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      The DEA Thinks Medical Records Don't Count as "Private"

      September 29, 2013
      From the column 'Bad Cop Blotter'

      A room full of medical records, which you may naively assume only your doctor has access to. Photo via Flickr user Newtown Grafitti

      If last month’s revelation that the the Drug Enforcement Administration (DEA) has been keeping a database of phone logs since 1986 wasn’t bad enough, here’s further proof of the intrusiveness of the agency's tactics: a lawsuit being fought between the DEA, Oregon, and the American Civil Liberties Union (ACLU) hinges on the fact that the drug warriors believe they should have easy access to the Oregon Prescription Drug Monitoring Program (PDMP) database and have been acting on that belief, even though it contradicts state law. In plain English, the DEA says that if your medical records are shared with a pharmacy—something that happens routinely thanks to the PDMP—you lose the right to assume that that information is private, even if lawmakers in your state disagree with law enforcement.

      The basis for the DEA's legal argument is the third-party doctrine, the precedent the government leans on if it wants to look into your credit card charges, your utilities bills, your emails, or anything else that you have shared with someone else. The Fourth Amendment protects you against “unreasonable search and seizure,” but increasingly, in an era where the vast majority of our private communications go through a third party, law enforcement is expanding the definition of what a “reasonable” search is.

      The ACLU argued in a brief filed last week that the third-party doctrine doesn’t apply to medical records, and that the information in the Oregon PDMP database is “deeply private.” (The database, according to the PDMP website, includes “the patient’s name, address, and date of birth, pharmacy and prescriber information, and specific prescription information including the drug name and dosage, when it was prescribed, and when it was dispensed” for drugs that qualify as controlled substances.) The courts' decision in this case could have consequences far beyond Oregon's borders—about 40 states have similar PDMP schemes, which are designed to track the use and abuse of prescription drugs by making medical information more easily accessible to pharmacists and healthcare providers. Their effectiveness is debatable, but in any case, the architects of Oregon’s program never thought it would allow the DEA to spy on patients without a warrant.

      The state of Oregon sued the DEA last November, arguing that the PDMP system was specifically designed to keep law enforcement from viewing patients’ sensitive records, and the ACLU jumped in on the side of privacy rights a few months later. The question isn’t whether the DEA could arrest a few more prescription drug abusers by viewing PDMP records than they would otherwise, it's whether they should have that power in the first place. After a weekend which saw even more evidence revealed that government agencies feel no compunction about spying on everyone regardless of warrants or evidence, any bit of pushback against the surveillance state, no matter how narrow, should be seen as welcome news. If the DEA is spending its time going through medical records to track down (presumably nonviolent) drug offenders, the agency has way, way too much time on its hands.

      Now for the rest of this week’s bad cops:

      - In Sherman, Texas, a man named David Seyfried filed a lawsuit against the City of Lewisville Police Department over a May 29 incident in which several cops shot, Tasered, and cuffed his Alzheimer's-afflicted 67-year-old wife, Dolores. David says he called an Alzheimer’s support line to say that Dolores was holding a letter opener and was acting belligerent. Without his knowledge or permission, the hotline called the police, who showed up at the Seyfrieds’ door. David’s complaint alleged that the cops ignored his pleas to let him handle his upset and confused wife and shot her with a “less than lethal” shotgun (which probably means beanbag rounds) in the thighs and back, then Tasered her in the back and buttocks. The cops also apparently stood on her wrist while cuffing Seyfried, breaking it in two places, and at some point gave her a head wound that required 17 staples. Adding insult to injury, the lawsuit also states that police then searched the Seyfrieds’ home without permission, and informed the Alzheimer's hotline that Dolores was not being properly cared for.

      - A Joplin, Mississippi, man and his 19-year-old son are facing multiple misdemeanor charges after the man’s daughter killed herself. The family’s nightmare began the night of March 17, when Julissa Russell found her daughter, Brooke, in a nearby park with a gunshot wound to her head. She dialed her husband Kevin and they loaded Brooke into a car, then, along with Brooke’s brother Brant, they hurried to the local police station to meet an ambulance. During the panicked incident, an EMT apparently let Brooke fall off a stretcher onto the pavement, and Kevin remembers that he screamed “Do your effing job, get her to the hospital!” and the EMT told him to calm down. All natural enough, given the circumstances, but the upset dad and son were pepper-sprayed in the face and left cuffed to a bench in the police station for more than three hours. By the time they were released, Brooke was dead. Though they swear all they did was yell, Kevin and Brant face charges of assault, disturbing the peace, and obstruction. Kevin refuses to plead guilty to the assault charge in a plea deal, which would mean taking anger management classes, and hopefully he’ll be found not guilty on all counts—the idea that you can be arrested and charged for what you say while your daughter is dying is fucking obscene.

      - A trigger-happy officer in Austin, Texas, got fired for shooting at—and thankfully missing—an unarmed man. On May 8, Justin Boehm pulled over James Barton for running through a red light, and when Barton left his vehicle and reached for his wallet, Boehm let one fly at him. Worse, in the eyes of Boehm’s bosses, he forced the motorist to lie down on the street even after the cop knew he was unarmed. A grand jury declined to bring charges, but Barton is preparing a civil suit. The silver lining is that Boehmn’s aim was as bad as his judgment, and that no one had to die before he got kicked off the force.

      - According to a report from the ACLU, three Americans whose names are on the overstuffed no-fly list—the secret database that prohibits some people from boarding planes—were officially confirmed innocent by the FBI. Unfortunately, in order to actually have their names removed, they were told that they needed to provide useful information. That's what happened to Nagib Ali Ghaleb, a student who the government allowed to fly to Yemen but was kept from returning until he told officials “who the ‘bad guys’ were in Yemen and San Francisco.” Ghaleb had sought help from the US embassy when he found out he couldn't return to America, but was handed over to the FBI for an interview instead. He declined to cooperate, saying he had nothing to offer agents and wouldn’t help them spy on innocent people. The ACLU has been fighting the no-fly list on behalf of ten US citizens, including four military veterans, since 2010.

      - For today’s Good Cop of the Week Award, we go international: during the terrorist attacks in Nairobi, Kenya, which ended on September 25 with at least 60 people dead, an anonymous cop was captured on film carefully talking a cowering woman and her two children into fleeing with him. It's not clear what happened afterward, but hopefully they escaped alive. If all cops were this helpful all the time, they’d be the best people in the world.

      Lucy Steigerwald is a freelance writer and photographer. Read her blog here and follow her on Twitter: @lucystag

      Previously: Did the Police Screw Up During the DC Navy Yard Shooting?

      Topics: Fourth Amendment, Oregon, DEA, ACLU, privacy, medical records, Bad Cop Blotter, police misconduct, Westgate shooting, David Seyfried, Justin Boehm, no-fly list, Nagib Ali Ghaleb

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