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DEA Wants Access To Medical Records Without Warrant (thedailybeast.com) 176

mi writes from a report via The Daily Beast: Unlike in cases of commercially-held data, where the Third Party doctrine allows police warrantless access, prescription drug monitoring databases are maintained by state-governments. The difference is lost to the Obama Administration, which argues that "since the records have already been submitted to a third party (a state's Prescription Drug Monitoring Program) that patients no longer enjoy an expectation of privacy." The DEA has claimed for years that under federal law it has the authority to access the states' prescription drug databases using only an "administrative subpoena." These are unilaterally issued orders that do not require a showing of probable cause before a court, like what's required to obtain a warrant. Some states, like Oregon, fight it; some, like Wisconsin, do not. "The federal government is eager to see all these databases linked," reports The Daily Beast. "The Department of Justice has developed a software platform to facilitate sharing among all state PDMPs. So far 32 states already share their PDMP data through a National Association of Boards of Pharmacy program. The Comprehensive Addiction and Recovery Act (CARA), which passed Congress in March, calls for expanding sharing of PDMP data."
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DEA Wants Access To Medical Records Without Warrant

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  • by Taco Cowboy ( 5327 ) on Saturday June 11, 2016 @01:33PM (#52295767) Journal

    ... then FBI, then DEA ...

    The system rots, from within

    • by zenlessyank ( 748553 ) on Saturday June 11, 2016 @02:03PM (#52295923)
      The DEA was rotten the day it went into service. All it did was give others the chance to catch its infection. The DEA is the most Nazi inspired organization in this country. I will do any damn drug I want. FUCK YOU DEA. I hope everyone in your organization gets the AIDS and dies a bloody horrible death.
      • by Applehu Akbar ( 2968043 ) on Saturday June 11, 2016 @04:12PM (#52296487)

        Let the addicts have their favored poison, and quietly remove themselves from the gene pool.

        I would rather we had a drug problem than suffer the continuing existence of the DEA. Oh, wait - we still do have a drug problem as well as a DEA. And when the agency goes, can we have back the parts of the Constitution that we deleted for their benefit?

      • by Cytotoxic ( 245301 ) on Saturday June 11, 2016 @10:03PM (#52297825)

        I will do any damn drug I want..

        I've never done any sort of illicit drug, and I stand behind your take. I too will do any damn drug I want. (in my case that happens to be none, but still)

        This part of the drug argument should be simple for all to comprehend. What you chose to do with your own body, mind and life is up to no one but you. And any prick who wants to pick up a gun and point it at you "for your own good" can go rot in a special place in hell. Whether that gun is intended to keep you safe from addiction, or keep you out of hell for loving the wrong person, or any of the other myriad things that nannies want to prevent consenting adults from doing with each other.

        I don't personally do any of these things, and that answer would be the same the day after they are all legalized, but that doesn't mean that I can't comprehend the evil that is inherent in using force to make people live according to your personal moral code.

      • What a nasty post; I'm for the de-criminalisation of drugs and addicts, but wishing the DEA agents death by AIDS is just plain ugly.
        +5 insightful? C'mon mods...

    • It's been like that for ages. It was only after the Snowden leaks we started caring because it wasn't just certain "inconvenient" figures that were targeted, it was everybody. The fact is that nowadays, after conception you no longer enjoy an expectation of privacy.

    • I believe that if the DEA folks would go the base of Bunker Hill and look up; that would be perfect.
  • by chaboud ( 231590 ) on Saturday June 11, 2016 @01:39PM (#52295803) Homepage Journal

    As a Obama supporter (twice), can I just say:

    Dude... Obama... stop. The tin foil hat brigade is giving me that knowing nod of "see? We fucking told you", and I have no reasonable retort. The Constitution was supposed to be your wheelhouse.

    • by Rick Zeman ( 15628 ) on Saturday June 11, 2016 @01:58PM (#52295893)

      As a Obama supporter (twice), can I just say:

      Dude... Obama... stop. The tin foil hat brigade is giving me that knowing nod of "see? We fucking told you", and I have no reasonable retort. The Constitution was supposed to be your wheelhouse.

      Gee, thanks.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Serious question: Are you upset because our privacy is at risk or because it makes Obama look bad?

      You can be honest, I know people IRL who seem to really care only about rooting for "their guy" and forgive all the bad things.

      • Serious question: Are you upset because our privacy is at risk or because it makes Obama look bad?

        You can be honest, I know people IRL who seem to really care only about rooting for "their guy" and forgive all the bad things.

        Both really, the privacy is the big thing but when you have high expectations is hurts even more. Bush I didn't expect much but Obama, I had my hopes.

    • I totally understand where you're coming from. In Texas we had a pretty good governor from 1995-2000. He did a good job, earning praise from Democrats in the state legislature as well as Republicans. He was good at working across the aisle and getting things done, so I had high hopes when he was elected president. Oops.

      I hoped that Obama would inspire the nation, JFK-style. While his own radio ads about "going after corporations" let me know he was intending to cause harm to business owners such as myself,

    • Has it occurred to you yet that you made a big mistake, and that all this crap shoveled into your head about conservatives is wrong? Or are you going to hold on to it like grim death to the very end?

      • by dryeo ( 100693 )

        From the outside looking in, Obama doesn't seem much different then Bush when it comes to the important policies. You have bank bailouts started by Bush and continued by Obama. You have a medical plan designed originally by Romney to give the insurance companies more business and power. You have trade agreements designed to fuck people everywhere which are supported by all the pro-business types. You have continuous war, mostly in support of one of the most conservative societies on Earth. Do you think thin

        • This is pretty accurate, but whenever you tell a Democrat (or a Republican, actually) that Obama is pretty much like Bush on a lot of levels, they get really mad.
  • by zenlessyank ( 748553 ) on Saturday June 11, 2016 @01:42PM (#52295815)
    Fuck them forever. Fuck them from day one. Fuck anyone who works for them. Fuck anyone who supports them. Fuck any country that employs them. Lastly...FUCK THE DEA
  • makes no sense (Score:5, Interesting)

    by geoskd ( 321194 ) on Saturday June 11, 2016 @01:47PM (#52295835)

    What is with all these requests for data without a warrant? If they have a legitimate request for access, it will be very easy for them to get a warrant. The only reason I can think of to want warrantless access is to circumvent constitutional protections.

    • Re:makes no sense (Score:5, Interesting)

      by russotto ( 537200 ) on Saturday June 11, 2016 @02:11PM (#52295955) Journal

      Several reasons, here's two:

      1) They want to run correlations to see if they can find people abusing prescription medicines and bust them.

      2) If they want to put pressure on someone for any reason, they want to dig up their prescription records. Aha, you've had several prescriptions for Percocet, does your professional review board know about your drug habit? Does your boss know you've been prescribed SSRIs? Do you want them to? No? Better play ball.

      • by umghhh ( 965931 )
        So what you say is that they want to have more easy arrests? Seems plausible to me.
        • They don't want arrests so much as they want blackmail. A prisoner is an expense, a prisoner is someone defeated in body only. A blackmail victim is an owned mind, a slave. This is the goal of all totalitarians.
      • Option 1 would be legal, and I dare to say desirable.

        Option 2 would be illegal and require several failures of due process (opening up the law enforcement agency to rather large lawsuits) to actually occur, and it would likely render inadmissible any evidence obtained while you "played ball".

        • For option 2 they tell your boss anyway due to some legally required disclosure regulations they just made up, you get canned for being an addict and won't be able to get another job with that on your recordsso, how can you afford any legal costs for your defamation, because fuck you.

    • They are trying to legalize what they are already doing.
  • by Anonymous Coward

    Does this mean we, as the general public, can request the prescription drug database results for lawmakers in states like Wisconsin?

  • by ATMAvatar ( 648864 ) on Saturday June 11, 2016 @01:59PM (#52295897) Journal

    since the records have already been submitted to a third party (a state's Prescription Drug Monitoring Program) that patients no longer enjoy an expectation of privacy.

    I don't buy into this bullshit normally, since people generally leave their information with third parties because they trust the third party will keep it in confidence. This case has the added force of law behind it -- HIPAA was written specifically to ensure that medical records are not passed around without the patient's consent.

    ...or so, any normal person would believe.

    Unfortunately, it appears in this case, the DEA is correct. There is a specific exemption in HIPAA for administrative requests [hhs.gov]:

    When does the Privacy Rule allow covered entities to disclose protected health information to law enforcement officials?

    To respond to an administrative request, such as an administrative subpoena or investigative demand or other written request from a law enforcement official. Because an administrative request may be made without judicial involvement, the Rule requires all administrative requests to include or be accompanied by a written statement that the information requested is relevant and material, specific and limited in scope, and de-identified information cannot be used (45 CFR 164.512(f)(1)(ii)(C)).

    • by nbauman ( 624611 ) on Saturday June 11, 2016 @02:19PM (#52295991) Homepage Journal

      HIPAA was written specifically to ensure that medical records are not passed around without the patient's consent.

      ...or so, any normal person would believe.

      Based on my conversations with lawyers, I would say that the HIPAA laws were written specifically to ensure that hospitals could disclose medical records to law enforcement without incurring any liability.

      When politicians want to do something particularly outrageous, they use Orwellian language. They call it the "Privacy Rule" because it takes away your privacy.

      https://en.wikipedia.org/wiki/... [wikipedia.org]
      Covered entities may disclose protected health information to law enforcement officials for law enforcement purposes as required by law (including court orders, court-ordered warrants, subpoenas) and administrative requests; or to identify or locate a suspect, fugitive, material witness, or missing person.

      If you want something to be private and confidential, don't let it go in your medical record.

      A lawyer once told me that a medical record is a "public document." It's accessable to everyone with a "need to know," and that includes the janitor who mops up your room and is concerned about infections.

      • Makes sense, since the actual security part of HIPAA is so watered-down to the point it's pretty much useless in actually requiring providers to actually do anything to secure their systems. Everything that ITSEC people would do is all considered "addressable" and not required.
  • by markdavis ( 642305 ) on Saturday June 11, 2016 @02:02PM (#52295909)

    >"The difference is lost to the Obama Administration, which argues that "since the records have already been submitted to a third party."

    Of course... that pesky Constitution just gets in the way so much. Due process is overrated and the Fed should be able to do whatever they want, I mean, anything can be "interstate commerce", right? That the records are held by the States shouldn't matter, since the interpretation of the Constitution is now that the Federal Government has any rights DENIED to the States, not the other way around.

    Think this is just a Democrat problem? Think again. It seems all politicians- from the President, through Congress and elsewhere think the government, especially the Fed, should grow and grow, spend and spend, make law after law taking away more and more rights from Citizens. What is the next "war"? We haven't yet "won" of the "war on drugs" which stripped countless rights... followed by the unwinnable "war on piracy", and then the "war on terror", in which everyone is a terrorist and if you are a good Patriot, you should surrender all your rights in the name of "patriotism". If you have nothing to hide...

    It seems we continue to allow the evolution of the "Federal Fascist Socialist State of America" everyone loses. Where does it end?

    OK, rant over... gotta go mow the stupid lawn now. Unless there is some Federal law against that I don't know about.

    • Re: (Score:2, Insightful)

      by sumdumass ( 711423 )

      What gets me is they pass a law saying third parties have to keep this information (cellphone/telephone data, prescriptions drug data) then pass a law saying that because it is given to a third party, they can get it any time they want.

      I suspect somewhere down the road, a law will be passed saying that all banks that hold a mortgage on a property must grant access to the property without a warrant so even if you rent, your landlord will be forced to open up your home up for inspection without a warrant. It

    • by e r ( 2847683 )

      OK, rant over... gotta go mow the stupid lawn now. Unless there is some Federal law against that I don't know about.

      Not so fast, citizen. Have you read and complied with the relevant [epa.gov] regulations [cpsc.gov], citizen? The EPA [consumerreports.org] is only concerned [epa.gov] with what's best for all of us, citizen. You do want [wmbfnews.com] to be a good citizen, don't you, citizen? Now pick up that can.

      To anyone who scoffs at this: ask yourself: "Why should the federal government be concerned with how I mow my lawn that I paid for and continue to pay taxes for?"

  • Explicit consent? (Score:4, Insightful)

    by Rick Zeman ( 15628 ) on Saturday June 11, 2016 @02:03PM (#52295921)

    FTFA: The Obama administration disagrees, and argues that since the records have already been submitted to a third party (Oregon’s PDMP) that patients no longer enjoy an expectation of privacy.

    How do *I* lose my rights if a second party turns over info to a third party?

    Now I see why the Obama administration has had such a hardon for electronic medical records.

  • by ooloorie ( 4394035 ) on Saturday June 11, 2016 @02:07PM (#52295943)

    Massive collection of data by government is a necessary part of implementing financial regulation, health care regulation, environmental regulations, gun control, employment regulation, public education, and civil rights legislation. That is, federal and state governments cannot accomplish their goals of detecting fraud and inefficiencies, without detailed data on the health, drugs, purchases, sales, salaries, and education of every American. And, of course, the IRS, DEA, and other agencies are going to get access to it: it's their job to find fraud and abuse in the system. What rubs people the wrong way about it is that they are now starting to realize that once that data has been collected and the three letter agencies get access to it, they themselves are potential suspects and may be identified for idiosyncratic reasons by some data mining algorithm. That's in addition to the other abuses that such data collection engenders: political blackmail, government corruption, and massive leaks of personal information.

    The combination of the war on drugs, anti-terrorism legislation, the ACA and the massive increase of financial services regulations in recent years have fundamentally changed the US from a country where you were left alone unless you did something wrong, to a country where every aspect of your life is recorded and scrutinized by state and federal agencies. I think we need to reverse that.

    • Evidently, I was selected (well, my area was) for the census community survey which is mandatory to participate by law. I avoided it as long as I could until I left the house one day and found a census worker parked in the driveway. I know she has been there at least 10 other times from pamphlets left in the door and alarms set off when people enter the driveway triggering my video recording. I'm not sure how this particular day, she didn't set one off unless I forgot to rearm it when checking who was there

      • Almost every single question except when I was home or not could have been answered by contacting another government agency.

        They could have just asked the police department or one of the federal 3 letter agencies what time you leave and come home. They have license plate readers deployed all over every major city and alongside most interstates so they know where most people are (or at least where their cars are) pretty much all the time. Don't you feel safer knowing Big Brother is watching over you?

  • by transami ( 202700 ) on Saturday June 11, 2016 @02:10PM (#52295953) Homepage

    For f* sake, my doctors can't even get my medical records. Went to the emergency room, told them I just had a cat scan in the same hospital a few weeks ago of the problem area and they could use that for comparison. "Was it an out-patient procedure?", they asked. "Yes". "Then we can't use that." Another time I went to hospital, told them I had been to another hospital for the same thing but out of state, again oh well, they can't use those. Hell, every time I go to the doctor they ask for my height. That doesn't change very much. But they ask it every single freaking time. What's the point of all these records? We make an endless stream of them and never use them again.... oh, except when a foreign dignitary needs an organ, then they read them alright.

    • Hell, every time I go to the doctor they ask for my height. That doesn't change very much. But they ask it every single freaking time.

      It shouldn't. But it can. Particularly in the case of spinal pathologies.

      Of course, asking you isn't exactly diagnostic, as you're just going to regurgitate the number you've been spitting out for years. What they need to do is measure your height. That way they'd actually learn something.

      I want to defend the medical profession for the good they do. But sometimes, they do mak

      • We ask height because it's part of the 'vital signs package'. Admittedly it's stupid when it's done every week, but federal regulations (who else?) kinda sort of encourage this (it's complicated). It's also a way to track identity abuse. If you gained 50 pounds and 8 inches in a month then somebody ought to look into it a bit closer. This happens not infrequently with Medicaid patients.

        It's hardly the most idiotic thing US medicine does.

      • When I go to the doctor, they weigh me, and every so often measure my height. I don't get asked questions that they can quickly measure to get the answer.

  • by MikeRT ( 947531 ) on Saturday June 11, 2016 @02:24PM (#52296019)

    If for no other reason than privacy, this is why a cashless society is totally undesirable if you value privacy. Literally every transaction you do is visible by or through a third party to the transaction. Therefore the third party doctrine would apply to your entire economic life.

    And you know that if we get there, no one in Congress is going to propose, let alone get passed, a bill that formally abolishes that doctrine and requires a warrant for every data request.

    • 666 Mutherfucker. All your cash will belong to them soon. You will need to take the number of the beast if you want to buy or sell anything. Throw some cash at your PC and see how much online shopping you can do. 666. Mutherfucker.
    • A cashless society is almost impossible to enforce. This is because trade and barter of actual goods bypasses all forms of currency. In order to actually regulate those kinds of transactions, 100% surveillance and corresponding follow-up are required. Even as bad as government intrusion on freedom and liberty is today, we're not even a fraction of the way down that hill.

  • by whoever57 ( 658626 ) on Saturday June 11, 2016 @02:30PM (#52296049) Journal

    The government can't (or should not) pass a law that requires collection of data, then claim that people have no expectation of privacy in that data.

    What if the government passed a law requiring you to upload the contents of your computer to a massive database, then decided that it didn't need a warrant to access that same data?

    If the Supreme Court allows this, it shows that the justices are themselves corrupt.

  • Over and over again, throughout centuries, throughout all of written history, we've found that the police (and people in general) can't be trusted with this kind of power.

    Over those millennia we've tried many different systems, and developed a way to let police catch bad guys while giving them restraints from hurting good people. Our system isn't perfect, but it's a careful balance built over a lot of experience. And now these guys want to upend that balance.

    They are more in the problem set than in the
  • by nbauman ( 624611 ) on Saturday June 11, 2016 @02:43PM (#52296105) Homepage Journal

    I would recommend that you never tell your doctor that you use marijuana.

    That will usually go into your medical record, because it's part of your medical and social history.

    Now with electronic medical records, anybody with access can do a text search for "marijuana" and find it.

    The most obvious problem that I can identify is that years later, you might have a legitimate need for opioids.

    For example, hip and knee replacements are very painful. In order to be successful, they require physical therapy, which is also very painful, and often can't be done right without opioids. (See Jane Brody's story in the New York Times about her own knee replacements.)

    If your medical record mentions marijuana, that can set off some (unscientific) guidelines for using opioids, which require that you sign a "pain contract." You have to take (unnecessary and expensive) drug tests, with (unnecessary and expensive) doctors' visits, with lower doses than would be medically appropriate, and they can discontinue opioids if you test positive for marijuana. Normally it would be a violation of medical ethics to abandon a patient, but these pain contracts allow doctors to unethically abandon a patient if they violate some of these provisions.

    The Veterans Administration just backed off on one of those pain contracts after a veteran sued them. But not everybody can afford a lawyer.

    http://journalofethics.ama-ass... [ama-assn.org]
    Veterans Health Administration Policy on Cannabis as an Adjunct to Pain Treatment with Opiates
    Michael Krawitz
    AMA Journal of Ethics.
    June 2015, 17(6):558-561.

    If a doctor specifically asks about marijuana, I think a good answer would be, "You can't guarantee me that this information will be confidential, right?"

    • As a physician, I hate to agree, but I would avoid saying anything not exactly relevant to the problem. Much of the doctor-patient relationship is based on trust which is in part based on privacy of the conversations. With electronic records, privacy is a thought that fluttered in the wind and disappeared years ago.

  • Get your drugs from a state that does not have a PDMP: http://www.deadiversion.usdoj.... [usdoj.gov] Lots of mail-order pharmacies operate out of states that do not have a PDMP.
    • Pretty much too late [namsdl.org] for that.

      Sorry.

  • They just want to remove obstacles to 'parallel construction'

  • If DEA collects metadata, they can find which pharmacists, doctors, etc. are dishing out the opiods. I share peoples concern over DEA getting private data to go after buyers, but I was pretty freaked out by the sting that netted 140 pharmacists in a distribution ring in my home state of Arkansas last year. https://www.justice.gov/usao-e... [justice.gov]
  • Long answer: there are special laws which protect doctors from revealing information of patients. In job interviews you can even lie about conditions if they do not endanger you and others. This is for a reason. Look in the human rights declaration if you do not understand. DEA you cannot have access to such private data without a warrant.

  • Hell hath no fury like an armed agency losing its sense of purpose. Even if we could snap our finger and de-fund them right now, you've got a bunch of guys who are used to carrying guns and wielding power. Same deal with the gangs on the other side. Pot legalization won't make them go away. They're used to living the easy life, and they'll move into other forms of vice and perhaps get even more violent competing for a share of the smaller pie. At least, that's what I heard happened with alcohol prohibi

  • by uncqual ( 836337 ) on Saturday June 11, 2016 @06:08PM (#52297025)

    Those who accept "reasonable" exceptions to the Second Amendment should not be surprised when "reasonable" exceptions to the Fourth (or any other) Amendment are also accepted.

    After all, these exceptions are all "for the good of society" - who can argue with that?

    • by Kjella ( 173770 )

      Those who accept "reasonable" exceptions to the Second Amendment should not be surprised when "reasonable" exceptions to the Fourth (or any other) Amendment are also accepted.

      If the first amendment didn't have exceptions, threats, fraud, libel, slander, false advertisement, grooming and a ton of other crimes couldn't be crimes. Heck, I could order a hit man to kill you. The truth is, the bill of rights sucks as a legal document by any modern standard. Almost no term is defined, it says you will have "due process" but what that means is only vaguely guessed from contemporary documents, which can obviously contain conflicting and controversial meanings that might not reflect what

  • If the medical records have no expectation of privacy due to their catch-all " third party " bullshit, then what exactly is the point / purpose of having networks HIPAA certified ?

    Are DEA databases considered HIPAA compliant ? They going to assume responsibility ( and penalties ) if / when their database is breached ?

    Taking this a step further, would it be safe to assume that any and all data residing in " The Cloud " would have the same definition since you're letting a " third party " manage it for you ?

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