Prescription-Drug Policing: The Right to Health-Information Privacy Pre- and Post-Carpenter

By Oliva, Jennifer D. | Duke Law Journal, January 2020 | Go to article overview

Prescription-Drug Policing: The Right to Health-Information Privacy Pre- and Post-Carpenter


Oliva, Jennifer D., Duke Law Journal


ABSTRACT

This Article operates at the intersection of privacy law, Fourth Amendment doctrine, and prescription-drug surveillance instigated by the U.S. drug-overdose crisis. Reputable reporting sources frequently frame that ongoing crisis as a prescription-drug-overdose "epidemic. " Current epidemiological data, however, indicate that the majority of American overdose deaths are now a result of illicit and polysubstance drug use and not prescription-opioid misuse. The prescription-opioid-centric frame has nonetheless sparked the rapid rise of surveillance of prescribes und patients in the form of state prescription-drug monitoring program ("PDMP") databases. State PDMPs, which maintain and analyze significant data concerning every dispensed controlled substance, surreptitiously collect a stunning amount of sensitive health information.

PDMPs are predominantly law enforcement investigative tools dressed up in public-health-promoting rhetoric. Under the guise of rogue prescriber, pill mill, and doctor-shopper crackdowns, the Drug Enforcement Administration ("DEA ") routinely self-issues subpoenas that permit the agency to conduct warrantless sweeps of the voluminous data stored in state PDMP databases. These rampant law enforcement sweeps procure highly sensitive health information and raise serious constitutional privacy concerns. The Supreme Court's recent Fourth Amendment decision in Carpenter v. United States, however, may limit the DEA 's otherwise unfettered access to state PDMP databases.

Carpenter and the Fourth Amendment doctrines central to its holding motivate this Article and animate its two core contentions. First, pertinent pre-Carpenter precedent requires the DEA to obtain a warrant in order to conduct sweeps of state PDMP databases. Second, courts are even more likely to rule that warrantless DEA searches of highly sensitive health-care data run afoul of the Fourth Amendment in the post-Carpenter world. Simply stated, patient prescribing records stored in state PDMP databases are entitled to Fourth Amendment protection.

TABLE OF CONTENTS

Introduction

I. The Rise of Expansive State PDMPs
   A. PDMP Provocation: The U.S. Drug-Overdose Crisis
   B. PDMP Overview
   C. Law Enforcement Access to PDMP Data

II. Pre-Carpenter PDMP Litigation: Oregon & Utah Cases
   A. Fourth Amendment Overview
   B. Oregon PDMP v. U.S. DEA
   C. DOJ v. Utah DOC

III. Evaluating the PDMP Cases Under Pre-Carpenter Precedent
   A. Pre-Carpenter Administrative-Subpoena Cases
      1. State PDMP Data Are Not Corporate Books or Records
      2. PDMP Data Are Maintained by State Actors
   B. Pr e-Carpenter Third-Party Doctrine
      1. United States v. Miller
      2. Smith v. Maryland
      3. The Fourth Amendment Supervillain, Jones, and Riley
   C. Application of Pr e-Carpenter Third-Party-Doctrine
      Precedent to the PDMP Cases
      1. Oregon PDMP Litigation
      2. Utah PDMP Litigation

IV. Carpenter v. United States

   A. Factual and Procedural Background
   B. Majority Opinion
   C. Justice Kennedy's Dissent
   D. Justice Alito's Dissent
   E. Justice Thomas's Dissent
   F. Justice Gorsuch's Dissent

V. Carpenter's Application to State PDMP Health Information

   A. The Right to Health-Information Privacy
      1. Fourteenth Amendment Case Law
      2. Fourth Amendment Case Law
      3. Other Pertinent Privacy Statutes and Regulations
   B. The Post-Carpenter Third-Party Doctrine
      1. The Nature of the Records Sought
      2. The Voluntariness of the Information Conveyed
   C. Potential Post-Carpenter Pitfalls
      1. Carpenter May Not Apply to PDMP Databases Due to
         Their Lack of Sophistication and Pervasiveness
      2. Carpenter Does Not Address the Highly Regulated
         Industries Exception to the Warrant Requirement

Conclusion

INTRODUCTION

   Physicians are not agents of the police power of government, and
   should not be forced to choose between protecting their patients
   against prosecution or protecting them against disease. … 

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