The Drug Enforcement Administration is once again trying to access private prescription records of patients — this time in New Hampshire — without a warrant, despite a state law to the contrary. Today the ACLU filed a brief in support of the state of New Hampshire’s fight to defend the privacy of our sensitive medical information against unwarranted searches by law enforcement.

New Hampshire — like 48 other states, the District of Columbia, and Puerto Rico — has established a statewide Prescription Drug Monitoring Program (PDMP), which logs records of every prescription for a long list of “controlled substances,” including Xanax, Ambien, and many painkillers, filled by pharmacists in the state. The PDMP is intended to function as a public health tool to allow physicians and pharmacists to look up their patients’ past prescriptions for medications that have addictive potential. Because these prescription records are so sensitive, New Hampshire law bars law enforcement agents from accessing the database unless they have a search warrant signed by a judge.

That rule has worked just fine for state and local police, but the federal Drug Enforcement Administration refuses to respect it. The DEA insists that, because it is a federal agency, it can ignore state law and request people’s PDMP records with an administrative subpoena instead of a warrant. Unlike a warrant, a subpoena is issued directly by the agency based on a low legal standard, without requiring the approval of a judge.

When New Hampshire received a DEA subpoena for a patient’s PDMP records last year, the state rightly refused to comply because doing so would violate the state law requiring a warrant. The DEA then sued in federal court, but New Hampshire stood firm, arguing that the subpoena was improper under federal law and the Fourth Amendment to the U.S. Constitution. After losing in trial court, the state appealed to the First Circuit Court of Appeals.

The DEA’s most galling argument in the case is that people have no reasonable expectation of privacy in their prescription records held in the PDMP because of the “third-party doctrine.” Under that doctrine, a person is considered to lose their Fourth Amendment protections in information voluntarily shared with a “third party,” like a company they do business with.

We’ve seen that argument before when the DEA tried to obtain PDMP records in Oregon and Utah without a warrant. But the legal landscape has now changed. That’s because last year in Carpenter v. United States, the Supreme Court made clear that the third-party doctrine does not automatically apply to sensitive agglomerations of digital-age records. That case was about people’s sensitive location records held by their cell phone companies, but the lesson of Supreme Court’s holding should apply equally to the sensitive digital database of prescription records at issue here.

Our amicus brief, filed with the ACLU affiliates in the First Circuit — New Hampshire, Maine, Massachusetts, Puerto Rico, and Rhode Island — as well as the New Hampshire Medical Society, argues that  law enforcement agencies, including the DEA, must get a warrant under the Fourth Amendment to access the private medical information in the PDMP database.

As we explain, information about the prescription medications we take can reveal a great deal of intimate and private details about our health, including our medical diagnoses and our doctors’ confidential medical advice. Indeed, this kind of medical information is among the most sensitive data about us. That’s why, for as long as there has been a medical profession, health care providers have been bound by a duty of confidentiality toward their patients’ medical information.

Moreover, this information is not voluntarily shared, in any meaningful sense, with the state’s database. The DEA suggests that people make a choice to give up their privacy protections when they share their medical information with their doctor and pharmacist. But as we write in our brief, choosing between obtaining health care and giving up one’s privacy rights is no choice at all.

The DEA’s aggressive position comes amid intensifying attention to the nation’s opioid addiction crisis. But far from hindering efforts to address that serious problem, strong Fourth Amendment protections are a crucial part of the solution. Successfully addressing drug addiction primarily requires public health approaches, not prosecutorial ones. Easy law enforcement access to medical records not only fuels mass incarceration, it deters patients from seeking necessary medical care.

Requiring the DEA to get a warrant ensures that people’s sensitive prescription records are only available to police when there is a real need. That’s good policy, and good Fourth Amendment law.

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Blog by Carol Rose, executive director of the ACLU of Massachusetts, and Rahsaan Hall, director of the Racial Justice Program at the ACLU of Massachusetts

A new bipartisan consensus is emerging in America around the need to reform the criminal punishment system – and about the difference that elected district attorneys can make by being part of the solution.

This country has the highest incarceration rate in the world, and Massachusetts is not immune. If our Commonwealth were its own nation, we’d have the 11th highest incarceration rate in the world. Mass incarceration in Massachusetts has exacted a particularly heavy toll on communities of color. The state’s prisons have the highest white-Latinx disparity in the country, with a Latinx imprisonment rate more than four times that of white people in the state. The rate is even higher for the state’s Black residents – seven times that of the white imprisonment rate in 2017.

The havoc this approach wreaks on families and communities is well documented. Families are separated. Unmanageable fines and fees burden people and families already struggling to make ends meet. And for people with substance use disorder, incarceration means an increased risk of relapse, overdose, and death. We cannot prosecute our way out of poverty, drug use, or mental health crises. 

A national bipartisan consensus on this has emerged. In a rare showing of bipartisanship, Congress last winter passed the FIRST STEP Act with important sentencing reforms. The Massachusetts legislature also embraced the criminal law reform wave last session, adopting sweeping changes that eliminate several mandatory minimums sentences, require collection and posting of critical arrest data, and raise the minimum age of juvenile court jurisdiction. 

The voters get it, too. There were more contested prosecutor races in 2018 than at any time in recent history. In Massachusetts, last November marked the first time since 1982 that there were five contested Massachusetts districts. For the first time in at least a generation, many voters were actually offered a choice between different visions for the criminal legal system. From Texas to Alabama, from Philadelphia to the Berkshires to Boston, down-ballot votes cast for district attorney rose by double digits.

In response, some longtime district attorneys are pushing back on change – suggesting they just take orders from the legislature. That’s laughable, given that DA’s frequently lobby to shape the law in state legislatures, often in ways that have harmed particularly Black and Latinx communities. Some DA’s resort to trotting out old tropes and racist dog-whistles, hoping to avoid accountability by invoking scare tactics from the 1980’s. Such approaches are insulting and belie the real-world power of the DA. 

Other district attorneys are showing just what a difference a DA makes. Take, for example, Middlesex County District Attorney Marian Ryan and Suffolk County District Attorney Rachael Rollins: Together, they recently filed a lawsuit to block federal immigration officials from arresting immigrants at courthouses. It’s the first time a district attorney’s office has filed suit against the Department of Homeland Security on this issue – a move that reflects the harmful impact that immigration enforcement at courthouses has on public safety for all.

Or, consider Berkshire County, where new District Attorney Andrea Harrington announced in February that the office would end its reliance on cash bail. The majority of Massachusetts people in jail are being held on bail – for weeks, months, and years. Too many people are behind bars because prosecutors continue to request bails that people can’t afford to pay. It doesn’t have to be that way.

The people of Massachusetts can and should expect more of our elected district attorneys. We live in a time of peril, when civil rights and civil liberties are under threat both at home and abroad. It’s time that all elected officials were held to answer to voters about the constructive role they will play – and policies they will propose – to keep America both safe and free.

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