DEA asks appellate court to overturn judge’s ruling requiring warrants for Oregon prescription database

http://www.oregonlive.com/portland/index.ssf/2016/11/dea_asks_appellate_court_to_ov.html

The U.S. Drug Enforcement Administration wants an appeals court to overturn a judge’s ruling that requires federal agents to get a search warrant to access information in an Oregon database that tracks doctors and the narcotics they prescribe to patients.

The federal drug agency’s “administrative subpoenas” are valid and sufficient to get the information, said Samantha Lee Chaifetz, a lawyer for the U.S. Department of Justice. The subpoenas don’t require probable cause or a court order ahead of time.

An attorney for the state countered Monday that the subpoenas conflict with Oregon law.

The Legislature created the Oregon Prescription Drug Monitoring Program database in 2009 to log prescriptions filled by pharmacies in the state, the physicians who prescribed the narcotics and the patients who use them. The state included privacy protections, calling for a court order to allow law enforcement access. The database went live two years later.

The Drug Enforcement Administration claims it can use administrative subpoenas under the federal Controlled Substances Act.

The state sued the Drug Enforcement Administration after it issued three subpoenas for database information. The American Civil Liberties Union joined the case on behalf of four patients and a doctor, taking the state’s argument one step further in contending that federal agents must have probable cause and a signed search warrant for the information.

The subpoenas could violate a person’s Fourth Amendment right to privacy and unreasonable search and seizure, the ACLU argued.

U.S. District Judge Ancer L. Haggerty ruled in 2014 that patients have a reasonable expectation of privacy for their prescription records and that law enforcement must seek a warrant to obtain information from Oregon’s database.

The Drug Enforcement Administration appealed, and a three-member panel of the 9^th U.S. Circuit Court of Appeals heard arguments Monday in Portland’s Pioneer Courthouse.

Federal law trumps state law, Chaifetz said. The ACLU also doesn’t have standing to argue a Fourth Amendment claim based on speculative allegations of possible future injury, she said.

Attorney Dustin Buehler, representing Oregon, said the state doesn’t object to the intervention of the ACLU, but isn’t making the constitutional argument. The state has focused on the conflict with Oregon law, he said.

The state took the Drug Enforcement Administration to court to seek guidance before turning over additional database records that could conflict with state statute, after receiving an initial subpoena from the DEA in January 2012, according to lawyers for the state and ACLU. The state had complied with one of the federal agency’s requests after a U.S. magistrate judge issued a court order on the DEA’s behalf in August 2012.

Nathan Freed Wessler, a New York-based attorney for the ACLU, pointed out that the Drug Enforcement Administration directs the state not to tell patients or doctors if they’re the subject of a subpoena so they would have no way of knowing that their privacy rights may have been violated.

The database contains “extraordinarily sensitive information” about people and their diagnoses, Wessler said, and that’s why Oregon law created the higher standard.

Chaifetz dismissed the ACLU’s claim about heightened privacy expectations, noting that both state and federal law anticipate that the database prescription information “may be shared with others — from regulatory boards to law enforcement officials and health oversight authorities.”

9^th Circuit Judges William A. Fletcher and M. Margaret McKeown asked why the ACLU should be allowed to make arguments in this appeal because they’re presenting a separate claim from the state.

The ACLU is raising a distinctive argument, not a separate claim, Wessler responded.

The civil rights organization represents an unnamed Oregon physician who specializes in geriatrics and end-of-life planning, two transgender men with testosterone prescriptions, a person who suffers from a blood disorder and relies heavily on prescription medication and a man prescribed narcotics for a kidney ailment.

These people face a “heightened risk” of scrutiny by the DEA and would have little opportunity to challenge any disclosure of their personal medical history in court if administrative subpoenas were allowed to stand, Wessler said.

Fletcher said it struck him as odd that the federal government would tell a state not to notify a doctor or patient who is the subject of a DEA subpoena. “That does not strike me as a very good way to run a system,” Fletcher said.

Chaifetz said administrative subpoenas are similar to grand jury subpoenas and are used in the course of a civil or criminal investigation when the investigators don’t want to tip off the subject of the inquiry.

The American Medical Association filed a friend of the court brief in support of the state, seeking to protect patient prescription data from becoming a “law enforcement tool” without “stringent legal requirements for disclosure.’

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