Standards for Privacy of Individually Identifiable Health Information. Final Privacy Rule Preamble.. European Union Privacy Directive and U.S. Safe Harbors


Comment: Several comments stated that the privacy regulation should be consistent with the European Union's Directive on Data Protection. Others sought guidance as to how to comply with both the E.U. Directive on Data Protection and the U.S. Safe Harbor Privacy Principles.

Response: We appreciate the need for covered entities obtaining personal data from the European Union to understand how the privacy regulation intersects with the Data Protection Directive. We have provided guidance as to this interaction in the "Other Federal Laws" provisions of the preamble.

Comment: A few comments expressed concern that the proposed definition of "individual" excluded foreign military and diplomatic personnel and their dependents, as well as overseas foreign national beneficiaries. They noted that the distinctions are based on nationality and are inconsistent with the stance of the E.U. Directive on Data Protection and the Department of Commerce's assurances to the European Commission.

Response: We agree with the general principle that privacy protections should protect every person, regardless of nationality. As noted in the discussion of the definition of "individual," the final regulation's definition does not exclude foreign military and diplomatic personnel, their dependents, or overseas foreign national beneficiaries from the definition of individual. As described in the discussion of § 164.512 below, the final rule applies to foreign diplomatic personnel and their dependents like all other individuals. Foreign military personnel receive the same treatment under the final rule as U.S. military personnel do, as discussed with regard to § 164.512 below. Overseas foreign national beneficiaries to the extent they receive care for the Department of Defense or a source acting on behalf of the Department of Defense remain generally excluded from the final rules protections. For a more detailed explanation, see § 164.500.