Don't Sell Out the Privacy of Patients

Medical records are private and should be protected.

A pharmacists holds prescription medicine

A bill recently passed by the Pennsylvania Senate allows prosecutorial access with a court order based upon “reasonable suspicion.”

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The Pennsylvania General Assembly is considering a bill that would create a vast, new database program to collect and store the prescription medication records of millions of Pennsylvanians at the state Department of Health. Virtually every other state has a similar database, but privacy protections vary widely. In theory, it makes sense that a doctor would want to know what medications her patient is taking; but, in practice, this surveillance program diminishes patient privacy. Access to the data does not end with doctors and pharmacists.

Perhaps the most frightening aspect of the bill is the access granted to law enforcement. If a prosecutor wants to search a medicine cabinet in a home or files in a physician’s office, 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. The bill, which was recently passed by the Pennsylvania Senate, allows prosecutorial access with a court order based upon “reasonable suspicion,” a very low legal standard that usually applies to limited situations involving minimal intrusion and in which a person has a lessened expectation of privacy, like a traffic stop.

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Medical and legal advocates have pushed the legislature to require prosecutors to obtain a search warrant based upon the higher standard of probable cause, which is enshrined in both the U.S. Constitution and the Pennsylvania Constitution.

Probable cause is the standard that is used when a person has a reasonable expectation of privacy and the search is intrusive. Certainly, people have a heightened expectation of privacy when it comes to their medical records. Our prescription medications provide a window into our medical conditions. There are few aspects of our daily lives that are more personal and more private. The boundaries of the Constitution do not disappear because the data is stored in an electronic database.

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Incredibly, the Pennsylvania District Attorneys Association argued in a letter to the state Senate that people have a “limited” expectation of privacy in their prescription records. Not surprisingly, the Pennsylvania legislation is on the wrong side of the U.S. Constitution. In February, a federal district court in Portland, Oregon, ruled 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. State legislatures across the country, in states as ideologically diverse as Rhode Island and Arkansas, have reached the same conclusion and now require law enforcement to get a warrant before searching prescription drug databases.

This debate over privacy in prescription records has vexed the legislature in Pennsylvania. While the state Senate passed its bill to weaken the right to privacy in prescription records, the state House amended a similar bill last fall to require prosecutors to obtain a search warrant based upon probable cause. Majorities of both Republicans and Democrats voted in favor of the amendment.

Unfortunately, the state Senate bill sells out the privacy of patients, the vast majority of whom use their medications properly. People have every right to expect their legislators to protect their medical information from the eyes of snooping prosecutors.