Prescription Privacy? Warrantless Search and the Electronic Medicine Cabinet

You were perhaps thinking that your drug prescriptions were protected by the concept of doctor-patient privilege. Personal information so sacred that no one would dare request it, let alone try to seize it. And you would be really, really wrong.

As so often happens with the aggregation of data, it is originally collected to prevent abuse and maybe to help government providers, watchdogs and health insurers track usage so as to do a better job of planning purchases in order to win discounts. But then other people with other jobs insist that the information can help them, too - while making society safer. And all of a sudden, there's no such thing as 'personal' anymore. JL

Marlisse Sweeney reports in ars technica:

As in 48 other states and the District of Columbia—Missouri being the only exception—Utah collects prescription drug information in a statewide electronic database so that healthcare providers can track what medications their patients use.
In May 2013, when an investigator called local firefighter paramedic Ryan Pyle down to police headquarters in Cottonwood Heights, Utah, Pyle guessed it had something to do with the morphine.
Fire crews had recently discovered that drug vials had been tampered with at several different stations, the morphine removed and replaced with some other liquid. The find prompted a police investigation of all 28 Unified Fire Authority fire stations and the replacement of every narcotic stored in them, according to Jeremy Robertson, president of fire union local #1696.
But Pyle hadn’t worked at the specific stations under investigation. What could he add?
“Do you know why you’re here?” a police officer asked Pyle when he arrived.
“I wish I did, but I don’t,” Pyle said.
The officer explained that, during the investigation of the morphine theft, Pyle’s personal prescription drug records had been pulled from Utah’s Controlled Substances Database. Pyle was being accused not of stealing morphine but of prescription drug fraud. The allegation doesn't necessarily involve selling pills; instead, authorities believed that Pyle had visited multiple doctors in order to obtain narcotics.
But the detective investigating the case had pulled far more than Pyle’s records; he had actually pulled the prescription records of all 480 employees of the local fire authority, sifting through the sensitive health information of firefighters, paramedics, and clerical staff, according to the American Civil Liberties Union (ACLU). Such prescription information could reveal whether the workers had anxiety disorders, chronic pain, insomnia, or AIDS. It could reveal if an individual identified as transgender or suffered from Attention Deficit Hyperactivity Disorder.
As in 48 other states and the District of Columbia—Missouri being the only exception—Utah collects prescription drug information in a statewide electronic database so that healthcare providers can track what medications their patients use and ensure that they aren’t doctor shopping. However, unlike in many of the other states, Utah doesn’t require warrants before investigators can access this information. According to court documents, the search merely needs to be linked somehow to an open investigation within the officer's jurisdiction.
In Pyle’s case, there was no evidence to suggest he had anything to do with the morphine theft that sparked the investigation. While looking through his prescription history, however, the detective felt that something wasn’t right. Pyle had been prescribed short-acting and long-acting opiate-based painkillers for years after being diagnosed with an inoperable mid-back disc herniation from a dirt-bike accident.“When I found out what was happening I left immediately,” Pyle said in a recent interview. He called his wife, a physician assistant with access to the same database. He urged her to look up his history.
“I can’t,” Tiffany Pyle told him. “You’re not a patient of mine. It would be illegal.”
Throughout the summer of 2013, the Pyles didn’t hear much about the investigation. They tried to go on as usual but found normal life difficult.
“I was petrified; I had no idea what was going on,” Pyle said.
Just as the investigation began, a boy named Tristan had been placed in the Pyle home for a six-month trial period. The family was working to finalize his adoption with a private agency; the Pyles were also in the process of adopting Tristan’s younger brother.
“If they caught any wind of this they would have come and taken him,” Tiffany Pyle said.
Pyle can talk matter-of-factly now about his own case. But when he talks about how it could have affected the adoption of his two young sons, his voice cracks. “If I was convicted of anything, we would have lost these two little kids, and that’s just horrible—that was the worst part,” he said. “My job was important and I care about what I do; I’ve dedicated my whole life to helping people, but losing these kids, that was the big stuff, the real important stuff.”
Eventually, Pyle heard from the Salt Lake County Attorney’s Office. His case had been screened and declined for prosecution.
“We thought we were done,” Tiffany Pyle said, and she and Ryan turned their attention to problems with Tristan’s private adoption agency. On Monday, October 28, 2013—six months after Pyle's visit to police headquarters—the family finalized the adoption of their oldest son.
Four days later, the Utah Attorney General charged Ryan Pyle with prescription drug fraud.

Magnetic tape to keystrokes

How can the police have such broad powers to comb through a prescription drug database? Their right to do so goes back to a legal doctrine developed in the 1970s by two seminal Supreme Court cases. The first, United States v. Miller, considered the issue of whether or not a legitimate expectation of privacy existed between a person and his bank with respect to checks and deposit slips. The court said that it did not—thus making it far easier for government investigators to get the information.
“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government,” wrote Justice Powell. “The Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.”
Three years later, the Supreme Court once again dealt with an individual’s privacy rights when he or she hands over information to a third party. In Smith v. Maryland, Michael Lee Smith had been convicted of robbery. To gather evidence against him, police obtained his call record information from the telephone company without a warrant. Smith argued he had a legitimate expectation of privacy in the numbers he dialed on his phone and that a warrant was required.“This claim must be rejected,” wrote Justice Blackmun. “First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial.” He added that, since telephone users reveal phone numbers to the telephone company in the process of dialing, they are aware that a permanent record could be kept. Secondly, relying on Miller, Blackmun reiterated that “this Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
Together, Miller and Smith form the basis for what is now known as the “third-party doctrine.” In its simplest form, the doctrine says that whenever someone hands over a private piece of information to a third party for a specific purpose, the Fourth Amendment doesn’t protect her from a warrantless search of this information by authorities since she has already given up her privacy interest in the information by sharing it.
The doctrine “has been problematic throughout the years, and with every passing year the problems get more and more stark,” said Nathan Wessler, a staff attorney at the American Civil Liberties Union who is litigating a prescription drug database case in Oregon. Nearly everything we do online reveals information to a third party, from e-mail stored in the cloud to photo sharing to instant messaging to browsing the Web to geolocation.“It’s totally clear that this doctrine has no place today in the digital age,” Wessler added. “It’s really impossible to participate in modern life, in social life, in work and business, to get medical care and legal advice without using digital technology and leaving behind a trail and digital bread crumbs.”
Greg Nojeim agrees. He’s a senior counsel at the Center for Democracy and Technology and the director of its Freedom, Security, and Technology Project. In a recent interview, he explained how metadata, or “non-content information,” has changed throughout the years. Historically, the information it divulged was limited to the parties and dates on a check or the numbers dialed from a rotary phone, but now it can reveal far more sensitive details.
Metadata “is now a much richer source of information—sometimes even more rich than the content of the communications itself, so there’s the ability to draw intelligence and meaning from metadata and other, non-content information,” he explained. As this ability increases, “so should the privacy protection that attend that data.”
The first prescription drug database dates back to 1972 in New York. The legislature passed a law requiring doctors and pharmacies to file a form with the state whenever they prescribed and dispensed what were classified as “potentially harmful drugs.” The law was fought by a group of doctors and patients in an oft-cited Supreme Court judgment, Whalen v. Roe. They lost.
But technology changes faster than law. In 1972, the New York prescription drug “database” was a room at the Department of Health in Albany. Each month, 100,000 carbon copies of prescription forms were delivered there, where they were sorted, coded, and logged. The information was recorded on magnetic tapes and run through a computer program, looking for anomalies. The forms and the tapes were kept in a vault and destroyed after five years; the whole setup was protected by a wire fence and an alarm system.
When the case was decided by the Supreme Court in 1977, only 17 Department of Health employees had access to the files. Another 24 investigators could look into cases of over-dispensing if they were identified by the computer. The database wasn’t heavily used for investigations. In the 20 months after the law was enacted, only two investigations alleging overuse by specific patients were undertaken.
Wessler says the Whalen case illustrates how far the technology has come. Now, “with a couple of keystrokes somebody can access all the records of everyone in the state.”

"I've seen you on the news"

In December 2013, Pyle had his first court date.
His lawyer, Rebecca Skordas, filed a motion to suppress the evidence from the database in the case. The ACLU also intervened on his behalf.
“I think that Ryan and his wife showed a great deal of courage to continue to litigate this case when they had so much at stake,” Skordas said in a recent phone interview. “Both Ryan and his wife felt very strongly these were important legal issues.”

“As a firefighter I go into people’s homes. I’m entrusted with their lives… I feel like I’m tainted.”

When Pyle arrived at the Third District Court, the local media was outside, including Fox 13 News. According to Pyle, the story that Fox 13 ran that night crucified him, accusing him of prescription shopping with multiple doctors in order to pick up thousands of pills. (The story is no longer on Fox 13’s website; Pyle said it was taken down only days after it aired.) Skordas couldn’t confirm the details, but she acknowledged bad press when he was first charged.
“I’m a big strong fireman,” said Pyle, but “I kind of just sat in my house for months… I didn’t want to go out, speak to anybody.” He was put on paid administrative leave from his job with the Unified Fire Authority.
“As a firefighter I go into people’s homes. I’m entrusted with their lives… I’ve spent about 25 years in this service and now… complete strangers come up to me and say I’ve seen you on the news.”
“That’s the hard part,” Pyle said. “I feel like I’m tainted.”

"Inherently more personal"

Cases involving these drug databases are taking place around the country, though perhaps the most watched one is Wessler's case in Oregon. It's not against local police; he's taking on the feds.
In 2012, the Drug Enforcement Administration (DEA) demanded prescription records for individual Oregon patients, relying on federal laws that the agency says supersede the checks and balances imposed by the state. The state of Oregon disagreed and rejected the request, filing suit against the DEA instead. The ACLU also intervened on behalf of several Oregon residents.
The case involves four anonymous plaintiffs and one doctor. The four “John Does” have various medical conditions and use prescription drugs, information that's collected in Oregon’s Prescription Drug Monitoring Program (PDMP) database. Together, they illustrate the reasons why medical privacy matters.
John Doe 1 is a retired chief executive officer who takes drugs to treat extreme pain caused by kidney stones. John Doe 2 (an attorney) and John Doe 4 (a medical student) have been diagnosed with gender identity disorder and take prescription testosterone. John Doe 3 is a small business owner who takes drugs to treat anxiety and post-traumatic stress disorder.The fifth plaintiff, Dr. James Roe, is an internist treating geriatric and hospice patients. His line of work necessitates prescribing more drugs monitored by the state than a typical physician. He is concerned about his patients’ records being accessed without a warrant, and he has told the court that his prescribing practices have already changed as a result of this.
In arguing the case, the DEA used the third-party doctrine to support its right to the information. But the judge quickly differentiated the information requested here from that collected in both Smith and Miller.
“PDMP’s records are ‘more inherently personal or private than bank records,’ and are entitled to and treated with a heightened expectation of privacy,” the judge wrote. Secondly, he noted that neither doctors nor patients voluntarily give up this information—it’s required by state law. “The only way to avoid submission of prescription information to the PDMP is to forgo medical treatment or to leave the state. This is not a meaningful choice.”
The judge went on to say that patients don’t have an absolute right to privacy in their prescription medications, because they should expect them to be accessed by pharmacists, physicians, and other medical personnel. However, it is “more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records.”
On February 11, 2014, the judge ruled that the DEA’s use of administrative subpoenas to obtain prescription drug records violates the Fourth Amendment.
The DEA is currently appealing the decision to the Ninth Circuit Court of Appeals, where the case continues.

One year later

Unlike what happened in Oregon, the Utah Attorney General was able to get evidence from the prescription drug database allowed in Pyle's case. The AG relied directly on Whalen and other cases in arguments. Judge Vernice Trease said Detective James Woods had the right to run the names of the full-time firefighters and paramedics through the database in the course of his investigation into the morphine theft.

During the litigation, Pyle said he was offered a succession of plea deals.
“This is a good deal,” Skordas would tell Pyle, according to him. Skordas wouldn’t comment on the plea deals, saying they were confidential.
One night, the Pyles drove out to his firehouse to discuss his case with his union president, Robertson. The three of them sat out on the patio at the firehouse overlooking Salt Lake Valley and cried together for an hour.
“He knew what was better for the collective, but at no point did we encourage him to do anything other than what was best for him and his family,” said Robertson.
“You haven’t done anything wrong,” Tiffany Pyle told him. “Stay strong.”
She argued that if her husband took a plea deal, his reputation would be shot. She also worried about what a guilty plea might mean for Pyle’s paramedic licensing now that they had a newborn and a two-year-old to look after. (Robertson confirmed that Pyle would have lost his licensing with a guilty plea.)
During the pretrial phase, Skordas appealed the ruling on prescription drug database evidence to the Utah Court of Appeals. That appeal was still pending when she received an unexpected notification on October 17, 2014. One year after Pyle was initially charged, the AG would outright dismiss the case against him.
According to the order of dismissal, the state admitted that it had “insufficient evidence to establish the culpable mental state of the Defendant beyond a reasonable doubt, and that dismissal prior to trial is in the interest of justice.” (Ars contacted the AG's office directly about the case, but they were unable to comment.)
Skordas picked up the phone and called her client. “I almost started to cry,” said Pyle. He immediately called Tiffany.
On December 1, 2014, Pyle went back to work with the Unified Fire Authority.

Legal action

Pyle wasn’t the only one affected by his case. His colleague Marlon Jones, an assistant fire chief who faced 14 counts of prescription fraud, had his own records pulled during the course of the same investigation into the morphine tampering. (All charges against him have now been dropped.) Together, Pyle and Jones are now suing the arresting officer in their cases, the mayor, and the City of Cottonwood Heights.
They have also worked along with Union Chief Robertson to change the law in Utah. Senator Todd Weiler sponsored a bill to “require police officers to obtain a search warrant with a standard of probable cause to search through someone’s electronic medicine cabinet,” as he put it in testimony before the state senate.
Pyle spoke at that hearing as well. In tearful testimony before the House Business and Labor Standing Committee on March 2, 2015, Pyle told the audience his story and explained how the ramifications of his case continue.

"I live in pain every day... but I won’t go to a doctor and ask for pain medication."

“My wife and I recently applied for an umbrella insurance policy. I was denied because of… legal action,” he said. “This is something that is never going to go away for me. I’ve been in the business of helping people for almost 25 years, a profession I’m very proud of. Now I feel I’ve been marred.”
On March 30, 2015 a bill to amend the Controlled Substance Database Act was signed by the Governor of Utah. The proposed legislation will require police officers to obtain a search warrant with a standard of probable cause before searching through someone’s "electronic medicine cabinet,” as bill sponsor Senator Todd Weiler phrased it during testimony before Senate.
State law changes like Utah’s, however, won’t stop federal agencies like the DEA from accessing these databases without a warrant. That’s the fight Wessler continues in Oregon, and it’s one he thinks might go all the way to the Supreme Court.
If and when it does, Wessler may have at least one justice on his side. In the 2012 decision United States v. Jones, Supreme Court Justice Sonia Sotomayor commented on the third-party doctrine in her concurring judgment.
“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she wrote. “This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks… I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”
For Pyle, the whole episode felt like an enormous invasion of his privacy. Reflecting on it today, he remains amazed that it happened at all.
“They came to my house when I wasn’t here and just walked in,” he said, “just let themselves in.”