ACLU Supports State of Utah in Legal Showdown With DEA Over Medical Privacy

Today, the ACLU and its Utah affiliate filed a motion to intervene in a legal showdown between the federal Drug Enforcement Administration and the state of Utah over the DEA’s efforts to obtain confidential prescription records from a state database without a warrant.

Utah began tracking prescriptions for certain drugs dispensed by pharmacies in 1996, compiling those records into the Utah Controlled Substance Database (UCSD). The program, similar to those in most other states, was intended to help physicians prevent drug overdoses by their patients and more easily recognize signs of drug abuse. In 2014 it was discovered that one Utah detective had searched the prescription drug records of at least 480 full-time employees of Utah’s largest fire agency without judicial oversight, and improperly charged at least two employees with crimes they didn’t commit. In response, Utah’s legislature in March 2015 amended the law that regulates access to the UCSD, requiring law enforcement officers to obtain a probable cause warrant from a court before they can gain access to the database.

But, despite Utah’s law requiring a warrant, the DEA has been using administrative subpoenas to request access to drug records in Utah’s prescription database. Unlike a search warrant issued by a neutral magistrate upon a finding of probable cause, an administrative subpoena can be issued by the government when an agent merely believes that the records will be “relevant or material” to an investigation. Utah refuses to comply with the subpoenas because they violate state law and the Fourth Amendment, and the DEA has responded by filing a lawsuit asking a federal judge to compel Utah to comply with one of the subpoenas.

Fortunately, when it comes to prescription drug records, Utah has far more respect for the Fourth Amendment than the federal government. Prescription drug records can reveal some of the most private and sensitive information about us. A patient’s prescription for testosterone can reveal his transgender identity, along with the status and stage of his transition. Information about a patient’s prescription for clonazepam, or other anti-anxiety medications, indicates that the person suffers or has suffered from a mental illness. Ritalin and Adderall typically treat Attention Deficit Hyperactivity Disorder. A prescription for a narcotic painkiller like hydromorphone or oxycodone might reveal that a patient has cancer or another chronic illness.

In our motion to intervene, we’re representing the firefighters’ union in Salt Lake County, the LGBTQ group Equality Utah, members of the ACLU of Utah, and two individuals who use psychiatric drugs that are tracked in UCSD—all of whom have an interest in maintaining the privacy of their prescription drug records.

Utah’s warrant requirement prevents law enforcement agents from going on the sort of fishing expedition that ensnared hundreds of innocent firefighters and paramedics, exposing their most private information to unjustified government scrutiny. But the law doesn’t stop law enforcement agencies from doing their job. Police can still access records in the UCSD when they have demonstrated to a judge that there is probable cause to believe a crime has been committed.

We expect the federal government to argue that they don’t need to get a warrant to access prescription drug records because those records are not entitled to Fourth Amendment protection under the so-called “third-party doctrine.” In some contexts, courts have held that information turned over to a third party can be obtained by the police without a warrant because a person no longer has a “reasonable expectation of privacy” in information that she has provided to others. Though we disagree with this principle, the third party doctrine, even on its own terms, should not apply to medical records. More than the phone numbers we dial, the trash we set out on the sidewalk, or the canceled checks we provide to our bank, prescription drug records reveal extraordinarily intimate information shared with doctors and pharmacists. Indeed, the long-standing principle of doctor-patient confidentiality recognizes the deeply personal nature of information that patients reveal to their physicians.

Trusting our doctors with our medical information shouldn’t grant the DEA easy access to our medical records. That’s what a federal judge in Oregon concluded in another ACLU suit against the DEA two years ago. And that’s why a diverse coalition of Utahns has intervened in this case to ensure that the Fourth Amendment protects our most private medical information.

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Anonymous

Though I am an American, I've lived in northern Europe for so long that this all sounds very foreign to me. With my "person number" (same as a Social Security Number) I can fill any prescription at any pharmacy in the country -- it's all online. If I have to go to the emergency room or a new doctor, they can find my medical records online. Within the district I live in, I, too, can find all these records about myself online; not all districts have come that far yet. I've not heard of any problems with or misuse of these records. The occasional exception is in the case of a divorce where parents many not agree on whom (one or both) is to get access to the children's records. It is sad that there is in the US apparently not the same common respect for others' personal information.

Anonymous

Actually, most people in the U. S. *do* have that "common respect" for others' medical information. The problem we are facing is that our law enforcement fails to have that common respect. I hope that you are correct about your country's law enforcement not misusing those records, but I fear it may simply be that you're not being told.

Anonymous

You need to log on to your account for your information, I assume. That is your expectation of privacy. In the US, the government generally can't investigate your private information and papers and belongings without a warrant from a judge or magistrate. I assume that your police can't simply look up your medical records, can they? They would need your permission, your login information, or a search warrant. Just like in the US. Here the US government is trying to avoid that warrant procedure and get people medical records. The state of Utah, through its state government, has refused to cooperate with the US in the matter.
It isn't about someone looking up your information. It's about the government doing it with no suspicious of criminal activity.

h4x354x0r

Doesn't what the DEA is trying to do also violate HIPPA?

Anonymous

Yes.

Anonymous

Actually no. HIPPA was more Actually called the invasion of Healthcare privacy law. Anyone in government can request acres to your health records. Obamacare mandated a uniform electronic record so the government can have full access from any government terminal rather than going to physical store front.
Other information the government will have access to includes days needed to create a donor match data base. That information would very variable to a certain class of people and could lead to a sharp rise in fatal head trauma.

Anonymous

Yes

Anonymous

They won't need a warrant once the Obamacare mandated electronic medical records go on line. Every medical record in the country will then be available for anyone in the federal bureaucracy. Everyone with access to a law enforcement linked computer will have access.
It won't matter if there is a law saying that can't use that access for outside specific guidelines. But then it was illegal for the IRS to target groups opposed to Obama. And nobody was prosecuted.

Anonymous

Lol. They'll go on line all at once and all be interfaced... I don't need ur med excitred to know ur retarded :0

Anonymous

As a truck driver I am forced to list all my medication I take on my long form DOT and I am subject to random drug test anytime talk about invasion. I would assume anyone driving a fire engine would be subject to the same regs as well as bus drivers , boat Captains, pilots and railroad workers

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