Health Privacy in Public Places

Abstract

This Article examines the recording of individuals traveling through public spaces to access health care clinics. Although such image capture negatively impacts both individual and public health by discouraging people from seeking sensitive health care treatment, privacy torts do not sufficiently address this growing problem. In recent years, courts have moved increasingly toward recognizing a constitutional right to record in public places. Yet current jurisprudence and scholarship fail to examine the unique concerns related to public image capture by individual — as opposed to government — actors. And while a major justification for failing to extend privacy protections to public spaces has been the idea that individuals consent to being recorded by virtue of passing through public spaces, the consent model does not take into account modern land-use policies that effectively push private business into public spaces by emphasizing walkability and mixed-use development. Drawing upon other constitutional safe spaces where states and localities limit image capture due to concerns of intimidation and interference with competing constitutional rights, this Article proposes local government ordinances creating camera-free zones outside of health clinics as a democratic, balanced solution to a complex policy problem. More broadly, this Article highlights local governments as important public health policymakers in an era of rapidly shifting technology and urban growth.