The Pennsylvania state Senate is considering a bill that would give you as much privacy in your medication records as an inmate has in prison.
The legislation, introduced by Sen. Pat Vance and pushed by District Attorney David Freed, both of Cumberland County, would create a vast, new database program that would collect and store the prescription medication records of millions of Pennsylvanians.
In theory, it makes sense that a doctor would want to know what medications her patient is taking, but, in practice, this surveillance program is fraught with privacy problems.
Access to the data does not end with doctors and pharmacists. Staff at the Department of Health can monitor the records, can flag what they consider unusual patterns, and can then refer them to law enforcement without ever seeing the patient.
Perhaps the most frightening aspect of the entire legislation is the access granted to prosecutors. If a district attorney or a police officer or the attorney general’s office wants to search the medicine cabinet in your home or the files of your physician, they must first obtain a court-issued search warrant after a finding of “probable cause,” a high standard that protects against unreasonable searches and seizures.
But the standard for prosecutors to search this new prescription database is much lower. Sen. Vance’s legislation allows prosecutorial access after a finding of “reasonable suspicion,” a very low legal standard that applies to situations that involve minimal intrusion and that provides little privacy protection. For instance, reasonable suspicion is used to justify traffic stops and searches in public schools and prisons.
The higher standard of probable cause, which is enshrined in both the federal and state Constitutions, is used when a person has a reasonable expectation of privacy and the search is intrusive.
Certainly, Pennsylvanians reasonably expect that they have a heightened expectation of privacy in their medical records. Our prescription medications provide a window into our medical histories. There are few aspects of our daily lives that are more personal and more private.
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So why would the Senate Public Health and Welfare Committee move legislation that actually lowers the privacy protection of Pennsylvanians’ prescription records, at the urging of the Pennsylvania District Attorneys Association?
Apparently, they think the boundaries of the Constitution disappear because the data is stored in an electronic database.
Not surprisingly, Senate Bill 1180 is on the wrong side of the Constitution. In February, a federal district court in Portland, Ore., ruled that there is a reasonable expectation of privacy in our prescription records and that it is unconstitutional for law enforcement to access them, including in electronic databases, without a search warrant upon a finding of probable cause. The case was argued by the ACLU, on behalf of doctors and patients.
We shouldn’t need a federal court to tell us that we have a reasonable expectation of privacy in our medical records. That should be obvious. But prosecutors’ appetite for our personal data is so insatiable that sometimes they need to be smacked down by federal judges, armed by constitutional law.
Putting aside legal principles, this broad access to prescription data comes with great risk to public health. With the eyes of prosecutors and health department staff constantly on the database, it potentially creates a chilling effect for doctors and patients. Doctors won’t risk being wrongly flagged for pushing pills, and patients won’t risk being incorrectly identified as addicts.
Dr. Lundy Braun, who teaches the history of medicine and public health at Brown University, recently wrote on Philly.com, “If we continue with the current excessive regulation of prescription opioids, pain will be under-treated and physicians will be turned into medical police.” She added, “As history has demonstrated repeatedly, excessive regulation cannot address the broad social problem of addiction and overdose.”
The ACLU of Pennsylvania has long been an advocate for treatment for drug addictions, rather than incarceration. Unfortunately, this Senate bill sells out the privacy of patients, the vast majority of whom use their medication properly. It is time for the Senate to let go of the failed War on Drugs and find real solutions to addiction.
Andy Hoover is the legislative director for the American Civil Liberties Union of Pennsylvania.