Arrest for “HIPAA Violation” Based on Citizen’s Recording of Encounter Between Police and Another Citizen

That’s what the St. Paul Pioneer Press reports:

Andrew Henderson watched as Ramsey County sheriff’s deputies frisked a bloody-faced man outside his Little Canada apartment building. Paramedics then loaded the man, a stranger to Henderson, into an ambulance.

Henderson, 28, took out his small handheld video camera and began recording…. [A] deputy, Jacqueline Muellner, approached him and snatched the camera from his hand, Henderson said. “We’ll just take this for evidence,” Muellner said. Their voices were recorded on Henderson’s cellphone as they spoke, and Henderson provided a copy of the audio file to the Pioneer Press. “If I end up on YouTube, I’m gonna be upset.” …

Randy Gustafson, spokesman for the Ramsey County sheriff’s office … said, “It is not our policy to take video cameras. It is everybody’s right to (record) … What happens out in public happens out in public.”

One exception might be when a law enforcement officer decides that the recording is needed for evidence, he said. In that case, the officer would generally send the file to investigators and return the camera on the spot, Gustafson said….

A week later, Henderson was charged with obstruction of legal process and disorderly conduct, both misdemeanors. He had been filming from about 30 feet away, he said….

The deputy wrote on the citation, “While handling a medical/check the welfare (call), (Henderson) was filming it. Data privacy HIPAA violation. Refused to identify self. Had to stop dealing with sit(uation) to deal w/Henderson.” …

The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School.

The rule deals with how health care providers handle consumers’ health information.

“There’s nothing in HIPAA that prevents someone who’s not subject to HIPAA from taking photographs on the public streets,” Granick said. “HIPAA has absolutely nothing to say about that.”

When Henderson tried to get back the camera, another deputy refused to release it, and said (Henderson also recorded this), “I think that what (the deputies) felt was you were interfering with someone’s privacy that was having a medical mental health breakdown. They felt like you were being a ‘buttinski’ by getting that camera in there and partially recording what was going on in a situation that you were not directly involved in.” Somehow the recording on the camera also vanished, though there’s a dispute over how that happened.

It seems to me that there’s no legal basis for this prosecution, or for the seizure of the camera — Minnesota apparently doesn’t have any ban on such recordings, and in any event it seems likely that there’s a First Amendment right to record such police-citizen interactions in public places. (See Glik v. Cunniffe and ACLU v. Alvarez for cases recognizing such a right, in closely related contexts.) Nor can the police step in and punish the photographers in the name of protecting people’s privacy, just as the government may not stop TV stations from recording news footage in public place in the name of protecting people’s privacy.

Thanks to Christopher Rohrbacher for the pointer.