War on Terror Snares Man Who Didn’t Disclose HIV

Social Security data used to prosecute positive man who failed to inform FAA

BY ARTHUR S. LEONARD 

The chief federal trial judge in San Francisco has denied a motion to suppress evidence obtained by the federal Department of Transportation (DOT) from Social Security disability medical files being used in the prosecution of an HIV-positive man, finding that in this specific case there is no constitutional privacy protection for such information.

The ruling came despite evidence that the Social Security Administration (SSA) may have violated the federal Privacy Act by sharing the information with DOT investigators, such a violation not requiring the suppression of evidence, according to the court’s opinion.

The December 28 ruling by Judge Vaughn R. Walker rejected a motion to suppress evidence filed by Stanmore Cooper, a 63-year-old San Francisco man being prosecuted for having filed medical forms with the Federal Aviation Administration (FAA) that failed to disclose his HIV status.

Cooper’s HIV status came to light as a result of an information-sharing project undertaken jointly by the FAA and the SSA called “Operation Safe Pilot,” part of the post-9/11 war on terror. 

The investigative arms of DOT and SSA decided to try to identify pilots who may have obtained their licenses from the FAA using fake social security numbers, in the hope of identifying more suspected terrorists. DOT sent SSA a list of all licensed pilots with their social security numbers, and Social Security officials checked their records to verify the numbers. While checking files, SSA officials discovered that Cooper had received disability benefits for HIV-related illness, and so informed the FAA. The FAA then found that Cooper had never indicated any disability on the medical forms that pilots are required to file every other year.

According to Cooper, he obtained a private pilot license in 1964. He was diagnosed with HIV in 1985, when the antibody test first became available. At the time, FAA was not issuing medical certificates to HIV-positive individuals, so Cooper did not renew his medical certificate, allowing his active pilot license to lapse.

By 1995, Cooper’s health deteriorated sufficiently that he obtained disability benefits from the SSA, but the new protease drug treatments that soon became available restored his health, allowing him to terminate the disability benefits and resume working.

In 1998, Cooper learned that the FAA was willing to issue medical certificates to “qualified HIV-infected persons,” but was unable to find any guidance about how to establish his qualifications and, fearing that he might be found disqualified, applied for a medical certificate without disclosing his HIV status.

Although Cooper learned the criteria for qualification by 2000 and determined that he was qualified, he was concerned that if he disclosed his HIV-status on his 2000 form, he might suffer “punitive repercussions” for having failed to disclose it in 1998, so he renewed his medical certificates in 2000, 2002, and 2004 without disclosing his HIV status. The medical form asks questions designed to elicit information about all diagnosed medical conditions.

Cooper is one of 40 pilots being prosecuted for violating a federal statute against making false statements under oath to the government, all uncovered as a result of the joint DOT-SSA operation as having failed to disclose medical conditions. This is a prime example of the government using information obtained as part of the search for terrorists for collateral prosecutions having nothing to do with national security, a concern repeatedly raised by civil liberties critics of Bush administration policies.

In his motion to suppress the evidence from the SSA files, Cooper argued that release of the information to DOT without his permission violated a federal statute, the Privacy Act, which provides that when government files contain personal information about individuals, the information cannot be released without the written consent of the individual, with certain specified exceptions that do not apply to this case. After extensive analysis, Judge Walker concluded that Cooper might be correct that it was a Privacy Act violation to release the records to DOT, but found that this did not necessarily mean that the evidence should be suppressed.

The Privacy Act specifies that a violation can be redressed by a damage action against the offending agency, but does not specifically say that information improperly released may not be used as evidence in a federal law enforcement proceeding, and courts are reluctant to find an implied exclusionary rule for relevant evidence.

Walker concluded that an “exclusionary rule” would only apply in this case if failure to exclude the evidence would violate Cooper’s constitutional right of privacy under the Fourth Amendment, which protects private information and papers against government scrutiny. But the Fourth Amendment protection could only triggered if Cooper had given the SSA information about his HIV status under the reasonable expectation, as generally understood by society, that it would not be disclosed to other federal agencies for law enforcement purposes.

Walker found that when Cooper applied for disability benefits, he submitted medical information on a form that indicated a variety of reasons for which the information might be shared with other government agencies. Therefore, Walker was unwilling to treat the expectation of “strict confidentiality” as reasonable, even though an SSA brochure promised exactly that.

Walker was also unwilling to credit Cooper’s argument that he thought the federal Privacy Act ensured that his medical information could not be shared without his authorization, and he totally rejected any reliance by Cooper on a statement that appeared on a government Web site purporting to establish especially strict confidentiality treatment for HIV-related information under the rubric of “HIV exceptionalism” for public health purposes.

In effect, Walker held, when a citizen provides information to the government in order to qualify for a benefit, it is unreasonable for that person to believe that the information could not be used against him in a federal criminal proceeding, even if that proceeding had no logical relationship to the reason for which the information was submitted.

Time for new amendments to the Privacy Act?

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