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| Section 215 of the Patriot Act has created some speculation and concern among mental health providers. The Practice Directorate has been monitoring this provision since its enactment into law and has been assessing its potential impact on the confidentiality of mental health records. The relevant section of the Foreign Intelligence Surveillance Act (FISA) and Section 215 of the Patriot Act follow. |
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| FISA (2000): |
| "[T]he Director...may make an application for an order authorizing a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility to release records in its possession for an investigation to gather foreign intelligence information or an investigation concerning international terrorism...." 50 USC § 1862 (2000). |
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| Section 215: Access to Business Records amends FISA as follows: |
| "[T]he Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution ...." 50 USC § 1862 (2001)(emphasis added). |
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| As can be seen, prior to the implementation of the Patriot Act, FISA was only applicable to the search of "records" maintained by a "common carrier, public accommodation facility, physical storage facility, or vehicle rental facility." Under Section 215 of the Patriot Act, it appears that records can be accessed from a much wider population, since the limited targets of "common carrier, public accommodation facility, physical storage facility, or vehicle rental facility," were not specified. Also, not only records but "any tangible thing" must be produced. However, it is not clear whether medical or mental health records were intended to be included in this list of tangible items. Also, though the title of this section is "Access to Business Records", the term business records is nowhere defined. |
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| As of yet, there is no case law which interprets what constitutes "business records" under the Patriot Act or "records" under FISA. During a House Judiciary Committee meeting, Attorney General Ashcroft was asked whether medical records are accessible under the Patriot Act. At that time, he was unable to give a definitive answer and he has not followed up with further clarification. A July 30, 2003 press release by the Department of Justice (DOJ) states that Section 215 "applies to business records in general" and has a "narrow scope". Although this does not clarify if medical or mental health records are included, it does suggest that the intent of the DOJ is to maintain a narrow scope when seeking "business records." |
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| There have been several legal cases with Patriot Act implications, but only one case has specifically taken issue with Section 215. This case was filed by the ACLU and there are no written decisions or materials on this case at this time. |
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| Two related issues which heighten the severity of the potential problems associated with Section 215, should it be determined that mental health records would be included in the definition of "business records" are: 1) The threshold test for acquiring "records" has been lowered from probable cause to certification that "information" is needed in a terrorist investigation. 2) The psychologist, or other source of the records would not be allowed to inform the party being investigated about the release of the information, and the party would not have any opportunity to be heard on this issue (however this second problem was also a problem under FISA). |
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| Currently, there are a number of narrowly drawn bills that have been introduced by Members of Congress in an effort to amend specific provisions of the Patriot Act. Unfortunately, these bills define "business records" to include "mental health records" and propose only to raise the burden of proof in an effort to limit access to such records. Support by APA for these bills would not be advisable at this point since to do so would be a concession that the existing definition of "business records" includes "mental health records." As previously stated, it is unclear to us whether mental health records are included, and a reasonable argument can be made that they are not included in the current definition of "business records." As a practical matter, our Government Relations staff and outside consultants indicate that it is unlikely that any legislation amending the Patriot Act will be enacted this year. |
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| Also of significance is the fact that the Patriot Act will sunset on December 31, 2005. Debate concerning replacement legislation is highly contentious and will, in all likelihood, continue into the Congressional session next year. The best potential opportunities for change and/or clarification regarding access to mental health records will come during the development of replacement legislation, if and when that occurs. The Practice Directorate will continue to monitor the process and consider optimal strategies in light of what replacement proposals develop. In the event that no new legislation is enacted, the controlling law will revert back to the relevant language from FISA which existed prior to being amended by the Patriot Act. |
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| Another strategy potentially available to us is to intervene in an individual legal case challenging the law, if a practitioner is actually adversely affected by application of the statute. We will be monitoring legal cases, and we urge you to contact us if you become aware of any practitioner whose records are seized as a result of this Act. |
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| In sum, what is required is an ongoing process of continuous monitoring and reanalysis of the situation to determine the best strategies to protect the privacy and confidentiality of mental health records. We will keep you informed of developments as they arise. |
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| Questions and comments may be emailed to the Practice Directorate Legal & Regulatory Department at |
| Billie J. Hinnefeld, JD, Ph.D. |
| Senior Director |
| Legal & Regulatory Affairs |
| Practice Directorate |
| 750 First Street, NE |
| Washington, DC 20002-4242 |
| (202)336-5886 |
| (202)336-5797 Fax |
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| Posted 07/07/04 |
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