By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project
A federal judge has granted the ACLU’s motion to intervene in an Oregon case that raises the question of whether the Fourth Amendment allows Drug Enforcement Administration agents to obtain confidential prescription records without a judge’s prior approval. (We’ve previously written about the case here).
Like most states, Oregon operates a Prescription Drug Monitoring Program (PDMP), which tracks prescriptions for certain drugs dispensed in the state. As one of the chief sponsors of the legislation creating the PDMP recently explained, the program is intended to be a public health tool to help physicians and pharmacists prevent drug overdoses and abuse by their patients. It was not created for use by law enforcement. Recognizing that records of a person’s prescriptions can reveal private information about their underlying medical conditions, the Oregon legislature instituted robust privacy protections, including a requirement that law enforcement must obtain a warrant before requesting records for use in an investigation.
Despite this requirement, the DEA has been requesting prescription records from the PDMP using administrative subpoenas which, unlike warrants, do not involve demonstrating probable cause to a neutral judge. The State of Oregon sued the DEA in federal court to defend its right to require law enforcement, including federal agencies, to obtain the warrants required by state law. The dispute between Oregon and the DEA concerns whether the DEA’s federal investigative powers preempt Oregon state law, but neither party represents the privacy rights of Oregon patients themselves. So, we filed a motion to intervene on behalf of individual clients in Oregon who believe the DEA’s warrantless access to the database violates their constitutional right to privacy under the Fourth Amendment, regardless of whether the DEA’s authority trumps state law.
The ACLU’s clients include two transgender men taking prescription testosterone, a person taking anti-anxiety medication to treat anxiety and post-traumatic stress disorders, and a person who takes narcotic painkillers to help treat recurring kidney stones. We also represent a physician who treats geriatric and hospice patients and frequently prescribes medications such as narcotic painkillers that are tracked in the PDMP. Our clients consider their prescription information to be extremely sensitive, and are concerned that their privacy will be violated by the DEA’s actions.
Now that the court has granted our motion to intervene, we will be able to add the voices of Oregon patients to this case. Over the coming months we will explain to the court why the Fourth Amendment protects the privacy of prescription and medical records. Oregon did the right thing by requiring a warrant under state law. Now the court will have an opportunity to explain to the DEA that the Fourth Amendment requires a warrant too.