Will HIPAA survive texting?
A recent article in the New Yorker by Alice Gregory (“R U There? A new counseling service harnesses the power of the text message”, February 9, 2015) makes one wonder whether all of the hours, days and years that federal regulators, privacy advocates, and healthcare attorneys spent agonizing over the confidentiality of information (particularly healthcare and mental health information) through HIPAA Privacy and Security standards has been fully worth the effort.
The article discussed a suicide prevention hotline where all the conversations are conducted by text message. While the conversations are not covered by HIPAA, undoubtedly they are confidential, both under standards utilized in the development of HIPAA as well as subjectively to the person seeking the help of the hotline. But the ease and commonality of texting, which is not only not “secure” but may leave a permanent record of what is said, is so ubiquitous with the younger demographic that the need to communicate via this method overrides their concerns about privacy.
They communicate in short bursts of words and their abbreviations rather than in long conversations or paragraphs. Brevity and clarity are key to the life saving conversation. As Ms. Gregory observes, the ability of the hotline staff to communicate with at risk youth via their favorite communication method, namely via texting, is saving the lives of the individuals who seek the hotline’s help.
Accordingly, those who would seek help from the hotline, and their peers, may have no patience for the attorney proposed and drafted solutions to HIPAA issues that involve complex legal language, or simplified but still detailed language. These “solutions” may simply not meet the business and personal imperatives of the current and future communication age.
As for privacy concerns, well young people who rely substantially on texting may not share the concerns and fears of those who negotiate and draft the regulations and the advice for how they should be navigated. They may simply agree with Scott McNealy, former CEO of Sun Microsystems when in January 1999 he famously told Wired Magazine “You have zero privacy anyway,…. Get over it.”
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