Thanks To The DEA And Drug War, Your Prescription Records Have Zero Expectation Of Privacy

from the BUT-HER-OXY dept

How private are your medical records? You’d think they’d be pretty damn private, considering Congress specifically passed a law regulating the disclosure of these sensitive records. Some states feel the same way, extending even greater privacy protections to things like prescription records. Not only are medical entities prevented from passing on sensitive info without patients’ consent, local law enforcement agencies aren’t allowed to obtain third-party records like prescription data without a warrant.

Seems pretty locked down, but as Leslie Francis and John Francis point out at the Oxford University Press blog, federal law enforcement agencies have undone both Congressional protections and state protections.

Utah’s requirement for a warrant conflicts with the federal Controlled Substances Act (CSA), which permits the DEA to issue administrative subpoenas for information relating to individuals suspected of violations of the CSA. According to a US Department of Justice report, administrative subpoenas may be issued by the agency without judicial oversight and without the showing of probable cause that would be required for a warrant.

When states provide more protections to residents than the federal government’s willing to grant, it’s often the state laws that lose, especially when controlled substances are involved. Such is the case here, at least so far. The DEA demanded the release of patient info/prescription records without a warrant, something forbidden by Utah law. The state objected to the DEA’s records demand. The DEA responded by flexing its considerable federal muscle.

The DEA countered with the Supremacy Clause: valid federal laws are superior to conflicting state laws.

The court ended up agreeing with the DEA: patient info and prescription records aren’t afforded additional privacy protections, no matter what HIPAA/state laws have to say about the matter. The court’s rationale was that prescription medicine is part of a “closely regulated” industry, which lowers the bar for government access. This lumps pharmacies and hospitals in with pawn shops, gun dealers, and adult filmmakers.

The Francis’ point out this reading of close regulation and the DEA’s Supremacy assertions is incredibly broad. It proposes nearly no limits to what the government can grab without a warrant. While the court discussed the possibility this should be limited to prescriptions containing controlled substances, it drew no precedential conclusions that may have shortened the government’s reach.

And, indeed, there are no court decisions that grant reasonable privacy expectations to records most members of the public feel should be accessed only by them and their healthcare providers. The blog points to the last Supreme Court ruling related to patient privacy — one that’s nearly 40 years old at this point. All the Whalen v. Roe decision did was indicate the Court believed New York state’s statutory privacy protections were enough and that there was no need to drag the Fourth Amendment into this. As we can see from the DEA’s actions and assertions, statutory privacy protections mean nothing, not if the federal government can step in and override protections put in place by state and local governments.

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Comments on “Thanks To The DEA And Drug War, Your Prescription Records Have Zero Expectation Of Privacy”

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MyNameHere (profile) says:

It’s always a question of balance, and the problems society faces as a result.

The US has a terrible problem with opioids. Over prescription of these medications have helped to create a huge problem of addiction. The “high” associated with these drugs also makes them a popular choice for people looking to get high while avoiding the street drug risks.

The problems of diversion of prescriptions, doctor shopping, doctors selling prescriptions, are huge. The government interest to know who is receiving these drugs is pretty significant.

Better control of highly addictive substances is needed. This arguing over state versus federal law is deck chairs on the Titanic material.

Richard (profile) says:

Re: Re:

Better control of highly addictive substances is needed. This arguing over state versus federal law is deck chairs on the Titanic material.

Maybe if you had a proper national healthcare system – instead of the anrachy that prevails in the US…

Its the same as with your gun laws – give an (apparent) freedom with one hand and take more away (with the law enforcement regime that results) with the other.


Re: Re: No, the grass really isn't greener over there.

Maybe if you had a proper national health care system

So Westminster can tell a cancer to go get bent? How is that in any way superior?

This whole “opiod epidemic” and the associated crack down are just like what you would expect out of the NHS with cancer patients with real pain management issues getting shafted.

That’s not even getting into the expensive targeted therapies that socialized systems like the NHS balk at.

Wendy Cockcroft (user link) says:

Re: Re: Re: No, the grass really isn't greener over there.

Please educate yourself, JEDIDIAH:

I’d rather not be rendered homeless and bankrupt by an American-style system and as an arthritis patient who mostly uses over-the-counter meds I’m happy to pay towards treating cancer patients even though no member of my family has ever had it.

Those stories you hear about cancer patients “getting shafted” are down to marketing campaigns by pharmaceutical companies promising miracle cures with little in the way of results:

Whether or not you believe the kid’s extra year of suffering is not at issue; the cost is more than about money, it’s about the pain for herself and her family, too. Why pay out for drugs that don’t really work in the long term — while effectively being used as a guinea pig?

It’s really not as cut and dried as right-wingers would have you believe. Bear in mind that they want to restrict healthcare to the deserving:

This includes George Soros, since he’s able to afford it.

That One Guy (profile) says:

Re: Re:

This arguing over state versus federal law is deck chairs on the Titanic material.

To this I would say you’re half right, in that ‘state vs federal’ is focusing on the wrong issue while ignoring the more important underlying one of invasive searches without warrants.

If they have grounds based upon other evidence to believe that a given individual is likely abusing prescription drugs such that they need to check medical records to verify, then they certainly have enough to get a warrant. If they can’t manage to meet that basic requirement then they are likely engaged in a fishing expedition, looking for something to back up little more than a hunch and as such do not deserve access to private information like medical records.

You say that there is a ‘pretty significant’ government interest in being able to track down prescription abuse, and while that may be true I’d say there is an equal public interest in preventing government agents from browsing through what can be highly personal data on little more than a whim.

If they have enough to justify a search of personal records then they can present it to a judge, get a warrant and then take that to a doctor. Otherwise they can get lost.

Richard (profile) says:

Re: Re: Re:

To this I would say you’re half right, in that ‘state vs federal’ is focusing on the wrong issue while ignoring the more important underlying one of invasive searches without warrants.

Exactly – the point being that it could easily have been the other way around – in which case you would have wanted the federal government to win.

Anonymous Coward says:

Re: Re: Re:

MyNameHere’s not really in the best position to argue “balance” when you consider that he detests warrants and privacy. (Well, privacy for everyone else; he wants privacy for himself in the same way out_of_the_blue uses TOR to bypass the spam filter. The guy will chop off his left nut if it helps his NSA, anti-Snowden apologism.)

Anonymous Coward says:

Re: Re:

Failure of government agencies to follow the constitution, and get warrants based on reasonable suspicion is a problem, as the government agencies have the attitude that they can invade every bodies privacy at any time they want. This allows the agencies to decide who they want to destroy, and take their lives apart until they find grounds for throwing them into prison.

tin-foil-hat says:

Re: Response to: MyNameHere on Sep 11th, 2017 @ 5:05am

I would love to see a breakdown of type of opioid. There will be significant differences between them. They’re doing it because their crackdown on prescriptions has created an even worse illegal drug market. Now they can fight the ongoing and ever more serious opioid war on prescriptions even though deaths by prescription opioids are decreasing and the primary problem is one of their own making. The DEA takes care of itself, Incidentally some of the testing requirements are being extended to cancer patients. So if you thought for a second that this was about concern about patients and not the selfish needs of power-hungry government oligarchs, look no further than their lying by omission.

Bergman (profile) says:

Re: Re: Re:

More accurately, you should thank Mitt Romney. Obama and the Democrats basically decided that instead of pushing for the Democrat-favored healthcare plan, they’d use the one that Republicans were backing, on the grounds that Republicans were already supporting that one.

Silly Democrats. It isn’t about what is said or done, it’s entirely about who says it or does it. If The Enemy wants to give you what you want, then obviously they must be opposed at all costs.

Anonymous Coward says:

Nothing new under the sun

Welp, I can see that there is nothing new here.

More and more folks are crying and whining over the beast they help created bearing more weight down upon them and crushing some of them.

And yet… what is it that i hear from them?

“Add more weight! We need someone to take care of us better! We are not responsible for this! Add more weight!

The bigger the government, the smaller the citizen.
The more it can give you, the more it will take away.
Every power or tool you give it is a liberty lost.
Safety nets become slave nets!

Did you think you were free? Where the police can take any of your property under the accusation that is part of a crime without any proof or trial? Did you think you were free when the police can shoot you dead with only the justification of “i was scared”. did you think you were free when you tried to sell food in the park with a government approved license, did you think you were free when you tried to give food to the homeless but got arrested?

America is proof that massive throngs of people are capable of living in mass delusion together. All you need to do is tell them that are a part of a group and that another group is coming after them. Like Sheep!

OldMugwump (profile) says:

Re: Re: Speaking of deja vu

My alternative: The state may not take property without a conviction in court. Real consequences, including prison, for police officers who abuse their powers. Deregulation, including drug legalization.

A state that respects the rights of citizens and limits its actions to keeping the peace, defending against foreign aggressors, resolving disputes peacefully, provision of basic infrastructure, and enforcing the rules of fair dealing.

And which, other than that, leaves people alone to live their lives as they see fit.

Anonymous Coward says:

Re: Re: Speaking of deja vu

Follow the constitution?

I don’t know about you, but if you stop voting for people like Reagan, Bush, Clinton, Obama, Trump…

We might get somewhere. Everyone of these folks hated the constitution and did nothing to support, they all worked undermine it one way or another while you all cheered them on!

That One Guy (profile) says:

Re: Re: Re: Speaking of deja vu

People vote for the choices presented to them. If all they have available is crap, then the results are going to be crap.

Would it be nice if there were better choices? Absolutely, but when you’ve got a system where the more money you have to spend the better your odds, and companies are throwing it around like confetti to buy up politicians left and right that’s a little difficult to manage.

As an aside, while you may be cheering on the broken system and the lousy choices presented and the results from it, the same cannot be said for everyone else.

Anonymous Coward says:

Re: Nothing new under the sun

Hello Mr. Chicken B. Little,

Greetings and Salutations to you good Sir!
How are you doing on this fine and glorious day?

I see that your Identity has been stolen, we are very sorry for your loss. I’m positive you will be interested in our top of the line Identify Theft Protection package. See attached for details.

Anonymous Coward says:

This is a misleading article (fake news?)

The title “Your Prescription Records Have Zero Expectation Of Privacy” is false. It should read “Some of your prescription records have zero expectation of privacy.”

The DEA doesn’t really care about your VD medicines, your Viagra use or things like that. It cares about Opioid use. That is what it can access.

Bergman (profile) says:

Re: Re: Re: What's To Prevent…

If you read the 21st amendment, the CSA only applies to the drugs that states say it does, in state laws. The feds simply lack the authority to prohibit any intoxicating substance, they only have the authority to prevent smuggling of those substances into states they are illegal in.

While federal supremacy means valid federal laws override state laws, when those federal laws violate the federal Constitution, they are not valid laws.

ysth (profile) says:

Third party doctrine?

My first reaction is to say this will be fixed when the third party doctrine is removed. But then reading the OUP article clued me in that this is the DEA using an administrative subpoena to access a state database that under state law can only be accessed with a judicial warrant, something that wasn’t clear to me from the techdirt article. So I’m not sure the third party doctrine is applicable?

Anonymous Coward says:

I’m not convinced the DEA’s focus on “bad doctors” is really a good approach. Surely there are some who knowingly overprescribe, but patients who want pain meds for illegitimate reasons are quite crafty and there really is no way for a doctor to know with absolute certainty who is faking or experiencing psychosomatic pain and who really needs the medication. Making doctors less compassionate seems like a bad idea.

From a privacy point of view, giving the DEA access to patient information means also giving them the ability to use the patients’ prescriptions against the patients, not just the doctors. Just the threat of disclosing medical information in court can be very coercive.

To the “nothing to hide” folks: I also just look at it the same way as any other surveillance and data mining. Would you be OK with it if, instead of just collecting this info without you knowing, they had to go door-to-door every month, every week, every day, and introduce themselves as being from the government but not giving you their name or any way to hold them accountable, and then ask for your prescriptions, your doctor’s name, your phone records, a list of people you know, detailed logs of everywhere your car has been, current snapshots of your face from all angles, etc.? Would you really be OK with handing over that info which is so “public” and harmless?

Anonymous Coward says:

The opioid issue was caused by the federal government.

In the past, a doctor had to undergo pain management training and had to be certified to prescribe these pain medications. That of course led to backlogs, because regular doctors couldn’t prescribe these medicines. (It also led to lower sales for these medicines.)

In the 90’s, that rule was eliminated and any doctor can now prescribe opioids or any other pain medication, which put us where we are today.

Anonymous Coward says:

Re: Re:

“The opioid issue was caused by the federal government.”

Not sure I follow this logic and the explanation does little to alleviate same.

I thought the opioid problem was a smaller part of the whole health care problem, was caused by same and those responsible are making huge amounts of money off the “problem” which was caused by many people doing many things of questionable ethics.

tldr: I think it is a bit more complex than you allude to.


Re: Re: You should feel our pain.

Yes. Making money is so bad. We just can’t stand for that. Never mind the fact that YOU personally would never do anything for free. Profit greases the wheels of commerce and allows things to be done.

Doctors already have more education and training than you. They’re expected to know what they’re doing. Oppressive government regulation and red tape prevents people from doing things.

I shouldn’t need to see a pain management specialist any time I am in pain. That’s just moronic.

I have to seriously wonder if you have any perspective on this issue in the slightest.

Anonymous Coward says:

Re: Re: Re: You should feel our pain.

New doctors have more education and training than myself, but I read drug trials. I read about new developments. A lot of times, doctors don’t have time to do that.

Great example is concussion treatment protocols. I have read about a lot of great work that the Pittsburgh hospital has done on this, really breakthrough work. They have very different ways of treating concussions that generate great results. Most doctors throughout the country are not aware of this. Maybe they didn’t have time to go see the movie “Concussion”. Pittsburgh is where it all started. Of course, medical information about cancer and other diseases usually don’t have movies involving them, so new breakthroughs don’t get as much attention.

So yes, not all doctors know about proper pain treatment. Some doctors are afraid they will lose clients if they don’t prescribe the strong stuff even though they know they shouldn’t. Some doctors are just greedy and turn into pill mills.

So yeah, I kind of do have a perspective on this subject.

Anonymous Coward says:

Re: Re: Re: You should feel our pain.

“I shouldn’t need to see a pain management specialist any time I am in pain. That’s just moronic.”

Suck it up buttercup. You shouldn’t see anyone every time you are in pain. Drugs actually change the chemistry in your brain, you shouldn’t see a doctor for every bump and bruise you get.

These prescription drugs are some serious shit and unless truly needed, should not be used. Doctors trained in pain management know the best treatments, average doctors, not so much.

Personanongrata says:

Unalienable Rights not Government Granted Rights

The DEA countered with the Supremacy Clause: valid federal laws are superior to conflicting state laws.

The US Constitution/Bill of Rights are the supreme law of the land and it’s protections (inherent to every persons humanity) are superior to conflicting state/federal laws.

Smash every last tax-feeders rice bowl and send them out into the private sector to become productive citizens where they can save for their own retirement, fund their own medical care and actually create something of value or perform a service another person is willing to voluntarily purchase/barter.

RICHARD PRICE (profile) says:


What this study also makes obvious is that opioid addiction is also ‘almost exclusively’ a result of cannabidiol deprivation.
Those idiots will say or do anything to cover their own incompetence and support their failed drug war. More than ever people are beginning to realize what science has known all along. T.H.C is actually a major nutrient. like vitamins C.D. or A. Our endocannabinoid system Is designed for the utilization of cannabis. (Normally through food intake). Also; many of the disease’s that respond to cannabis is because they were caused by Clinical endocannabinoid deficiency (CECD) to start with. A science the D.E.A. has suppressed for decades. T.H.C. is the nutrient required and used by our body to regulate pain, stop cancer replication and very many other vital and critical uses as well. And also for our psychoactive requirements. I have successfully treated schizophrenia and clinical depression for decades with T.H.C. and am convinced that T.H.C. holds the cure.(HU 210 or analog), now banned. The F.D.A. should stick to research ‘ and quit attempting to be an arm of law enforcement or to use their office to play corporate or Big Pharma politics.
. RANT # 45.865.500.560.485 (apx).

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