In a case with major implications for the medical privacy rights of Rhode Islanders, the ACLU of Rhode Island has today joined with the National ACLU, four other ACLU Affiliates, and the New Hampshire Medical Society in filing a “friend of the court” brief arguing that law enforcement agents need a judicial warrant in order to obtain information from state prescription drug monitoring program (PDMP) databases.

The brief is in support of the State of New Hampshire’s resistance to an administrative subpoena it received from the federal Drug Enforcement Administration, seeking two years of information from that state’s PDMP about a patient. New Hampshire law allows police access to PDMP information only with a warrant, and when the administrator of the state’s PDMP refused to turn over the records to the DEA without one, the federal government sued the state. The case, U.S. Department of Justice v. Jonas, is pending before the U.S. Court of Appeals for the First Circuit in Boston, where the ACLU brief was filed.

New Hampshire’s actions in protecting patient rights stand in stark contrast to Rhode Island’s Department of Health which, two years ago, supported General Assembly legislation that repealed a state law that, like New Hampshire’s, had required a warrant for police to gain access to records in the state’s PDMP. At the time, the ACLU of RI and more than a dozen medical groups unsuccessfully lobbied against the law’s repeal. If New Hampshire prevails in this case, it would likely call into question the constitutionality of the Rhode Island law.

In supporting New Hampshire’s position in this court battle, the ACLU brief argues:

The prescription records at issue in this case reveal intimate, private, and potentially stigmatizing details about patients’ health, including details of those patients’ underlying medical conditions. For that reason, as with other medical records, people have a reasonable expectation of privacy in them. . .[W]hen law enforcement seeks records from a third party in which the subject of the investigation has a reasonable expectation of privacy, use of an administrative subpoena is unreasonable under the Fourth Amendment, and a warrant is required instead.

The brief goes on to note the nature of the significant privacy issues at stake:

Drugs listed as controlled substances and tracked by the PDMP include a number of frequently prescribed medications used to treat a wide range of serious medical conditions, including anxiety disorders, panic disorders, post-traumatic stress disorder, weight loss associated with AIDS, nausea and weight loss in cancer patients undergoing chemotherapy, alcohol addiction withdrawal symptoms, opiate addiction, testosterone deficiency, gender identity disorder/gender dysphoria, chronic and acute pain, seizure disorders, narcolepsy, insomnia, and attention deficit hyperactivity disorder.

The brief also cites the long history associated with the confidentiality of medical records:

The Oath of Hippocrates, originating in the fourth century B.C.E., required physicians to maintain patient secrets. … In American medical practice, a requirement to preserve the confidentiality of patient health information was included in the earliest codes of ethics of American medical societies in the 1820s and 1830s, the first Code of Medical Ethics of the American Medical Association in 1847, and every subsequent edition of that code, in the ethical codes of other health professionals, including pharmacists, and in the numerous state statutes recognizing the doctor-patient privilege.

The brief points out that facilitating warrantless law enforcement access to patients’ medical information can have adverse consequences by deterring patients from receiving needed medical care. In arguing for the need for a warrant, the ACLU brief relies heavily on a 2018 U.S. Supreme Court decision which held that police need a warrant to obtain historical cell phone location data of an individual. That decision rejected the government’s argument that anytime a person shares sensitive records with another entity, that person loses their Fourth Amendment rights in the records. The DEA makes the same argument in this case.

In addition to the National ACLU and the ACLU of Rhode Island, the brief was filed by the ACLUs of New Hampshire, Maine, Massachusetts and Puerto Rico, as well as the New Hampshire Medical Society. The ACLU’s brief is available here.

“Our medical records can reveal our most sensitive and private details, which is precisely the kind of information the Fourth Amendment is intended to protect,” said Nathan Freed Wessler, staff attorney with the ACLU Speech, Privacy, and Technology Project. “Requiring a search warrant for law enforcement access to our private health information isn’t just good Fourth Amendment law, it’s good policy. Robust protections against unjustified police searches of prescription monitoring databases help ensure that the opioid addiction crisis is primarily addressed using public health tools, not a broken criminal justice system.”

ACLU of RI executive director Steven Brown added: “The decision by the General Assembly and Department of Health in 2017 to sacrifice patient privacy in the PDMP for the convenience of law enforcement  was a severe blow to doctor-patient confidentiality and undermined the public’s faith in the DOH to be a protector of the deeply private information kept in its care. That is what makes the outcome of this case so important to all Rhode Islanders. We are hopeful that the First Circuit will uphold New Hampshire’s stand in support of its residents’ privacy.”