Coyote Blog

I received this email this morning, from a hotmail account no less

Subject:  Unlawful Use of Name

Hello,

I am writing on behalf of [redacted], whose name you published on your blog citing the PBS article about harassment in the Forest Service.

You do not have legal permission to publish his name. Please remove it immediately to avoid legal action.

Sincerely,

Heather Appelhof

I didn't really have to, but I redacted the gentleman in question's name, at least until Ms. Appelhof has a chance to respond.  Here was my response:

Ms. Appelhof:

Mr. _____'s name was quoted on my blog in the context of a much longer verbatim quote from the PBS website as it appeared on March 5, 2018. This sort of quotation taken directly from a respected national media outlet is a speech activity that is highly protected in this country. In particular, your argument that I did not have "legal permission to publish his name" is completely specious. There is no such legal requirement in this country to obtain prior permission before publishing someone's name, particularly in the case of a public figure in a leadership position of a public agency. As an example, I publish all takedown requests my blog receives so your name will get published on my blog as part of the email.

Few things irritate me more than people who threaten me with laws that do not exist. However, since Mr. _____'s name was really incidental to the point I was trying to make, I am open to a valid legal or ethical argument for removing it and will give you a second chance to provide one. Note that "this gentleman is upset about all the negative media coverage and has engaged me to try to intimidate people into removing his name" is not a valid reason.

There are obviously niche legal situations in which it is illegal to publicly reveal names -- a doctor revealing his patients' names and medical information is highly restricted under HIPAA, for example. However, I am not aware of any such situation that obtains here. I suppose there could be some sort of specific court order in play here, but if that is the case it should be easy to share it with me and I will respect it. It is possible Mr. _____ believes he was libeled by PBS, but that hardly applies to my merely quoting their story, particularly since I can't have had any malice towards him since I have not given him a second thought before or after publishing that post, at least until your email arrived.

This leaves ethical arguments, and I can certainly be swayed by such arguments more quickly than by empty threats. For example, if the accuser in the story has recanted her accusation, or if PBS had confused Mr. ______ with someone else, those would certainly be good reasons to remove his name.

You are welcome to try again.

Coyote

The original PBS story I quoted is here.  After I sent Ms. Appelhof this response, I noted that PBS had removed this gentleman's name from the article with a note at the bottom saying:

Editor’s Note: This story has been updated. The name of the Forest Service supervisor in Oregon has been removed. We stand by our reporting and thank the multiple women who went public for this story.

Despite this email ticking me off with its tone and absurd legal opinion, I actually want to do the right thing so I have reached out to the PBS editorial team on this story to see if I can get a hint why the name was removed.  A reason good enough for PBS is probably going to be good enough for me, since, again, the story was more about accountability issues on Forest Service fire teams than it was about this person in particular.

Update:  I can't get the details, but there were apparently legal charges and settlements at PBS that led to their taking down the name.  I will defer to their judgement and do the same, because honestly the name was just incidental to my post anyway.  Ms. Appelhof wrote me back with a MUCH more compelling and intelligent email outlining a lot of investigation that has occurred since and she claims cleared the man in question.  I am not sure who is wrong or right but I am happy to retreat from this particular fray.  Having had to fight a number of takedown requests in the past, her initial email was worded in a way to rub my fur all the wrong ways.

Given recent legislative and judicial decisions, there are vanishingly few electronic records that the government cannot rape at will.  Increasingly, government agencies can access electronic data without even bothering with silly stuff like warrants or judicial review.  

The Drug Enforcement Administration is trying to access private prescription records of patients in Oregon without a warrant, despite a state law forbidding it from doing so. The ACLU and its Oregon affiliate are challenging this practice in a new  that raises the question of whether the Fourth Amendment allows federal law enforcement agents to obtain confidential prescription records without a judge’s prior approval. It should not.

In 2009, the Oregon legislature created the Oregon Prescription Drug Monitoring Program (PDMP), which tracks prescriptions for certain drugs dispensed by Oregon pharmacies, including all of the medications listed above. The program was intended to help physicians prevent drug overdoses by their patients and more easily recognize signs of drug abuse. Because the medical information revealed by these prescription records is highly sensitive, the legislature created robust privacy and security protections for the PDMP, including a requirement that law enforcement must obtain a warrant before requesting records for use in an investigation. But despite those protections, the DEA has been requesting prescription records from the PDMP using administrative subpoenas which, unlike warrants, do not involve demonstrating probable cause to a neutral judge.

While the government needs a search warrant to access paper medical records, it apparently feels it can look at electronic records without a warrant,.  Which explains one reason why the Administration is so excited about the new medical records requirements in Obamacare.   You didn't think HIPAA applied to the government, did you?  And if you wondered why Obamacare requires doctors to ask medically-unrelated questions (e.g. on gun ownership), now you know.