Pubdate: Wed, 07 May 2014
Source: Wall Street Journal (US)
Copyright: 2014 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Joe Palazzolo

COURTS, LEGISLATORS BEGIN TO RESTRICT WARRANTLESS ACCESS TO USERS'
RECORDS

For years, police across the country have had little trouble gaining
records of prescription drugs used by individuals they suspect of
committing a crime. But some courts and legislators are starting to
restrict the data, citing privacy concerns.

Law-enforcement officials say easy access to databases of
prescriptions for controlled substances is crucial to curbing the
illegal flow of prescription pills, which feed what the Centers for
Disease Control and Prevention has classified as an epidemic of drug
abuse.

But privacy advocates, defense lawyers and others say warrantless
searches of these databases violate individuals' privacy rights, and
their arguments appear to be gaining ground.

In February, a U.S. court in Oregon ruled for the first time that
federal agents need a warrant to search that state's prescription-drug
database. Last year, Rhode Island raised the barrier of entry to its
database, and legislators in Florida and Pennsylvania are considering
new limits on law-enforcement access to the records in those states.
"The public and lawmakers are really starting to understand what kinds
of threats to privacy come when we start centralizing great quantities
of our sensitive personal information in giant electronic databases,"
said Nathan Wessler, an attorney with the American Civil Liberties
Union, which represented a group of patients and a physician who
challenged the Drug Enforcement Administration in the Oregon case.

Currently, 48 states maintain electronic databases of prescriptions
for drugs with a high potential for abuse, such as oxycodone. Many of
those also contain prescription records of less-potent drugs,
according to the National Alliance for Model State Drug Laws, a
congressionally funded group that generates draft statutes on drug
policy.

In 17 states, law-enforcement authorities must get court approval
before searching such databases, according to the drug-law group.
Aside from Vermont, where the system is closed to law-enforcement
authorities, the rest of the states grant access to investigators with
few strings attached. Generally, police need a warrant to secure
medical records from a doctor's office or hospital, but courts are
split over whether patients have an expectation of privacy in their
prescription records, which pharmacies in all 50 states are required
to keep. Of the courts that have ruled that patients do have an
expectation of privacy, only a few have ruled that police require a
warrant to access such records.

The U.S. Supreme Court hasn't addressed whether police can gain entry
to prescription-drug databases absent court approval.

In Utah, the number of law-enforcement searches of the state drug
database surged to more than 19,000 in 2013 from 2,288 in 2007,
according to the Utah Division of Occupational and Professional
Licensing. Police use of the Utah database isn't audited, and records
in the system may be retained indefinitely, according to a February
deposition of Marvin Sims, who has administered the database since
1995.

To gain a search warrant, police generally must show that they have
reasonable belief that a person has committed a crime, a legal
standard known as probable cause.

Scott Reed, chief of the Criminal Justice Division in the Utah
attorney general's office, said requiring police to seek a warrant to
tap the database could defeat its purpose.

"It becomes another version of the chicken and the egg," said Mr.
Reed, who helped draft the law that created the database in 1995. "If
I need probable cause to get into the database, then I can't get into
the database, and if I can't get into the database, then I can't show
probable cause." The Oregon case pitted state authorities and the ACLU
against the DEA. Though Oregon law requires investigators to obtain a
warrant for prescription records, the DEA, a federal agency, argued
that it had authority under federal law to subpoena the records
without judicial approval. U.S. District Judge Ancer L. Haggerty
disagreed, ruling that patients have an expectation of privacy in
their prescription records. Judge Haggerty wrote: "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."
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MAP posted-by: Matt