By Omer Tene on April 7, 2015 at 12:00 am
Cross-posted from The International Association of Privacy Professionals.
Privacy does not cause airplanes to crash; neither does pilot depression. The wave of criticism against Germany’s strict privacy laws in the aftermath of the findings following the calamitous fate of Germanwings Flight 9525 is misguided and quite possibly dangerous.
Immediately after initial news of the crash, a reporter asked Carstan Spohr, CEO of Lufthansa, Germanwings’ parent airline, if copilot Andreas Lubitz could have been on a suicide mission. “I’m not a lawyer,” Spohr said, “but if a man takes 149 people to death with him, I do not call that suicide.” Indeed, depression is not a cause for mass murder. And while, in severe cases, depression could result in suicide, what Lubitz did was not (just) suicide.
Critics and journalists lashed out against privacy laws, which purportedly helped cover up Lubitz’s dangerous mental condition. The coverage was delivered with a sensationalist flavor: He was depressed! Of course he wanted to commit suicide! How did the airline not know? Privacy is at fault! The Times published an article titled “German obsession with privacy let killer pilot fly.” Time magazine quipped, “German Privacy Laws Let Pilot ‘Hide’ His Illness From Employers.” More nuanced, The Washington Post announced, “Crash challenges German identity, notions of privacy.”
Such proclamations are premature and misplaced from both a policy and factual standpoint. The patient privacy issue at case is but the tip of the iceberg of a host of confidential interactions that society has chosen to protect, subject to narrowly tailored exemptions. This includes not only communications that benefit from evidentiary privileges, such as those between an individual and a doctor, psychologist, lawyer or priest, but also those that imply a duty of confidentiality such as between an individual and bank, Internet service provider or search engine.
Medical confidentiality, of course, dates back more than 2,500 years to the Hippocratic Oath. The underlying rationale, also true for other privileges, is that patients should not hide their symptoms or refrain from seeking medical attention for fear of retribution, stigmatization or discrimination.
As a policy matter, the anti-privacy arguments fail on two counts. First, they unnecessarily stigmatize a large group of pilots, drivers, doctors, cops, soldiers and other individuals in positions of great responsibility who suffer from anxiety or mild depression and are treated by antidepressants without posing any risk to themselves or others. Not only is depression not known to cause violent behavior, some studies show depressed individuals are lessprone to violence than others. Individuals suffering from mental conditions (psychosis aside) are typically fully functional members of their families, workplaces and society. And if medical confidentiality were compromised, not only the depressed but also those suffering from diabetes, hypertension or high cholesterol would be forced to hide their symptoms.
Second, if privacy were breached, patients would not get any better but rather take their symptoms underground, go untreated or self-medicate. Surely the development of a black market for antidepressants, beta-blockers or statins intended to avert the gaze of employers or governments would not increase occupational safety.
To be sure, even the most stringent confidentiality laws have exceptions. German privacy law allows physicians to report a patient who demonstrates symptoms of an epidemic disease or is suspected of planning to commit a serious crime. If any medical professional sensed Lubitz was capable of the horrific act he apparently committed, they were not only permitted but also obliged to notify his employer and law enforcement authorities. Similar exceptions restrict healthcare privacy under the Health Insurance Portability and Accountability Act and mental health law in the U.S. In addition, certain professions warrant closer medical scrutiny than others. A surgeon with epilepsy or a diabetic power grid worker must take special precautions under existing laws and regulations.
A call for wholesale review of privacy laws is excessive. According to media reports, in the days preceding the incident, Lubitz searched the Internet for means of suicide and locking the cockpit door. Should pilots’ clickstream be subject to routine inspection? And who is to say which query is dangerous? After all, a pilot could search for cockpit door lock mechanisms out of safety concerns. At the end of the day, at present, no technology can decipher what takes place between an individual’s ears.
As a factual matter, it is not yet clear what if anything Lufthansa knew about Lubitz’s history of mental health problems. According to one report, Lufthansa was aware of the pilot’s condition, including of a major depressive episode he’d experienced while still in flight school. Another report stated that Lufthansa knew Lubitz had been treated for suicidal tendencies. Hence, privacy might well have played no part in the airline’s decision to keep Lubitz in the cockpit. Before implementing knee-jerk reactions, critics should verify the facts.
One final aspect of the policy debate concerns the extent to which Lubitz was entitled to privacy rights post mortem. German law has traditionally recognized both dignitary and commercial interests of the deceased in cases such as the Mephisto and Marlene Dietrich decisions. Unlike Germany, many countries do not afford the deceased privacy rights, reasoning that fundamental rights should protect individuals, not their families or posthumous reputations. In fact, the notion of protecting a deceased person’s privacy over the public’s right to know would strike an American or English lawyer as downright bizarre. At the same time, over the past few years,Facebook’s procedures for deletion and memorialization of deceased’s accounts have been subject to regulatory, media and academic scrutiny. In any event, regardless of opinion, the pilot’s post mortem privacy has little bearing on passenger safety.
Hard cases make bad law. In a diabolical twist of fate, the same hardened cockpit doors that were put in place as a reaction to the 9/11 atrocities were allegedly used to perpetuate the latest tragedy. One can only imagine the misfortune that could occur if society reacted impulsively to this tragedy. The horror incited by the Germanwings incident should not be allowed to wreak havoc on the foundations of our legal system. Indiscriminately piercing through confidential communications to preempt potential crimes would undermine firmly established social constructs that rightly favor free communications over isolation and ostracism. Individuals must have a zone of privacy to vent fears and weaknesses, admit their wrongdoings and seek help. The alternative, a world where individuals do not have such private places, is very scary, indeed.
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