Law Enforcement Caught Seizing Prescription Drug Data on Americans Without a Warrant
Posted on December 19, 2023
A new report from the Washington Post has laid bare the shocking ease with which law enforcement is able to obtain prescription drug records on patients across the country. The revelation that government bodies effectively do not require a warrant to obtain medical records stems from an investigation pursued jointly by members of both houses of Congress.
A letter to the Department of Health and Human Services, penned by members of Congress taking part in the investigation, stated that the three biggest pharmacy chains in America, CVS Health, Kroger, and Rite Aid, have policies which empower individual pharmacists to divulge prescription drug information on customers to the government bodies. Additionally, the inquiry highlighted that eight pharmacy chains typically only require a subpoena before they will authorize the disclosure of prescription drug records.
In spite of otherwise strong regulatory statute guarding against casual disclosure of medical information, government requests for prescription drug records and pharmacies’ ready compliance does not violate existing safeguards.
A glaring hole in the Health Insurance Portability and Accountability Act (more commonly known as HIPAA) enables pharmacies to submit medically sensitive records to law enforcement where hospitals and doctors’ clinics would be barred from doing so. The practice is also consistent with the so-called “Third-Party Doctrine,” which received deserved attention as a function of the Snowden reporting in 2013. As established in legal precedent by Smith v. Maryland, any individual doing business with a private company has no expectation of privacy, as they willingly surrendered their data to a private sector entity. Thus, the ruling established, such individuals enjoy no Fourth Amendment privacy protections.
As the law and pharmacy company policies stand, the potential for overreach is staggering. A legal expert’s analysis of the various pharmacies’ policies suggests that, due to data sharing across a given company, pharmacists in one location could easily access records pertaining to customers in another, even across state lines.
From the company statements submitted to Congress, and analysis by academics in the field, law enforcement appears to have discovered that applying pressure to pharmacy staff gets quick results. Pharmacies stated to elected representatives in Congress that their staff members face intense pressure from law enforcement to immediately comply when handed a subpoena.
Taken together, this is a recipe for rampant abuse. To lend the example that compelled the representatives to launch their investigation, prosecutors in states in which abortion is now illegal could issue subpoenas for abortion medication sought by state residents in other states in which such drugs can be legally obtained.
Given the extremely sensitive nature of the personal information at issue, the investigation’s leaders advocated for strengthening HIPAA to close the loophole exempting pharmacies from the same regulatory burden as care providers. They also called for pharmacies to adopt stricter law enforcement cooperation policies, specifically ones which require a warrant before compliance.
You can read the full Washington Post report here.
