National Academies Press: OpenBook

Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties (2018)

Chapter: IV. Ensuring Privacy and Confidentiality

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Suggested Citation:"IV. Ensuring Privacy and Confidentiality." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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Suggested Citation:"IV. Ensuring Privacy and Confidentiality." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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Suggested Citation:"IV. Ensuring Privacy and Confidentiality." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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Suggested Citation:"IV. Ensuring Privacy and Confidentiality." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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Suggested Citation:"IV. Ensuring Privacy and Confidentiality." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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Suggested Citation:"IV. Ensuring Privacy and Confidentiality." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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15 stages of the emergency.118 Dedicated efforts to estab- lish relationships among airport stakeholders during the communicable disease planning process will help facilitate swift internal communication during com- municable disease incidents. Preparedness plans should clarify the responsi- bilities for notifications and communications among airport management, public health authorities, and airlines.119 Such plans should also consider interna- tional communications, particularly to outbreak areas from which travelers may be arriving.120 External communication covers information exchanges with entities not directly connected to the airport’s routine operations, including local or state health authorities, other airports, media, and travel- ers.121 FAA recommends that airport emergency plans incorporate a public information officer (PIO) or equivalent position to coordinate external commu- nication. Under the airport chief executive’s direc- tion, the PIO facilitates external communication that is accurate, timely, and consistent across the airport’s internal stakeholders (i.e., a “one voice” approach).122 In a communicable disease outbreak, public health authorities remain primarily respon- sible for providing health information that the PIO shares with the media and other external stakehold- ers.123 This dissemination of health-related informa- tion is vital to control the spread of disease and prevent misinformation and public panic. The PIO and public health authorities must also be prepared to answer questions from the public and other stake- holders in response to disseminated information. Given the pivotal role the media plays in communi- cable disease outbreaks by disseminating accurate information and shaping public responses, a pre- existing partnership with media helps guarantee timely dissemination of critical information during emergency situations.124 Engaging the media should be considered an extension of response efforts.125 Communication with Travelers Federal, state, or local public health authorities may issue travel alerts reaching travelers already at the airport or preparing to arrive at the airport.126 Detailed information on a specific communicable dis- ease threat may also be disseminated through the air- port’s information system (e.g., signs, stands, posters, electronic displays, and public announcements).127 Airlines are responsible for letting passengers know of any recommended disease control measures aboard aircraft.128 Travelers exposed to or infected with a communicable disease are typically given information on potential risks associated with the illness. Such information may also target travelers moving between terminal gates or changing modes of transit.129 Communicable disease preparedness plans should consider options for disseminating timely notifica- tions allowing air travelers to take needed precau- tions and revise their travel plans accordingly.130 Such notifications can be shared through a variety of means (e.g., social media, print media, texts, and website notices).131 As much as possible, airport personnel should instill confidence and trust in their public mes- saging by explaining the rationale for any required health measures.132 Airport personnel should be care- ful not to disclose too much information about indi- viduals who are being screened for communicable diseases to avoid violations of privacy or shedding false light on those individuals (which could result in a privacy invasion lending to liability).133 IV. ENSURING PRIVACY AND CONFIDENTIALITY The U.S. Constitution and federal and state laws generally provide extensive privacy rights. Relevant here are the protected rights of individual privacy of 124 Fed. Aviation Admin., Airport Emergency Plan, supra note 82; see generally airPorts CounCil international et al., supra note 117, at 3. 125 Fed. Aviation Admin., Airport Emergency Plan, supra note 82. 126 worlD health orG., hanDbook, supra note 119. 127 Id.; airPorts CounCil international et al., supra note 117, at 3. 128 worlD health orG., hanDbook, supra note 119. 129 Id. 130 Id. 131 airPorts CounCil international et al., supra note 117, at 3. 132 airPorts CounCil international et al., supra note 117, at 3. 133 See generally Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016); restatement (seConD) oF torts § 652E (am. law inst. 2016). 118 Fed. Aviation Admin., Airport Emergency Plan, supra note 82. 119 worlD health orG., international health reGulations: hanDbook For the manaGement oF PubliC health events in air transPort (2015) [hereinafter worlD health orG., hanDbook], http://apps.who.int/iris/bitstream/ 10665/204628/1/9789241510165_eng.pdf?ua=1. 120 worlD health orG., Phe ContinGenCy PlanninG, supra note 117. 121 airPorts CounCil international et al., supra note 117, at 3. External stakeholders include: local/regional/ national public health authority, travelers (before reach- ing the airport/in the terminal building), other airports in same state/region, other airports outside state/region, travel agents and hotel associations, tourism organiza- tions, international organizations involved with migra- tion, and media. 122 Fed. Aviation Admin., Airport Emergency Plan, supra note 82; worlD health orG., hanDbook, supra note 119. 123 worlD health orG., hanDbook, supra note 119.

16 personal and health information, and personal autonomy of self and property, subject to some limi- tations. Airport communicable disease investiga- tions may implicate and affect privacy rights, where tension exists between safeguarding individuals’ pri- vacy and protecting the public’s health through dis- ease detection and control methods. Airport personnel involved in response and recovery procedures must understand applicable privacy rights and the poten- tial impact of public health incidents and emergen- cies on these rights in order to handle communicable disease outbreaks effectively and lawfully. A. Protected Health Information HIPAA Privacy Rule The Health Insurance Portability and Account- ability Act (HIPAA) Privacy Rule establishes national standards regarding the use and disclosure of individuals’ protected health information (PHI) collected by covered entities.134 PHI is any individu- ally identifiable health information that is held or transmitted by a covered entity (or its business associates) that is transmitted or maintained in any form or medium (including the individually identifi- able health information of non-U.S. citizens).135 PHI must be protected by those who hold or maintain it, and information cannot be shared except under cer- tain circumstances, one of which includes patient consent.136 PHI also includes genetic information, any identifiable demographic information relating to the patient’s past, present, or future physical or mental health or condition, and even whether a patient received healthcare or paid for it.137 Under the HIPAA Privacy Rule, “covered entities” include any health plans, healthcare clearinghouses, and healthcare providers that transmit electronic PHI for which HHS adopted protection and mainte- nance standards.138 PHI electronically transmitted includes billing, payment, insurance coverage, and treatment information.139 Examples of covered enti- ties include hospitals, academic medical centers, researchers, physicians, and healthcare providers.140 HHS/CDC will apply privacy protections to all travelers regardless of citizenship or nationality.141 Personally identifiable health data collected by HHS/CDC at airports are maintained in a secure database and shared only for official purposes on a need-to-know basis using secure methods as described in CDC’s New System of Records Notice published in 2007.142 HHS is also a hybrid entity under HIPAA; therefore, only those parts of HHS that have been determined to be healthcare compo- nents are subject to the HIPAA Privacy Rule. CDC is generally not a “covered entity” under the HIPAA Privacy Rule; 143 rather, CDC is a public health authority.144 During the course of a public health investigation, CDC may seek the support of a covered entity, such as a hospital, private physician, or other healthcare providers who bill for their services.145 The HIPAA Privacy Rule permits the disclosure of PHI to public health authorities such as CDC and their authorized agents for public health purposes, including public health surveil- lance, investigations, and interventions.146 Application of the HIPAA Privacy Rule at a par- ticular airport may depend on the nature of the air- port, that is, whether it is a public or privately-owned entity. Essentially, the airport may be a covered entity if it bills for healthcare services or transmits health information in electronic form. If medical care is provided at the airport by municipally employed paramedics, HIPAA would apply because the municipality furnished the services and will likely bill for them. Firefighters and paramedics employed by a separate, non-governmental legal entity, such as an airport authority, still need to ensure HIPAA compliance if they act as business associates of a HIPAA-covered entity. Compliance may be required under business associate agree- ments made with local hospitals and medical facili- ties that have contracted or agreed to receive injured individuals from an airport. Similarly, while flight 134 U.S. Dep’t of Health and Human Services, Summary of the HIPAA Privacy Rule, HHS.Gov, https://www.hhs. gov/hipaa/for-professionals/privacy/laws-regulations/ index.html (last visited Mar. 12, 2018). 135 See generally Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104–191, 110 Stat. 1936. 136 Id. 137 Id. 138 U.S. Dep’t of Health and Human Services, Nat’l Insts. of Health, To Whom Does the Privacy Rule Apply and Whom Will It Affect? nih.Gov, https://privacyruleand research.nih.gov/pr_06.asp (last visited Mar. 12, 2018). 139 Id. 140 Id. 141 U.S. Const. amend. V; Privacy Act of 1974; New System of Records, 72 Fed. Reg. 70,867 (Dec. 13, 2007) (to be codified 42 C.F.R. pts. 70–71). 142 Privacy Act of 1974; New System of Records, 72 Fed. Reg. 70,867 (Dec. 13, 2007) (to be codified at 42 C.F.R. pts. 70–71). 143 See Control of Communicable Diseases, Final Rule, 82 Fed. Reg. 6890 (Jan. 19, 2017) (to be codified at 42 C.F.R. pts. 70–71); Alan R. Olson, Anticipating Make-or- Break Transitions, 2017 WL 20242. 144 Centers for Disease Control and Prevention, HIPAA Privacy Rule and Public Health: Guidance from CDC and the U.S. Department of Health and Human Services, CDC.Gov, https://www.cdc.gov/mmwr/preview/mmwrhtml/ m2e411a1.htm (last visited Mar. 12, 2018). 145 Id. 146 Id.

17 attendants offering medical aid are likely not cov- ered by HIPAA, the best practice is to have policies and procedures that are reasonably compliant. Public Health Exception Individual written authorization is not always required before a covered entity may disclose PHI.147 There are certain applicable exceptions that allow a covered entity to disclose PHI without permission.148 The “public health” exception allows a covered entity to disclose PHI for public health activities autho- rized by law, such as disease prevention and control, disease reporting, injury, birth, death, and public investigations.149 If notice to the individual is still required, the individual can give oral as well as written consent.150 Law Enforcement Exception Another exception allowing covered entities to transmit PHI without consent is the law enforce- ment exception.151 This allows covered entities to transmit PHI for disclosures required by law, such as pursuant to a court order or a grand jury sub- poena; required reporting of special wounds or phys- ical injuries for law enforcement purposes; required reporting of a death, crime, or emergency; or per administrative request.152 Even so, the manner of disclosure may be limited (e.g., specific and limited in scope relevant to the court order), unless the indi- vidual agrees to full disclosure of his or her PHI.153 Serious and Imminent Threat Exception Under the serious and imminent threat excep- tion,154 a covered entity may disclose PHI, consistent with laws and standards of medical ethics, to pre- vent or lessen a serious and imminent threat to the safety or health of another person or to the public, or to help someone who is trying to help lessen or pre- vent such a threat.155 For example, if a covered entity (e.g., a paramedic or other healthcare provider) at the airport treats an ill passenger who wants to leave or escape without completing treatment—thus endangering the public’s health—the covered entity may be able to disclose the passenger’s information to authorities to prevent a serious and imminent threat to the safety and health of the public. Use of Passenger Information by Airport Personnel Even if airport personnel are not specifically cov- ered by the HIPAA Privacy Rule, they must adhere to certain requirements when collecting and main- taining passenger information.156 Although airlines may use any method to collect passengers’ private information, they must take certain measures in protecting that information. Airport personnel must collect passengers’ information upon boarding, keep all of this information until passengers have left the flight, and maintain the passengers’ contact infor- mation in case an agency, such as the Department of State or the National Transportation Safety Board, requests it.157 Airport personnel may not share pas- sengers’ private information with others and may be subject to state privacy laws. B. Protection of Privacy Interests Unreasonable Searches and Seizures158 Privacy rights are an essential concern when con- ducting disease detection and surveillance activi- ties. Federal health officials detaining an ill passenger to screen and treat for a communicable disease, or placing other affected passengers into quarantine, could constitute an unlawful “seizure” of a person by a government entity.159 Regulations authorize CDC to apprehend, examine, and detain anyone suspected of carrying a quarantinable com- municable disease. However, passengers can only be apprehended if the CDC officer reasonably believes them to be infected or capable of infecting others.160 While certain exceptions apply to seizures effected at airports, any such detention must be conducted in a reasonable manner and for a reasonable period of time. What constitutes reasonableness in this con- text may depend on the type of communicable dis- ease, its seriousness, the mode of transmission, and the available options for detection and diagnosis.161 Invasive procedures to detect communicable dis- eases (i.e., procedures that involve breaking the skin or inserting an instrument or foreign object into the body162) can also violate a passenger’s privacy rights 147 45 C.F.R. §§ 164.512(b)(1)(i), 164.512(b)(1)(iv) (2017). 148 Id. § 164.512(f). 149 Id. 150 Id. 151 Id. 152 Id. 153 Id. 154 Id. § 164.512(j)(1)(i). 155 Id. 156 14 C.F.R. § 243.9 (2017). 157 Id. 158 The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. 159 U.S. Const. amend. IV. 160 42 C.F.R. §§ 70.6(a), 71.32(a) (2017). 161 42 U.S.C. § 264(a) (2017); see generally Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016). 162 42 C.F.R. §§ 70.1, 71.1(b) (2017).

18 under the Fourth Amendment prohibition against unreasonable searches and seizures. Courts have considered invasive medical tests to be “searches” under the Fourth Amendment.163 Therefore, in addi- tion to the requirement that CDC have a reasonable belief of infection before apprehending travelers, the agency must obtain their consent before conducting invasive procedures.164 To conduct a reasonable and thus constitutional search or seizure under the Fourth Amendment, a government agent typically needs a valid warrant based on probable cause in order to seize individuals and search them or their effects unless they volun- tarily consent165 or another recognized exception to the warrant requirement applies.166 Under the exigent-circumstances exception, a warrantless search may be reasonable based on the totality of the circumstances.167 During exigencies, government agents seeking to protect the public’s health may not have time to obtain a warrant,168 but probable cause is still needed to detain someone or search his or her belongings without a warrant.169 In the case of a PHE, case law is still unclear on whether the need to protect the public and the likelihood of an individual carrying a communicable disease constitute proba- ble cause to search or detain a person.170 Two exceptions to the warrant requirement that require less than probable cause are the border- search exception and the administrative-search exception. The border-search exception applies at international borders and their functional equiva- lents, including international airports.171 Unlike the exigent-circumstances exception, the border-search exception does not require probable cause to search or detain because individuals have a diminished expectation of privacy at international borders.172 Further, government agents do not even need rea- sonable suspicion to conduct routine searches of per- sons and their belongings at international borders.173 Finally, the administrative-search exception per- mits suspicionless checkpoint searches of airline passengers prior to boarding. “Suspicionless check- point searches are reasonable under the Fourth Amendment when a court finds a favorable balance between ‘the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interfer- ence with individual liberty.’”174 For example, sec- ondary screening techniques such as pat-down procedures have been held to be reasonable admin- istrative searches because the government’s interest in airport security outweighs the intrusion on indi- viduals’ privacy.175 Zone of Privacy The zone of privacy is a term of art created by the U.S. Supreme Court to describe the area guaranteed the most privacy by the U.S. Constitution and fun- damental rights.176 Generally, people have a high expectation of privacy when their bodies are sub- jected to search or seizure.177 However, individuals are accustomed to having their person and belong- ings searched by Transportation Security Adminis- tration (TSA) at airports. The government’s increased concern for public safety at international borders and ports results in searches of travelers’ bodies and belongings for any contraband.178 Additionally, while the Fourth and Fourteenth Amendments specifically limit the actions of federal and state government agents, respectively,179 private individuals are not free to violate others’ privacy rights. If an infected passenger’s privacy rights were 174 U.S. v. Hartwell, 436 F.3d 174, 178–79 (3d Cir. 2006) (citing Illinois v. Lidster, 520 U.S. 419, 427 (2004) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). 175 See generally Corbett v. Transportation Security Admin., 767 F.3d 1171, 1182 (11th Cir. 2014), cert. denied, 135 S. Ct. 2867 (2015). 176 See generally Griswold v. Connecticut, 381 U.S. 479 (1965). 177 Id. 178 See generally U.S. v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995). 179 Strictly speaking, the Fourth and Fourteenth Amendments apply to federal and state government agents only. From a constitutional perspective, local gov- ernments/municipalities are considered creatures of their respective states. Therefore, they have constitutional obli- gations only indirectly, i.e., on the basis of authority dele- gated to them by their states. In civil rights cases, local government agents are said to be acting “under color of” state law/statute. See generally Monroe v. Pape, 81 S. Ct. 473 (1961), interpreting 42 U.S.C. § 1983. See also Partnership for Public Health Law, Fact Sheet: Due Process and Public Health, https://www.apha.org/~/media/files/pdf/ factsheets/due_process_and_public_health_factsheet.ashx (“The Fifth Amendment to the United States Constitution contains the Due Process Clause, which limits the federal government’s actions in respect of liberty and property rights. The Fourteenth Amendment applies these limita- tions to state actions. Because local jurisdictions derive their power from the state, the limitations apply to actions of local government as well.”). 163 Chandler v. Miller, 520 U.S. 305, 309 (1997). 164 42 C.F.R. §§ 70.12(b), 71.36(b) (2017). 165 Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). 166 Missouri v. McNeely, 569 U.S. 141, 148 (2013). 167 Id. at 148–49. 168 Id. at 153. 169 U.S. Const. amends. IV, XIV. 170 See generally Hickox v. Christie, 205 F. Supp. 3d 579 (2016). 171 Almeida-Sanchez v. U.S., 413 U.S. 266, 273 (1973). 172 U.S. v. Flores-Montano, 541 U.S. 149, 154 (2004); U.S. v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). 173 Montoya de Hernandez, 473 U.S. at 538.

19 violated by a contracted, non-governmental employee at the airport, the passenger could attempt to bring a civil action against that contracted worker. The pas- senger may allege that the employee’s conduct consti- tuted an invasion of privacy, defined as an intrusion upon the private affairs or concerns of another person that a reasonable person would find highly offen- sive.180 This claim can be brought against anyone who violates one’s privacy interests and can include both physical intrusions and other types of intrusions.181 Privacy Act of 1974 In 1974, Congress enacted the Privacy Act to pro- tect the personal information of all individuals iden- tified in government information systems, to regulate the collection, maintenance, use, and dis- semination of personal information, and to prohibit any unnecessary and excessive sharing of an indi- vidual’s personal, private information either within the government or to outside individuals.182 When a government entity maintaining someone’s personal information intentionally or willfully violates the Privacy Act, the individual whose personal informa- tion the government unnecessarily shared can bring a civil action under § 552a(g)(1) of the Privacy Act to recover actual damages, attorney’s fees, and costs, but the court must first determine that the agency acted intentionally or willfully.183 To bring a claim under the Privacy Act, the plain- tiff ’s complaint must establish four elements: 1. The government failed to fulfill its record- keeping obligation, 2. The agency acted intentionally or willfully in failing to perform its obligation, 3. The failure proximately caused an adverse ef- fect on an individual, and 4. The individual suffered actual damages.184 A record can include any information about an indi- vidual that an agency maintains, such as informa- tion about education, financial transactions, medical history, and criminal or employment history that identifies the individual.185 In Speaker v. U.S. Dep’t of Health and Human Services, Andrew Speaker sued CDC, alleging CDC disclosed his identity and confidential medical infor- mation concerning treatment of his tuberculosis in violation of the Privacy Act, but Speaker ultimately failed to prove his claim against CDC.186 In order to prevail, Speaker would have had to have proved that (1) CDC failed to fulfill its record-keeping obli- gation; (2) CDC did so deliberately; (3) he suffered an adverse effect from CDC’s disclosure; and (4) he suffered actual damages.187 The district court ini- tially dismissed the case, holding that Speaker failed to properly claim a right of action under the Privacy Act because he did not allege sufficient facts to establish the first of the four required elements needed for the court “to determine whether the alleged disclosure was a ‘record’ contained in a ‘sys- tem of records’ and subject to the protections of the Privacy Act.”188 The Eleventh Circuit Court of Appeals reversed the district court’s dismissal and remanded the case for further proceedings, holding that Speaker had provided enough facts to establish the four elements needed to state a plausible claim under the Privacy Act.189 Upon remand, the district court granted CDC’s motion for summary judgment, and Speaker appealed.190 Subsequently, the court of appeals affirmed the district court’s decision grant- ing summary judgment191 to CDC.192 Common Law Claims: False Light A false light claim can be brought when a non- public individual is unreasonably placed in the pub- lic eye.193 The two requirements necessary for a false light claim are that (1) a reasonable person would 180 restatement (seConD) oF torts § 652(B) (am. law inst. 1977). 181 Id. 182 Cochran v. United States, 770 F.2d 949, 954 (11th Cir. 1985); 5 U.S.C. § 552a(g)(1)(D) (2017). 183 5 U.S.C. § 552a(g)(4) (2017). 184 Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 872 (11th Cir. 2009) (citing Perry v. Bureau of Prisons, 371 F.3d 1304, 1305 (11th Cir.2004)), cert. denied, 559 U.S. 991, 130 S. Ct. 1755, 176 L. Ed. 2d 212 (2010); 5 U.S.C. § 552a(g) (1)(D) (2017). 185 See generally Perry, 371 F.3d at 1382; 5 U.S.C. § 552a(a)(5) (2017). 186 See generally Speaker v. U.S. Dep’t of Health and Human Services, 680 F. Supp. 2d 1359 (N.D. Ga. 2009), rev’d and remanded, 623 F.3d 1371 (11th Cir. 2010), aff’g the district court’s grant of summary judgment to appellee, 489 F. App’x 425 (11th Cir. 2012) (per curiam). 187 Speaker v. U.S. Dep’t of Health and Human Services, 623 F.3d 1371, 1381 (11th Cir. 2010); 5 U.S.C. § 522(g)(1)–(4) (2017). 188 Speaker v. U.S. Dep’t of Health and Human Services, 680 F. Supp. 2d 1359, 1365 (N.D. Ga. 2009). 189 Speaker, 623 F.3d at 1371. 190 Speaker v. U.S. Dep’t of Health and Human Services, 489 F. App’x 425, 425 (11th Cir. 2012) (per curiam). 191 A motion for summary judgment should be granted where the moving party demonstrates that no genuine dis- pute of material facts exist and the moving party is enti- tled to judgment as a matter of law. FeD. r. Civ. P. 56(a). A nonmoving party who can produce no more than “a scin- tilla of evidence” will not survive a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). 192 Speaker, 489 F. App’x at 425. 193 Romaine v. Kallinger, 537 A.2d 284, 289 (N.J. 1988).

20 consider the false light as highly offensive and (2) the defendant had knowledge of or acted in reckless disregard as to the falsity of the matter put into the public eye and/or knew that the plaintiff would be placed in false light.194 In Hickox v. Christie, Nurse Kaci Hickox alleged that state officials invaded her privacy through false light disclosure to the media.195 Hickox had been treating Ebola patients in West Africa, which was experiencing an Ebola epidemic; consequently, she had been exposed to the disease.196 Upon returning to the United States at Newark International Air- port, Hickox was subjected to active screening that had been implemented for passengers returning from countries in West Africa under New Jersey’s Ebola preparedness plan.197 State officials had prob- able cause to believe that Hickox was a risk to spread Ebola to other passengers unless they quar- antined her to rule out an Ebola infection and to determine that she did not pose a danger to public health before releasing her from quarantine.198 While she was quarantined, New Jersey Governor Chris Christie publicized that Hickox was “ill,” which had not been confirmed.199 In bringing a claim for false light, Hickox alleged that (1) being falsely portrayed as “ill” with Ebola and as a potential or actual threat to the public would highly offend a rea- sonable person and (2) Governor Christie acted with reckless disregard as to the falsity of his statements to the public because Hickox’s initial blood results had already come back negative for Ebola, and her temperature readings were “consistently showing that she was not ill.”200 While the U.S. District Court for the District of New Jersey dismissed other claims in the lawsuit, the court found that Hickox had suf- ficiently pleaded a false light claim against Gover- nor Christie and therefore did not dismiss that claim.201 The parties ultimately stipulated to a dis- missal of the lawsuit upon entering into a settle- ment agreement in 2017.202 Under the terms of the settlement, the parties agreed that an addendum to the New Jersey Depart- ment of Health’s “New Jersey Mandatory Quaran- tine and Screening Protocols” would be issued to institute new rules regarding isolation and quaran- tine.203 According to the addendum, quarantine and isolation measures will (1) only be carried out when medically and epidemiologically necessary to pre- vent the spread of Ebola, (2) consist of the least restrictive means necessary to do so, and (3) only be imposed after less restrictive means have been investigated.204 Further, isolation and quarantine orders will include a number of provisions, including a statement advising quarantined and isolated indi- viduals to obtain legal counsel and appeal the order.205 In addition to a section detailing these poli- cies and procedures, the addendum also addresses temperature checks, the treating physician’s role in isolation, the rights and responsibilities of individu- als subject to isolation or quarantine, and privacy (which affirms the New Jersey Department of Health’s commitments to protect individuals’ pri- vacy and to refrain from releasing personally identi- fiable information and protected health information to the public).206 C. Due Process Protections Fifth and Fourteenth Amendments When detaining and screening an ill passenger based on his or her symptoms, airport personnel must follow certain procedures to avoid depriving the passenger of his or her constitutional rights. The Due Process Clause of the Fifth Amendment pre- vents federal government agents from depriving ill passengers of life, liberty, or property before provid- ing them substantive and procedural due process.207 This means that airport personnel need to maintain 194 Leang v. Jersey City Bd. of Educ., 969 A.2d 1097, 1116 (N.J. 2009); see also Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761, 766 (D.N.J. 1981). 195 Hickox v. Christie, 205 F. Supp. 3d 579, 585 (D.N.J. 2016). 196 Id. 197 Id. at 585–86. 198 Id. at 586–87. 199 Id. at 587. 200 Id. at 605. 201 Hickox v. Christie, 205 F. Supp. 3d at 605. 202 Stipulation of Dismissal with Prejudice and Without Costs, Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) (No. 2:15-CV-07647), ECF No. 45; Settlement Agreement at 1, Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016). 203 See generally Hickox, 205 F. Supp. 3d 579; ACLU New Jersey, Victory: Detained Nurse’s Ebola Suit Secures Due Process, ACLU new Jersey, https://www.aclu-nj.org/ news/2017/07/27/victory-detained-nurses-ebola-suit- secures-due-process (Jul. 27, 2017); see Settlement Agreement at 1 in previously mentioned article. 204 See generally Hickox, 205 F. Supp. 3d 579; ACLU New Jersey, supra note 203; New Jersey Department of Health, Memorandum Regarding Addendum to “New Jersey Mandatory Quarantine and Screening Protocols” for Ebola Virus Disease, https://www.aclu-nj.org/files/ 4615/0119/3665/2017_7_27_Hickox_settlement_agree- ment_opt.pdf (last visited Mar. 12, 2018). 205 See generally Hickox, 205 F. Supp. 3d 579; ACLU New Jersey, supra note 203; New Jersey Dep’t of Health, supra note 204. 206 See generally Hickox, 205 F. Supp. 3d 579; ACLU New Jersey, supra note 203; New Jersey Dep’t of Health, supra note 204. 207 U.S. Const. amend. V.

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TRB's Airport Cooperative Research Program (ACRP) Legal Research Digest 34: Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties addresses the legal issues concerning the measures to detect communicable diseases, regulations to control communicable diseases, methods for decontamination, emergency legal preparedness, privacy, and potential sources of liability. This digest provides a checklist that airport attorneys and other staff can use to help prepare, plan, and coordinate with their partners in response to a threat of a communicable disease.

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