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.

Legal Residents Claim They are Punished for Living Near Mexican Border
By Noel Brinkerhoff | AllGov | January 23, 2014
A leading civil rights group has accused Border Patrol agents of abusing the constitutional rights of U.S. citizens and legal residents living in southern Arizona.
The American Civil Liberties Union (ACLU) is demanding a government investigation of those guarding the border with Mexico.
“Border Patrol checkpoints today bear little resemblance to those authorized by the Supreme Court. Many Border Patrol officials do not understand—or simply ignore—the legal limits of their authority at checkpoints,” James Lyall, an attorney with the ACLU of Arizona, said in an administrative complaint (pdf) sent to the Department of Homeland Security’s (DHS) Office of Inspector General and Office of Civil Rights and Civil Liberties.
The ACLU also forwarded its complaint to Arizona’s congressional representatives, the U.S. Department of Justice and Customs and Border Protection (CBP).
At least 15 American citizens have been subjected to unlawful acts by Border Patrol agents at checkpoints in Arizona, the ACLU claims.
“Residents often experience extended interrogation and detention not related to establishing citizenship, unwarranted searches, racial profiling, verbal harassment, and physical assault, among other abuses,” the letter said.
In one instance, a Border Patrol agent drew his gun at a driver, pulled him from his car and handcuffed him for 45 minutes after the individual declined to answer questions unrelated to citizenship.
Another incident saw Border Patrol agents order a driver and passenger from their vehicle, and place them in wire cages while their car was searched—and all because a service dog detected something in another car.
A third case involved a mother of twin six-year-old children being threatened and assaulted by agents for lawfully attempting to record a search of her vehicle following a false canine alert.
All of the aforementioned individuals, as well as others mentioned in the ACLU complaint, were released and never charged with violating immigration or other laws. The ACLU wants the incidents it documented to be investigated.
The group previously filed two other complaints (in April 2012 and October 2013) alleging abuses by Border Patrol agents. To date, it has not received a response from the government about them.
“The ACLU believes the lack of response to widespread civil rights abuses by the nation’s largest federal law enforcement agency is symptomatic of broader oversight failures within CBP and DHS,” it said in a press release.
To Learn More:
Border Patrol Checkpoints in Southern Arizona Violate the Constitutional Rights of Border Residents, ACLU of Arizona Demands Investigation (American Civil Liberties Union of Arizona)
Complaint and Request for Investigation of Abuses at U.S. Border Patrol Interior Checkpoints in Southern Arizona, including Unlawful Search and Seizure, Excessive Force, and Racial Profiling (American Civil Liberties Union of Arizona and American Civil Liberties Union Border Litigation Project) (pdf)
Federal Judge Rules that Border Patrol Does Not Need Reasonable Suspicion to Confiscate Laptops and Phones (by Noel Brinkerhoff, AllGov)
10 Lawsuits Filed against Border Patrol for Abuse (by Matt Bewig, AllGov)

Victory! Federal Court Recognizes Constitutional Rights of Americans on the No-Fly List
By Nusrat Choudhury | ACLU | August 29, 2013
A federal court took a critically important step late yesterday towards placing a check on the government’s secretive No-Fly List. In a 38-page ruling in Latif v. Holder, the ACLU’s challenge to the No-Fly List, U.S. District Court Judge Anna Brown recognized that the Constitution applies when the government bans Americans from the skies. She also asked for more information about the current process for getting off the list, to inform her decision on whether that procedure violates the Fifth Amendment guarantee of due process.
We represent 13 Americans, including four military veterans, who are blacklisted from flying. At oral argument in June on motions for partial summary judgment, we asked the court to find that the government violated our clients’ Fifth Amendment right to due process by barring them from flying over U.S. airspace – and smearing them as suspected terrorists – without giving them any after-the-fact explanation or a hearing at which to clear their names.
The court’s opinion recognizes – for the first time – that inclusion on the No-Fly List is a draconian sanction that severely impacts peoples’ constitutionally-protected liberties. It rejected the government’s argument that No-Fly list placement was merely a restriction on the most “convenient” means of international travel.
Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation.
According to the court, placement on the No-Fly List is like the revocation of a passport because both actions severely burden the right to international travel and give rise to a constitutional right to procedural due process:
Here it is undisputed that inclusion on the No-Fly List completely bans listed persons from boarding commercial flights to or from the United States or over United States air space. Thus, Plaintiffs have shown their placement on the No-Fly List has in the past and will in the future severely restrict Plaintiffs’ ability to travel internationally. Moreover, the realistic implications of being on the No-Fly List are potentially far-reaching. For example, TSC [the Terrorist Screening Center] shares watchlist information with 22 foreign governments and United States Customs and Boarder [sic] Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security, which can result in further interference with an individual’s ability to travel as evidenced by some Plaintiffs’ experiences as they attempted to travel abroad by boat and land and were either turned away or completed their journey only after an extraordinary amount of time, expense, and difficulty. Accordingly, the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list.
The court also found that the government’s inclusion of our clients on the No-Fly List smeared them as suspected terrorists and altered their ability to lawfully board planes, resulting in injury to another constitutionally-protected right: freedom from reputational harm.
The importance of these rulings is clear. Because inclusion on the No-Fly List harms our clients’ liberty interests in travel and reputation, due process requires the government to provide them an explanation and a hearing to correct the mistakes that led to their inclusion. But under the government’s “Glomar” policy, it refuses to provide any information confirming or denying that our clients are on the list, let alone an after-the-fact explanation and hearing.
The court has asked the ACLU and the government for more information about the No-Fly List redress procedure to help it decide the ultimate question of whether that system violates the Fifth Amendment right to due process. We are confident the court will recognize that the government’s “Glomar” policy of refusing even to confirm or deny our clients’ No-Fly List status (much less actually providing the reasons for their inclusion in the list) is fundamentally unfair and unconstitutional.
Police militarization comes under nationwide investigation
RT | March 07, 2013
The American Civil Liberties Union has launched a campaign to investigate the growing trend of placing militarized police units in cities and towns across the country.
Doors busted down and windows smashed in. It’s becoming more of a regular occurrence each day in America as heavily-armed SWAT teams are being sent to the homes of suspects, often nonviolent ones, with enough firepower to take down a small army. In November, a botched raid ended with an 18-year-old girl in the hospital. Other incidents haven’t been exactly isolated either: guns get drawn on both grannies and grandkids alike, and equipping law enforcement officers with the means to make these nightmares become reality is easier by the day.
Police units across the US are becoming more like militaries than the serve-and-protect do-gooders that every young schoolboy once aspired to be. Not only are officers being trained to act with intensity as the number of these home invasions increase, but more and more police departments are being awarded arsenals of heavy-duty weaponry that are then being turned not onto members of al-Qaeda, but innocent children and unsuspecting house guests.
ACLU affiliates across the United States filed Freedom of Information Act requests with law enforcement agencies on Wednesday in hope of obtaining as much material as possible relevant to the ongoing expansion of small town police squads to heavily armed squadrons of soldiers.
“Federal funding in the billions of dollars has allowed state and local police departments to gain access to weapons and tactics created for overseas combat theaters – and yet very little is known about exactly how many police departments have military weapons and training, how militarized the police have become, and how extensively federal money is incentivizing this trend,” reads a statement released by the ACLU. “It’s time to understand the true scope of the militarization of policing in America and the impact it is having in our neighborhoods.”
On Wednesday, the ACLU issued a statement saying branches and affiliates in 23 states around the country filed over 255 public records requests only hours after the investigation was formally launched. The agencies hope that, by analyzing documents, can learn more about the extent that “federal funding and support has fueled the militarization of state and local police departments.”
“Equipping state and local law enforcement with military weapons and vehicles, military tactical training, and actual military assistance to conduct traditional law enforcement erodes civil liberties and encourages increasingly aggressive policing, particularly in poor neighborhoods and communities of color,” explains Kara Dansky, senior counsel for the ACLU’s Center for Justice. “We’ve seen examples of this in several localities, but we don’t know the dimensions of the problem.”
The ACLU says they want to know as much as possible about the type of training given to local SWAT officers, as well as information about the types of technology used by agencies around the country. Through the FOIA requests, the ACLU hopes to learn what types of weapons have been used, who they’ve been used on and what the end result has been. They also want documentation pertaining to the growing use of GPS technology, surveillance drones and any agreements between local police departments and the National Guard. The ACLU is also interested in any relationships between small law enforcement units and the US Departs of Defense and Homeland Security.
“The American people deserve to know how much our local police are using military weapons and tactics for everyday policing,” adds Allie Bohm, an advocacy and policy strategist for ACLU. “The militarization of local police is a threat to Americans’ right to live without fear of military-style intervention in their daily lives, and we need to make sure these resources and tactics are deployed only with rigorous oversight and strong legal protections.”
In 2011, the Department of Defense gave half-a-billion dollars’ worth of military machinery that would have been left otherwise unused to law enforcement agencies coast-to-coast. Among the items offered up to officers at no cost at all that year were grenade launchers, helicopters, military robots, M-16 assault rifles and armored vehicles. Before 2012 came to a close, figures for that year were expected to end with more than a 400 percent increase.
Peter Kraska, a criminologist at Eastern Kentucky University, tells journalist Radley Balko that while the militarization of police squads is indeed accelerating, it isn’t likely the ACLU will get all the answers they want.
“My experience is that they’ll have a very difficult time getting comprehensive, forthright information,” Kraska says. “If the goal here is to impose some transparency, you have to understand, that’s not what the SWAT industry wants.”
Related article
Homeland Security Approves Seizure of Cell Phones and Laptops within 100 Miles of Border; Report Remains Secret
By Matt Bewig | AllGov | February 11, 2013

(graphic: ACLU)
Americans have no Fourth Amendment rights against unreasonable searches and seizures if they happen to be within 100 miles of the border, according to the “Executive Summary” of a still-secret report by the Department of Homeland Security (DHS). As the ACLU-created map above shows, nearly 2/3 of Americans (197 million people)—including the entire populations of Florida, Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Delaware, Maryland, Washington, DC, and Michigan—live in this “Constitution free” zone, as do the residents of the nation’s five most populous cities: New York, Los Angeles, Chicago, Houston and Philadelphia.
The secret report is DHS’s response (two years late) to critics of its policy, in place since at least 2008, of allowing border control agents, without a warrant or even a suspicion of wrongdoing, to search any travelers’ electronic devices (laptops, cell phones, tablets, cameras, etc.) and seize data they find. According to a Freedom of Information Act request (FOIA) filed three years ago by the ACLU, DHS subjected more than 6,500 travelers—nearly half of them U.S. citizens—to searches under this policy between October 2008 and June 2010.
The Executive Summary of the secret report, which DHS is allowing the public to see, sets forth its conclusions without even summarizing the reasoning underlying them. Thus it asserts that “imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” but is silent on how DHS defines “civil rights/civil liberties benefits” or how it balances these against its institutional needs.
The ACLU, which has already filed an FOIA request demanding the full report, released a statement arguing that “allowing government agents to search through all of a traveler’s data without reasonable suspicion is completely incompatible with our fundamental rights: our Fourth Amendment right to privacy—and more specifically the right to be free from unreasonable searches—is implicated when the government can rummage through our computers and cell phones for no reason other than that we happen to have traveled abroad. Suspicionless searches also open the door to profiling based on perceived or actual race, ethnicity, or religion. And our First Amendment rights to free speech and free association are inhibited when agents at the border can target us for searches based on our exercise of those rights.”
To Learn More:
DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border (by David Kravets, Wired)
Justice Department White Paper Details Rationale for Targeted Killing of Americans
Document Outlines Government’s Claimed Authority to Kill American Citizens Outside Combat Zones
ACLU | February 4, 2013
NEW YORK – A Justice Department white paper argues that the government has the right to carry out the extrajudicial killing of American citizens that the government believes are affiliated with a terrorist organization, according to the document posted tonight on NBCNews.com. The white paper summarizes a memo prepared in 2010 by the Justice Department’s Office of Legal Counsel (OLC) to justify the targeting of U.S. citizen Anwar Al-Awlaki.
“This is a profoundly disturbing document, and it’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority – the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement before or after the fact,” said Hina Shamsi, director of the ACLU’s National Security Project.
“But this briefing paper is not a substitute for the 50-page legal memo on which it’s based. When the executive branch seeks to give itself the unilateral authority to kill its own citizens, a summary of its argument is no substitute for the argument itself. Among other things, we need to know if the limits the executive purports to impose on its killing authority are as loosely defined as in this summary, because if they are, they ultimately mean little. President Obama rightly released the Bush-era OLC torture memos and he should now hold his own administration to the same standard by releasing its killing memo.”
Tomorrow, the American Civil Liberties Union and the Center for Constitutional Rights will file a court brief arguing against the government’s attempt to dismiss their lawsuit challenging the targeted killing of Al-Awlaki and two other Americans in Yemen in 2011, Al-Awlaki’s 16-year-old son Abdulrahman and Samir Khan.
The OLC memo summarized by the white paper is one of the documents sought by the ACLU’s pending Freedom of Information Act lawsuit. That case was dismissed last month by a federal judge in New York, and last Friday the ACLU filed a notice of appeal. The government argued that the requested documents cannot be released, despite the fact that government officials have talked publicly on numerous occasions about Al-Awlaki’s killing and the targeted killing program in general.
The D.C. Circuit Court of Appeals is currently considering another FOIA lawsuit filed by the ACLU seeking other information on the U.S. targeted killing program, including its legal basis, scope, and number of civilian casualties caused by drone strikes. The court heard oral argument in September.
An in-depth analysis of the DOJ white paper in a blog post written by ACLU Deputy Legal Director Jameel Jaffer is at:
www.aclu.org/blog/national-security/justice-department-white-paper-details-rationale-targeted-killing-americans
Information on the ACLU’s targeted killing lawsuits is at:
www.aclu.org/national-security/targeted-killings
Related articles
The ACLU and Obama’s Assassination Program
By Binoy Kampmark | Dissident Voice | April 2, 2012
Due process and judicial process are not one and the same. The Founders weren’t picky. Trial by jury, trial by fire, rock-paper-scissors – who cares?
— Stephen Colbert, March 6, 2012
The policies around the assassination program of the United States are surreal.
Trafficking in murder while espousing noble things is a habit regimes fall into, though the more sinister ones tend to use weasel words to conceal that fact. The Obama administration, having long abandoned its role as the knight in shining armour, is now rusting away with the effects of realpolitik.
The ACLU has been trying through Freedom of Information channels to force a disclosure of the guidelines the administration uses in targeting foreign nationals or American citizens through the infamous drone program that has become de rigueur in military circles. The CIA has insisted that it cannot confirm or deny the existence or non-existence of those records that cover the targeting of individuals, or whether it is even employing such vehicles in the first place. They are “intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended”. In such circles, the response is termed the Glomar response, after the CIA’s refusal in 1976 to confirm or deny its relationship with Glomar Explorer, a drill ship created at the direction of Howard Hughes for the agency to recover the sunken Soviet submarine, the K-129.
In the words of Jameel Jaffer of the ACLU, as reported by Salon (March 26). “At this point, the only consequence of pretending that it’s a secret program is that the courts don’t play a role in overseeing it.” With the courts left out in the cold, the administration can run riot. This, of course, is its self-appointed prerogative.
The Obama administration is engaging in a lexical game of murder, a game that has certainly silenced many of those who would have expressed outrage at the assortment of abuses perpetrated by the Bush administration. Tinker with the words, and the result is considered perfectly justifiable in the name of a higher state interest. This is Cheney with the gloss, Rumsfeld with the polish. Adjust the terms of reference, and assassination is an entirely rum thing.
Obama’s front man in this entire business, in true tasteless fashion, is Eric Holder. Instead of defending the law as is the incumbent duty of any Attorney General, he has a nasty tendency to get sick on it. He brings in his broom to clean up, and in its place he leaves the slime of gibberish. At Northwestern University Law School, he clearly repudiated the position he had taken regarding the Bush administration, whose policies in the ‘war on terror’ had occasioned ‘needlessly abusive and unlawful practices’. That, however, was in 2008. The new Holder was a different beast, more prone to splitting hairs. ‘Due process’ and ‘judicial process’, we are made to realise, ‘are not one and the same’. The President, according to Holder, is not required to seek permission from any court before targeting American citizens abroad (Washington Times, March 12).
Supposedly, the targeting of such individuals is constrained by guidelines. The problem with such dangerous talk is that guidelines are merely points on paper, the scrawl of the moment. They have a tendency of disappearing as quickly as they appear. These guidelines tend to revolve around the nature of the target (an operative of a terrorist group seeking to actively kill American citizens, for one; that the target poses an imminent threat to the US; that the capture of the target is impractical; and that the target is to be eliminated on the basis of ‘relevant law of war principles’ (Washington Times, March 12). Such determinations do not lie in the legal domain. They are rather matters of political expediency.
An administration up to its eyeballs with legal rhetoric is bound to eventually be told it has no clothes, that its efforts are simply acts of distortion. The time it seems, courtesy of the ACLU’s efforts, is now.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. He can be reached at bkampmark@gmail.com
Related articles
- Demolishing Due Process (alethonews.wordpress.com)
- U.S. drones targeting rescuers and mourners (salon.com)
Results of Nationwide Government Cell Phone Tracking Records Request Show Frequent Violations of Americans’ Privacy Rights
By Catherine Crump, ACLU Staff Attorney | March 31, 2012
The ACLU has just released the results of our affiliates’ public records requests to hundreds of police departments around the country asking them about their cell phone tracking policies.
What we have learned is disturbing. Many of the approximately 200 law enforcement agencies that responded said they track cell phones without a warrant. As The New York Times reports, this invasive form of surveillance often happens without any court oversight at all.
A small number of agencies, such as in North Las Vegas and Wichita, said they do obtain warrants based on probable cause before tracking. Others, such as the Kentucky State Police, said they use varying legal standards, such as a warrant or a less-strict subpoena. The result is unclear or inconsistent legal standards from town to town that frequently fall short of probable cause.
The government should have to get a warrant before tracking cell phones. That is what is necessary to protect Americans’ privacy, and it is also what is required under the Constitution.
The fact that some law enforcement agencies do get warrants shows that a probable cause requirement is a completely reasonable and workable policy, allowing police to protect both public safety and privacy.
Last August, in an unprecedented effort to penetrate the secrecy around the policies, 35 ACLU affiliates around the country filed over 380 requests under states’ freedom of information laws. The ACLU asked state and local law enforcement agencies about their policies, procedures and practices for tracking cell phones. An in-depth summary of what we found, with links to documents, is here.
The responses varied widely, and many agencies did not respond at all. The documents included statements of policy, memos, police requests to cell phone companies (sometimes in the form of a subpoena or warrant), and invoices and manuals from cell phone companies explaining their procedures and prices for turning over location data. There’s a map with links to the documents and requests state-by-state here.
The documents provide an eye-opening view of police surveillance of Americans. In Wilson County, N.C., police obtain cell phone tracking data where it is “relevant and material” to an ongoing investigation – a standard much lower than probable cause. Police in Lincoln, Neb., without demonstrating probable cause, obtain even GPS location data, which is more precise than cell tower location information. In Tucson, Ariz., police sometimes obtain cell phones numbers for all of the phones at a particular location at a certain time (this practice is known as a “tower dump”).
The U.S. Supreme Court in January held in U.S. v. Jones that prolonged location tracking is a search under the Fourth Amendment, but the effects of that ruling on law enforcement have yet to be seen.
The ACLU supports bipartisan legislation currently pending in both the House of Representatives and the Senate that would address this problem called the Geolocation Privacy and Surveillance (GPS) Act. It would require law enforcement officers to obtain a warrant to access location information from cell phones or GPS devices. It would also mandate that private telecommunications companies obtain their customers’ consent before collecting location data. At least 11 state legislatures are also considering bills related to location tracking.Technology is evolving quickly, and often to the detriment of privacy. How much privacy Americans enjoy is a choice that ultimately is ours as a society to make.
Tell Congress: Support the GPS Act!
Act Now
Related articles
- Even After Supreme Court GPS Decision, Feds Still Want Warrantless Cell Phone Tracking (alethonews.wordpress.com)
- EFF Backs Judge Calling for Warrant in Cell Phone Tracking Case (eff.org)
- Your cell phone is a government issued tracking device (alethonews.wordpress.com)
