ACLU Speech, Privacy & Technology Project: The Drug Enforcement Administration thinks people have “no constitutionally protected privacy interest” in their confidential prescription records, according to a brief filed last month in federal court. That disconcerting statement comes in response to an ACLU lawsuit challenging the DEA’s practice of obtaining private medical information without a warrant. The ACLU has just filed its response brief, explaining to the court why the DEA’s position is both startling and wrong.
We represent four patients and a physician in Oregon whose confidential prescription records are contained in a state database that tracks prescriptions for certain drugs. The database, called the Oregon Prescription Drug Monitoring Program (PDMP), was intended to be a public health tool to help physicians avoid drug overdoses and abuse in their patients. Despite a state law requiring law enforcement to obtain a probable cause warrant from a judge before requesting records from the PDMP, the DEA has been requesting records using administrative subpoenas, which do not involve judicial authorization or probable cause. Our clients object to the DEA’s warrantless access to the PDMP because their prescription records reveal deeply private information about their health and medical history, including their gender identity (two of our clients are transgender men taking testosterone as part of their transition from female to male sex) and mental illness (one client takes medication to treat anxiety and post-traumatic stress disorders).
In July, we explained to the court why people have a “reasonable expectation of privacy” in their confidential prescription records and the medical information those records reveal. (Under the Fourth Amendment, if there is a reasonable expectation of privacy in an item or location, law enforcement can generally conduct a search only if it first obtains a warrant). In support of our arguments, we submitted sworn declarations from medical privacy experts, including a scholar of medical ethics and a physician who explained that maintaining the confidentiality of doctor-patient communications is vital to the successful practice of medicine, and an authority on the history of medical ethics who explained that principles of medical confidentiality were well established at the time of the writing of the Fourth Amendment and would have been relied on by the Amendment’s framers.
In its latest brief, the DEA ignores these points and instead argues that the mere fact that our clients’ prescription records are held in a database maintained by a third party—the State of Oregon—means that they have somehow given up their privacy interest in the records. [Continue reading…]