Reconsidering Constitutional Protection for Health Information Privacy

Abstract

What kinds of health information should be reported to government for civil purposes? Several competing trends encourage efforts to reassess the scope of constitutional protection for health information: the social and commercial value of health information; the amount of data held by third parties, from health care providers to internet servers; critiques of the third party doctrine exception to Fourth Amendment protection; and concerns about the loss of privacy. This article describes a variety of civil purposes for which health information is collected today. A close analysis of cases applying the third party doctrine, administrative search principles, and the special needs doctrine, as well as Fifth and Fourteenth Amendment cases examining health information privacy reveals quasi-precedents of limited relevance for evaluating mandatory reporting of health information. This lack of clarity calls for a more sophisticated approach to contemporary civil uses of health data.