Jonathan F. Will (Mississippi College – School of Law) has posted Health, Privacy, and Privilege in the Digital Age on SSRN. Here is the abstract:
The widespread adoption of mobile health applications (mHealth apps) has transformed how individuals manage and monitor their health, generating vast quantities of highly sensitive personal data. At the same time, the United States’ sectoral approach to privacy regulation leaves significant gaps in protection, particularly for data shared outside traditional healthcare settings. These tensions are especially acute in the context of reproductive health, where information collected by cycle-tracking applications (CTAs) may be monetized, shared with third parties, or accessed by law enforcement without a warrant under the third-party doctrine. This essay uses a realistic hypothetical to illustrate how intimate reproductive health data can be aggregated, analyzed, and repurposed in ways that undermine individual expectations of privacy and expose users to risk. Part I situates CTAs within the broader growth of mHealth apps, highlighting the limited reach of HIPAA and the divergence between user expectations and legal protections. Part II examines the uncertain constitutional status of informational privacy following Dobbs v. Jackson Women’s Health Organization, distinguishing it from the substantive due process privacy previously recognized in Roe v. Wade, and explaining why existing doctrine provides only fragile safeguards. Part III advances a novel proposal: recognition of an evidentiary privilege for information shared with mHealth apps, grounded in the same principles that justify confidentiality in the physician-patient relationship. Such a privilege, while modest, would help preserve accurate and complete health disclosures, promote patient autonomy, and mitigate the privacy risks inherent in contemporary digital health technologies.