No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 27 January 2021
The opioid crisis is one of the largest public health problems in the history of the United States. Prescription drug monitoring programs (“PDMPs”)—state databases containing the records of all prescriptions for controlled substances written in the state—have emerged as a means to track opioid prescribing and use. While PDMPs are typically used as a tool for physicians to inform their prescribing practices, many states also permit law enforcement to access PDMPs when investigating controlled substance distribution, often without prior judicial approval. Such law enforcement use of PDMPs raises serious questions of patient privacy. The Fourth Amendment protects individuals from unreasonable searches and seizures where they have a reasonable expectation of privacy and has been interpreted to require law enforcement have probable cause and a search warrant before infringing upon an individual’s reasonable expectation of privacy. Several courts have held that patients have no reasonable expectation of privacy, or a severely diminished expectation of privacy, in their prescription drug records held in PDMPs. As support, courts rely on the third-party doctrine because the information is disclosed to physicians and then held by the state; the highly regulated nature of the prescription drug industry; and the statutory framework of the Controlled Substances Act. Such analysis disregards patients’ expectation of privacy in their personal health information, the confidentiality in the physician-patient relationship, and the resulting patient incentives not to seek care. Therefore, this Article argues that law enforcement must have probable cause and a search warrant to access PDMPs because the exceptions to the Fourth Amendment’s probable cause and warrant requirements do not apply.
1 Ayres, Ian & Jalal, Amen, The Impact of Prescription Drug Monitoring Programs on U.S. Opioid Prescriptions, 46 J.L., Med. & Ethics 387, 387 (2018)CrossRefGoogle ScholarPubMed (“The Centers for Disease Control and Prevention (CDC) have declared opioid abuse to be the worst drug overdose epidemic in U.S. history.”) (citing Kolodny, Andrew et al., The Prescription Opioid and Heroin Crisis: A Public Health Approach to an Epidemic of Addiction, 36 Ann. Rev. Pub. Health 559, 560 (2015)CrossRefGoogle Scholar).
Although the recent surge in opioid use is often described in the media as a never-before-seen phenomenon, the current opioid crisis is actually the third opioid related crisis in the history of the United States. See Associated Press, Opioid epidemic shares chilling similarities with past drug crises, STAT (Oct. 29, 2017), https://www.statnews.com/2017/10/29/opioid-epidemic-shares-chilling-similarities-with-past-drug-crises/ [perma.cc]. The first took place in the 1800s and involved primarily opium and morphine and reached epidemic proportions in the late 1800s. Kolodny, Andrew et al., The Prescription Opioid and Heroin Crisis: A Public Health Approach to an Epidemic of Addiction, 36 ANN. REV. PUB. HEALTH 559, 561-562 (2015)CrossRefGoogle Scholar. See Martha Bebinger, As the Opium Trade Boomed in the 1800s, Boston Doctors Raised Addiction Concerns, WBUR CommonHealth (Aug. 1, 2017), https://www.wbur.org/commonhealth/2017/08/01/opium-history-addiction. The second opioid epidemic occurred when non-medical heroin use, primarily among minority populations in cities, increased in the 1960s and 1970s following the Vietnam War. Cicero, Theodore J. et al., The Changing Face of Heroin Use in the United States: A Retrospective Analysis of the Past 50 Years, 71 J. Am. Med. Ass’n Psychiatry 821, 822, 825 (2014)Google ScholarPubMed; see also Kolodny et al., supra note 1, at 562. The third and present opioid crisis, often called the opioid epidemic, is often traced to the increased prescribing and use of opioids and the marketing of OxyContin in the 1990s. See Kolodny et al., supra note 1, at 562; Bebinger, supra note 1; Shanoor Seervai et al., The U.S. Has Two Opioid Epidemics: The Federal Response Should Consider Both, The Commonwealth Fund: To the Point (Mar. 22, 2018) https://www.commonwealthfund.org/blog/2018/us-has-two-opioid-epidemics-federal-response-should-consider-both.
2 Staff of S. Permanent Subcomm. on Investigations, Comm. on Homeland Security and Governmental Affairs, 115th Cong., Combatting the Opioid Crisis: The Price Increase of an Opioid Overdose Reversal Drug and the Cost to the U.S. Health Care System 1 (2018) [hereinafter Senate Opioid Overdose Reversal Report] (citing Key Substance Use and Mental Health Indicators in the United States: Results from the 2017 National Survey on Drug Use and Health, Substance Abuse and Mental Health Servs. Admin., HHS Publication No. SMA 18-5068, NSDUH Series H53 2 (2018); Opioid Overdose Crisis, Nat’l Inst. on Drug Abuse, https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis (last updated May 27, 2020). See also Sarpatwari, Ameet et al., The Opioid Epidemic: Fixing a Broke Pharmaceutical Market, 11 Harv. L. & Pol’y Rev. 463, 463 (2017)Google Scholar (“The American Society of Addiction of Medicine estimates that over 2.5 million Americans now have an opioid use disorder.”) (citing Am. Soc’y of Addiction Med., Opioid Addiction 2016 Facts & Figures 1 (2016), http://www.asam.org/docs/default-source/advocacy/opioid-addiction-disease-facts-figures.pdf [https://perma.cc/6L26-LNF6]).
3 See Overdose Death Rates, Nat’l Inst. of Drug Abuse, https://www.drugabuse.gov/related-topics/trends-statistics/overdose-death-rates (last updated Feb. 2020).
4 See Declaration from Eric D. Hargan, Acting Sec’y, Dep’t of Health and Hum. Servs., Determination that a Public Health Emergency Exists (Oct. 26, 2017) (on file with Dep’t of Health and Hum. Servs.); Barry Meier, Sacklers Directed Efforts to Mislead Public About OxyContin, Court Filing Claims, N.Y. Times: Health (Jan. 15, 2019), https://www.nytimes.com/2019/01/15/health/sacklers-purdue-oxycontin-opioids.html.
5 Lisa N. Sacco et al., Cong. Res. Serv., R42593, Prescription Drug Monitoring Programs 1, 4 (2018). The PDMP operating in Missouri, however, is not statewide and restricted to St. Louis County and participation is voluntary. See Lauren Weber, Why Missouri’s The Last Holdout On A Statewide Rx Monitoring Program, Kaiser Health News (May 20, 2019), https://khn.org/news/why-missouris-the-last-holdout-on-a-statewide-rx-monitoring-program/.
6 Haffajee, Rebecca L., Preventing Opioid Misuse with Prescription Drug Monitoring Programs: A Framework for Evaluating the Success of State Public Health Laws, 67 Hastings L. J. 1621, 1634 (2016)Google Scholar (citing Prescription Drug Monitoring Program Ctr. of Excellence, Briefing on PDMP Effectiveness 3 (2014)).
7 Id. at 1624.
8 Prescription Drug Monitoring Program Ctr. of Excellence, Briefing on PDMP Effectiveness 3 (2014).
9 Thomas Clark et. al., Prescription Drug Monitoring Programs: An Assessment of the Evidence for Best Practices 5 (2012).
10 21 U.S.C. § 876(a) (2018) (“In any investigation relating to his functions under this subchapter [Subchapter I—Control and Enforcement] with respect to controlled substances … the Attorney General may subp[o]ena witnesses, compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation.”); see U.S. Drug Enf’t Admin. v. Utah Dep’t of Commerce, No. 2:16-cv-611-DN-DBP, 2017 WL 3189868, at *8-9 (D. Utah July 27, 2017) (finding physicians and patients do not have a reasonable expectation to privacy regarding the database of recorded prescriptions of controlled substances).
11 See infra Part II.D.
12 See, e.g., Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 998 F. Supp. 2d 957, 961 (D. Or. 2014), rev’d on other grounds, 860 F.3d 1228 (9th Cir. 2017) (state agency challenging the subpoenas based on conflict with state law and individuals represented by the ACLU challenging the subpoenas on Fourth Amendment grounds); Utah Dep’t of Commerce., 2017 WL 3189868, at *1 (state agency challenging the subpoena based on conflict with state law); Williams v. Commonwealth, 213 S.W.3d 671, 674-75 (Ky. 2006) (challenge to law enforcement obtaining the PDMP report without a warrant).
Defendants have also challenged similar searches of prescription drug records on Fourth Amendment grounds when law enforcement obtained the records from other sources, typically a pharmacy or physician’s office, as opposed to from a PDMP. See, e.g., Douglas v. Dobbs, 419 F.3d 1097, 1099-1100 (10th Cir. 2005), cert. denied, 546 U.S. 1138 (2006) (order for pharmacy records); State v. Skinner, 10 So. 3d 1212, 1213 (La. 2009) (order for pharmacy records in investigation of patient); State v. Welch, 624 A.2d 1105, 1107-08 (Vt. 1992) (calls to pharmacies for patient records).
13 See, e.g., Skinner, 10 So. 3d at 1218.
14 See, e.g., Utah Dep’t of Commerce, 2017 WL 3189868, at *8-9; Williams, 213 S.W.3d at 683-
15 See, e.g., United States v. Zadeh, 820 F.3d 746, 755-56 (5th Cir. 2016) (Fourth Amendment challenge to a search of doctor’s medical records pursuant to an administrative subpoena from the state medical board).
16 The Supreme Court has, however, denied petitions for certiorari on several cases in this area. See, e.g., Dobbs, 419 F.3d 1097, cert. denied, 546 U.S. 1138 (2006); Doe v. Se. Pa. Transp. Auth., 72 F.3d 1133, 1135-37 (3d Cir. 1995), cert. denied, 519 U.S. 808 (1996) (search of employers’ database of health insurance claims for prescription drugs); State v. Russo, 790 A.2d 1132, 1152 (Conn. 2002), cert. denied, 537 U.S. 879 (2002).
17 Compare Skinner, 10 So. 3d at 1218 with Williams, 213 S.W.3d at 683-84.
18 See Carpenter v. United States, 138 S. Ct. 2206, 2216 (2018) (“a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”) (quoting Smith v. Maryland, 442 U.S. 735, 743-44 (1979)); Carpenter, 138 S. Ct. at 2216 (stating that the third-party doctrine applies when the nature of the records sought are “not confidential communications but negotiable instruments to be used in commercial transactions.”)
19 Iott, Bradley E., et. al., Trust and Privacy: How Patient Trust in Providers is Related to Privacy Behaviors and Attitudes, 2019 AMIA Ann. Symp. Proc. 487, 490-91 (2020)Google ScholarPubMed (illustrating how a decrease in trust for confidentiality in physician-patient relationships leads to incomplete health data and poor-quality medical treatment).
20 See infra Section III.A.
21 See Associated Press, supra note 1.
22 Ayres & Jalal, supra note 1, at 2-4.
23 Id.
24 21 U.S.C. §§ 801-971 (2018); Gonzales v. Raich, 545 U.S. 1, 10-12 (2005).
25 Gonzales, 545 U.S. at 12 n.20 (citing 21 U.S.C. § 801(1)–(6)). See also United States v. Moore, 423 U.S. 122, 135 (1975) (“Congress [in enacting the Controlled Substances Act] was particularly concerned with the diversion of drugs from legitimate channels to illegitimate channels.”).
26 Lisa N. Sacco, Cong. Res. Serv., R43749, Drug Enforcement in the United States: History, Policy, and Trends 6 (2014).
27 See 21 U.S.C. § 821 (2018) (granting the Attorney General rulemaking authority); id. § 871(b) (permitting the Attorney General to delegate rulemaking authority); 28 C.F.R. § 0.100 (2019) (delegation of rulemaking); 21 U.S.C. § 876(a) (2018) (allowing the DEA to obtain records through a subpoena).
The constitutionality of the subpoena power has been challenged in the PDMP context as a Fourth Amendment violation, see, e.g., Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 998 F. Supp. 2d 957, 961; U.S. Drug Enf’t Admin. v. Utah Dep’t of Commerce, No. 2:16-cv-611-DN-DBP, 2017 WL 3189868, at *1 (D. Utah July 27, 2017).
28 Controlled Substance Schedules, Drug Enf’t Admin., https://www.deadiversion.usdoj.gov/schedules/ [perma.cc] (last updated Mar. 2018).
29 eHealth Initiative and Foundation & Manatt Phelps & Phillips LLP, Sharing Behavioral Health Information Amid the Opioid Crisis 2 (June 2018), https://www.manatt.com/getattachment/92f6e51b-3bab-4422-96a9-2eba9ade297a/attachment.aspx [perma.cc] (hereinafter eHealth Report).
30 21 U.S.C. § 812 (2018); Valid Prescription Requirements, Drug Enf’t Admin., https://www.deadiversion.usdoj.gov/pubs/manuals/pract/section5.htm [perma.cc] (last accessed Apr. 19, 2019).
31 Gonzales, 545 U.S. at 13 (citing 21 U.S.C. §§ 811, 812 (2018)). See also Zettler, Patricia J. et al., Implementing a Public Health Perspective in FDA Drug Regulation, 73 FOOD & Drug L.J. 221, 234-35 (2018)Google Scholar (“To make decisions about whether to schedule a drug and, if so, at what level, the CSA requires FDA and DEA to consider eight factors: (1) the drug’s actual or potential for abuse, (2) scientific evidence of the drug’s pharmacologic effect, (3) the state of current scientific knowledge regarding the drug, (4) the drug’s history and current pattern of abuse, (5) the scope, duration and significance of abuse, (6) risk to public health, (7) the drug’s psychic or physiologic dependence liability and (8) whether the substance is an immediate precursor of a substance already controlled under the CSA.”).
32 21 U.S.C. § 812(a)-(b) (2018).
33 21 U.S.C. § 812(b)(1) (2018); Controlled Substance Schedules, Drug Enf’t Admin., https://www.deadiversion.usdoj.gov/schedules/ (last updated Mar. 2018).
34 21 U.S.C. § 812(b)(2) (2018); Controlled Substance Schedules, supra note 28.
35 § 812(b)(3); Controlled Substance Schedules, supra note 28.
36 § 812(b)(4); Controlled Substance Schedules, supra note 28.
37 § 812(b)(5).
38 Controlled Substance Schedules, supra note 28.
39 § 812; Controlled Substance Schedules, supra note 28.
40 Opioid Overdose Crisis, supra note 2.
41 Schuckit, Marc A., Treatment of Opioid-Use Disorders, 375 New Eng. J. Med. 357, 357 (2016).CrossRefGoogle ScholarPubMed
42 Blaik, Reem, Note, Prescriptions at a Price: America’s Opioid Crisis and the Increasing Toll on Drug Record Privacy, 21 Vand. J. Ent. & Tech L. 277, 298 (2018)Google Scholar (citing 21 U.S.C. § 812 (2012)).
43 Id. at 278; 21 U.S.C. § 812 (2018); Controlled Substance Schedules, supra note 28.
44 21 U.S.C. § 812 (2018); Controlled Substance Schedules, supra note 28.
45 Rosenblum, Andrew et al., Opioids and the Treatment of Chronic Pain: Controversies, Current Status, and Future Directions, 16(5) Experimental and Clinical Psychopharmacology 405, 406 (2008).CrossRefGoogle ScholarPubMed
46 Id. at 410.
47 Id. at 406; Prescription Opioids, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/drugoverdose/opioids/prescribed.html (last updated Aug. 29, 2017); Senate Opioid Overdose Reversal Report, supra note 2, at 14. See also Zettler et al., supra note 31, at 225-26 (“the pain requiring treatment may be acute, as a result of surgery or an injury, such as might occur from playing a sport. Likewise, dental procedures may cause acute pain.”).
48 Rosenblum et al., supra note 45, at 406; Prescription Opioids, supra note 39; Senate Opioid Overdose Reversal Report, supra note 2, at. See also Zettler et al., supra note 31, at 225-26 (2018) (“Pain may also be chronic, for example, from arthritis, fibromyalgia, and back pain. Pain also may be associated with cancer treatment and end-of-life care. Each individual setting, and patient within that setting, may present special characteristics that may make the pain treatments more or less likely to pose risks of misuse.”).
49 Rosenblum et al., supra note 45, at 406; Beletsky, Leo, 21 st Century Cures for the Opioid Crisis: Promise, Impact, and Missed Opportunities, 44 Am. J.L. & Med. 359, 361 (2018)CrossRefGoogle Scholar (“Increased exposure to opioid medications can indeed precipitate poisonings through a variety of mechanisms. However, even when taking these drugs as directed, a variety of environmental, genetic, and other factors make some patients susceptible to iatrogenic dependence and problematic consumption practices; up to 8% may even transition to severe substance use disorder (“SUD”), or ‘addiction’ in the course of opioid pharmacotherapy.”).
50 Senate Opioid Overdose Reversal Report, supra note 2, at 15 (citing Anuj Shah, et al, Characteristics of Initial Prescription Episodes and Likelihood of Long-Term Opioid Use – United States, 2006-2015, U.S. Ctrs. for Disease Control and Prevention, U.S. Dep’t of Health and Hum. Servs. (Mar. 17, 2017)).
The addictiveness of opioids makes prescription opioid abuse for long-time users highly likely. It is estimated that between 21 and 29 percent of people who take prescription opioids for chronic pain misuse prescription opioids, with between 8 and 12 percent developing an opioid use disorder. See Opioid Overdose Crisis, supra note 2 (citing Vowles, Kevin E. et al, Rates of opioid misuse, abuse, and addiction in chronic pain: a systematic review and data synthesis, 156(4) Pain 569 (2015)CrossRefGoogle ScholarPubMed).
51 Opioid Overdose Crisis, supra note 2.
52 Schuckit, supra note 41, at 357; Senate Opioid Overdose Reversal Report, supra note 2, at 15 (citing Drugs of Abuse: Opioids, Nat’l Inst. on Drug Abuse, https://www.drugabuse.gov/drugs-abuse/opioids (last updated Jan. 17, 2018)).
53 See generally Dowell, Deborah et al., No Shortcuts to Safer Opioid Prescribing, 380 New Eng. J. Med. 2285 (2019)CrossRefGoogle ScholarPubMed (discussing challenges and criticism of opioid prescribing guidelines); CDC Advises Against Misapplication of the Guideline for Prescribing Opioids for Chronic Pain, Ctrs. for Disease Control & Prevention https://www.cdc.gov/media/releases/2019/s0424-advises-misapplication-guideline-prescribing-opioids.html (Apr. 24, 2019) (advising prescribers on opioid prescribing guidelines to prevent misinterpretation and support access to patients with legitimate needs for opioids).
54 See Bebinger, supra note 1; Cicero et al., supra note 1, at 825; Kolodny et al, supra note 1, at 562.
55 Saloner, Brendan et al., A Public Health Strategy for the Opioid Crisis, 133 Pub. Health Reps. 24S, 25S (2018)CrossRefGoogle ScholarPubMed.
56 Id.
57 U.S. Dep’t of Health and Hum. Serv., Determination that a Public Health Emergency Exists (Oct. 26, 2017), https://www.hhs.gov/sites/default/files/opioid%20PHE%20Declaration-no-sig.pdf [perma.cc]; see also Julie Hirschfeld Davis, Trump Declares Opioid Crisis a ‘Health Emergency’ but Requests No Funds, N.Y. Times (Oct. 26, 2017), https://www.nytimes.com/2017/10/26/us/politics/trump-opioid-crisis.html [perma.cc] (discussing how this determination provides no funding and very little support, essentially only providing federal recognition of this massive public health problem).
58 President’s Commission on Opioids, Office of Nat’l Drug and Control Pol’y https://www.whitehouse.gov/ondcp/presidents-commission/ [perma.cc] (last accessed June 10, 2019).
59 See President’s Commission on Combating Drug Addiction and the Opioid Crisis (Nov. 1, 2017), https://www.whitehouse.gov/sites/whitehouse.gov/files/images/Final_Report_Draft_11-15-2017.pdf [perma.cc]; U.S. Drug Overdose Deaths Continue to Rise; Increase Fueled by Synthetic Opioids, CDC Newsroom, Ctrs. For Disease Control & Prevention https://www.cdc.gov/media/releases/2018/p0329-drug-overdose-deaths.html [perma.cc] (last updated Mar. 29, 2018).
60 See Parker, Andrew M. et al., State Responses to the Opioid Crisis, 46 J.L. Med. Ethics 367, 367 (2018)CrossRefGoogle ScholarPubMed.
61 See, e.g., Meier, supra note 4.
62 See generally Gluck, Abbe R. et al., Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46 J.L., Med. & Ethics 351 (2018)CrossRefGoogle Scholar (describing the various opioid cases across the country).
63 See Kitty Purington, Tackling the Opioid Crisis: What State Strategies Are Working?, Nat’l Acad. For St. Health Pol’y (Feb. 4, 2019), https://nashp.org/tackling-the-opioid-crisis-what-state-strategies-are-working/ [perma.cc].
64 Press Release, Office of Governor Charlie Baker and Lt. Governor Karyn Polito, Governor Baker Signs Second Major Piece of Legislation to Address Opioid Epidemic in Massachusetts (Aug. 14, 2018), https://www.mass.gov/news/governor-baker-signs-second-major-piece-of-legislation-to-address-opioid-epidemic-in [perma.cc].
65 Blaik, supra note 42, at 292 (citing Prescription Drug Monitoring Frequently Asked Questions (FAQ), Prescription Drug Monitoring Program Training & Technical Assistance Ctr., https://www.pdmpassist.org/PMIX/FAQ (last visited Sept. 21, 2018) [https://perma.cc/7J33-AS9S]); Haffajee, supra note 6, at 1634 (citing Prescription Drug Monitoring Program Ctr. Of Excellence at Brandeis, Briefing on PDMP Effectiveness 3 (2014), http://dhhs.ne.gov/DOP%20document%20library/PDMP%20Center%20of%20Excellence%20Briefing.pdf [perma.cc]).
66 See Nat’l All. for Model State Drug Laws, Frequency of Prescription Drug Monitoring Program (PMP) Data Reporting - Map (2019), https://namsdl.org/wp-content/uploads/Frequency-of-Prescription-Drug-Monitoring-Program-PMP-Data-Reporting-Map.pdf [perma.cc].
67 See, e.g., Haffajee, supra note 6, at 1634. See generally Nat’l All. for Model State Drug Laws, Types of Authorized Recipients - Law Enforcement & Jud. Officials (2016) [hereinafter NAMSDL Law Enforcement and Judicial Officials], https://namsdl.org/wp-content/uploads/Law-Enforcement-and-Judicial-Officials.pdf [perma.cc] (collecting the text of state prescription drug monitoring statutes and required reporting information).
68 See Oliva, Jennifer D., Prescription-Drug Policing: The Right to Health Information Privacy Pre- and Post-Carpenter, 69 Duke L.J. 775, 780 (Jan. 2020)Google Scholar (citing U.S. Dep’t of Just., Bur. Of Just. Assistance, Just. Sys. Use of Prescription Drug Monitoring Programs 5 (Jan. 2015), https://bja.ojp.gov/sites/g/files/xyckuh186/files/Publications/Global-JusticeSystemUsePDMPs.pdf [perma.cc] [hereinafter JUSTICE SYSTEM USE OF PDMPS]).
69 See Sacco et al., supra note 5, at 2. However, prescription drug monitoring programs are not new, Butler, John Matthew et al., Big Data and the Opioid Crisis, 46 J.L., Med. & Ethics 440, 442 (2018)CrossRefGoogle ScholarPubMed. The earliest PDMP was implemented in California in 1939, with more states slowly adopting programs, Sacco et al., supra, at 2-3. Interestingly, California’s PDMP was implemented to address the rise of opium use in an earlier opioid crisis. See Butler, supra.
70 See Sacco et al., supra note 5, at 4; Zahra Mohammadi, The Effects of Prescription Drug Monitoring Programs on the Opioid Abuse Epidemic 6 (Univ. of Pa., Working Paper, 2017), https://ssrn.com/abstract=3107826 [perma.cc]. Missouri, however, does not have a statewide prescription drug monitoring program. See Haffajee, Rebecca L. et al., Four States With Robust Prescription Drug Monitoring Programs Reduced Opioid Dosages, 37 Health Aff. 964, 964 (2018).CrossRefGoogle ScholarPubMed The PDMP in Missouri is limited to St. Louis County and participation is voluntary. See Weber, supra note 5.
71 For a detailed description of the different requirements of each state’s PDMP beyond the scope of this paper, see Nat’l All. for Model State Drug Laws, Mandated Use Of State Prescription Drug Monitoring Programs (PMPs): Highlights Of Key State Requirements (2017), https://namsdl.org/wp-content/uploads/Mandated-Use-of-State-Prescription-Drug-Monitoring-Programs-PMPs-Highlights-of-Key-State-Requirements.pdf [perma.cc].
72 Many, but not all, states share the data contained in the PDMP with other states. See Nat’l All. for Model State Drug Laws, Interjurisdictional Sharing of Prescription Drug Monitoring Program (PMP) Data - Map (2019), https://namsdl.org/wp-content/uploads/Interjurisdictional-Sharing-of-PDMP-Data-Map.pdf [perma.cc]. There have been calls for a national PDMP, but none has been implemented. See Shepherd, Joanna, Combating the Prescription Painkiller Epidemic: A National Prescription Drug Reporting Program, 40 Am. J.L. & Med. 85, 110-12 (2014)CrossRefGoogle ScholarPubMed; Cady, Allyson, 50 Shades of Data Sharing: How a Uniform Fifty-State Prescription Drug Monitoring Program Can Restore Discretion to Opioid Prescribers and Autonomy to Chronic Pain Patients, 29 Health Matrix 464, 489 (2019).Google Scholar
73 Opioid Overdose Crisis, supra note 2.
74 This is true of California, Hawaii, and Oklahoma. See Nat’l All. for Model State Drug Laws, Prescription Drug Monitoring Program (PMP) Administering Agency (2017), https://namsdl.org/wp-content/uploads/Prescription-Drug-Monitoring-Program-PMP-Administering-Agency.pdf [perma.cc].
75 This is the case for Delaware, Indiana, Michigan, Utah, and Virginia; relatedly, Nevada’s PDMP is run by the Board of Pharmacy. See id.
76 New Jersey and Connecticut PDMPs are run by the Department of Consumer Protection and the Division of Consumer Affairs, respectively. See id.
77 See Haffajee, supra note 6, at 1634.
78 See Nat’l All. for Model State Drug Laws, Mandated Registration with PMPs-Map (2017), https://namsdl.org/wp-content/uploads/Mandated-Registration-with-PMPs-%E2%80%93-Map.pdf [perma.cc] There is no mandate in Alabama, the District of Columbia, Florida, Hawaii, Idaho, Iowa, Kansas, Michigan, Missouri, Montana, Nebraska Oregon, South Dakota, and Wyoming. Id. There was a repealed mandate in Minnesota and New Hampshire and there is no mandate in the District of Columbia, Idaho, Kansas, Missouri, Montana, Nebraska, Oregon, South Dakota, or Wyoming. See Nat’l All. for Model State Drug Laws, Prescriber Mandated Use of Prescription Drug Monitoring Programs (PDMP/PMPs) - Map (2019), https://namsdl.org/wp-content/uploads/Prescriber-Mandated-Use-of-PDMPs-Map.pdf [perma.cc]. See also Nat’l All. for Model State Drug Laws, State Pmp Laws that Explicitly DO Not Require Prescribers and/or Pharmacists to Access PMP Information (2016), https://namsdl.org/wp-content/uploads/State-PMP-Laws-that-Explicitly-Do-Not-Require-Prescribers-and-or-Pharmacists-to-Access-PMP-Information.pdf [perma.cc] (identifying states that do not require PDMP access by both healthcare providers and pharmacists).
79 Haffajee et al., supra note 70, at 970-71.
80 Patrick, Stephen W. et al., Implementation of Prescription Drug Monitoring Programs Associated with Reductions in Opioid-Related Death Rates, 35 Health Aff. 1325, 1329 (2016)CrossRefGoogle ScholarPubMed (“In this retrospective study of states, we found that the implementation of a prescription drug monitoring program was associated with a subsequent decrease in opioid-related overdose deaths. In adjusted analyses, states with programs that monitored four or more drug schedules and updated data at least weekly were found to have lower opioid-related overdose death rates, compared to states whose programs lacked these characteristics.”).
81 Bao, Yuhua et al., Assessing the Impact of State Policies for Prescription Drug Monitoring Programs on High-Risk Opioid Prescriptions, 37 Health Aff. 1596, 1599 (2018)CrossRefGoogle ScholarPubMed (“[A] comprehensive use mandate was associated with a 9.2 percent reduction in the probability of overlapping opioid prescriptions, a 6.6 percent reduction in the probability of having three or more opioid prescribers, and an 8.0 percent reduction in the probability of having overlapping opioid and benzodiazepine prescriptions … The results indicate that the reductions in the probability of high-risk prescriptions associated with a comprehensive use mandate strengthened over time.”).
82 Patrick et al., supra note 80, at 1329 (citing Paulozzi, Leonard J. et al., Prescription Drug Monitoring Programs and Death Rates from Drug Overdose, 12 Pain Med. 747, 751 (2011)CrossRefGoogle ScholarPubMed). See also Guohua Li et al., Prescription Drug Monitoring and Drug Overdose Mortality, Injury Epidemiology, 2014 at 5 (“Results of this study indicate that implementing PDMPs did not reduce drug overdose mortality in most states through 2008.”); Blaik, supra note 42, at 293 (“A twelve-year study revealed that PDMPs were not effective in reducing opioid overdose mortality rates.”) (citing Nam, Young Hee et al., State Prescription Drug Monitoring Programs and Fatal Drug Overdoses, 23 Am. J. Managed Care 297, 303 (2017)Google ScholarPubMed).
83 Ayres & Jalal, supra note 1, at 397-98 (“we find that PDMPs are only effective if they obligate doctors to check for patient history on the PDMP prior to filling out a prescription. However, the frequency at which a state requires the PDMP to be updated is not a significant determinant of their effectiveness.”).
84 Anupam B. Jena et al., How Health Care Providers Can Help End the Overprescription of Opioids, Brookings (Oct. 26, 2017), https://www.brookings.edu/opinions/how-health-care-providers-can-help-end-the-overprescription-of-opioids/ [perma.cc].
85 See Oliva, supra note 68, at 780 (citing Justice System Use of PDMPs 5); Unger, Devon T., Note, Minding Your Meds: Balancing the Needs for Patient Privacy and Law Enforcement in Prescription Drug Monitoring Programs, 117 W. Va. L. Rev. 345, 349 n.25 (2014)Google Scholar. But see eHealth Report, supra note 29, at 4 (“PDMP was initially adopted as a law enforcement tool and has transitioned to a clinical decision-making tool.”); Butler et al., supra note 69, at 442 (discussing how early PDMPs, including California’s, “were mostly used by law enforcement, with states often making it difficult for health care providers to access the data and offering few incentives to encourage providers to consult a PDMP before prescribing.”).
86 Beletsky, Leo, Deploying Prescription Drug Monitoring to Address the Overdose Crisis: Ideology Meets Reality, 15 Ind. Health L. Rev. 139, 140 (2018)CrossRefGoogle Scholar; Prescription Drug Monitoring Programs, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/drugoverdose/pdf/pdmp_factsheet-a.pdf (last visited Apr. 19, 2019). See also Butler et al., supra note 69 at 440 (“These systems track prescribing and dispensing patterns within states and have been touted as an avenue for prescribers to gain a clearer understanding of their patients’ history with controlled substances and for public health officials and law enforcement agencies to track outlier prescribers and dispensers, including so-called ‘pill mills.’”).
87 See generally Namsdl Law Enforcement Access Report, supra note 67, at 2 (listing the requirements for law enforcement access to every state’s PDMP).
88 See id.
89 See id.; Blaik, supra note 42, at 295 (“Tennessee state law allows prescribers, certified registered nurse anesthetists, health care practitioners, and ‘a number of other state and federal officials’—including ‘certain law enforcement officers, medical examiners, drug court judges, and others’—to register for access to its PDMPs. Meanwhile, West Virginia’s PDMP law authorizes prescribers, dispensers, licensing and regulatory boards, authorized agents of the Bureau for Medical Services law enforcement, the Office of the Chief Medical Examiner—as well as law enforcement, judicial, and prosecutorial officials—to receive PDMP information.”).
90 This table is based on information from NAMSDL LAW ENFORCEMENT ACCESS REPORT, supra note 67, with updates from cases discussed in this Article.
91 U.S. Drug Enf’t Admin. v. Utah Dep’t of Commerce, No. 2:16-cv-611-DN-DBP, 2017 WL 3189868, at *1 (D. Utah July 27, 2017) (physician); Or. Prescription Drug Monitoring Program, 998 F.Supp.2d at 961 (physician and patient); Williams, 213 S.W.3d at 683-84 (physician).
92 U.S. CONST. amend. IV.
93 Wong Sun v. United States, 371 U.S. 471, 485 (1963).
94 Kerr, Orin S., The Effect of Legislation on Fourth Amendment Protection, 115 Mich. L. Rev. 1117, 1123-24 (2017)Google Scholar (“The Fourth Amendment and investigative legislation amount to two parallel sets of answers to these questions. In the constitutional context, the threshold at step one requires identifying a Fourth Amendment ‘search’ or ‘seizure.’ A search is either a government violation of a reasonable expectation of privacy or else a trespass onto a person, house, papers, or effects. A seizure occurs when the government meaningfully interferes with a person’s possessory interest in property or takes control of their persons. The standard at step two is whether the search or seizure is ‘reasonable.’ This usually requires a warrant based on probable cause or an exception to the warrant requirement such as exigent circumstances or consent, but it can also be satisfied in particular circumstances by general balancing of interests. The remedy at step three can include the exclusionary rule in criminal cases and money damages in civil cases.”) (citations omitted).
95 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (“a person [must] have exhibited an actual (subjective) expectation of privacy and … the expectation [must] be one that society is prepared to recognize as ‘reasonable.’”). See also Smith v. Maryland, 442 U.S. 735, 740-44 (1979) (adopting the reasonable expectation of privacy framework from Justice Harlan’s concurrence in Katz).
96 See Kerr, Orin S., Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 504-05 (2007)Google Scholar [hereinafter Kerr, Four Models]. Compare, e.g., Kerr, supra note 94, at 1121 (arguing legislation should not be included in Fourth Amendment Analysis), with Murphy, Erin, The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions, 111 Mich. L. Rev. 485, 490-91 (2013)Google Scholar (arguing for a role of privacy legislation in Fourth Amendment analysis).
97 See Kerr, Four Models, supra note 96, at 506 (“Four approaches [to the reasonable expectation of privacy test] predominate, together reflecting four different models of Fourth Amendment protection. The first three rely on proxies. The probabilistic model considers the likelihood that the subject’s information would become known to others or the police. The lower the likelihood, the more likely it is that a reasonable expectation of privacy exists. The private facts model asks whether the government’s conduct reveals particularly private and personal information deserving of protection. This approach focuses on the information the government collects rather than how it is collected. The positive law model considers whether the government conduct interferes with property rights or other legal standards outside the Fourth Amendment. When courts apply the positive law model, an expectation of privacy becomes reasonable when it is backed by positive law such as trespass. The fourth and final model, the policy model, reflects the direct approach. Courts applying the policy model focus directly on whether the police practice should be regulated by the Fourth Amendment.”).
98 Kerr, supra note 94, at 1123-24.
99 Georgia v. Randolph, 547 U.S. 103, 125 (2006) (Breyer, J., concurring) (internal ellipses omitted).
100 Carpenter, 138 S. Ct. at 2213 (explaining that the “‘basic purpose of [the Fourth Amendment],’ our cases have recognized, ‘is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.’” (quoting Camara v. Mun. Court of S.F., 387 U.S. 523, 528 (1967)).
101 O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality opinion) (quoting Oliver v. United States, 466 U.S. 170, 178 (1984)). See also Carpenter, 138 S. Ct. at 2214 (discussing how possible a search would have been in the Founder’s era).
102 Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).
103 Id. at 338 (quoting Katz, 389 U.S. at 357).
104 Carpenter, 138 S. Ct. at 2216.
105 Smith v. Maryland, 442 U.S. 735, 743–44 (1979); United States v. Miller, 425 U.S. 435, 443 (1976) (“[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” (citing United States v. White, 401 U.S. 745, 752 (1971))). But see United States v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J., concurring) (“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age ….”) (citations omitted).
106 Hoffa v. United States, 385 U.S. 293, 302-03 (1966).
107 Miller, 425 U.S. at 443.
108 Smith, 442 U.S. at 737–38.
109 Jones, 565 U.S. at 413.
110 Id. at 406-11.
111 Id. at 417 (Sotomayor, J., concurring) (“it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age.”) (citations omitted).
Justice Scalia expressed similar concern about the digital age in Kyllo v. United States, holding that a thermal image of a defendant’s home constituted a search under the Fourth Amendment and finding otherwise would leave homeowners “at the mercy of advancing technology.” Kyllo v. United States, 533 U.S. 27, 35 (2001).
112 Carpenter v. United States, 138 S. Ct. 2206 (2018).
113 Id. at 2217.
114 Id.
115 Lapatin, Stephen D., Comment, Rhode Island’s Prescription Drug Database: Warrantless Searches by Law Enforcement Pass Constitutional Muster, 23 Roger Williams U.L. Rev. 526, 543 (2018)Google Scholar (citing New York v. Burger, 482 U.S. 691, 702-05 (1987); City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015)).
116 Michigan v. Tyler, 436 U.S. 499, 506 (1978).
117 Weaver, Russell L., Administrative Searches, Technology and Personal Privacy, 22 Wm. & Mary Bill of Rights J. 571, 577 (2013)Google Scholar (citing Camara v. Mun. Court of S.F., 387 U.S. 523, 526 (1967)); Burger, 482 U.S. at 699–702 (warrant not required for pervasively regulated industries); Richards, Edward P., Dangerous People, Unsafe Conditions: The Constitutional Basis for Public Health Surveillance, 30 J. Legal Med. 27, 28 (2009)CrossRefGoogle ScholarPubMed (“In the alternative world of administrative law, searches do not have to meet Fourth Amendment standards, incarcerations are not for punishment, and due process is after the fact with habeas corpus review.”) (citations omitted).
118 Camara, 387 U.S. at 535-36.
119 Lapatin, supra note 115, at 543 (citing Burger, 482 U.S. at 702-05; Patel, 135 S. Ct. at 2452).
120 See Burger, 482 U.S. at 702 (“Because the owner or operator of commercial premises in a ‘closely regulated’ industry has a reduced expectation of privacy, the warrant and probable-cause requirements… have lessened application in this context.”) (citations omitted). See Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 627 (1989) (“[T]he expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees.”). See also Patel, 576 U.S. 409, 424 (2015) (citing Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States v. Biswell, 406 U.S. 311, 311-312 (1972); Donovan v. Dewey, 452 U.S. 594 (1981); New York v. Burger, 482 U.S. 691 (1987)) (discussing the following regulated industries: liquor sales, firearms dealing, mining, and running automobile junkyards).
121 See Chandler v. Miller, 520 U.S. 305, 313, 318 (1997); Skinner, 489 U.S. at 619.
122 Patel, 135 S. Ct. at 2452 (2015). See also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (“Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing … reasonableness generally requires the obtaining of a judicial warrant ….”).
123 See Chandler, 520 U.S. at 313, 318; Skinner, 489 U.S. at 619.
124 See Acton, 515 U.S. at 653 (1995) (holding that random drug testing of athletes is constitutional); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990) (permitting suspicionless searches to prevent DUIs). But see City of Indianapolis v. Edmond, 531 U.S. 32, 42-43 (2000) (refusing to permit suspicionless searches to combat a drug problem).
125 See Patel, 135 S. Ct. at 2454 (recognizing the regulatory regime of hotels, requiring they provide law enforcement with specified information about hotel guests, as a “special need” excusing a warrant requirement; “[s]earch regimes where no warrant is ever required may be reasonable where special needs make the warrant and probable-cause requirement impracticable, and where the primary purpose of the searches is distinguishable from the general interest in crime control.”) (quotations and alterations omitted).
126 Riley v. California, 134 S. Ct. 2473, 2488 (2014) (quoting Maryland v. King, 569 U.S. 435, 463 (2013)).
127 See Patel, 135 S. Ct. at 2453; Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984) (“our cases make it clear that the Secretary of Labor may issue an administrative subpoena without a warrant”).
For a detailed discussion of subpoenas, their history, and their Fourth Amendment protections, see Slobogin, Christopher, Subpoenas and Privacy, 54 Depaul L. Rev. 805 (2005).Google Scholar
128 United States v. Morton Salt Co., 338 U.S. 632, 652-53 (1950) (“The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.” (quoting Okl. Press Publ’n Co. v. Walling, 327 U.S. 186, 208 (1946)). See also Becker v. Kroll, 494 F.3d 904, 916–17 (10th Cir. 2007).
129 See v. City of Seattle, 387 U.S. 541, 544 (1967). See also In re Admin. Subpoena, 253 F.3d 256, 263–65 (6th Cir. 2001) (applying reasonable relevance test to subpoena, not probable cause test); In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000) (“A subpoena … commences an adversary process during which the person served with the subpoena may challenge it in court before complying with its demands.”) (holding subpoenas do not require probable cause).
130 Hale v. Henkel, 201 U.S. 43, 56 (1906).
131 See, e.g., In re Subpoena Duces Tecum, 228 F.3d at 348 (“A subpoena … commences an adversary process during which the person served with the subpoena may challenge it in court before complying with its demands.” (citing City of Seattle, 387 U.S. at 544–45)).
132 429 U.S. 589 (1977).
133 Id. at 591–92.
134 Id. at 603-04.
135 Id. at 604.
136 Id. at 600.
137 Id. at 602-03.
138 Nat’l All. for Model State Drug Laws, Prescription Monitoring Programs, Pharmacy Records, and the Right to Privacy 2 (2014).
139 532 U.S. 67 (2001).
140 Id. at 70.
141 Id. at 72.
142 Id. at 76.
143 Id. at 78 (citations omitted).
144 Id. at 84 (“Because law enforcement involvement always serves some broader social purpose or objective, under respondents’ view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose. Such an approach is inconsistent with the Fourth Amendment.”) (citations omitted).
145 134 S. Ct. 2473, 2490 (2014).
146 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).
147 138 S. Ct. 2206, 2218 (2018) (majority opinion) (Roberts, C.J.) (“A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”) (emphasis added); id. at 2261 (Gorsuch, J., dissenting) (“the Constitution does nothing to limit investigators from searching records you’ve entrusted to your bank, accountant, and maybe even your doctor.”) (emphasis added).
148 For additional discussion of the Court’s references to health information privacy and willingness to protect health information, see Knox, Ryan, Fourth Amendment Protection of Health Information after Carpenter v. United States: The Devil’s in the Database, 45(4) Am. J.L. & Med. 331, 341, 344-45 (2019).CrossRefGoogle Scholar
149 Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 998 F. Supp. 2d 957, 961 (D. Or. 2014), rev’d on other grounds, 860 F.3d 1228 (9th Cir. 2017); State v. Skinner, 10 So.3d 1212 (La. 2009); Doe v. Broderick, 225 F.3d 440 (4th Cir. 2000).
150 Kurtenbach v. Jackley, No. 16-5021-JLV, 2018 WL 1542499, at *8 (D. S.D. Mar. 29, 2018) (collecting cases).
151 Or. Prescription Drug Monitoring Program, 998 F. Supp. 2d at 957.
152 State v. Skinner, 10 So.3d 1212 (La. 2009).
153 Doe v. Broderick, 225 F.3d 440 (4th Cir. 2000).
154 Outside of the Fourth Amendment context, the Third Circuit recognized a constitutional right to privacy in a PDMP-like database in Southeastern Pennsylvania Transportation Authority. Doe v. Se. Pa. Transp. Auth., 72 F.3d 1133, 1135-38 (3d Cir. 1995), cert. denied, 519 U.S. 808 (1996). That case reviewed an access to a prescription monitoring program implemented by a state government employer, id. at 1134-35, as opposed to the statewide prescription drug monitoring programs commonly used today. The employer discovered the HIV/AIDS status of the plaintiff. Id. at 1135-36. The employee sued alleging that the employer violated his right to privacy. Id. at 1134. The court emphasized how much personal health information can be discovered or inferred from prescription drug records. Id. at 1138 (“It is now possible from looking at an individual’s prescription records to determine that person’s illnesses, or even to ascertain such private facts as whether a woman is attempting to conceive a child through the use of fertility drugs.”). Therefore, “[a]n individual using prescription drugs has a right to expect that such information will customarily remain private.” Id. However, the employer’s “need for access to employee prescription records under its health insurance plan … for the purpose of monitoring the plans by those with a need to know” diminished the individual’s expectation of privacy. Id. at 1143. The Third Circuit therefore held that the limited intrusion was reasonable when balanced with the employer’s need to track its health plan. Id. The lack of actual harm to the plaintiff was important, and the court may have come out differently if actual discriminatory or economic harm had existed. See id. at 1147; see also Krulwich, Andrew S. & McDonald, Bruce L., Evolving Constitutional Privacy Doctrines Affecting Healthcare Enterprises, 55 FOOD & DRUG L.J. 491, 502 (2000)Google ScholarPubMed (“Should such a disclosure in another case produce the result feared by the dissent, then conceivably the outcome could be different, but general concern about ‘harassment’ in the absence of the established fact of harassment appears insufficient to support a constitutional claim for damages.”).
155 998 F. Supp. 2d 957 (D. Or. 2014), rev’d on other grounds, 860 F.3d 1228 (9th Cir. 2017).
156 Id. at 960.
157 Id.
158 Id. at 961.
159 Id. (citing Or. Rev. Stat. § 431.966(2)(a)(A) (2016)).
160 Id.
161 Id. at 964-967.
162 Id. at 964.
163 Id.
164 Id. (quoting O’Connor v. Ortega, 480 U.S. 709, 715 (1987)).
165 Id.
166 Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 550 (9th Cir. 2004).
167 Or. Prescription Drug Monitoring Program, 998 F.Supp.2d at 966.
168 Id. at 967.
169 Id.
170 Id.
171 Id.
172 Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d 1228, 1235 (9th Cir. 2017).
173 10 So. 3d 1212, 1218 (La. 2009) (“we find that the right to privacy in one’s medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable.”).
174 Id. at 1218.
175 Id. at 1212-13.
176 Id. at 1217 (collecting cases).
177 Id. at 1218.
178 225 F.3d 440, 454 (4th Cir. 2000).
179 Id. at 443-445.
180 Id. at 452.
181 Id. at 445.
182 Id. at 451.
183 Id. at 452.
184 397 P.3d 1011, 1015 (Cal. 2017).
185 Id.
186 Id.
187 Id. at 1021. See also Blaik, supra note 42, at 297 (“Ultimately, the court decided that the good cause requirement was not applicable to pharmaceutical records since pharmaceutical records involve less sensitive information than medical records.”) (citing Lewis, 397 P.3d at 1020-21).
188 Id.
189 Id.
190 Id. at 1022.
191 624 A.2d 1105 (Vt. 1992).
192 Id. at 1107-08.
193 Id. at 1109.
194 Id. at 1112 (applying the Burger framework to determine that the state has a substantial interest in the regulatory scheme, warrantless inspection is necessary, and the search provides the proprietor with notice and limits the discretion of the officers).
195 Id. at 1110.
196 State v. Russo, 790 A.2d 1132, 1151-52 (Conn. 2002) (finding that the expectation of privacy was “diminished drastically” because “prescription [] records are legitimately subject to regular scrutiny by federal and state inspectors”).
197 Stone v. City of Stow, 593 N.E.2d 294, 299 (Ohio 1992).
198 Russo, 790 A.2d at 1151-52; Stow, 593 A.2d at 301.
199 835 N.W.2d. 698, 712-13 (Neb. 2013).
200 Id.
201 Id. at 710.
202 Id. at 712.
203 Id. at 711.
204 Id. at 712.
205 No. 2:16-cv-611-DN-DBP, 2017 WL 3189868, at *3 (D. Utah July 27, 2017).
206 Id.
207 Id.
208 Id. at *1.
209 Id. at *8.
210 Id. (citing United States v. Miller, 425 U.S. 435, 443 (1976) and United States v. White, 401 U.S. 745, 751–52 (1971)).
211 Interestingly, the Utah PDMP case surprisingly did not cite the related Tenth Circuit precedent in Douglas v. Dobbs, which held that individuals have a constitutionally protected expectation of privacy in their prescription drug records. 419 F.3d 1097, 1102 (10th Cir. 2005). Douglas was charged with “fraudulently altering the dosage amount and quantity of pills in a prescription” after the assistant district attorney, Dobbs, obtained her prescription drug records from a pharmacy pursuant to a court order. Id. at 1100. The charges were later dismissed. Id. Douglas subsequently sued Dobbs for violating her Fourth Amendment rights by obtaining her prescription drug records without probable cause and a warrant. Id. Considering whether Douglas had a reasonable expectation of privacy in her prescription drug records held by the pharmacy, the court emphasized the private information that may be revealed by prescription drug records, specifically a person’s illnesses and reproductive health. Id. at 1101-02. The court therefore found that the expectation of privacy in prescription drug records “falls within a protected zone of privacy and is thus protected as a personal right either fundamental to or implicit in the concept of ordered liberty.” Id. at 1102 (quotations omitted). Even so, the court conceded that “[t]his right to privacy is not absolute, however, as it is ‘well settled that the State has broad police powers in regulating the administration of drugs by the health professions.’” Id. at 1102 n.3 (quoting Whalen v. Roe, 429 U.S. 589, 603 n.3 (1977)). Because of this, the court said that Dobbs did not violate a clearly established constitutional right and was therefore entitled to qualified immunity. Id. at 1103. See also Pyle v. Woods, 874 F.3d 1257, 1264 (10th Cir. 2017).
212 U.S. Drug Enf’t Admin. v. Utah Dep’t of Commerce, 2017 WL 3189868, at *9 (D. Utah July 27, 2017).
213 Williams v. Commonwealth, 213 S.W.3d 671, 682 (Ky. 2006).
214 Id. at 674-75.
215 Id. at 682.
216 Id. at 684.
217 Id. at 683.
218 Id.
219 Id.
220 Id. at 682.
221 Id. at 683-84.
222 Compare Douglas, 419 F.3d at 1102 with Utah Dep’t of Commerce, 2017 WL 3189868, at *1.
223 See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (“[A] person [must] have exhibited an actual (subjective) expectation of privacy and … the expectation [must] be one that society is prepared to recognize as ‘reasonable.’”).
224 Kerr, Four Models, supra note 96, at 506. The thrust of this argument is the personally private nature of the information held in PDMP records, which tracks the Supreme Court’s “private facts” model of the Fourth Amendment as articulated by Professor Kerr. While this model traditionally has been a more contested basis for Fourth Amendment protections, I argue that recent Supreme Court cases have emphasized the particularly private nature of the information being searched, consistent with the private facts model, and in particular have considered the private nature in dicta referring to health information. See Knox, supra note 148, at 344-47; cf. Orin Kerr, Understanding the Supreme Court’s Carpenter Decision, LAWFARE (June 22, 2018, 1:18 PM), https://www.lawfareblog.com/understanding-supreme-courts-carpenter-decision [perma.cc] (“In effect, disclosure is enough to eliminate privacy when the records disclosed only involve a normal amount of privacy. But when the records are super private and pervasive, disclosure isn't enough to eliminate Fourth Amendment rights.”).
225 See Beletsky, supra note 86, at 143.
226 Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 998 F. Supp. 2d 957, 964 (D. Or. 2014), rev’d on other grounds, 860 F.3d 1228 (9th Cir. 2017) (“The Hippocratic Oath has contained provisions requiring physicians to maintain patient confidentiality since the Fourth Century B.C.E.”).
227 AMA POLICY, PATIENT PRIVACY AND CONFIDENTIALITY, H-315.983(1) & (9) (2018).
228 See Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (“The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.”); Seaton v. Mayberg, 610 F.3d 530, 541 (9th Cir. 2010) (“One who goes to a physician in order to obtain medical benefit to himself or his family has substantial privacy interests ….”); Beletsky, supra note 86, at 143 (“We trust the information we share with our health care providers to be received in confidence and without judgment.”).
229 Sankar, Pamela et al., Patient Perspectives on Medical Confidentiality: A Review of the Literature, 18 J. Gen. Internal Med. 659, 664 (2003).CrossRefGoogle ScholarPubMed See also Mary Madden, Public Perceptions of Privacy and Security in the Post-Snowden Era, PEW RES. CTR. (Nov. 12, 2014), http://www.pewinternet.org/2014/11/12/public-privacy-perceptions [perma.cc] (characterizing patients’ views of health information as “sensitive” and highlighting patients’ subjective expectation of privacy in health information); Steve Adler, Patients Holding Back Health Information Over Data Privacy Fears, HIPAA J. (2017), https://www.hipaajournal.com/patients-holding-back-health-information-over-fears-of-data-privacy-8634 [perma.cc] (describing surveys demonstrating patients’ concerns about the privacy of their health information and unwillingness to share their personal health records).
230 See Sankar et al., supra note 229, at 664.
231 Colorado, the District of Columbia, Kansas, Maryland, Minnesota, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, and West Virginia require practitioners and/or pharmacists notify patients that their prescription will be entered into the state’s prescription drug monitoring program. See Nat’l All. for State Model Drug Laws, Notice Requirements for Prescription Monitoring Programs (2016).
232 The expectation that a limited group of people, not including law enforcement, will have access to a set of information does not destroy Fourth Amendment privacy protection. This is consistent with the Supreme Court’s opinion in Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001)Google Scholar (“The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.”), as well as Justice Gorsuch’s dissent in Carpenter v. United States, 138 S. Ct. 2206, 2263 (2018)Google Scholar (Gorsuch, J., dissenting) (“Consenting to give a third party access to private papers that remain my property is not the same thing as consenting to a search of those papers by the government.”).
233 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 26 U.S.C. and 42 U.S.C. (2012)).
234 Health Information Technology for Economic and Clinical Health Act, Pub. L. No. 111-5, 123 Stat. 226 (2009).
235 Health Insurance Portability and Accountability Act of 1996 § 201, 110 Stat. at 1936 (stating the purpose of HIPAA as “to improve portability and continuity of health insurance coverage in the group and individual markets, to combat waste, fraud, and abuse in health insurance and health care delivery, to promote the use of medical savings accounts, to improve access to long-term care services and coverage, to simplify the administration of health insurance, and for other purposes.”).
236 See 45 C.F.R. § 164.306(a)(1) (2019) (Privacy Rule); See 45 C.F.R. § 164.312 (2019) (Security Rule).
237 42 C.F.R. pt. 2 (2019).
238 45 C.F.R. §§ 160.102-03 (2019).
239 Lapatin, supra note 115, at 535 (citing 45 C.F.R. § 164.512(f)(1)(ii)(C) (2017)).
240 See Data Collection and Reporting, CTRS. For Disease Control and Prevention (last updated Sept. 28, 2018), https://wwwn.cdc.gov/nndss/data-collection.html [perma.cc] (discussing mandatory reporting of disease laws).
241 See generally Mandatory Reporting of Non-Accidental Injuries: A State-By-State Guide, Victim Rights L. Ctr. (May 2014), https://www.victimrights.org/sites/default/files/Mandatory%20Reporting%20of%20Non-Accidental%20Injury%20Statutes%20by%20State.pdf [perma.cc] (explaining state laws for reporting gunshot wounds, child abuse, and other non-accidental injuries).
242 See, e.g., 42 U.S.C. § 13031 (federal requirement for professionals to report suspected child abuse).
243 See Shoilan, Margaret, Comment, An Ethical Dilemma: Attorneys’ Duties Not to Reveal Elder Abuse in Washington State, 90 Wash. L. Rev. 1471, 1471 (2015)Google Scholar (citing Velick, Molly D., Mandatory Reporting Statutes: A Necessary Yet Underutilized Response to Elder Abuse, 3 Elder L.J. 165, 170-71 (1995)Google Scholar).
244 See Ferguson v. City of Charleston, 532 U.S. 67, 78 n.14 (2001) (“[A]n intrusion on that expectation of privacy may have adverse consequences because it may deter patients from receiving needed medical care.”) (citing Whalen v. Roe, 429 U.S. 589, 599–600 (1977)); King v. State, 535 S.E.2d 492, 496 (Ga. 2000) (“Permitting the State unlimited access to medical records for the purposes of prosecuting the patient would have the highly oppressive effect of chilling the decision of any and all [persons] to seek medical treatment.”).
245 See Sankar et al., supra note 229, at 664-66.
246 Id. at 666.
247 Id. at 664-65.
248 See supra Table 1 (medications associated with the noted conditions). See also Butler et al., supra note 69, at 440 (“At the same time, even within the medical community, stigma against individuals with SUDs—and mental health disorders generally—can lead to worse care, even for conditions unrelated to a patient’s SUD.”).
249 The American Medical Association has been a vocal opponent of loosening patient privacy protections, especially in the opioid and substance abuse context. See Lev Facher, AMA urges Congress not to loosen restrictions on privacy for patients with addiction history, STAT (Sept. 21, 2018), https://www.statnews.com/2018/09/21/patient-privacy-ama-congress/ [perma.cc].
250 See Beletsky, supra note 86, at 145 (“Confidential medical care is not equally distributed. There is a growing, global body of empirical data documenting the disparities in systemic violations to confidentiality and other rights of patients belonging to marginalized groups. This includes ethnic minorities; people living with HIV/AIDS; people who use drugs; and the poor.”) (citing Alphia Abdikeeva, Roma Health Rights in Macedonia, Romania, and Serbia: A Baseline for Legal Advocacy, OPEN SOCIETY FOUNDS. (June 2013), https://www.opensocietyfoundations.org/sites/default/files/roma-health-rights-macedonia-romania-serbia-20130628.pdf [perma.cc]; Schwartzbaum, Judith A. et al., Physician Breach of Patient Confidentiality among Individuals with Human Immunodeficiency Virus (HIV) Infection: Patterns of Decision, 80 Am. J. Pub. Health 829 (1990)CrossRefGoogle Scholar; Hu, Lianne L. et al., Privacy Protection for Patients with Substance Use Problems, 2 Substance Abuse & Rehab. 227 (2011)Google ScholarPubMed; Dennis, Amanda et al., A Qualitative Exploration of Low-income Women’s Experiences Accessing Abortion in Massachusetts, 25 Women’s Health Issues 463 (2015)CrossRefGoogle ScholarPubMed).
251 See, e.g., U.S. Drug Enf’t Admin. v. Utah Dep’t of Commerce, No. 2:16-cv-611-DN-DBP, 2017 WL 3189868, at *8 (D. Utah July 27, 2017).
252 See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (recognizing the reasonable expectation of privacy of patients in a hospital); Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 26 U.S.C. and 42 U.S.C. (2012)) (setting standards for the security and privacy of protected health information).
253 Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 998 F. Supp. 2d 957, 967 (D. Or. 2014), rev’d on other grounds, 860 F.3d 1228 (9th Cir. 2017) (“The submission of prescription information to the PDMP is required by law. The only way to avoid submission of prescription information to the PDMP is to forgo medical treatment or to leave the state, [sic] This is not a meaningful choice.”).
254 Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018)
255 See, e.g., Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (“a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”).
256 Oliva, supra note 68, at 846.
257 Id.
258 See Lambert v. Larizza, No. 13-31402-CICI 2015 Fla. Cir. LEXIS 65961, at *10-11 (Apr. 6, 2015).
259 United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring) (expressing concern that GPS data could expose “trips to the psychiatrist, the plastic surgeon, the abortion clinic, [and] the AIDS treatment center.”).
260 Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018).
261 Id. at 2219.
262 Id. at 2219-20.
263 Id. at 2219 (quoting Riley v. California, 134 S. Ct. 2473, 2488 (2014)).
264 Id. at 2217.
265 See Oliva, supra note 68, at 780, 784 (identifying that state PDMPS receive a considerable amount of sensitive patient data including information about patients’ address, age, prescribing physician, drug dosage, contraceptive and other reproductive-related health history, such as abortion, pregnancy and infertility).
266 Carpenter, 138 S. Ct. at 2212, 2217.
267 Id. at 2223.
268 See Prescription Drug Monitoring Program (PMP) Data Retention Timelines – Table, Nat’l All. for Model State Drug Laws (June 30, 2017), https://namsdl.org/wp-content/uploads/Prescription-Drug-Monitoring-Program-PMP-Data-Retention-Timelines-Table.pdf [perma.cc] (collection of laws from a nationwide legal database and individual state legislative websites that documents the timeline for retention of PMP identifying information in every state).
269 Illinois maintains records for 12 months; Florida and Minnesota for 24 months; Hawaii, Idaho, Kansas, New York, and Rhode Island for five years; and Maine, North Carolina, and Vermont for six years. See id.
270 See Oliva, supra note 68, at 797.
271 See Who Owns Medical Records: 50 State Comparison, Health Info. & L., http://www.healthinfolaw.org/comparative-analysis/who-owns-medical-records-50-state-comparison [perma.cc] (last updated Aug. 20, 2015).
272 See id. The exception is New Hampshire, where patients own their medical records. Id.
273 See Oliva, supra note 68, at 795, 851 (citing U.S. Drug Enf’t Admin. v. Utah Dep’t of Commerce, No. 2:16-cv-611, 2017 WL 3189868, at *8 (D. Utah July 27, 2017)).
274 See Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (“The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.”).
275 See Oliva, supra note 68, at 780.
276 Id.
277 Price, W. Nicholson II & Cohen, I. Glenn, Privacy in the Age of Medical Big Data, 25 Nature Med. 37, 38 (2019).CrossRefGoogle ScholarPubMed
278 See 45 C.F.R. § 160.103 (2014).
279 Id. (defining covered entities and business associates).
280 Mariner, Wendy K., Reconsidering Constitutional Protection for Health Information Privacy, 18 U. Pa. J. Const. L. 975, 1010 (2016)Google Scholar (“Scholarly views of medical record ownership vary, with some commentators arguing that while the provider may own the record, the patient owns the information in the record”) (citing George J. Annas, The Rights of Patients 227 (Eve Carey, ed., 3d ed. 2004)).
281 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
282 Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz, 389 U.S. at 357).
283 United States v. Zadeh, 820 F.3d 746, 755 (5th Cir. 2016); State v. Russo, 790 A.2d 1132, 1144-45, 1152-55 (Conn. 2002); Stone v. City of Stow, 593 N.E.2d 294, 300-01 (Ohio 1992); State v. Welch, 624 A.2d 1105, 1112-13 (Vt. 1992).
284 United States v. Acklen, 690 F.2d 70, 75 (6th Cir. 1982) (“We now hold that the pharmaceutical industry … is a pervasively regulated industry.”); see Rethinking Closely Regulated Industries, 129 Harv. L. Rev. 797, 805 (2016).Google Scholar
285 See, e.g., Russo, 790 A.2d at 1152-54; Stone, 593 N.E.2d at 300.
286 New York v. Burger, 482 U.S. 691, 699–702 (1987).
287 Henry Waxman et al., Getting to the Root of High Prescription Drug Prices: Drivers and Potential Solutions 5 (July 2017).
288 Further, the regulations and reporting requirements make physicians and “pharmacists [] the de facto partners of law enforcement and prescribers in preventing improper diversion of controlled substances from legitimate treatment due to phony prescriptions, theft, and other inappropriate means.” See Williams, Karl G. et al., The Role of the Pharmacist in Addressing the Opioid Crisis, 11 Alb. Gov’t L. Rev. 174, 175, 183-89 (2018).Google Scholar
289 City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015) (holding that the hospitality industry is not pervasively regulated because historically places of public accommodation have allowed their registers to be openly inspected).
290 Id. at 424 (citing Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States v. Biswell, 406 U.S. 311, 311–312 (1972); Donovan v. Dewey, 452 U.S. 594 (1981); New York v. Burger, 482 U.S. 691 (1987)).
291 Id. at 424-25.
292 See supra Section IV.A.1.
293 See Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 550 (9th Cir. 2004) (finding that patients receiving medical services provided in physicians’ offices have an increased expectation of privacy).
294 482 U.S. at 701.
295 Id. at 709, 713-16.
296 One concern of not applying the administrative search exception is that “health inspections will suffer.” Weaver, supra note 117, at 579. Although requiring probable cause and a warrant to access PDMPs will prevent some access, these searches are not health inspections.
297 See Maryland v. King, 569 U.S. 435, 466 (2013) (Scalia, J., dissenting) (“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence.”); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989) (explaining that the “closely guarded category of constitutionally permissible suspicionless searches” does not include searches serving “the normal need for law enforcement”). See also Richards, supra note 117, at 36 (citing Jacobson v. Massachusetts, 197 U.S. 11 (1905) (“The Frank Court thus found that a public health search was not subject to the Fourth Amendment warrant requirements because it was not directed at finding evidence for criminal prosecutions. The Frank Court did not cite its earlier decision in Jacobson v. Massachusetts, upholding a criminal fine for resisting mandatory smallpox immunization, but Frank is based on the same jurisprudential assumption that an individual’s rights, outside of the criminal context, are subject to the needs of society and that individual rights give way when they endanger the common good.”).
298 See Ferguson, v. City of Charleston, 532 U.S. 67, 68-69 (2001) (drug use of pregnant women was not a special need justifying a suspicionless search); City of Indianapolis v. Edmond, 531 U.S. 32, 42-47 (2000) (drug problem was not a special need justifying a suspicionless search).
299 Ferguson, 532 U.S. at 68-69.
300 Edmond, 531 U.S. at 42-47.
301 569 U.S. at 463 (2013) (concerning searches of individuals under arrest).
302 Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz, 389 U.S. at 357).