Illinois state bar association

SEPTEMBER 2015

51 no.
vol 23
no. 31

Legal Technology

The newsletter of the Illinois State Bar Associations Standing Committee on Legal Technology

HEALTHCARE PRIVACY
CRISS-CROSSING WITH
COGNITIVE COMPUTING
By ALEX TARNOW

From Wearables to Cognitive

Healthcare Apps

Being health-conscious, a oncedaunting and dreaded task, is now being

seamlessly integrated into everyones lives.
Up until now, there was not a convenient
way to track all of your burnt calories,
monitor your heart rate, or monitor your
blood pressure.1 Thanks to advancements
in healthcare technology like Fitbit or

Apple Watch, all of your health metrics are

now instantly cataloged.2
While the ability to quickly look at your
wrist to see your burnt calories is fantastic,
lets take it one step further. There are now
technologies, typically called cognitive
computers, that are capable of processing
your everyday healthcare data, analyzing
it, and telling you how to live a healthier

The unsettled law of the skies

(This is not your fathers model
airplane).
1

Upcoming CLE programs.

6

Continued on next page

THE UNSETTLED LAW OF THE

SKIES (THIS IS NOT YOUR
FATHERS MODEL AIRPLANE)
By STEVEN T. MANN, CAUGHEY LEGNER & FREEHILL

Drones, or Unmanned Aerial Vehicles

(UAV) or Unmanned Aircraft Systems
(UAS), are nothing new. Our nation
was using drones in large scale during
1990s Operation Desert Storm.1 It was
the domestic use of such drones, however,
caught lawmakers, the Federal Aviation
Administration (FAA) and federal and
state legislatures off guard. Amazon has

Healthcare privacy crisscrossing with cognitive

computing.
1

stolen the headlines with its proposed

business uses for the technology. Motorola
recently announced it is partnering up
with a company called ChyPhy Works to
support the research and development
of tethered dronesthat is drones that
remain connected by cable to the ground
for purposes of flight longevity and
Continued on page 4

(Notice to librarians: The following issues were

published in Volume 22 of this newsletter during
the fiscal year ending June 30, 2015: July, No. 1;
December, No. 2; March, No. 3; May, No. 4).

If youre getting this

newsletter by postal mail
and would prefer electronic
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Legal Technology

September 2015 / vol 23 / no. 1

lifestyle.3 As the cognitive computer learns

more about you, it becomes smarter and
provides better suggestions.4 Thus, the
days of using the Google search engine for
general information health information are
numbered.
While the progress in health IT is
fantastic, there are a plethora of privacy
concerns.5 The American Medical
Informatics Association found that of the
600 most common healthcare apps, only
183 posted a privacy policy.6 Typically,
consumer healthcare applications are
not regulated by the Health Insurance
Portability and Accountability Act (i.e.,
HIPAA),7 which is a law that requires
certain organizations to maintain the
privacy and security of individually
identifiable health information.8 Most
healthcare mobile applications are
governed under FDA regulations, which
are not nearly as stringent as HIPAA.9
Consequently, most end user healthcare
applications can legally share your health
data with third parties sometimes without
your informed consent.
Understandably, privacy advocates
typically focus their policy efforts towards
wearable technologies or common
healthcare apps. Unfortunately, there has
been little conversation about the privacy
issues surrounding cognitive applications
that process healthcare data. Consideration
should start to be given towards cognitive
technologies because of advancements like
the IBM Watson, a cognitive computer
capable of answering questions posed in
natural language.10

IBM Watson paired with GenieMD

Up until now, Watson was a closed ecosystem.11 Outside developers were not able
to develop applications using the Watson
capabilities. One of the first applications to
delve into the Watson eco-system is an app
called GenieMD.12
GenieMD is a mobile application that
enables users to ask health related questions
to Watson and receive personalized
recommendations based on an individuals
profile.13 GenieMD ensures that the
Watson answers are accurate by providing
Watson with 2000 peer-reviewed healthcare
articles.14

The question is, whether HIPAA should

govern apps like GenieMD? Is GenieMD
a healthcare provider under HIPAA?15
Health care provider means any person
or organization who furnishes, bills, or is
paid for health care in the normal course of
business.16
When applying HIPAA to most
mobile health applications or wearable
technologies, they arguably do not
fall under the regulation.17 HIPAA
requirements primarily apply to health
care providers.18 Typically, the data stored
in wearables or on websites are for the enduser to consider. As Adam Greene, a former
lawyer for the Department of Health and
Human Services (HHS) Office of Civil
Rights, states, . . . in general HIPAA doesnt
apply to consumer data. Whether or not
it applies is more about who is handling
the data than about the content of the data
itself.19

Why Genie MD falls under HIPAA

More likely than not, GenieMD would

disagree that they are a healthcare provider
as per their terms of service agreement.20
Their current Terms of Service and Privacy
Policy give GenieMD great discretion on
how they process individually identifiable
health information.21
However, unlike the typical health
care mobile app or wearable technology,
GenieMD could be considered a healthcare
provider under HIPAA as it furnishes a
service related to the health of an individual.
As discussed, GenieMD is an app designed
to handle the health of a person and
diagnosis symptoms.22 GenieMD is not
simply storing users data, but it is analyzing
a users current health conditions and
providing advice.
Soheil Saadat, CEO of GenieMD has
even stated, . . . The user will simply push
a button for the microphone, letting him
talk to the computer as if he were talking to
his doctor. And the computer can answer.23
If that does not describe a health care
provider, what does?

Conclusion

IBM Watson through an interface like

GenieMD, can bring quality Healthcare to
the masses. I am a true believer in cognitive
2

Legal Technology
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STANDING COMMITTEE ON LEGAL

TECHNOLOGY

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Michael F. Brennan
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technologies. The capabilities of Watson to

reduce healthcare costs and increase access
to healthcare are tremendous. Nevertheless,
health data entered into Watson should not
be even theoretically transferable without
proper consent. If self-regulation is not
sufficient, HIPAA should be invoked. Our
sensitive health data deserves the upmost
protection.
As cognitive technologies monitor our
daily lives, who watches the watchers? What
is happening with our sensitive data must be
debated.
There is room for argument. n
__________
1. Technologies, S. (2014) Sensogram
Technologies Launches Kickstarter Campaign to
Bring Breakthrough Wearable Vitals Monitoring
Technology SensoTRACK to the Marketplace.
GlobeNewswire News Room. Available at:
<http://globenewswire.com/news-relea
se/2014/10/14/672891/10102509/en/SensogramTechnologies-Launches-Kickstarter-Campaign-toBring-Breakthrough-Wearable-Vitals-MonitoringTechnology-SensoTRACK-to-the-Marketplace.
html> (Accessed: 4 April 2015).
2. Lamkin, P. (2014) Apple Watch v Fitbit
Surge: 2015 super watch showdown. Wareable.
Available at: <http://www.wareable.com/
smartwatches/apple-watch-v-fitbit-surge-2015super-watch-showdown> (Accessed: 4 April
2015).
3. Geniemd (2014) IBM and GenieMD Tap
the Power of Watson to Help Patients and Family
Caregivers Better Manage their Health. Available at:
<http://geniemd.com/?page_id=375>.
4. Altshuller, M. and PlanetVoice, I. S. (2015)
IBM Smarter PlanetVoice: How Watson Analytics
Provides A Smarter Way To Work. Available at:
<http://www.forbes.com/sites/ibm/2015/01/05/
how-watson-analytics-provides-a-smarter-way-towork/> (Accessed: 17 April 2015)
5. See, Fed. Trade Commn, Spring Privacy
Series: Consumer Generated and Controlled Heath
Data 10 (May 7, 2014), available at: <https://www.
ftc.gov/news-events/events-calendar/2014/05/
spring-privacy-series-consumer-generatedcontrolled-health-data> (Accessed: 4 April 2015).
[hereinafter Fed. Privacy Series].
6. Mottl, J. (2014) Mobile app privacy practices
scarce, lack transparency. FierceMobileHealthcare.
Available at: <http://www.fiercemobilehealthcare.
com/story/mobile-app-privacy-practices-scarcelack-transparency/2014-08-24> (Accessed: 4 April
2015).
7. The HIPAA Administrative Simplification
Regulations. 45 C.F.R. pts. 160, 162 & 164
8. See, Anne Marie Helm & Daniel Georgatos,
Privacy and Mhealth: How Mobile Health Apps Fit
into A Privacy Framework Not Limited to HIPAA,
64 Syracuse L. Rev. 131 (2014)
9. Satariano, A. (2015) FDA Taking a Very
Light Touch on Regulating the Apple Watch,

Bloomberg Business, 30 March. Available at: <http://

www.bloomberg.com/news/articles/2015-03-30/
fda-taking-a-very-light-touch-on-regulating-theapple-watch> (Accessed: 4 April 2015).
10. What is IBM Watson? (no date) IBM
Watson. Available at: <http://www.ibm.com/
smarterplanet/us/en/ibmwatson/what-is-watson.
html> (Accessed: 4 April 2015).
11. IBM Watson Ecosystem (no date). Available
at: <http://www.ibm.com/smarterplanet/us/en/
ibmwatson/ecosystem.html> (Accessed: 4 April
2015).
12. Hamm, S. (2014) Expanding the Watson
Ecosystem with the Mobile Developer Challenge
- A Smarter Planet Blog, A Smarter Planet Blog.
IBM. Available at: <http://asmarterplanet.com/
blog/2014/06/expanding-watson-ecosystemmobile-developer-challenge.html> (Accessed: 4
April 2015).
13. MobileFirst, I. (2014) Watson Mobile
Developer Challenge Q&A: GenieMD, YouTube.
YouTube. Available at: <https://www.youtube.com/
watch?v=JuseLnSywc8> (Accessed: 4 April 2015).
14. Id.
15. 45 C.F.R. 160.103
16. Id.
17. See, Fed Privacy Series at p. 8-9.
18. See, supra note 15.
19. Sullivan, M. (2014) Health apps could be
heading into a HIPAA showdown | VentureBeat |
Health | by Mark Sullivan, VentureBeat. Available
at: <http://venturebeat.com/2014/06/13/healthapps-could-be-heading-into-a-hipaa-showdown/>
(Accessed: 4 April 2015).
20. Terms of Use & End-User License Agreement
(2014) GenieMD. Available at: <http://www.
geniemd.com/mobile/terms.html> (Accessed: 4
April 2015). As is explained in more detail below,
the Application and GenieMD service (i) is an
informational and management aid only and is not
offered or provided for the purpose of diagnosing,
treating or prescribing for any illness or injury
(ii) is no substitute for the need to always discuss
your healthcare requirements with appropriately
qualified professionals (iii) is not to be used to
diagnose or make treatment decisions (iv) is not
guaranteed to provide completely accurate or
current information (v) is intended for use in
the United States only and (vi) does not endorse
drugs or other products or services, diagnose any
injury, illness, disease or other health condition, or
recommend any treatment, therapy or health care
provider.
21. Id. This Privacy Policy does not address
the privacy practices of any third party. We are
not responsible for the privacy practices of any
such third parties, including those to whom we
disclose Personal Data in accordance with this
Privacy Policy or to whom you submit Personal
Data having accessed such third party application
or website via the Applications. We do not endorse
any applications or websites which may be linked
via the Applications. We may collect and process
Personal Data, Non-Personal Data and Health
Information (as defined below) in connection with
the Applications.
22. GenieMD WE ARE ALL ABOUT
3

YOUR HEALTH, Available at: <http://geniemd.

com/?page_id=94>. Our mission at GenieMD
is to help improve the quality of life by providing
solutions that enable our users to maintain the best
health possible. If they develop a health concern,
we help with the initial diagnosis of the problem,
we help them find the care they need to receive
treatment, and we help make following a treatment
plan easier.
23. Marshall, P. (2014) IBMs Watson to
supercharge personal medical app -- GCN, GCN.
Available at: http://gcn.com/blogs/emergingtech/2014/06/watson-geniemd.aspx (Accessed: 4
April 2015).

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Legal Technology

September 2015 / vol 23 / no. 1

controlfor law enforcement.2 Farmers

now use drones to monitor crops and to
tailor their use of pesticides, herbicides,
and fertilizers.3 The commercial, artistic,
and civil implications of the technology are
unlimited.
Recently, however, a darker aspect of
Drones has stolen the national spotlight.
Earlier this month, drones were seen
circling the airspace above Newark Liberty
International Airport, interfering with
California wildfire firefighting efforts, and
nearly colliding with flights in other airports
at heights of up to 3000 feet.4 Imagine
this. A long time client marches into your
office with his 12-year old son in tow,
who, unexplainably lost control of his DJI
Phantom 3 Series drone quad-copter and
brought down a 747 airliner. Where do you
start? And while we are at it, where does a
drone/UAV end and a model aircraft (like
the one you unwrapped at Christmas when
you were 12) begin?
Imagine the facts set forth in the National
Transportation Safety Board 2014 case of
Huerta v. Pirker, the case that prompted
the FAA to redefine its approach to model
or hobby airplanes--[i]n the complaint,
the Administrator..asserted respondent
operated the aircraft...directly towards
an individual standing on a...sidewalk
causing the individual to take immediate
evasive maneuvers so as to avoid being
struck by [the] aircraft: through a..tunnel
containing moving vehicles; under a
crane...5 What if that model airplane had
hit that individual or caused a car accident?
Assault? Involuntary manslaughter? In
the Huerta case, the judge found that the
FAA did not have jurisdiction to fine the
respondent $10,000 for using a model
aircraft to take videos at the University of
Virginia, prodding the FAA to pass Section
336 of the FAA Modernization and Reform
Act of 2012 and redefining the term Small
Unmanned Aircraft to mean an aircraft
weighing less than 55 pounds. Model
airplane owners beware! The FAA will stay
out of your way only if you are (1) using the
aircraft strictly for hobby or recreational use;
(2) the aircraft is operated in accordance
with a community-based set of safety
guidelines and within the programming of a
nationwide community-based organization;
(3) the aircraft is not more than 55 pounds;

(4) the aircraft is operated in a manner that

does not interfere with and gives way to any
manned aircraft; and (5) is not flown within
five miles of an airport.6 Model airplane
and model helicopter ownership just got
complicated.
Cook County Sheriff Tom Dart in 2013
began to take a serious interest in drones, in
addition to surveillance camera networks
already in place around Chicago, to replace
eye-in-the-sky helicopters.7 This enhanced
interest prompted civil liberty protection
groups in equal measure to begin sponsoring
legislation to protect individuals from
invasion of privacy. Such efforts manifested
themselves in Illinois Senate Bill 1587,
now known as the Freedom From Drone
Surveillance Act as codified at 725 Ill. Comp.
Stat 167/0.01, et seq. Concerns over invasions
of privacy are shared by many other state
and federal bodies such as the Department
of Justice who, as of May 2015, issued
agency-wide policy guidance and standards
regarding the use of UAS technology to
uphold First Amendment protections
highlighting protections of privacy, civil
rights and liberties and establishing annual
privacy reviews to ensure compliance.8
The Illinois Freedom From Drone
Surveillance Act sets forth a general
prohibition for information gathering by
law enforcement through use of a drone
unless the drone is used in (1) countering
a high risk of a terrorist attack; (2) used
pursuant to a search warrant on probable
cause; (3) used where a law enforcement
agency possesses reasonable suspicion that,
under particular circumstances, swift action
is needed to prevent imminent harm to
life, or to forestall the escape of a suspect;
(4) used by law enforcement to attempt to
locate a missing person; or (5) used solely
for crime scene and traffic crash scene
photography.9 At first blush, and with little
existing case law for guidance, certain
exceptions of this Act appear large enough
to drive a truck through. For instance,
how high is the standard for reasonable
suspicion where swift action is necessary?
And during an instance where swift action
is deemed necessary, what happens if the
drone accidentally sees something that it
was not supposed to see? Is this information
admissible or actionable?10
What is a Drone? Illinois defines a
4

Drone as any aerial vehicle that does not

carry a human operator.11 Other states,
such as Idaho, use much more detailed and
extensive definitions, defining rather the
term Unmanned Aircraft System (UAS)
with Drone included within the definition,
for example, an unmanned aircraft vehicle,
drone, remotely piloted vehicle, remotely
piloted aircraft or remotely operated
aircraft that is a powered aerial vehicle
that does not carry a human operator, can
fly autonomously or remotely and can be
expendable or recoverable.12 The FAA
defines unmanned aircraft as an aircraft that
is operated without the possibility of direct
human intervention from within or on the
aircraft. The FAA website for Unmanned
Aircraft Systems gets right to the point...[u]
nmanned aircraft systems are inherently
different from manned aircraft.13 Right.
So Unmanned Aircraft Systems are defined
more by what they are not rather than what
they actually are. Got it. If you own or are
somehow connected to something that you
have launched into the air, it stays in the air
for an indeterminate amount of time, and
there is no man flying said launched object,
the FAA may come looking for you.
Attorneys representing municipalities
should have some knowledge of drone law
and its evolution.14 In a culture obsessed
with reality television, we are not far off
from neighbors looking to skip the cable bill
and go directly to the real thing, equipped
fully with live camera drones. Are we, as
counsel, prepared to deal with these types
of issues and draft and pass ordinances to
prevent nuisance or invasion of privacy for
constituents? And when will insurance begin
to weigh in on the increase popularity of
drones?15 Will Geicos pig take wing? Will
or should insurance become a mandatory
requirement those voyeurs undeterred
by unsettled Drone law?16 As technology
advances to allow the common man to go
from living-room laptop to high up in the
sky, our laws and regulations must evolve
to protect him from himself and to protect
others from him. n
__________
Helping with the research for this article was
the authors father, Thomas Mann.
1. Intelligence Successes and Failures in
Operations Desert Shield/Storm--Report of the
OVersight and Investigations Subcommittee,

Committee on Armed Services, U.S. House of

Representatives, August, 1993.
2. Alyssa L. Schukar, Motorolas High-Tech
Projects for Police, USA Today (August 7, 2015)
3. Christopher Doering, Growing Use of
Drones Poised to Transform Agriculture, USA
Today (March 23, 2014)
4. Alan Levin, Close Encounters Spur Bid For
Tighter Drone Rules, Bloomberg News (August 10,
2015).
5. Administrator v. Pirker, NTSB Order No. EA5730 (2014).
6. Section 336(a) of H.R. 658-67.
7. Cynthia Hodges, Sheriff Tom Dart eyes
unmanned drones for Cook County, <http://www.

examiner.com/article/> (last visited August 10,

2015); see also WNYC Studios (producer) (June 18,
2015), Eye in the Sky [Audio podcast]. Retrieved
from <http://itunes.apple.com>.
8. DOJ 115-665, 2015 WL 2438163,
Department of Justice Establishes Policy Guidance
on Domestic Use of Unmanned Aircraft Systems.
9. 720 ILCS 167/15
10. Information is defined as any evidence,
images, sounds, data, or other information gathered
by a drone. 725 ILCS 167/5. NOTE: An attempt was
made by U.S. Congress in 2013 to address some of
the thorny privacy questions in the ill-fated H.R.
1262 Drone Aircraft Privacy and Transparency Act.
11. 725 ILCS 167/5.

12. See I.C. 21-213

13. Section 331, H.R. 658-62, Sec. 331(8); See
also http://www.faa.gov/uas/
14. Chad Umble, Convoy Township passes
ordinance that limits drones air space, <http://
lancaster online.com/news> (March 14, 2013).
15. Vikki Stone, Insurance Coverage for
Commercial Drones: Skys the Limit, <http://www.
propertycasualty360.com>, (Jan. 15, 2014).
16. For an example of aviation insurance being
offered for commercial drones, see <http://www.
aviationi.com/DroneUAVHome.htm> (last visited
Aug 13, 2015).

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Training Master Series. Presented by the
ISBA. 8:00-5:00 each day.
Friday, 10/30/15- Danville Public
LibraryPro Bono Practice and
Professionalism: the Basics of Estate
Planning, the Guardianship Process, and
Family Law. Presented by the ISBA Standing
Committee on the Delivery of Legal
Services. 9:30 am- 4:30 pm.

November

Tuesday, 11/03/15- Teleseminar

Indemnification & Hold Harmless
Agreements in Business & Real Estate.
Wednesday, 11/04/15- Teleseminar
Estate & Income Tax Planning Issues in
Divorce.
Thursday, 11/05/15- ISBA Regional
OfficeHot Topics in Criminal Law
in Illinois- 2015. Presented by the ISBA
Criminal Justice Section Council. 9:00 am5:00 pm. n

Legal Technology

September 2015 / vol 23 / no. 1

Dont miss this invaluable guide to jury selection!

A MUST HAVE
for
trial lawyers

PICKING A CIVIL JURY:

A GUIDE FOR ILLINOIS TRIAL LAWYERS
Bundled with a free Fastbook PDF download!
As part of the ISBAs Practice Ready Series, this book is specifically designed to be a must-have resource
for new attorneys and others wishing to brush up on their jury selection skills. It concisely walks
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Statutory and case law citations are provided throughout and most chapters include a list of helpful
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Order your copy today!

$27.50 Members/$45 Non-Members (includes tax and shipping)

Order at:
www.isba.org/store/books/pickingaciviljury
or by calling Janet at 800-252-8908 or by emailing Janet at Jlyman@isba.org
7

Illinois has a history of

some pretty good lawyers.
Were out to keep it that way.

Legal Technology

Non-Profit Org.
U.S. POSTAGE
PAID
Springfield, Ill.
Permit No. 820

Illinois Bar Center

Springfield, Illinois 62701-1779

September 2015
Vol. 23 No. 1

Order Your 2016 ISBA

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Its still the essential timekeeping tool for every lawyers desk and as user-friendly as ever.

s always, the 2016 Attorneys Daily

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The Diary is especially prepared
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