We always like to say that when we find out about a person, we do so without invading their privacy. That can still mean we find out a lot of things about them that they would rather keep secret, but those facts are derived from what we can legally look at: legal records, mortgages and deeds, secured debts, media reports and social media,
There can also be interviews, but not with people who are represented by counsel and talking to whom would violate rules of professional responsibility governing lawyers.
Like everyone else, I have been thinking about how the current worldwide lockdowns will change my business.
In many cases, the answer is not at all. Throughout the current lockdowns, we have continued to do due diligence, profile litigants, find people to interview and search for assets.
One way things may change will be a curiosity about a person’s exposure to the Covid-19 virus. Eight weeks ago any kind of snooping around about a person’s medical history would have sent up a flare for me. I would have been worried about violating strict records about medical secrecy. Hipaa (the Health Insurance Portability and Accountability Act) has been such a ferocious piece of legislation in its protection of medical history that I barely got asked to violate it.
Contrast that with the Gramm Leach Bliley Act that protects the confidentiality of bank records. Lawyers ask for these without a court order all the time, and we of course decline.
It is only four years since the major controversy over whether the government could force Apple to crack the iPhone of the man who shot 14 people to death in San Bernardino, California. Many Americans took the view that even if cracking the phone could help prevent a co-conspirator from shooting more people, the cost to privacy was too great. The Washington Post reported on two of the polls on the issue. Part of the difference in responses was due to the way the question was asked. But unquestionably, millions of Americans did not want the government going into a terrorist’s phone in case their phones would be next.
Now today, privacy advocates are having second thoughts. Even as The New York Times thundered in an editorial that we shouldn’t have to sacrifice our privacy to fight the corona virus, the paper’s privacy advocate Charlie Warzel is reconsidering his fear of government tracking us through our phones. He hates the idea that private companies can track us (though that is because we let them), but he is not sure about the government tracking us if there is a public health reason for doing so.[i]
My own view is that getting a targeted ad is probably less threatening to my liberty than a permanent government record of where I have been and with whom I have been associating. Advertising clients have anonymized data about us, whereas the government would keep records of our names. Ad blockers can eliminate ads but if phone companies tell the government where we are every second, that is not something we can easily prevent without deciding to give up cell phones.
It is easy to say, “prevent disease and protect privacy,” but how? The Wall Street Journal editorialized:
Planning for the next phase of the pandemic will also heighten concerns and conflict over civil liberties… Testing may be mandatory. Contact tracing may mean government tracking of cellphone data. How much privacy are individuals willing to forfeit for a virus that increasingly appears to pose little danger to a large percentage of the U.S. population? … Ultimately, we may not be able to escape the “immunity passports” that Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, cited as a possibility “under certain circumstances.”
The relaxation of Hippa is underway, although supposedly temporarily, outlined here by Fox Rothschild.
But if enough people decide that more intrusive record keeping is warranted to prevent another outbreak from spreading, will yesterday’s standard of medical privacy ever return?
There is no agreement among even western democracies of what constitutes reasonable privacy. Europeans are aghast at the notion that a couple’s divorce agreement is a matter of public record in some U.S. states. Americans look at you blankly when you tell them that a person’s tax return is a matter of public record in Norway.
We always seek to stay on the right side of the privacy line as we do our work. Even if that line is a bright line, it can still move this way or that. It may be on the move right now.
[i] In researching this blog I also discovered that as much as the New York Times hates data gathering by private companies, its own data gathering controls can be as confusing as some of the companies it bitterly criticizes. Try adjusting the kind of information the Times gathers about you if you read it online. You can opt for “I want to keep my subscription or service but want to delete my personal information that you don’t need in order to provide my subscription or service, unless you have legal reasons for keeping it.” This is as opposed to just ending your subscription. But then if you click the first option to keep your subscription with limited data scraping, you agree that this will terminate your service with the paper. If Facebook had such two such contradictory options, the editorialists would tear it apart.