In Court Today: Defending Medical Records from Warrantless Search

I will be in federal district court in Oregon today for oral argument in the ACLU’s challenge to the Drug Enforcement Administration’s practice of obtaining Oregon patients’ confidential prescription records without a warrant. We represent patients and a doctor whose prescriptions are tracked in the Oregon Prescription Drug Monitoring Program (PDMP), a state database intended as a public health tool to help doctors and pharmacists avoid and treat drug overdoses and abuse by their patients. Although Oregon law requires police to get a probable cause warrant from a judge before requesting PDMP records in an investigation, the DEA refuses, and instead uses administrative subpoenas to request the records. Unlike a warrant, those subpoenas involve neither prior approval of a judge nor a showing of probable cause.

The DEA argues that they don’t need a warrant because people have “no constitutionally protected privacy interest” in their confidential prescription records, but that’s just wrong. As we explained in our opening brief in the case:

This case concerns the right to privacy under the Fourth Amendment in some of the most personal and sensitive information people have: prescription records and the confidential medical information they reveal. Prescription records can divulge information not only about the medications a person takes, but also about her underlying medical conditions, the details of her treatment, and her physician’s confidential medical advice—all matters that society recognizes as deeply personal and private. Indeed, Oregon law recognizes the need for privacy in this information by specifically requiring that law enforcement obtain a probable cause warrant for such records. Yet, claiming that the State’s warrant requirement is preempted by federal law, the federal Drug Enforcement Administration seeks to obtain—and in one case has in fact obtained—Oregon patients’ confidential prescription records using administrative subpoenas that do not require a showing of probable cause.

Irrespective of whether the State’s own warrant requirement is preempted, the DEA’s practice violates patients’ reasonable expectation of privacy in their prescription records and, therefore, runs afoul of the Fourth Amendment to the U.S. Constitution. A warrant would be required for federal agents to enter the inner sanctum of a person’s home and rifle through the contents of her medicine cabinet or bedside drawer; no less protection is required simply because the same information is also stored in a secure database in digital form. As with any other search that infringes on a reasonable expectation of privacy, the DEA must obtain a judicial warrant before perusing a digital archive of patients’ confidential health information.

That’s why we’re in court today. When law enforcement wants access to people’s most private information, it must comply with the Fourth Amendment. We hope this case will help enforce that rule, and protect the privacy of our most sensitive medical information.