Do You Know Where Your Pap Smear Is Tonight?
This ought to make women uncomfortable. Kansas law enforcement officials apparently obtained a court order to obtain tissue samples taken for a pap smear from the accused BTK killer's daughter and used the samples for comparison with DNA the BTK perpetrator left at the scene of some of the crimes. Without her knowledge, of course.
The agents' strategy was to use a DNA sample from the daughter to see whether it would link her father to DNA left at BTK's crime scenes. The agents went to prosecutors in the Sedgwick County district attorney's office, and a judge in Sedgwick County issued a subpoena for the 26-year-old daughter's medical records in Kansas, a source said. It wasn't clear where in Kansas the records and the tissue sample had been held. DNA was extracted from the daughter's tissue sample, and it was processed within the week before Rader's arrest, the source said.
Federal privacy law restricts access to medical records. Among the exceptions is when law enforcement needs medical records for investigations, Wichita lawyer Chuck Millsap said. The principle is that the need to conduct an investigation outweighs a need for privacy, he said.
What kind of tissue tied to a woman's medical records could be kept on file at a lab?
Bruce Bammel, a Wichita doctor obstetrics and gynecology, said that could include various tissue samples -- everything from a skin biopsy to a Pap smear -- that can be preserved indefinitely and provide DNA.
Isn't there a difference between "medical records" and bodily tissue? Ethan Ackerman writes over at Politech:
In developments straight out of GATTACA's handshake scene, A Kansas City Star report indicates that the suspected "BTK" killer was tentatively linked to crime scene evidence by acquiring genetic material from the suspect's daughter's medical records - the tissue samples being taken without her knowledge.
The article goes on to give a brief but factually accurate explanation of how a request for "medical records" is entirely within the framework of the federal medical privacy laws (HIPAA), and also gives a likely source of the tissue - a routine pap smear. The article suggests that a judge issued a secret order for the records, though the article does not state if it was a formal 4th Amendment "probable cause" warrant, or some lesser standard subpoena, or even go into whether the police were required to acquire an order under HIPAA (there are circumstances where agents can just the recordholder.)
BUT the article also doesn't raise the fact that what was apparently requested was NOT "health information" - what HIPAA protects - but actual tissue from the suspect's daughter's file samples.
This seems quite an interesting breach of privacy expectations, independent of how it may legally turn out. On one hand, court-compelled physical examinations have been ruled Constitutionally sound (thus, you can be compelled to give a tissue sample, or even forcibly sampled.)
On the other hand, how many American women even know labs keep pap smear samples, much less would think it reasonable that their pap smears would one day be turned over to police to tentatively connect their sons or daughters to crimes?
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