It’s no great secret that the war on drugs has not been so very friendly to the U.S. Constitution. So, with prescription pharmaceuticals one of the latest fronts in this interminable conflict, along (the ACLU complains) comes this:
The Drug Enforcement Administration is trying to access private prescription records of patients in Oregon without a warrant, despite a state law forbidding it from doing so. The ACLU and its Oregon affiliate are challenging this practice in a new case that raises the question of whether the Fourth Amendment allows federal law enforcement agents to obtain confidential prescription records without a judge’s prior approval. It should not….
In 2009, the Oregon legislature created the Oregon Prescription Drug Monitoring Program (PDMP), which tracks prescriptions for certain drugs dispensed by Oregon pharmacies… The program was intended to help physicians prevent drug overdoses by their patients and more easily recognize signs of drug abuse. Because the medical information revealed by these prescription records is highly sensitive, the legislature created robust privacy and security protections for the PDMP, including a requirement that law enforcement must obtain a warrant before requesting records for use in an investigation. But despite those protections, 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. Today, the ACLU filed a motion to intervene in the case on behalf of several patients and a doctor whose prescription records are contained in the PDMP. Our clients are concerned that the privacy of their medical information will be violated if the DEA is allowed to search through prescription records without a warrant. If the DEA can demonstrate to a judge that it has probable cause to believe that a crime has been committed and that prescription records will provide evidence of that crime, then it can legitimately obtain records from the PDMP. Because prescription records and the medical information they reveal are such a sensitive matter, protecting their privacy is vital, and we argue that obtaining private and confidential prescription records without a warrant constitutes an unreasonable search in violation of the Fourth Amendment.
One would think so.