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

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. 

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Comments on “DEA Circumventing Oregon State Law To Grab Medical Records Without A Warrant”

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Mr. Applegate says:

Re: Re:

“There goes the corporations private police force (aka US Govt) gathering data for their masters. What use the medical records of people could possible have for a healthy insurance company for instance?”

The insurance carrier probably already knows! After all if you goto a Dr. to get the prescription the Dr. must code(ICD 9) all their actions during your visit. Thanks to the new health care laws, all that info is now entered directly into computers and accessible to carriers… you don’t even get a script anymore.

I actually get several scripts that due to my stupid insurance are not even submitted to them for payment because it is cheaper that way. They know about them anyway, and even send me helpful ‘tips’, despite the fact that if I submit them to insurance for payment my cost goes up 10 fold.

If you think you have any REAL privacy in this country (USA) , you are sadly mistaken. The 4th amendment doesn’t apply anymore because if you interact at all everything is recorded by third parties, many of whom will gladly give over your info without a warrant. Do you use Credit/Debit/Loyalty cards? Use Checks? Insurance? Internet/email/cloud? Use a cell phone / send SMS? They already no more about you than you do.

They know What, When and Where and in many cases they can guess why too.

Dale says:

Re: Re: Re:

The problem is the judicial and legislative branch not keeping up with the technology and current use. In our mobile society today, the computer be it laptop, netbook, or desktop is the equivalent of my father’s roll top desk in his den or office. The files on it are the equivalent of his filing cabinet. These should be accorded the same protection under the 4th amendment as their predessors. The email account is the equivalent to his mailbox and email equivalent to his former U.S. Postal Mail and should have the same protection. Even the cell phone should have the same protection as a landline. Out of a couple hundred friends/acquaintances I have I can think of only 2 who still have landlines. Hopefully the courts of the land will catch up soon. Meantime be ready to be trampled.

Anonymous Coward says:

Just how many law enforcement agencies do you have?
Could this be the root of many problems, the different agencies competing to to show that they are doing a ‘useful’ job?
This a situation where it is guaranteed that a good job will not be done, because of lack of coordination, and sharing of information. Every failure in this system will result in more bureaucrats meant to solve the problem, but in practice spending time and effort to protect their own position, and disagreeing on the way forward.

WDS (profile) says:

Legal Drugs for Terminal Patient

The practice of the police coming after a death of someone with legal narcotics in the house is not new. When my father passed away at home in 1998 in a small town in Arkansas the police arrived along with the hospice nurse and the funeral home representatives.

The nurse and police officer together inventoried and then disposed of the morphine in the house. I assumed this was both to keep it from being misused, and to confirm that no one had overdosed him.

In that incident it did not feel like an invasion at all. I guess it depends on the respectfulness shown by the officer. They did not search the house, they just asked for me to bring the morphine at an appropriate moment, took it into the kitchen and performed their procedure.

John Fenderson (profile) says:

Re: Legal Drugs for Terminal Patient

When a relative of mine died in a similar setting, leaving behind lots of potential black market drugs, include morphine, etc., this was inventoried, too. However, no cops were involved. Instead the remaining drugs were inventoried, compared with the records kept about the amount of drug actually used, to ensure nothing was missing, then destroyed on site in from of two witnesses. Everyone signed a document declaring they witness the drugs’ destruction. It took 15 minutes. No searching necessary.

Anonymous Coward says:

Re: Legal Drugs for Terminal Patient

I would think it would be a little inconsiderate for police to show up 15 minutes (or so) after a family member passes.

A much simpler less invasive proposition is to take the medications back to the local pharmacy, have them inventory/destroy it (they have the records anyway). If they don’t report to the police (or whoever) in a timely fashion (2-3 days?) then the cops show up. At that point you’d still be responsible for missing narcotics.

I mean why do they have to show up immediately? Especially if they want to search the premises and treat you like a suspect. Give the person a chance to do the right thing!

Vidiot (profile) says:

Re: Re: Legal Drugs for Terminal Patient

I think it’s safe to say that the pharmacy is happy to see you when it’s time to make a purchase, but at any other time, just go the hell home.

A friend tried to bring a sharps collector full of small, used syringes (fertility drug) to the pharmacy for disposal, and they all but called the police. “You can’t bring those in here!” they said, despite having sold them. I can imagine the reception for carrying in vials of CDS’s that have someone else’s name on them…

WDS (profile) says:

Re: Re: Legal Drugs for Terminal Patient

Like I said, there was no searching involved in my case. The incident in the post says the officer “insisted he help them look for the drugs”, which sounds very different than them digging through things looking for them. Again I think it really depends on the respectfulness shown by the people involved.

The entire week after a death is hectic. I’m personally think that them being there for that at the same time as the funeral home people gets it out of the way and gives you one less thing to have to do later and is possible less intrusive than doing it later. You have a mess of strangers in your home then anyway. In my case since the local pharmacy didn’t have the morphine, it would have meant a 30 mile drive later when I had other things to do to return the drugs to the pharmacy. All it takes is a little respect and diplomacy from the officer involved.

John Fenderson (profile) says:

Re: Re: Re: Legal Drugs for Terminal Patient

The incident in the post says the officer “insisted he help them look for the drugs”, which sounds very different than them digging through things looking for them.

It doesn’t sound any different to me. But it depends not on respectfulness (a search conducted respectfully is no less of a search), but on whether or not it is optional. An officer insisting implies it’s not optional. Even then, a search is still a search whether you consent to it or not.

Of course, this sort of insistence is one of the standard tricks cops use to get you to legally “consent” to searches by making you think you have no choice in the matter.

Anonymous Coward says:

Re: Re: Legal Drugs for Terminal Patient

1) Medical stuff should not be disclosed to the police without a warrant or court order. Even after death. The only exception is if they’re working on the investigation of the murder of that particular person.

2) “At that point you’d still be responsible for missing narcotics. ” – Responsible how? Sorry officer, I already threw them away. Or I just don’t KNOW where they were kept, and no you can’t come in here without a warrant that you’re never going to get without some actual evidence of a crime.

Aerilus says:

Re: Re: Legal Drugs for Terminal Patient

better question why do they have to show up at all? why are there more than a 30 day supply there and why would anyone care about a 30day supply. I am not going to go become a drug dealer to sell of 90 vicaden. and most everyone else isn’t either why waste resources doing this?

art guerrilla (profile) says:

one outrage after another...

1. as a technical matter: aren’t those the drugs of whoever was taking them ? ? ? can’t they leave them to whoever they want ? (yes, yes, ‘controlled substance’, blah blah blah)

2. if The State is going to confiscate them, shouldn’t they be paid for them ? ? ?

3. how much do you want to bet that less than half of whatever the piggies ‘seize’ finds its way back to the evidence lockers (not to mention what -you know- walks out of there) ? ? ?

no, just more harrassment of the lowly…
i am skeptical it has any major effect on legal-illegal drugs making it into the market…

art guerrilla
aka ann archy

Anonymous Coward says:

is someone able to cite one USA law that cannot be exploited or used nefariously by any USA law enforcement, as and when they think necessary and to the detriment of citizens? the Constitution is being eroded here and it isn’t being done slowly or even covertly, but as quick as possible and with a ‘we dont give a fuck what you think’ attitude from the government and it’s representatives. considering how long the Constitution was in force, doing what it was meant to do and how quickly it is now being pulled apart and thrown down the pan, it is very scarey! wont be long before it is totally dissected and citizens will have no rights at all! think back to what started all this and who started it!

mhab says:

Re: Re:

Such misuse of laws is not a phenomenon unique to the US. China and many eastern european countries do the same thing. China’s most notorious example is the over use of the principle of “eminent domain” to seize land for developers while paying the original owners a small stipend (no where near the land’s real value) if anything at all

Lord Binky says:

Funny how the officer that says his own parents had recently died and he wouldn’t have cared had police searched their house for drugs refrained from saying he does not think he would mind if insenstive (aka asshole) police searched their house for drugs while he was there immediately after their death.

At that point it’s all talk because the officer did not have to experience it, so it’s easy to not mind it. Hell, he doesn’t even state if he even likes his parents. Then again I could also easily see the cop’s standpoint that he does not care when in his example, he may not even be at the residence while police searched. So out of sight out of mind.

Anonymous Coward says:

Medical records should stay sealed no matter what even from warrants in most cases. It contains too much private shit for a government organization that is very careless with private information. If they want to get into that information they should be required to have a mountain of incriminating proof.

I mean really how many doctors do you see loosing a patients information to wikileaks? Last time I counted it was still at zero. How about the government now? Yeah fuck that too many to count but feel free to go count them yourself if you have a few months of free time.

Joe Melton (profile) says:

Government is Government

I’m thrown off a bit reading this quote:

“The state of Oregon tracks prescriptions like these for several good reasons: to prevent drug overdoses and cut down on substance abuse.”

The State of Oregon tracks prescriptions for the same reason the DEA would want to track them. Each of these is government, albeit at different levels. Why should it be ok even for the State of Oregon to track the private information of individuals, which has the same privacy concerns outlined in the quoted text in this article? Their reasons for tracking this private information are no less nefarious than those of the DEA, even if you take into consideration their varying levels of government.

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