Karen  Levy, Lauren Kilgour, Clara Berridge, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws

Karen  Levy, Lauren Kilgour, Clara Berridge, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws (April 5, 2018). Elder Law Journal, Vol. 26, 2018. Available at SSRN: https://ssrn.com/abstract=3157134

Abstract

The emergence of consumer-purchased monitoring devices in shared, intimate spaces presents new challenges to privacy and its protection. Web-enabled video cameras, which allow family members to monitor one another in the name of care, are among the most prevalent technologies in this vein. These cameras have recently gained traction for remote monitoring of vulnerable relatives in nursing homes, where they are intended to detect and deter abuse and neglect in residents’ rooms. But in so doing, they can create new privacy vulnerabilities—for residents (many of whom have dementia and lack capacity for consent), frontline care workers, roommates in shared rooms, and others. State policymakers are grappling with these issues as they craft laws governing electronic monitoring in these complex public/private spaces, in which they must balance among competing—and sometimes irreconcilable—privacy and security interests.

This paper presents a comparative analysis of six state regimes that regulate the use of monitoring systems in nursing home resident rooms. We find that states attempt to protect privacy through a variety of interlocking privacy constraints: social, technical, and institutional safeguards that restrict how monitoring devices can be introduced and operated. Further, we map key relationships within which stakeholders hold specific privacy interests vis-à-vis one another, and describe how legal regimes do (and do not) address such interests. We consider implications for how privacy is conceptualized and regulated in multi-relational social contexts, in which the privacy and security interests of certain stakeholders necessarily impact the privacy experiences of others.

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