
Just one more reason why any search on a person – for assets, for general information, for just about anything – must always include a social media profile.
We are as zealous as anyone in arguing for the legal protection of a person’s privacy. But if that person decides to climb up on an electronic soapbox and broadcast to us facts that could otherwise stay private, we will work within the law and the rules of professional responsibility to find those facts and report back to our client.
Something to think about before pressing “Share”.