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learning.now: at the crossroads of Internet culture & education with host Andy Carvin

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February052008

Going On Your Permanent Record: Just About Everything

A New Jersey lawsuit between an HMO and a family whose daughter was denied insurance coverage for her anorexia may not sound like the kind of thing you’d read about on this here blog. But the legal tactics being used to get to the heart of the matter are a sharp reminder of this truism: anything that young people publish online can and will be held against them.

Dawn and Bart Beye discovered their 15-year-old daughter was suffering from an eating disorder, and they responded accordingly by enrolling her in a treatment program. Normally that might have been the end of the story, but their insurance provider, Horizon Blue Cross Blue Shield of New Jersey, declined coverage of her treatment. The company argued that they were not obliged to pay for it because New Jersey law has a loophole stating that insurance providers only must cover mental illness treatment if it is biologically-based. Horizon took the position that their daughter’s conditionally was emotionally-based, and not biological, therefore allowing them to not cover her treatment.

The Beye family responded by suing Horizon, and the case is under consideration by U.S. Magistrate Judge Patty Shwartz. In December, Shwartz ordered the Beye family to turn over their daughter’s online correspondences “shared with others, including entries on Web sites such as ‘Facebook’ or ‘MySpace,’” pertaining to eating disorders or related conditions. She also gave them a deadline by which they had to make these documents available.

The deadline for compliance came and went, with the family’s attorneys informing Horizon that they had no such materials. Horizon filed a letter with the court complaining that this was “an outright misrepresentation,” which they based on emails in their possession involving the Beye family and their medical providers. They asked the judge to respond by being even more aggressive in her demands, such as requiring the family to turn over copies of their home computers’ hard drives. The judge denied the request, requiring only that the family’s attorneys certified they conducted a search with due diligence.

This isn’t the first time that a lawsuit has brought up the issue of online writings by young people. Last June, a judge ruled in a case involving a student who was sexually assaulted by another student at her middle school. Her family sued the district, arguing the school didn’t do enough to prevent the assault. The school district’s attorney, George Campion, filed a brief requesting the judge force the family to share access to their daughter’s social networking accounts, to see if they could shed light on her emotional state.

“Testing the credibility of a plaintiff can be a difficult task, because a defendant cannot rewind a film of the plaintiff’s life to learn whether the plaintiff was really suffering or exaggerating complaints for secondary gain in litigation or even inventing complaints solely to bring a lawsuit,” Campion wrote. “In this case, there is a way to shed light on the plaintiff’s credibility by finding out what, she wrote on social networking sites in unguarded moments.”

Eventually, Superior Court Judge Kathryn Brock “held that the student’s privacy interests prevailed, absent a particularized showing of relevance, but left open the possibility that ongoing discovery might provide a basis to change her mind,” explains the legal news site law.com. She added that before such a request would be granted, she would expect the attorneys to interview the girl’s friends first. “If you talk to the kids, you’ll find out a lot of things,” she said.

It’s hard to say how the current case in New Jersey will be resolved. In some ways, it may end up being a moot point, as the state legislature is currently in the process of considering a bill that would close the bill that led to this mess in the first place. Either way, though, it serves as a reminder to everyone who participates in online discussions, privately or publicly: it’s going on your permanent record, whether you like it or not, and what you say may be used against you. Think before you type. -andy

Filed under : Policy, Social Networking

Responses

I don’t understand how reading this girl’s entries on social networks could help determine the cause of her anorexia.

Even if the judge determined that the entries pointed to a emotionally-based illness (which seems ludicrous to me) doesn’t biology effect emotions?

I find this to be very interesting and it does reveal a potential dark side to information technology. In some respects the internet gives us freedom to express ourselves in ways that we might not otherwise. However, problems emerge when we begin to forget that there is an actual human being on the other end of the conversation and that we might want to hold your tongue, or fingers, at times. For example, my web-course syllabi include a “netiquette” section on a phenomenon known as “flaming.” Flaming is communicating with someone in a more forceful manner than if the conversation took place F2F. I have had to warn more than one student that they needed to tone it down a little bit This is just one, comparatively minor, pitfall that exists in the virtual environment. It is important to remember that before information (of any kind) is shared on the internet one should be cautious.

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