The ECPA and Personal Health Record Systems

Yesterday, William Yasnoff discussed whether or not the Electronic Communications Protection Act (ECPA) provided federal privacy protection for Personal Health Record (PHR) systems. Here at The Privacy Place, we have previously focused on whether the Health Insurance Portability and Accountability Act (HIPAA) applies to PHRs (short answer: no), but today I would like to take a moment to talk about the ECPA.  If you are interested in our coverage of HIPAA and PHRs, I would point you to our post on Microsoft’s HealthVault and our post on Google’s Google Health project.

Let’s start with some background on the ECPA.  The ECPA was passed in 1986 as an amendment to the Wiretap Act of 1968 and primarily deals with electronic surveillance.  The purpose of the Wiretap Act was to make it illegal for any person to intercept oral communications like telephone calls.  The first title of the ECPA extends the original Wiretap Act to prevent the interception of electronic communications.  The second title of the ECPA (commonly called the Stored Communications Act) adds protection for stored communications and prevents people from intentionally accessing stored electronic communications without authorization.  The ECPA has been amended three times since it was passed.  First, it was amended by the Communications Assistance to Law Enforcement Act (CALEA) in 1994.  Second, it was amended by the USA PATRIOT Act in 2001.  Third, it was amended by the USA PATRIOT Act reauthorization acts in 2006.

Now, Yasnoff makes several claims in his post, which I will discuss in order.  First, he claims that there are no exceptions in the ECPA and that this means whichever organization holds your information must get your permission to release it.  This is categorically not true.  There are many exceptions in the ECPA, but for the sake of simplicity, I will limit this discussion to the two main exceptions of the original Wiretap Act, both of which were retained by the ECPA.

The first exception allows interception when one of the parties has given prior consent.  This could mean that the government can legally access your communications if your PHR service provider consents prior to the communication.  Thus, Yasnoff’s strong statement that PHRs “MUST GET YOUR PERMISSION” (emphasis from original statement) is simply incorrect.

The second exception allows interceptions if they are done in the ordinary course of business.  This could mean that your data would be accessible by third parties such as an information technology vendor that maintains the software.  Effectively, this is a somewhat broader exception than the exception found in HIPAA for Treatment, Payment, and Operations, which Yasnoff found to be wholly unacceptable for protecting patient privacy.

Second, Yasnoff claims that the ECPA “is not long or complicated – I urge you to read it yourself if you have any doubts.”  This statement as well is categorically untrue.  Paul Ohm, who was previously an attorney for the Department of Justice and is currently an Associate Professor of Law at the University of Colorado Law School, has publicly challenged Tax Law experts that the ECPA is more complicated than the U.S. Tax Code.

Bruce Boyden, an Assistant Professor of Law at the Marquette University Law School, wrote a chapter in Proskauer on Privacy discussing electronic communications and the ECPA. In it he details many of the nuanced aspects of the ECPA, including the three subsequent amendments to the ECPA. With regard to the first title (Interception) he says:

To “intercept” a communication means, under the act, “the aural or other acquisition of the contents of any wire, electronic, or oral communications through the use of any electronic, mechanical, or other device.” The application of this definition to electronic communications has at times been particularly difficult, and courts have struggled with a number of questions: What exactly qualifies as the acquisition of the contents of a communication, and how is it different from obtaining a communication while in electronic storage under the Stored Communications Act? Does using deception to pose as someone else constitute and interception? Does using a person’s own device to see messages intended for them qualify?

Boyden later talks about limitations to the second title (Stored Communications):

[T]here are two key limitations in section 2701 [of the ECPA].  First, it does not apply to access of any stored communication, but only those communications stored on an electronic communications service facility as defined under the act.  Second, the definition of “electronic storage” in the act does not encompass all stored communications, but only those in “temporary, intermediate storage” by the electronic communication service or those stored for backup protection.

These seem like rather important exceptions which continue to refute Yasnoff’s claim that there are no exceptions in the ECPA, but to his second point, this seems pretty complicated.  At least, it certainly doesn’t seem as simple as just finding some information that has been communicated to and stored by a PHR service provider, which was Yasnoff’s implication.

Boyden has also discussed whether automated computer access to communications is a violation of the ECPA.  The discussion is more complicated than it may appear at first and there’s an interesting discussion of it over on Concurring Opinions.

Broadly, several organizations feel that current US privacy law, including the ECPA, is discombobulated. The Electronic Frontier Foundation believes that fixing the ECPA is one of the top five priorities in their privacy agenda for the new administration. The Center for Democracy and Technology would like to see the new administration pass consumer privacy legislation and a “comprehensive privacy and security framework for electronic personal health information.” The ACLU would like to see the new administration “harmonize privacy rules.” I submit that these organizations do not feel that the ECPA provides clear and adequate privacy protections for PHR systems.

Yasnoff’s third claim is that PHRs which are “publicly available” receive stronger protections under the ECPA than those that are “private.”  In fact, Yasnoff says:

Only those that are “publicly-available” are included. While this clearly would apply to generally available web-based PHRs, systems provided only to specific individuals by employers, insurers, and even healthcare providers are less likely to be considered “publicly-available.” Therefore, ECPA protection is limited. So you are only covered if you use a PHR that is available to anyone.

This statement is either completely backwards as it relates to the ECPA or, perhaps more likely, not a factor for ECPA protection at all.  The EFF’s Internet Law Treatise has an article describing the differences in public communications versus private communications:

“[T]he legislative history of the ECPA suggests that Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bulletin boards,” as opposed to publicly-accessible communications. See Konop, 302 F.3d at 875, citing S. Rep. No. 99-541, at 35-36, reprinted in 1986 U.S.C.C.A.N. 3555, 3599.

Thus, the public accessibility of the PHR service is not important. The pressing concern is whether the communication itself was meant to be public or private. If it was public, then the ECPA simple doesn’t apply. It if was private, then whatever protections the ECPA does afford, would apply.

By now it must be clear that I disagree with William Yasnoff’s assessment of the ECPA’s application to PHRs.  I did, however, want to point out one interesting privacy protection that the ECPA offers which HIPAA does not: a private right of action. 

Basically, a private right of action allows citizens to file civil lawsuits in an attempt to recover losses caused by violations of a law.  The ECPA has a private right of action clause, while the HIPAA does not.  HIPAA’s lack of a private right of action has caused some criticism.  On the other hand, the ECPA’s private right of action has also been criticized as unnecessary and wasteful.  Perhaps it is a stretch, but this was the only possible improvement in privacy protection that I was able to find to support Yasnoff’s argument regarding the use of the ECPA to provide privacy protections for PHRs.

I would like to conclude by saying as directly as possible that the ECPA does NOT provide clear or adequate privacy protection for personal health information given to PHR systems. Privacy in general and healthcare privacy in particular are hotly debated current concerns for many organizations. I believe it is likely that the Obama administration and the next session of Congress will attempt to address the privacy concerns raised by organizations like the EFF, the CDT, and the ACLU. In the meantime, however, do not use a PHR service under the assumption that the ECPA protects the privacy of your medical records.

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