Oregon PDMP v. U.S. DEA

RxFebruary 11, 2014 - Portland - 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. The American Civil Liberties Union and the ACLU of Oregon represented a group of Oregon patients and a physician in the lawsuit against the Drug Enforcement Administration.

“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 government’s extreme argument that patients give up their privacy rights by receiving medical treatment from doctors and pharmacists.”

In 2009, the Oregon legislature created the Oregon Prescription Drug Monitoring Program, a database that tracks millions of patient prescriptions to help physicians and pharmacists prevent addiction and overdoses caused by the misuse of some controlled substances. At the insistence of the ACLU of Oregon, the state included strict privacy protections for the database, including a warrant requirement for any law enforcement access. However, the DEA claimed that a federal law allowed them to access the database using only an “administrative subpoena,” which does not involve a judge or require the government to show probable cause.

“We opposed creating a massive database that would contain the prescription records of Oregon patients and physicians who had done nothing wrong,” said David Fidanque, Executive Director of the ACLU of Oregon. “Nevertheless, we helped convince Oregon lawmakers to add important safeguards to the program and we’re pleased that the court has recognized the importance of protecting medical privacy.”

The State of Oregon filed a lawsuit against the DEA, and the ACLU joined the case. Today’s ruling by U.S. District Judge Ancer Haggerty granted the ACLU’s motion for summary judgment and denied the government’s motion, with the result that the DEA must get a warrant to access the prescription records in Oregon.

ACLU Files in Court to Protect Privacy of Drug Prescriptions

January 25, 2013 - Portland - The American Civil Liberties Union and the ACLU of Oregon filed a complaint in court today challenging the federal Drug Enforcement Administration's (DEA) claim that it can access Oregonians' private prescription records in a state database without a warrant. In November, the State of Oregon sued the DEA in federal court to prevent the agency from circumventing a state law requiring a warrant for such access, and today the ACLU filed a motion to intervene in the case on behalf of several patients and a doctor whose prescription records are in the database.

In 2009, Oregon enacted legislation to create the Oregon Prescription Drug Monitoring Program (PDMP), which records information on millions of prescriptions for Oregon patients. The database tracks prescriptions needed to treat chronic and acute pain, anxiety and panic disorders, weight loss associated with AIDS, Attention Deficit Hyperactivity Disorder, and other conditions.

In order to safeguard the privacy and security of these records, the Oregon law includes a prohibition against PDMP releasing records to any federal, state or local law enforcement official without a warrant based on probable cause. However, the DEA has been issuing the PDMP administrative subpoenas, which do not involve a judge, seeking prescription records of patients and physicians. The State of Oregon believes that complying with the subpoenas will put the PDMP in the position of violating Oregon law, so it has asked a federal judge to clarify whether the federal regulation used by the DEA preempts state law.

“Oregon law and the U.S. Constitution clearly require the DEA to get a warrant just like any other law enforcement agency,” said David Fidanque, Executive Director of the ACLU of Oregon. “The ACLU opposed the creation of the Oregon prescription database precisely because we are concerned with protecting the privacy of patients and doctors who have done nothing wrong. The Legislature agreed to add the search warrant requirement to partially address that concern.”

The ACLU clients seeking to intervene in the state’s lawsuit include the ACLU of Oregon, on behalf of the patients and physicians among its approximately 11,000 members whose prescription records are contained within the PDMP and who object to the DEA accessing those records without a warrant. The ACLU also represents four patients and one physician who are using pseudonyms in the lawsuit to protect their privacy. Each of the patient-clients takes medications prescribed by their physicians that are appropriate for their medical conditions and are schedule II, III or IV drugs under the Controlled Substance Act. The physician-client specializes in internal medicine, geriatrics, and hospice care.

The attorneys in the case are Ben Wizner and Nathan Wessler of the ACLU Speech, Privacy and Technology Project, and Kevin Díaz of the ACLU Foundation of Oregon.