Panic Street Lawyer: State secrets

Sunday, 15 April 2012 06:00 AM Written by  Jay Hornack
20120415mapquest_hbg2annap_150According to MapQuest, Harrisburg PA and Annapolis MD are only 2 hours apart by car. But there are times – this past week, for example – when the distance between these two state capitals feels decades apart to me.

On April 9, the Maryland General Assembly reconciled Senate Bill 433 and House Bill 964. If signed into law by the governor, Maryland would be the first state in the country to prohibit employers from “requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through specified electronic communications devices.” The law would also prohibit “an employer from taking, or threatening to take, specified disciplinary actions for an employee's refusal to disclose specified password and related information.”

Although Maryland’s legislation does not explicitly mention social media websites such as Facebook and Twitter, it would have the effect of protecting the privacy of current and prospective employees by allowing communications (textual and visual) intended for a limited audience to be kept secret from employer fishing expeditions. The legislation would also have the effect of keeping someone’s online identity secret to employers when his or her account on one of those sites has been set up that way.

20101120_fbooklogo_150The issue made national news with the recent experience of a former officer with the Maryland Department of Public Safety and Correctional Services during a recertification interview (and Facebook’s public reaction to that recent experience). While bills similar to Maryland’s have been introduced in other states, Pennsylvania is not one of those states.

Instead, provisions of Pennsylvania Act 13 of 2012 which are not related to its effect on local drilling ordinances went into effect on April 14. One of those provisions (contained on pages 98 and 99 of the 174-page bill) has received a great deal of national attention since the law’s passage in February (according to one recent blog on the subject):

The law, an amendment to Title 52 (Oil and Gas) of the Pennsylvania Consolidated Statutes, requires that companies provide to a state-maintained registry the names of chemicals and gases used in fracking. Physicians and others who work with citizen health issues may request specific information, but the company doesn’t have to provide that information if it claims it is a trade secret or proprietary information, nor does it have to reveal how the chemicals and gases used in fracking interact with natural compounds. If a company does release information about what is used, health care professionals are bound by a non-disclosure agreement that not only forbids them from warning the community of water and air pollution that may be caused by fracking, but which also forbids them from telling their own patients what the physician believes may have led to their health problems. A strict interpretation of the law would also forbid general practitioners and family practice physicians who sign the non-disclosure agreement and learn the contents of the “trade secrets” from notifying a specialist about the chemicals or compounds, thus delaying medical treatment.

Comstock/Getty ImagesIn a Philadelphia Inquirer article entitled “Doctors Object to Secrecy in Pa.’s New Natural Gas Law,” an emeritus professor in the University of Pittsburgh Graduate School of Public Health is quoted as saying that this Act 13 provision “retains some of the worst aspects of industry secrecy about proprietary hydrofracking chemicals while making unethical demands on physicians.” According to the Inquirer article:

Proponents say the provision is standard language, pretty much copied from similar legislation in Colorado and other states. Colorado's legislation, passed in December, does read similarly, as do federal OSHA provisions regarding the disclosure of materials deemed to be trade secrets. But both are more specific about the confidentiality agreement, stipulating that the health professional won't use the information "for any purpose other than the health need(s) asserted." Pennsylvania's law doesn't say what confidentiality means, critics argue. Does it mean a physician can't consult with a colleague? What about the insurer? Or what if a physician is treating a child who was exposed to a chemical while playing in a field? What can the doctor tell families of other children playing in the same field? "It looks as if this would prohibit you from sharing with a government agency or publishing in scientific journals," said the Children's Hospital physician, Kevin Osterhoudt. "So you wouldn't be able to prevent anyone else from getting hurt.”

20110804_weddingcakeC_150What lessons do I draw from two pieces of legislation from two different but contiguous states? The first is an obvious one: elections have consequences (Pennsylvania has the next one coming up on April 24). The second lesson is about which constituents’ concerns, on the core issue of secrecy, leaders in the majority have chosen to address following elections.

To give an additional Maryland, Pennsylvania and secrecy example: one could argue that the majority lawmakers in one of those two states chose in 2012 to not keep it a secret that couples of the same sex fall in love and that some desire to legally confirm that love the same way other couples can. The other state’s majority lawmakers are attempting to take the opposite approach.

Oh well -- at least the State of Maryland and the Commonwealth of Pennsylvania share that famous boundary. And Messrs. Mason and Dixon serve as my bridge to next week’s update column on a different legal matter …

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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