Freud's sofa, image courtesy Konstantin Binder
An FBI agent presented a psychologist with a subpoena. The agent informed the psychologist that he/she had to turn over all records pertaining to a patient immediately. Failure to do so is punishable "by fine or imprisonment, or both" (18 U.S.C.401)." The psychologist was then informed that it is also illegal to notify the patient who is the subject of the subpoena. The patient was a UC Berkeley foreign exchange student with strident anti-war and anti-American activist views. In her next session, the patient described her constant anxiety. She feared she was becoming paranoid, because she believed the FBI was following her. Shortly after the session ended, the agent returned, and demanded to know what the patient had discussed….The above scenario, while hypothetical, is entirely plausible under existing law.
–Dr. Michael B. Donner, Ethics Chair, Alameda County Psychological Association, 2004
In May 2012 we wrote about how a federal court threw out an ACLU suit seeking information about how the government is secretly interpreting Section 215 of the Patriot Act. From “What’s secret stays secret”,
A year ago Senate Intelligence Committee members Ron Wyden of Oregon and Mark Udall of Colorado warned their colleagues about a secret interpretation of Section 215 of the USA PATRIOT Act. This so-called “library provision” enables government agents to get a secret FISA court order enabling them to demand “any tangible things” from a library, bookstore, doctor, internet service provider, university, rental car company or other business.
“Many members of Congress,” stated Sen. Wyden on May 26, 2001, “have no idea how the law is being secretly interpreted by the executive branch.”
Sen. Udall added, “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”
Both Senators supported The New York Times and ACLU in their efforts to force a public disclosure of a classified report to the Intelligence Committee from the Attorney General and Director of National Intelligence on the use being made of Section 215.
On May 17, 2012 their FOIA lawsuits were thrown out by Judge William Pauley III of the District Court for the Southern District of New York.
After secretly reviewing contents of the classified report, the judge agreed with the Justice Department that it should be kept secret. He stated that its public disclosure could harm national security by exposing sensitive intelligence sources and methods and “could enable America’s adversaries to develop means to degrade and evade the nation’s foreign intelligence collection capabilities.”
Furthermore, the judge claimed, it is up to the executive branch – not the judiciary – to weigh factors that determine whether disclosing information could lead to an unacceptable risk.
What does any of that have to do with mental health care?
One scarcely discussed “tangible thing” FBI agents can secretly obtain from third party holders of our information is a record of our deepest secrets. Under Section 215, the government can force your psychotherapist or psychiatrist to inform on you. The government said in 2005 that it had never requested medical records, but if Senator Wyden is to be believed, it isn’t telling us everything about how it interprets and uses 215.
Prior to the USA Patriot Act, behavioral and mental health workers were protected from forced informing on their patients by a 1996 Supreme Court decision, Jaffee vs. Redmond.
Justice Stevens wrote for the majority: "Reason tells us that psychotherapists and patients share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment." As the educational Zur Institute observes, Stevens also underscored that guaranteed confidentiality, and not simply informed consent, is required in order for treatment to work effectively:
(T)he participants in the confidential conversation must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.
Needless to say, mental health professionals cannot currently assure their patients that their medical records will not be disclosed to federal agents. All they can do is provide notice to patients that their records might be turned over to the government – which amounts to “little better than no privilege at all,” as Justice Stevens warned.
The profession is not happy with the law and has taken action against the 215 provision, a move that suggests the existence of secret, gag-order enforced subpoenas to mental health providers isn’t just the stuff of nightmares. In 2006 the American Psychological Association lobbied Congress to repeal or reform Section 215 to protect doctors and mental health providers and won concessions, including:
- Requiring that agents show reasonable, factual grounds to believe that the records sought under Section 215 are relevant to a terrorism investigation.
- Identifying that the records sought pertain to the activities of a suspected terrorist or person in contact with a suspected terrorist.
- Allowing the recipient of a records request to consult with an attorney and file a challenge to a records request with a FISA court judge.
- Requiring the FBI director or a deputy director to provide prior written approval when an agent seeks access to medical records.
- Imposing a "sunset" on the business records provision, allowing Congress to reconsider the provision in four years.
The above changes make the law better, but the nightmare privacy scenario outlined in the epigraph above is still entirely possible today.
Since the courts have shrugged off responsibility for oversight of the government’s interpretation of Section 215, we don’t know if or how many times agents have used these powers to collect on our innermost intimacies. But it wouldn’t be the first time in US history that the FBI has sought information from therapists.
When Hoover came knocking for information from mental health professionals, the government at least consulted the doctors about it beforehand; shamefully, the American Medical Association caved. Dr. Donner writes:
Of great concern is that this section of the Patriot Act passed without input from our professional associations. In 1957, J. Edgar Hoover wrote an editorial in the Journal of the American Medical Association encouraging physicians to report evidence of disloyalty. At that time in American history, many of the leaders in our government believed the United States was locked in a battle with communists, intent on destroying the American way of life. Although the AMA code of ethics was changed to permit physicians to inform on their patients to protect the welfare of the community (Mosher, 2003), the medical community was included in the discussion of the importance of confidentiality, and where privacy should give way to societal concerns. Although this provision has long since given way to an increased emphasis on privacy, at least the medical community was involved. Most psychologists are unaware of the implications of this section of Patriot Act, and have not been involved in debating the legislation or considering how to implement the law into their practices.
Today, the Ethics Code of the American Psychological Association grants practitioners the leeway to obey the law, even where it conflicts with the APA's Ethics Code. As the Zur Institute writes: “While the therapist may be protected by the professional code of ethics in such a situation, they still face irreconcilable ethical, clinical and moral dilemmas.”
The government won’t tell us how it is using these powers today, so we are unfortunately living in the world Justice Stevens warned about, in which patients can’t fully trust their doctors. In response, the Zur Institute offers courses for mental health professionals that provide advice on how to communicate the issue to patients and a legal breakdown of providers' legal requirements and rights when they receive various levels of subpoenas.
What do they suggest mental health providers do if they receive a 215 order?
Some experts have suggested resolving this kind of dilemma by terminating the relationship with the client. This option raises a whole new set of obvious clinical, ethical and legal complications, including concerns with abandonment and harm. Referring the client to another professional would not likely resolve the ethical, moral and legal dilemma. Some authors have suggested amending the Therapist's Office Policies to include a section on the Patriot Act and its possible impact on confidentiality. While reasonable, this response does little to mitigate the consequences that therapists and patients face in such situations.
In other words, there isn’t much they can do. Patients: consider yourselves warned.