The drug war has gone rogue.
The feds are fighting to look at millions of private files without a warrant, including those of two transgender men who are taking testosterone.
Marlon Jones was arrested for taking legal painkillers, prescribed to him by a doctor, after a double knee replacement.
Jones, an assistant fire chief of Utah’s Unified Fire Authority, was snared in a dragnet pulled through the state’s program to monitor prescription drugs after someone stole morphine from an ambulance in 2012.
To find the missing morphine, cops used their unrestricted access to the state’s Prescription Drug Monitor Program database to look at the private medical records of nearly 500 emergency services personnel—without a warrant.
Jones was hit with 14 felony counts but all of them were later dropped
Now the Drug Enforcement Administration wants that same kind of power, starting with access to an Oregon database containing the private medical data of more than a million people.
The DEA has claimed for years that under federal law it has the authority to access the state’s Prescription Drug Monitor Program database using only an “administrative subpoena.”
These are unilaterally issued orders that do not require a showing of probable cause before a court, like what’s required to obtain a warrant.
Two years ago a U.S. District Court found in favor of the state, ruling that prescription data is covered by the Fourth Amendment’s protection against unlawful search and seizure.
But the DEA didn’t stop there. It appealed the ruling to the U.S. Ninth Circuit Court of Appeals in San Francisco and has been fighting tooth and nail ever since to access Oregon’s files on its own terms.
In his 2014 ruling against the DEA, District Court Judge Ancer L. Haggerty called warrantless searches of such data an egregious invasion of privacy.
The Obama administration disagrees, and argues that since the records have already been submitted to a third party (Oregon’s PDMP) that patients no longer enjoy an expectation of privacy.
This is absurd. This would mean that if we give our doctors access to our medical records, they could then give the access to a third party that allows full access to others.
Last year, after the charges against Marlon Jones were dropped, a Utah senator introduced a bill that would require police to obtain a warrant to search the database.
police in Utah searched the PDMP database as many as 11,000 times in one year alone.
“If a police officer showed up at your home and wanted to look in your medicine cabinet and you said no, he would have to go and get a search warrant.”
The Comprehensive Addiction and Recovery Act (CARA), which passed Congress in March, calls for expanding sharing of PDMP data.
From a privacy standpoint this is problematic for a number of reasons. For starters, there is little uniformity between state PDMP laws.
While most PDMPs include thte full name, address, and date of birth of the patient—as well as the name, strength, and quantity of the controlled substance dispensed—statutes vary widely in terms of what drugs are tracked and who qualifies for access.
only 19 states require a warrant for law enforcement to access their PDMP, and more than a dozen allow out-of-state police agencies access. Less than a quarter of states require that patients are notified when or if their prescription information might be accessed.
To the casual observer the databases are aimed primarily at limiting illicit use of potentially deadly opioid narcotics.
But most state PDMPs encompass a host of common pharmaceuticals—ranging from tightly controlled Schedule II drugs, like OxyContin and morphine, to more innocuous Schedule V substances, such as seizure and epilepsy drugs with virtually no potential for abuse.
Other drugs covered by state prescription monitoring laws include frequently prescribed medications that have low-to-no overdose potential. These include medications used to treat insomnia, weight loss associated with AIDS, nausea in cancer patients, anxiety disorders, and post-traumatic stress disorder. In fact, opioids represent a tiny proportion of drugs covered by PDMPs.
An amicus brief filed in support of the Oregon plaintiffs by the American Medical Association contends the DEA’s position is misguided. “The primary purpose of PDMPs is healthcare, not law enforcement,” the AMA said, adding that while PDMPs provide for referrals to law enforcement, they are not designed to be “a tool or repository for law enforcement to initiate access to gather information,” as is the case here with the DEA’s administrative subpoena.