Street roots., October 11, 2013, Page 3, Image 3

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Street roots
Oct. 11, 2013
BITTER PILLS, from page 1
So that means they will be submitting
unilateral requests, administrative
subpoenas, to the Oregon program and
expect Oregon to send back people’s
confidential prescription records. It’s our
position that that is a violation of both
Oregon law and the Fourth Amendment to
the U.S. Constitution.
J.T.: So they’d begetting these records
•Nearly 25,000 African immigrants and
refugees live in Oregon: Source, Coalition
of Communities of Color
through subpoenas rather than warrants. I
was hoping you could explain the difference
between the two and why that’s important.
•About 24 percent of the Portland
Metropolitan Region was made up of
youth ages 0-17. Nearly 11 percent were
residents 65 years of age and older:
Source, Coalition for Livable Future
N.W.: Under the Fourth Amendment to
the U.S. Constitution, a warrant is required
whenever the government wants to conduct
a search of information or a place where a
person has a reasonable expectation of
privacy. For example, that would include a
search of someone’s house and, we think, a
search of someone’s medical records. •
To get a warrant, the government has to
go to a neutral judge and demonstrate that
they have a probable cause that the subject
of an investigation has committed or will
commit a crime. And that’s a high standard,
and that’s the gold standard under the
Constitution.
A subpoena is much different. It’s really
trivially easy for the government to issue.
Prosecutors or law enforcement can send off
administrative subpoenas on their own
authority without ever going to a judge and
all they need to demonstrate is that the
records that they seek are relevant to an
ongoing investigation, which is a very low
standard and far lower than the probable
cause required for a warrant.
•Three quarters of Latinos in Multnomah
County trace their roots to Mexico.
•More than 40 percent of the Latino
population is under 19, compared to 18
percent of non-Latino whites.
•There are more than 3,200 licensed
restaurants in Multnomah County and
more than 710 food carts.
•In Multnomah County, African American
men are 40 percent more likely than
white men to be diagnosed with prostate
cancer and more than two times as likely
to die from it.
•There are 106 emergency shelter beds
for women in Portland. There are
currently 338 women on the waitlist at
those beds. Source, City of Portland
•In 2012, 3,000 school children in
Multnomah County were homeless.
• A A ,773 same-sex couples are living in
Oregon: 2010 U.S. Census
•Multnomah County, with approximately
5,120 same-sex couples, ranks 5th in the
country for number of same-sex couples
per 1,000 households (16.81 per 1000).
•Approximately 16 percent of same-sex
couples are raising children.
•10,555 riders took part in the month long
Bicycle Transportation Alliance’s cycling
challenge across Oregon. Residents took
114,984 trips and rode a collective
1,151,687 miles during the challenge this
fall.
•A December 2012 poll found that 54
percent of people in Oregon would vote
to approve the freedom to marry, while
only 40 percent said they would oppose
marriage for same-sex couples.
Independents support marriage by a
64-33 margin, and voters younger than
45 support the freedom to marry by a
margin of 68-30.
J.T.: How do you respond to the DEA’s
argument that medical records aren’t private,
much like emails or other things subject to the
third-party doctrine?
N.W.: Well, I have two responses. The
whole concept of the third-party doctrine is
really outdated and doesn’t match up with
people’s reasonable expectations of privacy
in today’s virtual world where virtually all of
our communications through email or text
messages and other means are digital. When
we keep files on the cloud stored digitally,
and when very sensitive information like our
medical information is contained in digital
files that are sent between doctors and
pharmacists and pharmacists and state
reporting programs, it no longer makes
sense that because you’ve shared
information with a particular third-party for
a particular reason, like your doctor to get
medical care, that all of a sudden you’ve
consented to the government getting access
to the same information.
But even if the third-party doctrine makes
sense in some limited context, it still makes
no sense when we’re talking about the
extraordinarily private category of
information that is made up by people’s
medical records and their prescription
records. Knowing what medications a
person has been prescribed will reveal their
underlying medical condition and their
course of treatment, including really
sensitive things like whether a person is
HIV positive or has mental illness: issues
related to their sexuality or chronic health
conditions that are among some of the most
private information that any of us have.
J.T.: So you’re saying that there are
problems with the third-party doctrine?
N.W.: The case that the Supreme Court
decided back in the 70s, which the
government relies on now and establishes
the third-party doctrine, was decided in a
very different era when there was very little
or no digital information out there, and
maybe then it did make sense that you
disclosed some information into a third-
party for some reason you had, in effect,
recognized that it might be passed on to
others.
I think even then it was a dubious
proposition, but in today’s world there is no
way to participate in the economy or
Oregon vs. the DEA
BY JAKE THOMAS
- privacy concerns about the DEA
accessing records contained in the
nder both the U.S. and Oregon
database without a warrant because they
constitutions, law enforcement
contain such deeply personal
needs a warrant to come into
information. According to a brief filed by
your home to search for evidence of the ACLU, two individuals the
unscrupulous activity. However, the U.S.
organization is representing are
Drug Enforcement Agency doesn’t think
transgendered men taking testosterone
that the same standard appHes for your
as part of their transitions from females
medical records.
to males. Another takes medication to
In November, the state of Oregon went treat anxiety and post-traumatic stress
to court to challenge the DEA’s
disorder.
contention that it doesn’t need a court
A brief filed by the U.S. District
warrant access a database administered
Attorney argues that while patients and
by the Oregon Prescription Drug
physicians represented by the ACLU may
Monitoring Program (OPDMP), which
have privacy concerns about the DEA
was established by state lawmakers in
accessing the database, “there is no
2009 to help health care providers better
evidence that this practice has or will
manage patients’ prescriptions while also
effect (them) adversely, if at all.” The
preventing overdoses and abuse of drugs.
brief, filed on behalf of the DEA, also
When lawmakers created the program,
argues that it has the law on its side.
they built in a privacy safeguard by
“The Supreme Court has held that a
making it illegal for law enforcement to
person does not have a constitutionally
access the database without first
protected interest in prescription
obtaining a court warrant that
* information,” reads the brief, which cites
demonstrated that there was a probable
court cases backing up this claim.
cause that the snooping would turn up
According to the most recent report
evidence of wrong-doing.
from the OPDMP, which runs from
However, the DEA has argued that it
January 2013 through August 2013, 4.8
can bypass this requirement under the
million prescriptions are contained in the
third-party doctrine, an idea developed by database.
the U.S. Supreme Court in the 1970s
The Oregon Health Authority, which
that reasons that once citizens hand over
oversees the program, did not have
numbers on how many subpoenas it has
information to a third party, such as
emails sent over a company’s server or
received from the DEA and how many it
electric bills sent to a utility provider,
has complied with as of press time.
they then have no reasonable expectation
Straus also has other concerns about
that the information will remain private.
the OPDMP. In the last legislative
The DEA argues that prescription
session, lawmakers passed a bill that
re c o rd s fall under this c a te g o ry an d can
modified the program to collect more
information about patients, while also
be obtained by a subpoena rather th a n a
allowing doctors or p h a rm a c ists to allow
warrant, which requires scrutiny from a
their staff to access the database. Straus
ju d g e.
worries that the new law will give the
“When we collect data, it’s that much
program “mission creep,” while also
more easy for the government to access
creating new privacy concerns.
it,” says Becky Straus, legislative director
“Lower level staff are less likely to
the ACLU’s Oregon affiliate. “But it
have professional licenses or
doesn’t mean that we don’t have the
certifications that would hold them
same constitutional protections.”
accountable to any kind of abuse of the
In January, the ACLU joined the case
system,” she says.
representing four patients and one
physician residing in Oregon who have *
STAFF W R IT E R
U
Know ing w ltal medications a
person has been prescribed
w ill reveal th e ir u n d e rlin g
m edical condition and their
course of treatment^
Inclndlng re a lly sensitive
things lihe whether a person
Is H I1 positive or has mental
Illness^ Issues related to their
sexuality or chronic health
conditions that are among
some of the most private
inform ation that any of ns
have,
participate in modern life, to get health care,
to communicate with friends and family and
business partners without using third-party
services like email providers. So it just
doesn’t comport with people’s expectations
of privacy. Just because they are
participating in modern life we think that all
their information should be accessible to
police without a warrant.
J.T.: So what’s the solution? It was
established by the Supreme Court. Is the
solution a legislative fix?
N.W.: I think that legislative fixes can be
appropriate, but there is a limitation in the
case that we’re talking about where the
state of Oregon tried to make the legislative
fix. But now the DEA is coming in and
saying, that’s just a matter of state law and
we think that federal law preempts that and
we can get the records without a warrant.
So if Congress steps in that would be a fix
across the country. Courts really have an
opportunity to make sure that our
understanding of the Fourth Amendment
takes account of how people actually live
their lives and understand their privacy
rights today. So whether it’s in this case or
other cases dealing with similar issues, the
time has really come for courts to recognize
that this notion of the third-party doctrine
no longer makes sense and in fact members
of the Supreme Court in a case last year
involving warrantless GPS tracking by police
recognized as much and said that maybe
there needs to be a réévaluation of the
whole concept now that technology is
coming so fast and people need to use the
technology to participate in modern life.
J.T.: I read one of the government’s briefs
that claimed that even if the DEA finds out
about medications being taken by patients it
won’t really effect them “adversely, if at all.” It
also notes that it has safeguards to protect their
names from becoming public. How do you
respond?
N.W.: Well, the Fourth Amendment was
written into the Bill of Rights by the framers
of the Constitution, specifically, to limit the
ability of police and law enforcement to rifle
through people’s private information and
private papers. So disclosure to the public
of people’s information once the DEA gets it
is a concern. It’s crucial that there are
safeguards, but the primary concerns of the
See BITTER PILLS, page 5