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District Court Says DEA’s Warrantless Access Of Oregon’s Prescription Database Is Unconstitutional

By Tim Cushing | Techdirt | February 13, 2014

Early last year, the news surfaced that the DEA was bypassing Oregon state law by using administrative subpoenas to get around the state’s warrant requirement for drug prescription database access. “Administrative subpoenas” are yet another government tool that allows agencies to seek information that would normally require a warrant, but without the hassle of running it past a judge or even showing probable cause.

The DEA probably didn’t expect to encounter much resistance to its subpoenas. After all, drugs are bad and the DEA is fighting the good fight. But the state of Oregon wasn’t impressed with the DEA’s warrantless tactics and filed suit with the assistance of the ACLU. The ACLU is now reporting that a federal judge has ruled in its (and Oregon’s favor) and the DEA (along with other law enforcement entities) will no longer be able to skirt the state’s warrant requirement.

For the first time, a federal judge has ruled that patients have a reasonable expectation of privacy in their drug prescription records, and that law enforcement must obtain a warrant in order to search such information…

“This is a victory for privacy and for the constitutional rights of anyone who ever gets drug prescriptions,” said ACLU Staff Attorney Nathan Freed Wessler, who argued the case last month. “The ruling recognizes that confidential medical records are entitled to the full protection of the Fourth Amendment. The court rightly rejected the federal government’s extreme argument that patients give up their privacy rights by receiving medical treatment from doctors and pharmacists.”

As the ruling points out, citizens have long associated privacy with medical treatment, something that has gone hand-in-hand dating back to the 4th century B.C.E. and the origin of the Hippocratic Oath. It also points out the obvious: federal law itself (HIPAA) contains built-in privacy protections. (Hence the form you have to sign, the privacy info sheet you’re handed on every visit, and signs everywhere telling you to stand behind them for the privacy of the patient in front of you.)

The judge’s decision also notes that stripping away this expectation of privacy will have a chilling effect on those seeking medical care, something that could have very adverse effects on the health of people who might avoid seeking treatment because they fear their medical records will be exposed.

As the ACLU notes in its press release, it’s not exactly happy the state of Oregon has chosen to create a centralized database of drug prescriptions, but, if it is going to do so, it has at least chosen to take the privacy of those contained in the database very seriously.

This decision strikes a small blow against the government’s routine abuse of “exceptions” to warrant requirements as well as against its even more routine abuse of the “third party doctrine,” which the DEA actually used to claim that talking to a doctor is no different than dialing a phone. The DEA knows there’s a huge difference between these two “third parties” but applying that knowledge means showing probable cause and getting a judge to sign off on the warrant, two aspects it apparently feels only hampers its War on Drugs.

February 13, 2014 - Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , ,

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