UPDATE: See correction and additional information in the comments from Allen Gilbert, Executive Director of the Vermont chapter of the ACLU, who has been working on this issue.
Jack McCullough
The Vermont State Senate is considering a bill that would allow law enforcement officers access to the Vermont Prescription Monitoring System, a statewide database that includes information on the patient, the prescriber, and the drug prescribed, for each prescription written for numerous medications. Vermont Digger:
In a joint hearing with the Senate committees on Judiciary and Health and Welfare, law enforcement officers tried to convince senators that allowing trained officers to request personal information surrounding controlled substances would help them deal with the state’s widespread prescription drug abuse problem.
We certainly have a huge problem with prescription drug abuse. And access to the database would certainly give police a new investigative tool to fight that problem.
It would also give police access to a broad array of unrelated information. It would also fundamentally alter the nature and purpose of the VPMS. And it would undermine the assurances given to the people of Vermont when the VPMS came into existence a mere three years ago.
In fact, I wasn’t sure where I came down on this issue until I read the warm fuzzy words on the state Health Department’s website, and realized that the Senate bill would constitute a big fat bait-and-switch:
The purpose of the database is to provide timely and useful information to both licensed prescribers and pharmacists. The VPMS will also help health care providers identify patients who may need treatment for drug abuse or addiction.
Only licensed health care providers and pharmacists, registered with the U.S. Drug Enforcement Agency, and registered with the VPMS, will have access to information in the database.
The VPMS was sold to us as a way to help providers and pharmacists manage patient treatment, not as a law enforcement tool. Even state licensing boards can’t directly access the database; they have to request information regarding a specific investigation. The bill before the Senate would give police direct, unfettered access.
After the jump: false assurances, harbingers of abuse, and why this might actually be irrelevant to fighting drug abuse.
Oh, but the access would only be given to “trained” officers. Whatever “trained” means. And we never see “trained” officers abuse their authority, do we? Was Lt. John Pike “trained” in crowd control measures?
Under what circumstances could the police access the database? Let’s say an officer conducts a routine traffic stop and the driver is acting a little strange. Can the officer call up a “trained” investigator to check the driver against the database? See what drugs he might have taken? Can a “trained” officer call up the prescription records of his ex-wife and see if she’s on antidepressants?
Generally, I don’t like slippery-slope arguments. They’re routinely abused in political debate to attack reasonable proposals by linking them to highly unlikely consequences. (e.g. Obamacare will lead to a government broccoli mandate.) But this isn’t an overhyped extrapolation of several-steps-removed consequences; this is a one-step, direct link. This is standing at the top of a slippery slope with a kind-hearted Senator behind your back asking if you want a push.
There are a whole lot of digital databases out there, and more are being created all the time. I’m sure a lot of them could be very useful to police. It could make law enforcement more efficient — if it doesn’t simply drown the police in a tsunami of data. (The biggest barrier to child-porn investigations isn’t information; it’s the personnel needed to do something useful with all the information they have.) But in a democratic society, there has to be a balance between the interests of law enforcement and the privacy rights of individuals.
There are other objections to this proposal. For one, the VPMS is actually doing a good job at its intended function: helping doctors and pharmacists discover prescription drug abusers. They communicate all the time. Doctors routinely get calls from pharmacists when there’s a questionable prescription on their desk. The vast majority of health care professionals want to prevent prescription drug abuse. (Of course, they don’t go to the cops; they do their best to treat the individual.)
Okay, you might say, if that’s true, why do we have a prescription drug abuse problem?
I don’t know, but my guess is that it has nothing to do with doctors and pharmacists. I’d bet the bulk of the problem comes from illegal trafficking, drugs brought in from out of state or Canada. Having our “trained” officers combing through prescription information won’t help them track down any off-the-books offenders; indeed, it might be counterproductive.
But it’s a shiny new toy, and the cops love a shiny new toy — whether it’s a Taser, a mini-tank, or a big ol’ database.
To get a warrant, an officer has to have sufficient evidence to convince a judge that you’re a suspect. The desire to circumvent the warrant process is a sign of either laziness or inadequate resources. In both cases, the solution lies not in subverting people’s rights, but in addressing the root cause: either fire the lazy officers, or budget for and hire sufficient officers to do the job right. And, yes, I know about the conundrum presented by the anti-taxers. It’s time for public servants to start talking to their fellow voters about what happens when one shoots oneself in the proverbial foot.
The warrant requirement exists specifically to prevent witch hunts and random fishing expeditions, in which authorities try to gin up a case against you just because they don’t like you.
The prescription database is supposed to be there to help patients get help to escape their addictions, not to further gum up the courts and prisons with a bunch of people unfortunate enough to have lost at the game of chemical metabolic roulette.
This attempt by police to turn a treatment tool into a punitive weapon is one more argument for ending the war on drugs.
Clearly, making drugs illegal and punishing people for using them hasn’t made addiction go away, so we need to find a better path.
Here, for those of shorter memory, is a batch of links to coverage of the last time the state police tried to go fishing around in prescription drug records without a warrant, although they actually went to the pharmacies back then; much of this info was compiled and connected via the excellent work of GMD FPer Julie Waters:
http://www.greenmountaindaily….
http://www.greenmountaindaily….
http://www.greenmountaindaily….
http://www.greenmountaindaily….
http://www.greenmountaindaily….
NanuqFC
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. ~ Robert F. Kennedy (1925-1968)
The proposal from the Shumlin administration that’s before the Senate Judiciary Committee does not, technically, give police “direct, unfettered access” to the state Department of Health’s prescription drug monitoring system.
It gives police “indirect” access, which means police will assert they are investigating someone, they’ll “ask” the Health Department staff running the database to turn over the person’s prescription (Schedule II-IV) drug records, and then police will receive a copy of the person’s data. Call it what you will, it’ll still be done without a warrant.
What’s interesting about this “indirect” access is it’s the same procedure federal agents use in issuing National Security Letters (NSLs). The agents assert they have opened an investigation of an individual and order that personal records relating to the individual be turned over. No warrant is required, no court reviews the request, and the person who receives the request has little choice but to comply.
I’m the executive director of the ACLU-VT. We don’t think Vermonters want police to be able to operate in this way. Warrantless access to people’s personal information deepens public distrust of police actions. The Fourth Amendment is there for a reason.
A key vote on this bill will come Wednesday at 11:15 a.m. in the Senate Judiciary Committee. The committee will vote then on whether it will include the warrantless access provision when the bill is sent to the Senate floor. The committee seems pretty well split at the moment.
One hour before the vote, the entire committee is scheduled to meet with the governor in his ceremonial office in the statehouse.
Time of the mark-up and vote on the prescription drug bill (H. 745) on Wednesday has been moved up to 11 a.m., according to the committee’s updated schedule.
Presumably, at that time the committee will not only decide on the warrantless access provision but also on an amendment to lower penalties for possession of small amounts of marijuana. Seems like an odd combination, but that’s what the committee has been talking about doing.
The Senate Health and Welfare Committee will continue to look at other aspects of the bill through the week. It’s unclear when the bill will go to the Senate floor.