DEA Circumventing Oregon State Law To Grab Medical Records Without A Warrant

Privacy

from the you-can-only-take-my-information-for-so-long,-until-you-take-it-all dept

Just in case you had slipped into some sort of uneasy comfort thinking maybe, JUST MAYBE, the government had already gathered as much personal information as it “needed” (all without warrants), along comes the news that another agency is looking to get just a little more.

Via Reason comes the news that the DEA is attempting to bypass state law in Oregon in order to access private prescription records without a warrant. Some might argue that the DEA has some sort of right to know who’s taking what considering its position as “drug war enforcer,” but as the ACLU points out, prescription records can reveal some very sensitive information.

Records of the prescription medications we take can reveal some of the most private and sensitive information about us. Knowing that a person self-administers prescription testosterone injections can reveal that he is a transgender man undergoing hormone replacement therapy. Knowing that someone takes Xanax, Valium, or other anti-anxiety medications can reveal a diagnosis of mental illness. If a person is on Marinol, a medication containing synthetic THC, she is likely fighting weight loss associated with AIDS. A prescription for a narcotic painkiller such as codeine or oxycodone might indicate a chronic or terminal illness. Ritalin and Adderall are associated with treatment of Attention Deficit Hyperactivity Disorder.

The state of Oregon tracks prescriptions like these for several good reasons: to prevent drug overdoses and cut down on substance abuse. While it would seem the DEA should be able to access the records carte blanche because of the latter concern, Oregon has made the right move and added a warrant requirement in order to protect patients' information. The DEA, like many other government agencies (coughFBI), has been using administrative subpoenas to circumvent this requirement.

Fortunately, the state of Oregon is fighting back, with some help from the ACLU.

The State of Oregon sued the DEA in federal court to defend its right to require law enforcement, including federal agencies, to obtain the warrants required by state law. Today, the ACLU filed a motion to intervene in the case on behalf of several patients and a doctor whose prescription records are contained in the PDMP. Our clients are concerned that the privacy of their medical information will be violated if the DEA is allowed to search through prescription records without a warrant. If the DEA can demonstrate to a judge that it has probable cause to believe that a crime has been committed and that prescription records will provide evidence of that crime, then it can legitimately obtain records from the PDMP. Because prescription records and the medical information they reveal are such a sensitive matter, protecting their privacy is vital, and we argue that obtaining private and confidential prescription records without a warrant constitutes an unreasonable search in violation of the Fourth Amendment.

The ACLU points out that the “third-party doctrine” is being used to portray information provided to a doctor or pharmacist as exempt from warrant requirements. Courts have shown in the past that information turned over to a third party is no longer protected by the “reasonable expectation of privacy.” This is a false equation, the ACLU states:

We disagree with this principle—but even on its own terms, the third party doctrine should not apply here. Medical records are different than the trash we put out on the curb, or the canceled checks we provide to our bank, or the electrical usage records we transmit to the power company. The information we share with our doctors and pharmacists can be some of our most private information. Just because we trust our doctors with our medical information doesn’t mean the DEA should be able to easily access it too.

In case you were wondering what sort of harm could come from unfettered access to medical records by law enforcement, here's a splendid example that combines prescription records with the domestic wing of the War on Drugs into one horrible (and horribly stupid) incident.

Barbara Alice Mahaffey died of colon cancer in her bedroom last May. [Vernal, UT resident] Ben D. Mahaffey, 80, said he was distraught and trying to make sure his wife's body would be taken to the funeral home with dignity, when he says officers insisted he help them look for the drugs.

“I was holding her hand saying goodbye when all the intrusion happened,” he told the Deseret News.

Barbara Mahaffey died at 12:35 a.m. with Mahaffey, a Navy medic in the Korean War, and his friend, an EMT, at her side. In addition to police, a mortician and a hospice worker arrived at the home about 12:45 a.m., Mahaffey said. He said he doesn't know how police came to be there.

Mahaffey said he was treated as if he were going to sell the painkillers, which included OxyContin, oxycodone and morphine, on the street.

Yep. If your loved ones use certain painkillers, you can expect to be raided at any time, especially if they've just passed on, leaving behind a treasure trove of highly marketable controlled substances. But don't worry, Vernal City Manager Ken Bassett would expect nothing less than a raid by Vernal's finest during the final moments of his loved ones' lives:

In his suit, Mahaffey alleges that Vernal City Manager Ken Bassett told Mahaffey he was being “'overly sensitive' and that police were just trying to protect the public from illegal use of prescription drugs.” The suit also alleges that Bassett then told Mahaffey “his own parents had recently died and he wouldn't have cared had police searched their house for drugs.”

Also noted: this is “common practice” for Vernal police, although it's often “selectively applied.” Yay! A badly written law, randomly enforced and noxious from any angle, that latter of which perfectly describes the DEA's attempt to circumvent patient privacy by exploiting a few loopholes. 
 

Filed Under: dea, medical records, oregon, privacy