[tptacek]

Is there a fact pattern where Lim could have bank-shot criminal liability despite not herself being a covered entity? Probably? She could have misrepresented who she was and obtained the records through fraud, for instance. Again, my thing here is, if you're going to put those kinds of accusations on the table, and you're a district attorney, you'd better come correct. The facts presented in the document the DA's office shared are not sufficient to allege wrongdoing by Lim.

[phonon]

If you induce someone to violate HIPAA who is covered by it (like say a nurse at a hospital), you can be criminally liable. There is no carve-out for journalists. BOTH the person who gave the record and the person who induced them to give it could be liable (not in the same way, possibly). In any case, you seemed to think there was a bright line rule of some sort, that "At one point it accuses Lim of "violating HIPAA", which is not a thing† (HIPAA constrains covered entities, not reporters)." when in fact you can be criminally liable for inducement/conspiracy etc if you induce someone who is covered to give you those records, under https://www.law.cornell.edu/uscode/text/42/1320d-6

Here is another similar case of a non-medical person violating HIPAA.

https://www.justice.gov/usao-wdtn/pr/memphis-man-sentenced-c...

Take the L :-)

[tptacek]

No, I don't think I will. Reporters covering public policy matters and obtaining records from covered entities have First Amendment protection arguments that a conspiracy among insiders and external mules to sell health information don't have. But none of this is my point. I'm not arguing that it would be impossible for Boudin's office to allege wrongdoing. I'm arguing that they failed to do so. Like, a really basic thing: where'd she get the X-Rays from? The allegation doesn't say.

I'm commenting on the specific thing Boudin's office (inexplicably) wrote about this particular reporter. I'm not making a grand statement about HIPAA.

(I don't know anything about the reporter other than that they worked for ABC7 in SFBA and not like GatewayPundit).

[phonon]

It would depend on exactly how the records were obtained. If hypothetically she paid a nurse $100 for it (and had done so many times in the past), that could be criminally liable. In practice, no-one would prosecute over a single x-ray. But when a reporter gets legally protected medical information "somehow", an insinuation that a legal violation took place at some point to effect that is not unreasonable.

[collingreen]

It's strange to find myself so clearly on the side of tctapek here but yes it is super unreasonable for a district attorneys office to accuse reporters of things without a solid set of facts supporting it. There should be absolutely no abuse of the power of the office and of every official, the lawyers should be most likely to get this right.

A functioning justice system MATTERS and being trustworthy is one of the core requirements for a functioning justice system.

[boroboro4]

I somewhat agree that the whole document is sloppy, but I also think this conversation overemphasizes what is wrong with it. It is not as if the document simply accuses the journalist and leaves it there; it actually elaborates on what it means by “violated HIPAA” in that context (and please don’t make me start comparing it with current administration behavior).

There is also a broader question of how to properly handle what are, quite honestly, likely bad-faith actors — the journalist in this case. Should the office simply ignore the smearing campaign and the lies? Maybe. But this is already an issue even before accounting for the significant amount of money — pushed by a very small number of people — being spent against the attorney’s office.

[collingreen]

OP didn't say the office should ignore lies or libel. OP said the attorney general should be very sure before making severe accusations against the press.

I think both are right - shouldn't ignore crime and should be responsible in addressing it.

[tptacek]

Yes it is. And when it's a prosecutor saying that, doubly so.