We know that tech companies cooperated with a secret government surveillance program, that Uber employees have searched for specific passengers’ travel information, and that information is frequently stolen and leaked online (including potentially embarrassing personal details). But somehow, still, hundreds of thousands of people are creating transcripts of their deepest secrets and inner turmoil through online therapy apps.
Unsurprisingly, potential privacy issues have emerged.
In a detailed report that exposes ethical gray areas and possible worker misclassification issues at Talkspace—which matches clients with therapists for unlimited text-, video-, or audio-message exchanges for $32 per week—Cat Ferguson, a reporter at the Verge, also found a lack of clarity about how company employees access discussions between therapists and clients.
Talkspace, which on its website claims to have 300,000 active users, reportedly sent emails reprimanding several therapists who told their clients that they would stop working for the service and offered them the option to switch to a new service. “As for how Talkspace found out about the therapists telling clients they’d leave,” Ferguson writes, “it is not clear who can read patient conversations or when.” Ferguson reports that the company updated its terms of service in October to mention that Talkspace employees may read sessions during certain circumstances, including “quality assurance.” Here’s what it says:
Talkspace’s Clinical Oversight Personnel will, as needed, review particular Client “Session Transcripts” or “Rooms” for the following purposes:
During on boarding of Client and during Therapist matching process to ascertain Client is able to successfully engage with Therapist.
To review a Client complaint about a particular issue/instance that Client reported about Therapist.
For Client Safety Concerns or complaints of Unethical Therapist.
To transition Client to a new Therapist.
For a quality assurance concern of Client.
Talkspace published a statement calling the Verge’s claims that employees can read messages sent between therapists and clients “misleading.” It reiterated that employees only access messages in specific circumstances, and in the case of accessing accounts for “quality assurance” purposes, customer service representatives only see timestamps and not content of conversations.
Health privacy laws require health providers to put procedures in place such as encryption to limit who can view and access individually identifiable health information. They do allow health operators to access health information without notice for reasons including “quality assessment and improvement activities, including case management and care coordination” and “competency assurance activities,” but psychotherapy notes are treated specially under the laws. According to the Department of Health and Human Services website, “with few exceptions, the Privacy Rule requires a covered entity to obtain a patient’s authorization prior to a disclosure of psychotherapy notes for any reason.”
But apps like Talkspace don’t necessarily fall under these laws, because they are neither hospitals nor insurance companies, according to Jason Wang, the CEO and founder of a HIPAA-compliant database called TrueVault that stores patient data for health and fitness apps. “Talkspace merely connects their users with independent therapists, and provides the necessary apps and tools for the two sides to communicate,” he says. “This definitely puts Talkspace outside of the Privacy Rule mandates.”
The Session Content is shared with the Provider(s) that work with you. The Session Content may be used, either by itself or in conjunction with other information, for the following purposes:
Let a Provider provide the service to you.
Supervise, administer and monitor the service.
Allow professional supervision to the Provider by qualified professionals.
Breakthrough, an online therapy service offered by virtual care provider MDlive, sets up live video sessions with clients rather than using Talkspace’s system of asynchronous message exchanges. It notes in its terms of service that counseling sessions “are not recorded,” though messages between clients and therapists (which the service’s website encourages patients to use when describing their problems with prospective therapists), “may be monitored for quality assurance, training and other purposes.”
BetterHelp and Breakthrough did not immediately respond to requests for comment.