Is there a right to anonymity for coronavirus carriers in America?
I have recently received several messages from Harvard demanding that we not disclose the names of those members of the university community who have tested positive for coronavirus, in order to protect their privacy. It is likely that similar messages have been sent by colleges, businesses, and other establishments all across the country because various federal laws mandate the nondisclosure of most medical records.
For instance, a condominium building in New York City has now advised its residents that unless or until the government “authorized otherwise, property managers will refrain from making inquiries about the medical conditions” of residents or employees that would violate the Americans with Disabilities Act, laws against discrimination, and laws that regard privacy. My immediate reaction, as a civil libertarian, was to agree with these directives to protect the privacy of those afflicted.
However, I then began to think about the downsides of that demand from a public health perspective. The benefits of anonymity are quite obvious, as illness is generally a private matter, and it is up to the sick person to decide whether to disclose his or her condition. That is why doctors and health providers are required by law to maintain patient confidentiality in most cases. Moreover, making public the names of those who have tested positive may deter some individuals from being tested.
But the costs of anonymity for a highly contagious virus must be taken into account. If the names are not disclosed, other individuals who may have come in contact with the carrier but have not been notified may be denied information that might cause them to be tested or quarantined, increasing the threat of spreading the virus. Compelled nondisclosure, however, also sends a message that there may be a stigma attached to being known as a carrier. That may again deter testing.
Actor Tom Hanks performed a public service when he announced that he had tested positive for the coronavirus. I recently learned that someone I know had himself tested after learning that the wife of Hanks, with whom he had been in contact, had also tested positive. Others have also been tested after learning the names of people with whom they have been in contact who tested positive. But Hanks is a public figure, and not every afflicted person will want their condition made known.
I conferred with several experts who unsurprisingly disagreed. One said she did not understand the position of Harvard because many contagious carriers, especially among the young, who have tested positive do not show symptoms, so some who have been in contact with them have no way of knowing they are at risk unless they know the name of the carrier. Another explained that safety considerations should generally outweigh privacy concerns during a pandemic, and public health officials should be authorized to decide whether disclosure is warranted in particular cases. Yet another expert argued there is little advantage in disclosing names because the coronavirus is “everywhere” right now.
I think that Harvard should offer more than a mere dictat for demanding personal anonymity and privacy in the context of a national public health crisis that endangers more than just those who are currently afflicted. The latest message from the director of Harvard health services declares, “I continue to emphasize the anonymity of these individuals is paramount. If you know their identities, please respect their privacy so they and their families can focus completely on their health.”
Beyond an understandable reference to privacy, he does not explain the primacy of anonymity over the disclosure of critical information. An earlier thoughtful letter from the president of Harvard says, “The last thing they need, or any of us would want for them, is public attention and scrutiny.” While I am sure that is correct from the perspective of those afflicted, the question remains whether the public would benefit from “public attention and scrutiny” and, if so, whether the understandable private needs should prevail over the equally understandable public needs.
It is instructive to consider other conflicts between medical privacy and public interest. The law generally requires health providers to disclose to law enforcement officials any medical conditions that may evidence child abuse. This information then can be made public by the law enforcement authorities if they make the decision to prosecute the abuser. When these mandatory disclosure laws were first being considered, opponents had pointed out the real risk that they might discourage an abusing parent from seeking medical help for their abused child. These considerations were weighed by experts and debated by the public. The decision was reached to err on the side of disclosure. Similar processes have been undertaken by the legal, pastoral, journalistic, mental health, and other professions, and different balances have resulted.
As public health problems have emerged with regard to nondisclosure, laws were changed to require the disclosure of otherwise confidential medical information when the public interest requires it. Courts have generally approved these mandatory disclosure laws, concluding that there is no absolute right to medical confidentiality here.
As a member of the Harvard community, I will continue to abide by the guidance of our leaders, while encouraging debate about this difficult issue. My own tentative view, which is subject to being influenced by persuasive arguments and data to the contrary, is that patients who test positive should be encouraged to follow Hanks and disclose their names or allow their names to be disclosed by health officials, if necessary to alert others. If they refuse, these officials should have the discretion to overrule when there are compelling public health reasons.
Authorizing such involuntary disclosure of medical information might require amending existing laws, but that could be done quickly to help stem the imminent spread of the coronavirus. This may be the best, or the least worst, response to an important and very real conundrum in this difficult time. This is not the only issue on which individual rights need to be balanced against the needs of the community. Mandatory quarantines, travel restrictions, business closures, and other deprivations of individual liberties rightly have been put in place, without much debate. Indeed, the issue of anonymity is a good place to start a general discussion about how to strike the proper civil liberties balance in times of crisis.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is the author of more than 40 books, including his latest, “Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo.”