Photos, HIPAA, and the First Amendment

Today’s burning question: I am a career firefighter and one of my passions while off duty is to take photos at fire and emergency scenes. I typically post them to my web site and occasionally I post on Facebook and Fickr as well. I am carefully not to take photos at incidents involving my own fire department.

A few weeks ago I took a photo at a recent incident in Smithville (25 miles from home) and I received an email from the Smithville Fire Department stating:

You are hereby requested to immediately remove the attached photo from your website. In this photo, the patient's face is clearly visible.  Unless you received permission from the patient to use their likeness, this photo may be in direct violation of HIPAA regulations.  We at Smithville Fire Department take patient right's and privacy very seriously, and since this is a rescue that was performed by our Agency, we would like to caution you against using a discernible and identifiable image.

Have I violated HIPAA?

Answer: Absolutely not!. Since you were off-duty at the time and not in your own community, HIPAA is totally inapplicable to you.  Furthermore, you were acting as a private citizen in taking the photos. As a citizen you have a constitutional right under the First Amendment to take photos at emergency scenes.

Having said that there is nothing inherently illegal with the Smithville fire Department’s request. They can ask… but their request has no teeth. Should they try to enforce their request it would likely be a violation of your First Amendment rights.

PS – for the Firehouse Lawyers w/o JDs… the First Amendment right to take photos does not extend to on-duty personnel!!! … only because I knew you were thinking about it….

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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