District Court Says DEA's Warrantless Access Of Oregon's Prescription Database Is Unconstitutional

from the the-War-on-Drugs-has-no-time-for-your-outdated-'rights' dept

Early last year, the news surfaced that the DEA was bypassing Oregon state law by using administrative subpoenas to get around the state's warrant requirement for drug prescription database access. "Administrative subpoenas" are yet another government tool that allows agencies to seek information that would normally require a warrant, but without the hassle of running it past a judge or even showing probable cause.

The DEA probably didn't expect to encounter much resistance to its subpoenas. After all, drugs are bad and the DEA is fighting the good fight. But the state of Oregon wasn't impressed with the DEA's warrantless tactics and filed suit with the assistance of the ACLU. The ACLU is now reporting that a federal judge has ruled in its (and Oregon's favor) and the DEA (along with other law enforcement entities) will no longer be able to skirt the state's warrant requirement.

For the first time, a federal judge has ruled that patients have a reasonable expectation of privacy in their drug prescription records, and that law enforcement must obtain a warrant in order to search such information…

“This is a victory for privacy and for the constitutional rights of anyone who ever gets drug prescriptions,” said ACLU Staff Attorney Nathan Freed Wessler, who argued the case last month. “The ruling recognizes that confidential medical records are entitled to the full protection of the Fourth Amendment. The court rightly rejected the federal government’s extreme argument that patients give up their privacy rights by receiving medical treatment from doctors and pharmacists.”
As the ruling points out, citizens have long associated privacy with medical treatment, something that has gone hand-in-hand dating back to the 4th century B.C.E. and the origin of the Hippocratic Oath. It also points out the obvious: federal law itself (HIPAA) contains built-in privacy protections. (Hence the form you have to sign, the privacy info sheet you're handed on every visit, and signs everywhere telling you to stand behind them for the privacy of the patient in front of you.)

The judge's decision also notes that stripping away this expectation of privacy will have a chilling effect on those seeking medical care, something that could have very adverse effects on the health of people who might avoid seeking treatment because they fear their medical records will be exposed.

As the ACLU notes in its press release, it's not exactly happy the state of Oregon has chosen to create a centralized database of drug prescriptions, but, if it is going to do so, it has at least chosen to take the privacy of those contained in the database very seriously.

This decision strikes a small blow against the government's routine abuse of "exceptions" to warrant requirements as well as against its even more routine abuse of the "third party doctrine," which the DEA actually used to claim that talking to a doctor is no different than dialing a phone. The DEA knows there's a huge difference between these two "third parties" but applying that knowledge means showing probable cause and getting a judge to sign off on the warrant, two aspects it apparently feels only hampers its War on Drugs.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    silverscarcat (profile), Feb 13th, 2014 @ 8:49am

    Like I said before...

    The third party doctrine is Bullshit.

    Unless a person is listening in on the conversation directly, you should have an expectation of privacy with your phone calls.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Feb 13th, 2014 @ 10:10am

    What is the problem with getting a warrant?

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Feb 13th, 2014 @ 10:11am

    Where there is war, there have to be casualties

    That's kind of obvious. I don't know what you are fussing about.
    Besides - think about THE CHILDREN(tm)!

    reply to this | link to this | view in thread ]

  4. identicon
    PRMan, Feb 13th, 2014 @ 10:21am

    Re: Like I said before...

    Yes, that also is illegal in most states if you or I did it without either party being notified.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Feb 13th, 2014 @ 10:28am


    Judges object to law enforcement going on fishing expeditions.

    reply to this | link to this | view in thread ]

  6. identicon
    Mark Wing, Feb 13th, 2014 @ 10:35am

    "The war on drugs isn't winnable, but it's eminently fundable. The people in Washington are addicted to it." ~ Judge Gray

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Feb 13th, 2014 @ 10:41am

    Yeah, sounds like Oregon has an equivalent of Virginia's prescription drug monitoring program. For reference:


    Highly useful for checking to see if a patient seeking narcotics is on the up and up so you can just tell them no. Or dismiss them from the practice.

    Sounds like the DEA was trying to get access whenever they wanted, instead of only getting access when they have an open investigation and a warrant. Good to hear they didn't get it. The point of these programs is to curb prescription abuse, not to make it easy to find people to prosecute.

    reply to this | link to this | view in thread ]

  8. identicon
    Guest Lawyer, Feb 13th, 2014 @ 10:43am

    Correction to Headline

    While this is a good decision, unfortunately, it is not a Ninth Circuit decision (which, if published, would have precedential, binding value)--it is merely a district court decision (while sometimes persuasively cited by attorneys and courts, these types of decisions' holdings have no actual legally binding value). It is likely that this case will result in an appeal to the Ninth Circuit which, if that appellate court agrees with the district court here, would be binding upon district courts within the circuit.

    reply to this | link to this | view in thread ]

  9. icon
    SolkeshNaranek (profile), Feb 13th, 2014 @ 10:48am

    What is the problem with getting a warrant?Re:


    You mean law enforcement agencies should actually do their job properly, the way the Constitution and Founding Fathers intend?

    Why, that means they would have to do some actual work, and know the law, and other unpleasant things like that..

    Heaven forbid...


    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Feb 13th, 2014 @ 11:03am


    Given that technology likely makes this significantly easier from an administrative perspective than any other time in history, I can only think of the following reasons:

    - Lazy DEA agents
    - Lack of reading/writing/communication skills
    - Weak/no case
    - A judge would likely NOT grant the warrant
    - They would prefer to not be scrutinized
    - Questionable methods use during investigation
    - General incompetence
    - Lack of any civics training
    - Lack of respect for the Constitution
    - Contempt for the general populace
    - Self-righteous attitude, common with members of law enforcement

    I could go on and on and on...

    reply to this | link to this | view in thread ]

  11. identicon
    edpo, Feb 13th, 2014 @ 11:12am

    Screw the DEA

    Fuck those guys, seriously. I'm sure on an individual level many DEA employees, just like NSA employees and contractors, probably feel like they're doing something worthwhile.

    But once you look at the big picture - the results and implications - it becomes clear these large executive branch entities are themselves the problem.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, Feb 13th, 2014 @ 11:33am

    Re: Re: Like I said before...

    Actually, it is illegal in ALL states without EITHER party being notified if a citizen does it. In some states both party's have to be notified.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, Feb 13th, 2014 @ 11:35am


    Law enforcement just hates it when due process is enforced.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, Feb 13th, 2014 @ 11:43am

    This is a SHAME!!!

    Now I can't look up the pharmacy records in search of all of those hot chicks with drug addictions so I can blackmail them for some nookie!

    I will have DMV cross reference their faces with the TSA full body scanner systems to help make sure I can find high quality candidates.... because... terrorism! I mean... just think of the children!!!

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, Feb 13th, 2014 @ 1:02pm

    Re: Warrents

    If the official obtained a warrant they would have to outline their suspicions, supporting evidence, swear that the information supplied was true, and accept personal responsibly for errors & mistakes, without warrants the state bears the responsibility for errors.
    So more taxpayer money spent on compensation, less on roads, schools, health, fire, police, military, etc. we taxpayers pay when police make a mistake, we pay more when a corrupt official can abuse the system, without leaving a trace in the system,

    So Warrants get in the way of the dishonest official and that the problem with them

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, Feb 13th, 2014 @ 1:05pm

    Re: This is a SHAME!!!

    Which Children, the ones you want to father

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, Feb 13th, 2014 @ 2:02pm


    The DEA strong-armed the VA PMP for all their data too. They folded, gave it up, didn't know what the DEA was going to do with the data, and so tried to preemptively blame any subsequent mischief on a "hacker" who "stole it".

    reply to this | link to this | view in thread ]

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