If last month’s revelation that the the Drug Enforcement Administration (DEA) has been keeping a database of phone logs since 1986 wasn’t bad enough, here’s further proof of the intrusiveness of the agency's tactics: a lawsuit being fought between the DEA, Oregon, and the American Civil Liberties Union (ACLU) hinges on the fact that the drug warriors believe they should have easy access to the Oregon Prescription Drug Monitoring Program (PDMP) database and have been acting on that belief, even though it contradicts state law. In plain English, the DEA says that if your medical records are shared with a pharmacy—something that happens routinely thanks to the PDMP—you lose the right to assume that that information is private, even if lawmakers in your state disagree with law enforcement.
The basis for the DEA's legal argument is the third-party doctrine, the precedent the government leans on if it wants to look into your credit card charges, your utilities bills, your emails, or anything else that you have shared with someone else. The Fourth Amendment protects you against “unreasonable search and seizure,” but increasingly, in an era where the vast majority of our private communications go through a third party, law enforcement is expanding the definition of what a “reasonable” search is.
The ACLU argued in a brief filed last week that the third-party doctrine doesn’t apply to medical records, and that the information in the Oregon PDMP database is “deeply private.” (The database, according to the PDMP website, includes “the patient’s name, address, and date of birth, pharmacy and prescriber information, and specific prescription information including the drug name and dosage, when it was prescribed, and when it was dispensed” for drugs that qualify as controlled substances.) The courts' decision in this case could have consequences far beyond Oregon's borders—about 40 states have similar PDMP schemes, which are designed to track the use and abuse of prescription drugs by making medical information more easily accessible to pharmacists and healthcare providers. Their effectiveness is debatable, but in any case, the architects of Oregon’s program never thought it would allow the DEA to spy on patients without a warrant.
The state of Oregon sued the DEA last November, arguing that the PDMP system was specifically designed to keep law enforcement from viewing patients’ sensitive records, and the ACLU jumped in on the side of privacy rights a few months later. The question isn’t whether the DEA could arrest a few more prescription drug abusers by viewing PDMP records than they would otherwise, it's whether they should have that power in the first place. After a weekend which saw even more evidence revealed that government agencies feel no compunction about spying on everyone regardless of warrants or evidence, any bit of pushback against the surveillance state, no matter how narrow, should be seen as welcome news. If the DEA is spending its time going through medical records to track down (presumably nonviolent) drug offenders, the agency has way, way too much time on its hands.
Now for the rest of this week’s bad cops:
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