11/21/24
July 09, 2015
SportsFilter: The Thursday Huddle:
A place to discuss the sports stories that aren't making news, share links that aren't quite front-page material, and diagram plays on your hand. Remember to count to five Mississippi before commenting in anger.
A journalist isn't legally bound by HIPAA, so I don't see the grounds to sue him.
Schefter made a mistake running the screen grab, but if he had simply reported the facts of that medical record would his ethics have come into question?
posted by rcade at 12:37 PM on July 09, 2015
A journalist isn't legally bound by HIPAA, so I don't see the grounds to sue him.
If he paid money for those records (or to have them photographed), then I think he might be in legal trouble.
posted by grum@work at 12:58 PM on July 09, 2015
Irrespective of legality, seems highly unethical.
posted by holden at 01:05 PM on July 09, 2015
If he paid money for those records (or to have them photographed), then I think he might be in legal trouble.
His activities in gathering news receive broad First Amendment protection. The person in trouble is the health care employee who sent him that screenshot.
posted by rcade at 01:27 PM on July 09, 2015
His activities in gathering news receive broad First Amendment protection.
It depends on the timeline.
Alternative A:
1) Health care employee photographs records.
2) Employee approaches journalist to sell photo.
3) Journalist pays for photo.
Alternative B:
1) Journalist approaches health care employee(s) with offer of money for photo of records.
2) Employee takes photo and gives it to journalist.
3) Journalist pays for photo.
Alternative A? That's legal.
Alternative B? That's probably illegal, as some sort of conspiracy charge could be laid on the journalist.
posted by grum@work at 01:47 PM on July 09, 2015
Also, I wonder if a private citizen's health records really fall in the "newsworthy/public concern" bucket that the journalist would claim in order to use the Bartnicki v Vopper precedent as protection.
posted by grum@work at 01:51 PM on July 09, 2015
1) Journalist approaches health care employee(s) with offer of money for photo of records.
Major news outlets don't pay for information and have an ethics policy forbidding the practice, so I regard that possibility as highly unlikely here.
As for JPP being considered a private citizen, he's a public figure of such significant interest he receives millions of dollars a year in salary.
posted by rcade at 02:18 PM on July 09, 2015
Also, I wonder if a private citizen's health records really fall in the "newsworthy/public concern" bucket that the journalist would claim in order to use the Bartnicki v Vopper precedent as protection.
Protection from what? HIPAA only applies to people working for specific medical agencies. There's nothing illegal about asking for or receiving information protected under the act. It is the sole responsibility of the person bound by HIPAA not to give it.
posted by dfleming at 02:25 PM on July 09, 2015
Protection from what? HIPAA only applies to people working for specific medical agencies. There's nothing illegal about asking for or receiving information protected under the act. It is the sole responsibility of the person bound by HIPAA not to give it.
How about a state law tort claim for invasion of privacy? I think the media probably wins on that one, but that would be the basis of the claim, not a HIPAA violation.
posted by holden at 03:39 PM on July 09, 2015
Major news outlets don't pay for information and have an ethics policy forbidding the practice, so I regard that possibility as highly unlikely here.
It's one thing to have an ethics policy. It's another thing entirely to abide by it. I'm not suggesting that he paid for the information, but I have to ask why was he chosen to receive this information.
(I've also wondered the same thing when TMZ gets their hands on previously unavailable private videos.)
posted by grum@work at 03:58 PM on July 09, 2015
How about a state law tort claim for invasion of privacy? I think the media probably wins on that one, but that would be the basis of the claim, not a HIPAA violation.
My understanding in cases of invasion of privacy involving public figures, the plaintiff has to prove the information was not newsworthy.Clearly an NFL player losing a finger in a fireworks accident is newsworthy.
posted by dfleming at 04:05 PM on July 09, 2015
he's a public figure of such significant interest he receives millions of dollars a year in salary
What's the cutoff for privacy? $1million/yr? Or do you need to check the person's Q rating to confirm they are "signifcant"?
In summary, Schefter is an asshole for posting that image, and I'd love it if the NFL/NFLPA (and other sports organizations) decided to cut all communication with him as a result.
Otherwise, why not let everyone know in the medical industry that they can get back at athletes that were rude to them by simply scanning/photographing private medical records and dropping them in anonymous cloud storage sites for journalists to dig through.
You want to report on information that is in the public record (marriage/divorce/real estate/financial transactions/etc)? Fine. Private medical records? Not cool.
posted by grum@work at 04:05 PM on July 09, 2015
It's one thing to have an ethics policy. It's another thing entirely to abide by it.
True, but the taboo against a major media outlet paying for information is pretty strong. If Schefter did that and got caught he'd be fired for it. Alternatively, if ESPN had him do it the criticism within journalism would be fierce.
What's the cutoff for privacy? $1million/yr? Or do you need to check the person's Q rating to confirm they are "signifcant"?
All due respect, these are silly questions to ask on a site created to share news about people like JPP. Anyone who doesn't think a first round draft pick and two-time Pro Bowl defensive end is a public figure is in the wrong place.
Sports reporters reveal information about the health of athletes all the time. Aside from running a screen grab from the actual medical record, how is what Schefter did any different than when the media broke the story that Tommy Morrison was HIV-positive and Lyle Alzado had brain cancer?
posted by rcade at 06:31 PM on July 09, 2015
how is what Schefter did any different than when the media broke the story that Tommy Morrison was HIV-positive and Lyle Alzado had brain cancer?
Morrison had to take a public health test as part of pre-match requirements. When he failed that (and the second test), he came forward and announced it to the public in a press conference.
posted by grum@work at 07:57 PM on July 09, 2015
posted by Mr Bismarck at 08:14 PM on July 09, 2015
he's a public figure
HIPAA doesn't have a public-figure exemption.
grum is right about Schefter likely being in the legal clear, unless he did something profoundly stupid.
posted by Etrigan at 08:49 PM on July 09, 2015
HIPAA doesn't have a public-figure exemption.
Journalists don't need one. They are not bound by HIPAA because they aren't health care providers, plans or clearing houses. Here's the rundown on who must follow that law.
posted by rcade at 09:12 PM on July 09, 2015
HIPAA doesn't have a public-figure exemption.
Journalists don't need one.
No, but as grum pointed out, if Schefter specifically enticed someone to violate HIPAA, he could be on the hook for conspiracy.
I was specifically addressing your apparent idea that Pierre-Paul's public standing would be a factor in the legality of this situation. If the First Amendment is found by a court to protect against HIPAA violations, it'll gut the privacy aspects of the law.
posted by Etrigan at 09:47 PM on July 09, 2015
No, but as grum pointed out, if Schefter specifically enticed someone to violate HIPAA, he could be on the hook for conspiracy.
And if he kidnapped someone's spouse to get them to release the records, he'd be on the hook for kidnapping.
Journalists don't need to "entice" people to gather information. They get tips and leaks. Schefter's extremely well-connected.
I was specifically addressing your apparent idea that Pierre-Paul's public standing would be a factor in the legality of this situation.
Grum was the one who brought up whether JPP was a public figure. I didn't offer that as a legal defense for Schefter because Schefter needs no such defense.
ESPN noted as much in its response to this issue: "HIPAA does not apply to news organizations."
Massachusetts attorney and SI legal analyst Michael McCann: "HIPAA doesn't apply to media who obtain medical records of others. Invasion of privacy does, but 1st Amendment offers a good legal defense."
Buffalo News reporter Tim Graham: "As someone who has obtained/reported medical records (Joe Mesi brain bleeds), I can state it is not illegal to receive or report them. The illegality is from a medical professional or institution sharing personal records without consent."
The Schefter tweet is still online 27 hours later. I think it's safe to assume that lots of ESPN lawyers heard about it today, so its presence online suggests that the network believes itself on solid ground legally.
JPP has a strong cause for a lawsuit against the medical facility whose record Schefter shared on Twitter. The UCLA health system had to pay out a $1 million settlement because employees were merely looking at celebrities' medical records -- not sharing them.
posted by rcade at 10:14 PM on July 09, 2015
rcade, you're spending a lot of time arguing against people who aren't actually arguing against you here. What grum and I are saying (if I'm wrong, grum, let me know) is that it is possible for Schefter to face legal trouble under a possible set of circumstances that no one has actually provided proof (or denial) of, and that his status as a journalist and Pierre-Paul's status as a public figure aren't the absolute defenses that you seem to think they are.
posted by Etrigan at 10:52 PM on July 09, 2015
JPP has a strong cause for a lawsuit against the medical facility whose record Schefter shared
Blabbing Peter to Pay Paul
posted by beaverboard at 11:11 PM on July 09, 2015
... his status as a journalist and Pierre-Paul's status as a public figure aren't the absolute defenses that you seem to think they are.
I'm going to spend more time arguing, then, because what you've said above is not my position.
I said Schefter is a journalist to show that he's not bound by HIPAA.
I said JPP's a public figure simply because that's true.
JPP being a public figure has no bearing on whether a medical professional did anything illegal by sharing leaked medical records. A public figure has the same privacy rights under HIPAA as anyone else. The person who leaked the record to Schefter broke the law.
But Schefter didn't. As for him facing legal trouble if he broke some other law, of course. But what law, and what evidence? I see none.
The only potential legal risk for Schefter I see is in the future: A court pursuing the leaker could demand he reveal his source.
posted by rcade at 12:07 AM on July 10, 2015
While Schefter is entitled to legal protection as a journalist, let's not kid ourselves that he is actually a journalist as one might typically construe that word. I believe his entire existence is to report tips, primarily through Twitter and then as a talking head on Sports Center or other bullshit ESPN programming. Seriously, when was the last time you read something from Adam Schefter and thought, "Wow, that is some serious investigative journalism or analysis?" (and listen, I appreciate that there is a wide spectrum of what constitutes journalism including doing little more than just reporting facts). All I can think of when I see him is a chipmunk commenter on a chipmunk blog who posts "First!" on every damn post. Sometimes his breathless reporting on the various ESPN programs leads me to believe that he thinks he is covering the Camp David Accords or the Kennedy assassination or something. "Sources tell me Dez Bryant has met with both Sadat and Begin in an effort to lend his services to the highest bidder. My sources suggest he wants to be dropping, not catching, bombs."
I believe journalists are entitled to broad leeway to write/say what they want (and I am in favor of a broad reading of who is a journalist for purposes of first amendment law) -- it's what makes our country great, and just take a look a Britain's libel laws to see the chilling effect of a different presumption/burden of proof on such matters -- but Schefter is just shit at being a journalist, if that's what he really is. Just look at his Twitter feed and I defy you to find one original thought. And I get that he's not being paid to provide any original thoughts, but daaaamn what that guy "reports" is such low-value claptrap.
When it comes down to it, what he did was a pretty scummy thing to do. I just fail to see why publishing someone's actual medical records, which are about as private as it gets, was necessary. Schefter seems more than happy to peddle rumor and innuendo at all times, and when multiple media reports had come out that Pierre-Paul had his finger amputated, why not just post "sources that have seen his medical records have confirmed that..." Definitive proof or confirmation from Pierre-Paul's camp/the Giants/the NFL is going to come out sooner or later, and Schefter seems happy to rely on anonymously sourced information without a shred of documentary evidence for most of his other "scoops." But seems he had to be the guy to raise his cheeky little chipmunk fucking hand with that dumb chipmunk grin to be the first to tell the class that, yes, he had definitive proof that Sally Squirrel pissed her pants on the bus on the way to school and here he was going to show it, when a simple report that this had happened and was confirmed by multiple witnesses would have sufficed without the photos of poor Sally with piss all over her sad little squirrel school uniform.
I doubt there's a cause of action here against Schefter from a pure legal standpoint, but I do think he should be convicted in the court of public opinion for basically being the TMZ of the NFL and for also having a very skewed sense of proportionality and propriety. Sometimes you just sit on something "juicy" because it's the right thing to do or publication of the same is totally unnecessary/disproportionate considering the circumstances. Did the public interest here actually justify the invasion of privacy? Did not think I would ever agree with James Harrison on much of anything, but think he's right on this one.
posted by holden at 01:02 AM on July 10, 2015
I can't remember the last time Schefter reported anything of substance. Like Mike Florio he seems to exist entirely as a conduit to pass along insider gab. I vaguely recall being impressed with some of his reports on NFL Network in the early days.
I looked him up to see if there was something I'd forgotten. I came up empty, but it was interesting to learn one thing from his bio: In 2007 or 2008, he married a 9/11 widow who lost her husband at Cantor Fitzgerald. The couple are raising a boy who was 15 months old when his father died in the attacks.
posted by rcade at 01:58 AM on July 10, 2015
What Holden said x10. The reporting isn't what I have a problem with. The photo and the thought behind posting it are what I can't stand. There was no need for him to post the photo except to show off. Certainly ESPN doesn't require their reporters to actually have any proof of the shit they spew. It was immature attention grabbing and the fact he hasn't removed it regardless of the legality of it confirms he's an asshole. I'm sure the lawyers told him it has to stay so they don't look legally vulnerable.
Deadspin is right about the "post-human" thing, ESPN/ Fox/ Sky just have shits who report any old rumor they can bake up without thinking of the contents of their rumors being about real people. The Internet has allowed us all to be sociopaths and a depressing percentage take full advantage.
posted by yerfatma at 09:05 AM on July 10, 2015
rcade, you're spending a lot of time arguing against people who aren't actually arguing against you here. What grum and I are saying (if I'm wrong, grum, let me know) is that it is possible for Schefter to face legal trouble under a possible set of circumstances that no one has actually provided proof (or denial) of, and that his status as a journalist and Pierre-Paul's status as a public figure aren't the absolute defenses that you seem to think they are.
Well - we could also argue that Schefter would face legal issues if he blackmailed a person at the hospital to get the information, or if he hit a pedestrian on the way to getting the document, or if he dressed as a nurse to get access to Cousins' file. There are a lot of other crimes he could've committed but publishing info protected by HIPAA is not one of them.
posted by dfleming at 11:14 AM on July 10, 2015
ESPN noted as much in its response to this issue: "HIPAA does not apply to news organizations."
Well, maybe it should.
It seems silly that ESPN can take legal action against someone for "rebroadcasting without expressed written consent" their game broadcasts, but ESPN is free and clear for publishing a person's medical information without that person's [expressed written] consent.
posted by grum@work at 11:38 AM on July 10, 2015
Agreed. I feel the same way about celebrities who go to private places who get photos published of them (or of their kids) and stories about people's personal lives going into the can.
It exemplifies the worst of what we are as human beings - gossip monsters who don't care about what impact information might have on the individual so long as we're entertained. It happened during the nude photo hack - people willfully shared that information in a way that would devastate virtually everyone if it happened to them.
It would work itself out if the shit didn't sell - but man does it sell. The market here reflects our collective ethic, and our collective ethic sucks.
I do not agree with the general perspective on newsworthiness (i.e., being popularly known) somehow creating a category where anything goes, but unfortunately trying to have a nuanced debate about any of the Amendments and how maybe in the technological era some things have changed is a non-starter.
posted by dfleming at 11:52 AM on July 10, 2015
I do not agree with the general perspective on newsworthiness (i.e., being popularly known) somehow creating a category where anything goes
It's the double-edge to the sword of the First Amendment. Any easing of that restriction wouldn't create so much a slippery slope as an Alpine run politicians in power would use to curb reporting. Look at how much we don't know in light of the Snowden reveals. Then imagine if the government had more tools to suppress what they do. I'll cop to being an absolutist when it comes to Freedom of Speech, but I think civil courts are probably up to the task of punishing what we're complaining about without touching the Bill of Rights. It will just take 20 years or so for the courts to be tech-savvy enough to understand the issues in front of them.
posted by yerfatma at 12:09 PM on July 10, 2015
It will just take 20 years or so for the courts to be tech-savvy enough to understand the issues in front of them.
At which point the technology will be another twenty years ahead.
posted by holden at 12:21 PM on July 10, 2015
It seems silly that ESPN can take legal action against someone for "rebroadcasting without expressed written consent" their game broadcasts, but ESPN is free and clear for publishing a person's medical information without that person's [expressed written] consent.
Do you really want a society where the media is breaking the law by reporting someone's medical condition? Schefter was a putz for sharing the screen grab, but if he released the facts it contained without showing it I think it's a reasonable thing for a sports reporter to be doing.
posted by rcade at 01:00 PM on July 10, 2015
Do you really want a society where the media is breaking the law by reporting someone's medical condition?
What is the downside to a society where JPP decides when and where to tell the world he's lost a finger, or someone gets the opportunity to tell the world on their own terms they're going through gender therapy, or has M.S? What do we lose?
posted by dfleming at 01:03 PM on July 10, 2015
Do you really want a society where the media is breaking the law by reporting someone's medical condition?
Does knowing this person's medical condition provide an important public good? Is it some sort of communicable disease that may threaten others? Is the public protected by knowing this person's medical condition?
If a doctor is legally not allowed to reveal medical information about a patient without their consent (or a court order), then why is it acceptable for a reporter to disseminate that same information because someone else broke the law to give it to him?
I think the biggest problem I have with this whole story is the screenshot itself. If Schefter wanted to report that he had "inside sources" about the information, then I wouldn't care (or, obviously, even know he had that photo). Then it would be up to Schefter to convince the public without revealing the private medical information. Heck, it could simply be a janitor that saw the player being wheeled back to the room with a missing finger.
By releasing the screenshot, he's actually revealing that private medical information without the player's consent.
posted by grum@work at 01:12 PM on July 10, 2015
What is the downside to a society where JPP decides when and where to tell the world he's lost a finger, or someone gets the opportunity to tell the world on their own terms they're going through gender therapy, or has M.S? What do we lose?
The slippery slope is when this concerns, say, the President or a Presidential candidate. In those types of cases, the public may well have a legitimate interest in knowing of any medical issues that the officeholder or candidate may not want to disclose. Better to have the broad immunity/privileges of the press from a legal standpoint to protect for those circumstances and hope that any sort of journalistic ethics would dictate appropriate discretion when dealing with less weighty matters.
I think the biggest problem I have with this whole story is the screenshot itself. If Schefter wanted to report that he had "inside sources" about the information, then I wouldn't care (or, obviously, even know he had that photo). Then it would be up to Schefter to convince the public without revealing the private medical information. Heck, it could simply be a janitor that saw the player being wheeled back to the room with a missing finger.
Or he even could have gone so far as to state "I have seen the medical records and can confirm that he has had his right index finger amputated," in which case it is his credibility he is asking people to trust directly rather than the credibility of an unnamed source. I would have been a lot more okay with that than what he actually did.
posted by holden at 01:26 PM on July 10, 2015
The slippery slope is when this concerns, say, the President or a Presidential candidate. In those types of cases, the public may well have a legitimate interest in knowing of any medical issues that the officeholder or candidate may not want to disclose. Better to have the broad immunity/privileges of the press from a legal standpoint to protect for those circumstances and hope that any sort of journalistic ethics would dictate appropriate discretion when dealing with less weighty matters.
All I am saying is - by accepting this slippery slope argument, we are effectively saying whatever collateral damage occurs to individuals/the broader collective is acceptable and whatever collateral damage a president's hidden illness might inflict on the country is not acceptable.
My point is - given how technology is significantly different than it was when the Amendment was written (i.e., JPP's missing finger would've taken days to spread like wildfire if it would've at all), isn't it at all reasonable to consider a nuanced and changing perspective based on what impacts it actually has on people?
posted by dfleming at 02:11 PM on July 10, 2015
The slippery slope is when this concerns, say, the President or a Presidential candidate. In those types of cases, the public may well have a legitimate interest in knowing of any medical issues that the officeholder or candidate may not want to disclose.
Remember when people wanted to see Romney's tax records, and he hemmed/hawed about them (and then only released a partial set)?
It pretty much put the idea in everyone's head that he had some "bad stuff" he didn't want revealed.
If the press said "release your medical records" to a candidate, and the candidate said "Nope!", then it would be perfectly fine for the press to respond with "What is he/she hiding? Is he/she gravely ill? Can you trust him/her?"
I still don't think people's medical records should be released to the public without their consent (or a court order).
posted by grum@work at 02:23 PM on July 10, 2015
Does knowing this person's medical condition provide an important public good?
That depends on the person. I can think of plenty of people whose medical condition would be a valid subject of public concern and press scrutiny -- such as presidents, presidential candidates, governors and public CEOs. If there's a law against the media reporting the information contained in medical records, we won't just lose the stories about public figures you'd deem unimportant (such as, presumably, JPP). It would also prevent important information from getting out.
I don't think we should be chipping away at the First Amendment rights of reporters. There are always "good reasons" put forward for restricting press freedom, but when I see the limitations journalists often face in even liberal Western countries like Canada and England, it makes me an absolutist. I'd rather pay the price for too much unfettered speech than too little.
posted by rcade at 03:19 PM on July 10, 2015
Somewhere along the way, to me, this scenario feels like dealing with stolen property. It is illegal to possess (sell, disseminate, have) stolen property, even if you are not the one who did the stealing. The criteria for that is just that you are in possession of the stolen material, and that you know it was stolen. And since the only way to get this medical information would be for some health care person to "steal" the information, Schefter had to know it was "stolen," and he was obviously in possession of it.
posted by opel70 at 04:04 PM on July 10, 2015
For better or worse (as a First Amendment absolutist a la rcade, I personally find this for the better), First Amendment jurisprudence has typically shied away from adapting to technological changes. And when Congress attempts to respond to technology, at least as it relates to speech (they have had much more success on copyright matters, among other areas), the courts have often overruled large swaths of laws as being too restrictive of speech, including most of the Communications Decency Act and all of the Child Online Protection Act. There seems to be some action relating to whether "citizen media" qualify for First Amendment protections that would apply to the ordinary press, which raises some interesting questions about drawing the line between a local reporter and a neighborhood gossip with an internet platform.
The courts have shown more of a willingness to adapt interpretations of constitutional matters to technological change in connection with the Fourth Amendment, with respect to different means of effecting searches. Some interesting cases under the Sixth Amendment relating to whether taking a victim's testimony at trial via video conference and the like violates the right of the accused to confront his/her witnesses. Obviously some Eighth Amendment case law around how technological advances should inform thinking on what constitutes cruel and unusual punishment.
But the courts have largely declined to undertake or accept this type of analysis as relates to the Second Amendment (in terms of accepting/adopting any sort of argument that maybe the Second Amendment should be assessed in light of the type of weaponry and killing power available to the average 1780s militiaman vs. what the average citizen can buy at Wal-Mart or Cabela's today).
Still waiting for a case on how the Third Amendment applies in the Airbnb age when those pesky soldiers want to be quartered in residences secured through online bookings. Scalia would surely would write a convoluted opinion about the meaning of "house" in the 18th century, while Thomas would argue that the amendment only applies to houses that had been built by the date of ratification in 1791.
posted by holden at 04:26 PM on July 10, 2015
I don't think we should be chipping away at the First Amendment rights of reporters.
If a blogger worked in a hospital and had access to private medical records, is he protected by those same First Amendment rights if he publishes the records of someone famous? He's breaking the HIPAA laws, but why isn't he protected by the First Amendment?
posted by grum@work at 10:13 PM on July 10, 2015
If a blogger worked in a hospital and had access to private medical records, is he protected by those same First Amendment rights if he publishes the records of someone famous?
If the blogger works at a hospital, that legally obligates the person to follow HIPAA. I don't see how the person could claim that because she also works as a blogger, she gets to ignore the law due to the First Amendment.
posted by rcade at 11:00 PM on July 10, 2015
If the blogger is reporting the information for, say, Bleacher Report, wouldn't that be covered by the First Amendment?
Or would the person have to anonymously email themselves the information AND THEN post it as "news" to be covered by the 1stA?
posted by grum@work at 01:27 AM on July 11, 2015
Being a journalist/blogger isn't a free pass to avoid personal legal obligations that would conflict with the First Amendment. If I signed an NDA I couldn't circumvent it just by putting the information in a news story. A blogger who chose to work for a hospital would likewise be obligated to follow HIPAA.
posted by rcade at 08:42 AM on July 11, 2015
I always wondered whether Adam Schefter was another heartless ESPN 'bot like Darren Rovell (who deadspin wonderfully called "post-human"). Last night Schefter made it clear he's a thoughtless cock by tweeting out Jason Pierre Paul's actual medical files.
I hope he gets sued.