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

Pharmacy in St. George, Utah
Pharmacy in St. George, Utah
Eliza Sweren-Becker,
ACLU Speech, Privacy, and Technology Project
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July 28, 2016

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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