(BigGovernment.news) Millions of Americans opposed to Obamacare were especially suspicious over provisions that pushed healthcare providers into placing every patient’s medical information into online databases.
One of the main reasons for the objection is that such data would then be subject to hacking – a phenomenon which has already happened more than a few times (and likely will again).
But another reason why critics of the law opposed dumping patients’ medical records into online databases was that the information hubs would become tempting targets for overzealous law enforcement and government entities. Enter prescription drug databases and the Drug Enforcement Administration, the perfect storm of serial privacy violations.
As reported by the Daily Beast, the DEA is fighting in court to get unfettered access – and without a court-issued warrant (based on probable cause – as required by the Fourth Amendment) – to millions of private medical files, including those of two transgender men who are taking testosterone.
Why? Well, the “war on drugs,” of course.
In particular, the DEA is fighting to gain access to an Oregon database that contains health files of a million Americans. As the Daily Beast notes:
The DEA has claimed for years that under federal law it has the authority to access the state’s Prescription Drug Monitor Program database using only an “administrative subpoena.” These are unilaterally issued orders that do not require a showing of probable cause before a court, like what’s required to obtain a warrant.
In 2012 Oregon sued the DEA to prevent it from enforcing the subpoenas to snoop around its drug registry. Two years ago a U.S. District Court found in favor of the state, ruling that prescription data is covered by the Fourth Amendment’s protection against unlawful search and seizure.
But the DEA didn’t stop there. It appealed the ruling to the U.S. Ninth Circuit Court of Appeals in San Francisco and has been fighting tooth and nail ever since to access Oregon’s files on its own terms.
The case centers around the full measure of the Obama administration and the state of Oregon and five individuals, two of which are taking prescription hormone drugs that are monitored as required by the state’s prescription monitoring law.
In a 2014 ruling against the DEA, U.S. District Court Judge Ancer L. Haggerty said such warrantless searchers were textbook invasions of privacy.
“It is difficult to conceive of information that is… more deserving of Fourth Amendment protection,” Haggerty wrote in his ruling. “By obtaining the prescription records for individuals like John Does 2 and 4, a person would know that they have used testosterone in particular quantities and by extension, that they have gender identity disorder and are treating it through hormone therapy.
“Although there is not an absolute right to privacy in prescription information… it is more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records,” he added.
Obviously the Obama administration disagrees, arguing that since the records have already been submitted to a third party – the state’s prescription drug monitoring program – then patients no longer have an expectation of privacy.
Except that the state of Oregon had always intended to keep the information private – so yes, patients certainly did have an expectation that their information would be kept out of the reach of improper probing by authorities.
But even so, why would a “third-party” status alleviate a government agency’s requirement to get a search warrant? It’s not like patients are voluntarily posting their information to Facebook or Google+; they have entrusted it to a state government agency that is under the same constitutional requirement to protect it from improper search and seizure as any federal agency.
In an affidavit, one of the plaintiffs said he already faces a hard time in obtaining the injectible testosterone he is supposed to take and that “increased scrutiny by law enforcement, including the DEA, erects another obstacle to obtaining treatment.”
“I would be fearful of being investigated or harassed without reason,” he testified. “I would feel like I was constantly looking over my shoulder.”
Last year following a case of gross negligence and mistaken identity – in which a firefighter was arrested and charged with 12 felony counts of misusing a painkiller (that he was legally prescribed), Utah state Sen. Weiler, a Republican, introduced legislation that would require police to get a warrant before they could search any state medical databases (legislation that should be wholly unnecessary because of the Fourth Amendment).
“It has become the status quo that when a person comes under their radar they run to the prescription drug database and see what they are taking,” said Sen. Todd Weiler, a Republican—who said that police in Utah searched the PDMP database as many as 11,000 times in one year alone. “If a police officer showed up at your home and wanted to look in your medicine cabinet and you said no, he would have to go and get a search warrant.”
It was signed into law in March.
Other states, however, are making it easier for more people to access medical databases. Gov. Scott Walker’s Wisconsin, for instance, liberalized access to prescription medicine databases making the data available to registered nurses without independent prescribing authority, medical directors, and substance abuse counselors, The DB reported, adding that The law also removed a previous requirement that police obtain a search warrant to access the data.
Enough, already. Either the Fourth Amendment means what it says – that we are all “secure” in our papers and effects and that law enforcement officers and the government need warrants to access our information – or it doesn’t.
Prediction: As Obamacare’s medical database requirements broaden, the government will attempt to use the “third-party” excuse to access all of our medical data anytime, and for any reason (say, to deny medical benefits that we’ve already paid for).
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