Between the Devil and the Deep Blue Sea: The Hard Choice Between Health and Privacy

CHRISTOPHER J. FRAGA—Ross Compton recently plead not guilty to aggravated arson and insurance fraud charges deriving from the destruction of his $400,000 home. According to Mr. Compton, he packed a few bags and used his cane to break a window in order to escape after discovering a fire. Unfortunately for Mr. Compton, his pacemaker told a different story.

Charges were brought following a determination by a cardiologist reviewing data stored within his pacemaker that his version of events was “highly improbable.”

In the case of Mr. Compton, the decision to seek evidence found within his own body came with the traditional protections afforded by judicial oversight: following the discovery of gasoline on his person, police sought and received a warrant to retrieve the data. This judicial willingness to grant a warrant for evidence garnered from a medically necessary, life-sustaining device located within the human body raises worrisome questions. One conceivable implication is the forced choice between our privacy and the medical devices we rely on (and the potential that the data these devices contain be used against us).

In Schmerber v. California, a 1960’s drunk driving case involving the involuntary removal of blood by medical professionals under police order, the Supreme Court clarified the application of the self-incrimination privilege found with the Fifth Amendment for searches intruding into the human body. The Court concluded that “[n]ot even a shadow of testimonial compulsion . . . was involved either in the extraction or in the chemical analysis. Petitioner’s testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.” 384 U.S. 757, 765 (1966).

The Court in Schmerber likely wasn’t thinking beyond compelled blood samples.  It was just a few years prior that a Swedish engineer made history when he received the world’s first pacemaker. Since then, we have over half a century of medical experience surgically inserting mechanical devices into our bodies in ever increasing numbers. Between 1993 and 2009, almost three million Americans had pacemakers implanted. These devices, intended to improve upon human biological functions, are, by their very nature, innately imbued with data collecting capabilities not present in their natural counterparts.

And it’s not just pacemakers we have to worry about. For example, cochlear implants use a microphone in conjunction with an array of electrodes to stimulate the auditory nerve, providing a semblance of hearing to the deaf and extremely hard of hearing. Similar strategies are being used in ongoing efforts to restore vision to people suffering from certain forms of vision loss. Like Mr. Compton’s pacemaker, each of these devices has the potential to supply the government with data in prosecuting its citizenry.

Recovering this data doesn’t even require a suspect’s knowledge, let alone consent. In the case of the pacemaker, it is currently possible for these devices to be remotely monitored by phone or internet connection. And, not surprisingly, access is becoming easier. This technology has grown to accommodate smartphones and tablets. In 2015, one developer received U.S. Food and Drug Administration approval for “the world’s first app-based remote monitoring system for patients with implantable pacemakers.”

Given the proliferation of these devices, the law will need to expand to catch up with technological growth or citizens may be forced to make the tough decision between privacy and health.

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