In 2016, Facebook unveiled a new tool that allows users to post live streams of video directly from their phones to the social media platform. This feature — known as “Facebook Live” — allows friends and followers to watch a user’s videos as she films them. Originally conceptualized as a means of sharing experiences like concerts or vacations in real time, the platform was quickly adopted for uses Facebook likely didn’t see coming. In 2016, Lavish Reynolds used Facebook Live to document the killing of her boyfriend, Philando Castile, by the Minneapolis police, sparking a national debate surrounding police brutality and racial disparities in law enforcement. Recently, another use for Facebook Live has arisen — one that Facebook neither foresaw nor wants: people have been using Facebook Live as a means of broadcasting their suicides.
This tragic adaptation of the Facebook Live feature has put Facebook in a tough spot. It wants to prevent the suicides its platform is being used to document — and just a few weeks ago it rolled out real-time tools viewers of Live videos can use to identify and reach out to possible suicide victims while they’re filming — but it’s often too late by the time the video feed is live. Accordingly, Facebook is focusing its efforts at identifying those at risk of suicide before the situation becomes emergent. It currently has teams designing artificial intelligence algorithms for identifying users who may be at risk for suicide. These tools would scan Facebook users’ content, flagging individuals that have warning signs of self-harm or suicide in their posts.
This post is part of our Blog Symposium “Applying the Americans with Disabilities Act and Genetic Information Nondiscrimination Act to the NFL Workplace.” Background on the symposium and links to other blog posts are here.
By Jessica L. Roberts
In our recent law review article, published by the University of Pennsylvania Law Review, my co-authors and I explore exactly what kinds of player health data the NFL and its Clubs can lawfully obtain from NFL hopefuls, as well as from current players. While the Clubs and the NFL have strong interests in accessing all kinds of information about players, current federal employment laws—mainly the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act—limit the collection of employee health data. Significantly, these statutes not only restrict how an employer can use its employees’ health data. They also restrict the ability of the employer to even ask. Among the major takeaways of our paper was that, via National Football Scouting, the NFL and its Clubs may be violating these laws with the interviews and medical examinations that take place during the National Scouting Combine. Our article focused primarily on evaluative technologies: things like physicals, athletic drills, wearables, ingestibles, and genetic tests. But what about when the source of the player health data is not a technique or technology but rather simply a medical record? In this blog post, I take a closer look at how the ADA and GINA apply to requests for medical records.
Medical Waivers at the Combine
As explored in-depth in a recent installment of this blog symposium, prospective players are particularly vulnerable because they are not yet members of the NFL Players Association (NFLPA), and thus cannot reap the benefits of the collective bargaining agreements it negotiates. The inferior bargaining position of aspiring players is particularly apparent considering the medical waivers they sign to even participate in the Combine. One waiver authorizes a mind-bogglingly long list of parties—including health care providers, physicians, mental health professionals, hospitals, schools, student health services, and former trainers and teams, even at the amateur level—to release and to discuss the players’ medical records with an equally long list of potential recipients—including National Football Scouting, the NFL and all its Clubs, their representatives, agents, medical staff, team physicians, and trainers, in addition to third-party physicians. The player consents to share: Continue reading