A panel of lawyers urged Congress today to adopt legislation that would undo the Supreme Court’s decision in Federal Aviation Administration v. Cooper, which found in March that someone whose medical information was shared by government agencies could not recover emotional damages.
In a wide-ranging discussion on the status of the federal government's privacy laws before a Senate subcommittee, the law professor who helped pioneer the government's role in protecting the private information of Americans in the digital age said the Supreme Court interpretation of the Privacy Act was "more narrow than intended."
"I think emotional harms that are proven to a judge are real harms here, and we should put that back in the law," said Peter Swire, a law professor at Ohio State University Michael E. Moritz College of Law and the former chief counselor for privacy in the Office of Management and Budget (OMB) under President Clinton.
Chris Calabrese, a legislative counsel with the American Civil Liberties Union, said the court's decision on the Privacy Act weakened the remedies for a breach. "This decision is particularly harmful because the damage from privacy disclosures is often, embarrassment, anxiety and emotional distress, precisely what the court forecloses," Calabrese said.
In the case, a pilot filed a lawsuit in 2007 claiming emotional damages because the agency shared his medical record, including his HIV status, without his consent. The Supreme Court ruled that the words "actual damages" in the 1974 law excluded emotional damages.
Swire also urged Senators on a government oversight subcommittee to create a federal chief privacy officer, similar to his former position with the OMB, to coordinate how government agencies collect and handle the private information of Americans. While there, Swire helped form the Health Insurance Portability and Accountability Act rules.
The OMB now focuses its limited personnel on other priorities, so a law requiring that position would help the agency get around bureaucracy and allow one person to coordinate how the government addresses privacy across agencies, Swire said.
The lawyers also said Congress should immediately confirm the five nominees for the federal Privacy and Civil Liberties Oversight Board – including Patricia Wald, a former chief judge of the U.S. Court of Appeals for the D.C. Circuit.
The board has been vacant and dormant since 2007.