Mission Creep: Public Health Surveillance and Medical Privacy

49 Pages Posted: 29 Nov 2007 Last revised: 14 Jul 2009

See all articles by Wendy K. Mariner

Wendy K. Mariner

Boston University School of Public Health; Boston University - School of Law


The National Security Agency's domestic surveillance program has parallels in the growth of disease surveillance for public health purposes. This article explores whether laws requiring health providers to report to government names and identifiable information about patients with infectious or chronic diseases may be vulnerable to challenge as an invasion of privacy. A shift in the use of disease surveillance data from investigating disease outbreaks to data mining and analysis for research, budgeting, and policy planning, as well as bioterrorism, tests the boundaries of liberty and privacy. The Supreme Court has not reviewed a disease reporting law. Its few related decisions offer little guidance for evaluating the constitutionality of modern surveillance functions. Legal constructs underpinning early laws intended to detect epidemics do not easily accommodate modern surveillance systems, while the more general goal of protecting public health offers no clear principle for limiting government access to identifiable medical information. The article categorizes modern surveillance functions and suggests a more robust approach to balancing the state's interests in obtaining medical information and individual privacy interests.

Keywords: Health Law, Privacy, Surveillance, Public Health, Medical Records

JEL Classification: I18, K32

Suggested Citation

Mariner, Wendy K., Mission Creep: Public Health Surveillance and Medical Privacy. Boston University Law Review, Vol. 87, No. 2, p. 347, April 2007, Available at SSRN: https://ssrn.com/abstract=1033528

Wendy K. Mariner (Contact Author)

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States
617-358-3160 (Phone)
617-414-1464 (Fax)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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