How the Immigration Debate Could Erode Privacy for Children

Recently, legislation was introduced that could have dangerous implications for America’s existing privacy laws—specifically the protections that those laws provide to children. One such law is the Health Insurance Portability and Accountability Act (HIPAA), which has protections in place to prevent third parties, including federal and state governments, from obtaining confidential information about children.

Those protections apply to children who are U.S. citizens, but do those laws protect a foreign child, such as one of the thousands of unaccompanied children (UACs) currently living in America? Our Constitution and the U.S., Supreme Court say yes.

Privacy Protections for UACs

David Cole, a professor at Georgetown University Law Center, has pointed to the fact that the framers of the Constitution chose to “limit to citizens only the rights to vote and to run for federal office,” which he says is an “indication that they did not intend other constitutional rights to be so limited.” Additionally, Cole points to several Supreme Court cases where the court has held that constitutional rights apply both to U.S. citizens and undocumented people living in the U.S. For example, in Zadvydas v. Davis, the Supreme Court held that the due process clause applies to “all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” If the Constitution applies to all people within the U.S., then so do the laws of the U.S. This includes privacy laws that protect children, an important notion considering the record number of UACs who have been apprehended at the Mexico-U.S. border in the past year.

Record Numbers

During Fiscal Year 2014, 68,541 UACs were apprehended crossing the Mexico-U.S. border, a 77-percent increase from the previous year. During that same period, the number of UACs apprehended from Mexico decreased by nine percent, while the number of UACs apprehended from Central American countries like El Salvador, Guatemala and Honduras increased by 146 percent. There are many reasons for this drastic increase, one of which is the Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.

The Act

The goal of the Wilberforce Trafficking Victims Protection Reauthorization Act is to prevent human trafficking. In striving to meet this goal, the act does not permit immigration officers to find a UAC from a noncontiguous country such as El Salvador, Guatemala and Honduras, inadmissible. Instead, those UACs are placed in removal proceedings to ensure that they are safely repatriated to their home country, or country of last habitual residence, in order to help protect them from trafficking and exploitation. While the UACs are awaiting their immigration hearings, they are placed in the care, custody and responsibility of the U.S. Department of Health and Human Services (HHS).

The act specifically states that a UAC in the custody of HHS “shall be promptly placed in the least restrictive setting that is in the best interest of the child.” HHS accomplishes this by seeking to place as many UACs as possible with sponsors or guardians. If a sponsor cannot be found, the child is placed in one of 116 shelters across 16 states.

HHS has been unwilling to share much information about the shelters and little to no information about UACs placed with sponsors. The Office of Refugee Resettlement, a division of HHS, has said of the secrecy, “Some of these children may have histories of abuse, or may be seeking safety from threats of violence. They may have been trafficked or smuggled.” Furthermore, a lack of transparency protects children from possible violent protests, such as the one that occurred in Murrieta, CA, when screaming protestors forced two busloads of recent immigrants, including UACs, to turn around. Similar protests have broken out in Arizona, New Mexico and Michigan. Currently, HHS only publishes monthly data detailing the number of UACs released to sponsors by county and state. Critics argue that there is not enough transparency and that the public has a right to know when and where UACs are being housed.

Public’s Right To Know

Many critics argue that the public has a right to know how many UACs are going to be placed in their states, along with when and where they’re going to be relocated. Marie Thomas Sanderson, the policy director for the Republican Governors Association, recently wrote “there are concerns that this type of activity—placing children in locations across the country—is occurring throughout the United States, and information is not being shared appropriately with states.” Governors and congressmen from Tennessee, Nebraska and Indiana, among many more, share Sanderson’s concern.

The lack of advanced notification that UACs will be placed in a state, and the secrecy surrounding the shelters, has led to many politicians calling for complete transparency and oversight. Rep. Lou Barletta (R-PA) has recently taken up this cause and introduced legislation, the Unaccompanied Alien Children Transparency Act of 2014 (UACTA).

Proposed Legislation

The UACTA has several components to it to ensure that city and state governments have a say in whether or not a shelter, and subsequently UACs, will be located in a given community, including a notice and comment period. The UACTA also requires the government to certify in writing that all UACs “to be housed at the facility will have undergone health screenings, including vaccinations, and will not present a risk to the public health.”

This requirement is already HHS policy. Children undergo health screenings and vaccinations as part of HHS’s responsibility to “care” for the UACs as they await their immigration hearings, which begs the question, what is the UACTA seeking to accomplish? One such goal may be the disclosure of a UAC’s health information by the shelter to the city and state.

Regardless of whether it is HHS policy, or a requirement by law, requiring that children undergo a health screening and the risk of those records being released to the city or state seems to run counter to established law regarding the privacy protections we put in place for children.

Privacy Laws and American Children

It has been established that UACs are protected by our Constitution while on U.S. soil. They are also protected under our laws, including our privacy laws, whether they are eventually granted citizenship or repatriated to their home country.

According to HHS, HIPAA “provides consumers with important privacy rights and protections with respect to their health information.” These protections are also provided to children. In short, HIPAA expressly forbids the public dissemination of children’s medical information beyond a child or guardian. Spreading that information to public officials for the purposes of decisions on relocation would seem to violate the spirit of how the U.S. has treated minors in the law.

There are several exceptions that allow a covered healthcare facility to release confidential health information, such as to a law enforcement official. A personal representative of a child, generally a parent or guardian, may also obtain the health information of a child. But HIPAA does not allow disclosure of a child’s health information to a city or state government. While the UACTA will not specifically require a disclosure of confidential information related to a UAC, it has the very real potential to reveal private information that children, whether American or Central American, have a right to keep private. Furthermore, what happens to the UACs who fail a certain aspect of the health screening or have a criminal background? Will they be denied shelter?

While the proposed legislation has not moved past the introduction stage, it is important legislation to keep an eye on for the possible ramifications that disclosure of children’s health information may have on HIPAA.

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