Last week, the AIDS Healthcare Foundation (AHF) caused a panic in the adult entertainment community by issuing subpoenas for performer health records dating back to 2007 from several testing and health care facilities, including Cutting Edge Testing, Talent Testing Service, and a clinic that provides health care to performers in the industry.
This is yet another chapter in the drawn-out battle over Measure B, a legal measure brought by AHF to mandate condom usage in pornography produced in Los Angeles County. The fight has been fraught with tension since the beginning: Proponents cite the need to halt the spread of STIs in the adult industry, while those opposed claim that the mandate violates free speech and, in fact, does nothing to promote public health or performer safety.
Furthermore, the opposed say, the measure not only undermines their First Amendment rights, but could expose them to the hazards of lengthy condom use, like friction burns, microtearing, yeast infections, and increased risk of disease transmission were the condom to break. (It’s worth noting that male latex condom usage reduces, but does not eliminate, the possibility of STI transmission.) Opponents also raised concerns over the potential waste of taxpayer dollars that it would take to enforce the measure, as well as the likelihood of driving the financially lucrative adult film industry out of California.
Current industry protocols use a voluntary testing service, with performers getting tested every two weeks. Performers are required to have a clean bill of health in order for them to work.
The measure, also know as the County of Los Angeles Safer Sex in the Adult Film Industry Act, was voted on in November 2012 and passed with 56.96 percent of the vote. Vivid Entertainment, who said that the mandate violated the freedom of expression of the performers, immediately contested it in January 2013. Later that year, a judge ruled that several of the provisions that were included in the measure were too vague, and, as written, the measure essentially functioned as an open warrant for investigators to enter any private residence where they believe an adult film set to be. However, despite the fact that both the 9th Circuit District Court and 9th Circuit Appeals Court upheld the constitutionality of requiring condoms in porn, the fight continues to this day.
The most recent conflict centers on the medical privacy of adult performers. For the current court battle, AHF last week subpoenaed medical records from organizations that are involved in medical testing to determine performer work eligibility, specifically asking for records from January 2007 to present. I spoke with Tom Myers, General Counsel for AHF, who clarified that the information they sought regarding the test results was to debunk the position of the adult industry, which says that the voluntary, bi-weekly testing regimen of performers is better than a condom mandate.
It is unclear to what the subpoenaed data will be compared to, as condom efficacy is, in and of itself, more robustly varied in practical usage, which includes the reality of condom breakage and user error. It is also unclear if the legally required notice of medical record disclosure (as required by HIPAA) will be sent to all performers affected by the subpoenas, both retired and those currently in the business.
According to Myers, AHF has asked for any information related to any testing results or communications that have been uploaded to the performer database that controls who is allowed to work or not. Myers explicitly stated multiple times that the subpoenas were not seeking information that relates to the individual, nor were they seeking the inclusion of any information that may link an individual to their own medical records. AHF is seeking information as to the number of tests performed and the results of said testing. “We are simply not interested in the identification of anybody tested, or linking a test to any individual performer,” said Myers.
However, a copy of one of the subpoenas obtained by The Daily Beast states only that, “Information that would disclose the identity of the persons who received the tests may be redacted from the DOCUMENTS and/or RECORDS, including, but not limited to the following: name, date of birth, social security number, address, and/or phone number.” This reads like a less explicit request than the one articulated by Myers, but presumably was included to more readily conform toward the HIPAA laws in place to protect patient identity.
In light of the subpoenas, many in the adult industry are concerned about privacy and the likelihood that the de-identified information could be traced back to individuals.
“We’re a little more than appalled by the fact that a medical organization like AHF would take personal medical information so lightly,” explained Diane Duke, the CEO of the Free Speech Coalition (FSC), a nonprofit trade organization for the adult industry in the U.S. Duke was also quick to point out that she used to work for Planned Parenthood and that her previous employer would never give out such medical information.
“I know that our performers deserve that same kind of protection…their personal medical information is theirs and AHF has absolutely no right to that nor should they ask for it,” Duke said. She also noted that Cal/OSHA went after similar medical records from the former Adult Industry Medical Health Care Foundation (AIM), and that they “clearly said ‘No, you cannot have this information.’”
How these subpoenas abide by HIPAA protections of medical records is hotly contested. Duke and the FSC have emailed performers in their registry to encourage them to email testing centers to redact previously signed disclosure agreements and demand that their personal medical information not be shared. Chanel Preston, an adult performer who also works as the president of the Adult Performer Advocacy Committee (APAC), emailed me her comments on the matter:
“HIPAA regulations apply to pornography as much as any other industry. Michael Weinstein [the president of AHF] with the AIDS Healthcare Foundation has been attempting to get information regarding STI transmissions in the adult film industry, even if it means violating performer medical privacy. What Weinstein is doing sets a bad precedent saying that because of assumed risk, performers don’t deserve the medical privacy that other communities have.”
Both testing services contacted regarding the subpoenas, Cutting Edge Testing and Talent Testing Service, declined to comment for this story at this time.
