Maintaining Confidentiality

Human trafficking victims have pronounced interests in privacy as do the organizations and task forces that serve them. For human trafficking victims, the need for autonomy and control over her/his body, the private details of her/his life, and the decisions that must be made relative to the crime (including whether and how to assist with a criminal prosecution of their trafficker) are often essential to recovery. Safety from future exploitation is also a real concern.

Laws designed to protect confidentiality and/or establish privilege are complex. Federal confidentiality laws and state confidentiality laws vary. Protecting victims requires understanding relevant privacy rules and regulations, evidentiary privileges, state and federal statutes, state and federal constitutional rights (including crime victims’ rights amendments), and the unique status of minors, persons with disabilities, or other potential classes of victims.

The Importance of Privacy and Confidentiality

The concept of privacy is broader than either confidentiality or privilege. All people have an interest in protecting their own privacy. People choose what personal information they reveal to their friends, neighbors, and professional acquaintances on a daily basis. Privacy laws (such as the Fair Credit Reporting Act) limit access to private information, such as banking and tax information, and apply broadly.

Confidentiality is a more limited concept that describes the laws, rules, and regulations that prohibit certain professionals from disclosing information that can be used to identify the individuals they serve. Confidentiality protects a broad range of information, including the identity of clients, medical records, immigration status, and other information. Confidentiality rules can be found in professional ethics requirements (for attorneys, medical professionals, social workers, and law enforcement among others), grant funding requirements, and agency policies and procedures, among other places.

Privilege is a very specific legal protection that limits what information can be shared within a court proceeding. Each state specifies which professionals or relationships have privilege protections (most common are spouses, lawyers, doctors, and therapists), what information can be protected by privilege, and how privilege can be waived.

Sharing personal information without informed consent can be a violation of professional ethics for the provider and traumatizing for the victim. Confidentiality helps the victim feel safe when reporting crimes to police, receiving medical attention, or working with a service provider. It encourages victims to disclose information that may make them uncomfortable, embarrassed, or fearful; however, confidentiality is limited by policies and practices that are unknown to the victims. Victims often disclose their experiences to a victim service provider because of presumed confidentiality; however, there are several exceptions to confidentiality, which need to be taken into consideration before discussing the scope of confidentiality that can be guaranteed to a victim. It is very important for a task force to have clear outlines as to how confidentiality of data will be managed and maintained on all levels, and for all members of the task force to understand the policies, procedures, and ethical requirements that guide the other members.

Exceptions to Confidentiality

There are limited exceptions to confidentiality and privilege protections. They are briefly noted below, but providers and law enforcement need to understand the specific rules, policies, and procedures that apply to their position within their organization. Revealing confidential information should never be done lightly and without a clear intention. Improper releases can be a violation of state or federal law.

• Signed release. Victims can choose to permit the release of confidential and/or privileged information. Service providers and law enforcement should work to create Release Forms that allow limited information sharing that will be beneficial for the victim. Forms should include notification to the victim that the release can be revoked at any time and should describe the type of information to be shared and the purpose.
• State mandatory reporting laws for child or vulnerable adult abuse. If you are a mandatory reporter of abuse of children and vulnerable adults in your state, there is no requirement to obtain a release when reporting information. It is necessary to notify the victim at the onset of your service provision that you are a mandated reporter and what areas require a report. If you have questions about mandatory reporting, check with your supervisor or your agency’s attorney.
• State laws requiring a Duty to Warn. Some states require service providers to report a client’s detailed and specific plans to harm themselves or another person to the police or the intended victim of a threat of harm. In that case, the report would be an exemption to the confidentiality requirements.

• Additional Resources: For more resources regarding subpoenas and the Motion to Quash, review the National Network to End Domestic Violence’s Technology & Confidentiality Resources Toolkit for Nonprofit Victim Service Agencies & Advocates Working to Provide Safe & Effective Services to Victims of Domestic Violence, Dating Violence, Sexual Assault & Stalking.

  Subpoenas. Subpoenas are often used by defense attorneys to try to get confidential victim information from a victim directly or through a service provider. Recipients have a right to challenge and may be able to terminate the subpoena. Service providers should have an established policy and procedure for responding to subpoenas regarding trafficking victims. Task Forces may want to share best practices and work collectively to identify attorneys who could represent task force member organizations that receive a subpoena.
• Warrants. Cross-training between law enforcement and victim service providers can help both groups better understand their roles and confidentiality requirements. Using a warrant to try to force a victim service provider to breach confidentiality can have a chilling effect on many victims in a community, causing some to be afraid to talk to the victim service provider. Warrants can be challenged in court, literally putting law enforcement and service providers in an adversarial position. Often, law enforcement can get the information they need from another source, such as a neighbor, a hospital, or another party, without involving the victim. Task forces that develop protocols for information sharing are less likely to face these issues.
• Funders, researchers, evaluators, stakeholders, and others viewing non-identifying demographic and aggregate information. Funders, researchers, and other individuals, such as stakeholders, may be allowed to see non-identifying compiled data, redacted records, policies and procedures, or a sample training victim folder, as long as it is aggregated or the victim gave specific, time-limited, written informed consent. Task forces should discuss any evaluation or research projects to ensure that all members understand the confidentiality protections in place and ensure that victim privacy is maintained. See Section on 3.2 Data Collection & Analysis.

For additional information and tools, visit the Resource page for Section 3.2 Information Sharing.