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Kiss your 4th Amendment goodbye

by: JulieWaters

Tue Dec 04, 2007 at 12:30:00 PM EST


UPDATE: Based on confirmation from law enforcement sources, pharmacies that were approached by the State Police on Friday November 30th and from legal sources representing people affected by State Police conduct last Friday, GMD can add the following to the reporting that has occurred already.

  • The Department of Public Safety was planning last weeks pharmacy checks ("Fishing Derby Friday") for several weeks.
  • The State Police visited multiple pharmacies on Friday November 30th.
  • At least two three pharmacies were told to by the State Police to turn over patient profiles for every patient who received a schedule II prescription from that pharmacy.
  • At least one pharmacy was told it would be required to update the patient profile information with the police every two weeks.
  • At several pharmacies the police merely introduced themselves to the pharmacist, gave their business cards and asked the pharmacist to call the police officer if they encountered any suspicious behavior such as indications of "Doctor shopping" or prescription fraud.
  • Late Friday, due to intense push back and complaints from pharmacists who were concerned about requests from the Vermont State Police that they reveal confidential and federally protected medical information about their customers, State Police management sent an email to all State Police involved with the pharmacy checks throughout the state instructing them to cease the pharmacy checks. After the email went out, Fish Derby Friday ceased (for now).

Kudos to Dan Barlow who published a well-balanced and thorough article about Fishing Derby Friday. - odum

It's always good to start with the constitution, this time from Amendment IV:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yesterday, Green Mountain Daily scooped all the Vermont news outlets by publishing a story about state police collecting pharmacy records across the state.  You can find the original piece here.

A summary, after the jump

JulieWaters :: Kiss your 4th Amendment goodbye
per Odum's post from yesterday:

GMD has learned that State Police representatives are going to Vermont Pharmacies and demanding complete dumps of all information about patients with Schedule II prescriptions (the class of medications that include prescription drugs with street value). After talking to a few pharmacists, I found one in Franklin County that confirmed they had been approached, and had been advised by the state that they did, indeed need to comply with the request. Needless to say, he wasn't too happy about it.

What's even more disturbing? When I asked if he knew of any other pharmacies that were being mined for data in this way, he responded that it was his understanding that this was a process that was to take place across the state.

So here's what we've found since:

  1. it appears as though this is a broad-reaching sweep of medical records.  I.e., if you receive schedule II (restricted narcotic) medications and you also receive Prozac or Viagra or anything else that you thought was private, you were wrong;
  2. there appears to be no mechanism in place to notify people when their records have been turned over to state police;
  3. there appears to be no mechanism in place to warn people that their records may be turned over to state police.

This does not come without its irony.  As Doug Hoffer posted in the comments at GMD:

the state should NOT be carrying out warrantless searches. And pharmacists should not be required to participate. Indeed, this is happening at the same time the state is considering a suit against the phone companies for turning over records to Homeland Security.

We are definitely through the rabbit hole.

But it turns out there's an interesting background to this story.  A few weeks ago, Vermont Public Radio produced a piece about violent crime and drug use.  Some choice quotes:

...Vermont police are also seeing enormous problems with illegal pharmaceuticals, especially oxycontin.

This comes at a time when Baker says all law enforcement agencies in the state are understaffed.

(Baker) "The local police departments are carrying around 60 vacancies. The state police are carrying somewhere around 20 vacancies. And some of that's attributed to financial reasons. But in many cases it's about recruiting and the inability to find qualified individuals."

(Host) Baker says modern-day police candidates need computer and problem solving skills-skills that can earn them higher salaries in other industries.

Baker says the state has already started talking about long-term solutions to these problems. Meanwhile, he says police are working on short-term strategies to combat crime more effectively with the resources they have.

So here's the burning question: is this one of their creative solutions?  Instead of targeting criminals, target everybody who has ever had contact with one of these medications?

I want to mention a couple quick items here about this before I close:

  1. this is a great example of the power of blogs and web-based media.  We found the story.  We researched the story.  We got it out there.  As far as I can tell so far, no one else is reporting it, which means that asking the other Vermont media why they're not covering it might be a good idea;
  2. this diary is built almost entirely upon the work of people who are not me.   I'm posting it here to keep the story in the public view and to see if we can get broader coverage of it, but it is not my own research or work that discovered any of it.

As usual, we have choices here.  Pharmacies are, as far as we can tell, complying with the state police.  

As citizens, we do have the right to call our pharmacies and ask if our records have been released and to whom.

As citizens, we do have the right to sue pharmacies which release our records without valid medical purpose.

As citizens, we do have the right to speak out about this and publicize it whenever possible.  

Or, of course, we can just hope nothing bad happens.

Databases aren't just places to collect information.  They're places to lose information.  In 2006,  an employee at the Vermont State Colleges system lost a laptop containing social security numbers, payroll information and other data.  This isn't just about the police collecting data.  It's about an underfunded department securing it and keeping it out of the wrong hands.

So I'll end with a few questions:

Who do you think controls this data and where do you think it will be stored?  

Do you think the state police have the resources to keep it all in house, or do you think they'll end up privatizing the information?

Do you think that everyone who comes into contact with this information will keep all of it private?

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It's on HuffPo now... (0.00 / 0)
Here.

You can read JD's latest at five before chaos. But why would you do something silly like that?

Jim = Loss of Civil Liberties (0.00 / 0)
"Gov. Douglas, why are members of your administration gathering records of Vermonters' drug prescriptions  without a warrant?"

You all forgot to ask ... (0.00 / 0)
where have your precious Democratic Party politicians been on this issue?

They don't mind. The Democratic politicians in general approve of and support Richard Nixon's war on the American people aka "the drug war". Leahy and Sanders have always been big boosters of Nixon's war on us, and as far as I can tell Welch is the same. The Vermont legislature has signed off on making us show picture ID to purchase common cold medicines and more.

So don't forget to ask your Democratic compatriots why they aren't protecting us from big government police powers.

It's about community ... RAMABAHAMA DOT NET (only it is still under construction ... isn't that life?)


[ Parent ]
asdf (4.00 / 3)


Nullius perfectus est

[ Parent ]
Ever occured to you? (0.00 / 0)
Rama, ever think that this one might completely be on Douglas? It is a possibility, you know. And if it is, it's going to be great ammo for the campaign. Cheer up.

You can read JD's latest at five before chaos. But why would you do something silly like that?

[ Parent ]
Stepping away from the "all Dems are evil" meme... (4.00 / 1)
...and getting to the meat of this issue, Dem (and other) legislators are at fault for supporting the crappy law that this is happening under the auspices of.

It's an argument against our citizen legislature, and in favor of having full time lawmakers - one I'll get to in another diary soon. So many of the particulars of the implementation of these laws are punted to the administration, and the administration has often not acted in political good faith with that responsibility.

I'd say, then, that this law simply shouldn't have been passed, but in fairness, when some legislators apparently wanted to scrap the most onerous provision, they were assured by DOH that this very thing wouldn't and couldn't happen. They shouldn't have left it to chance by leaving these provisions in, but I think the meant well.

Which is precisely why/how we can do something about this. Legislators are NOT going to be happy to hear this is going on.

Nullius perfectus est


[ Parent ]
oversight handicap (0.00 / 0)
Odum nails a serious handicap our volunteer legislators face.  

On the one hand they are required to provide oversight and pass the laws that govern the state.  On the other hand, they have no individual staff. Their handicap is that they are basically are forced to rely on data, information and assurances of the employees -- both political and career -- of the state agencies they are overseeing when making their legislative oversight decisions. And they only have a brief period in which to do it.

Our system of the people's representatives being part-time volunteers has served us remarkably well. However, legislative oversight will always suffer as a result since much of government's functioning is necessarily done on the honor system.

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.


[ Parent ]
And what makes you think ... (0.00 / 0)
Vermont's legislators are going to complain a lot?

I'll look for results ... not words.

If the Vermont legislature really doesn't like big brother police intrusion into our medical lives, they'll simply put a kibosh on it.

I'm bettin' that ain't in the cards.

And what makes you think having full time politicians will change any of this? Perhaps you can show me the full time legislature that has restrained government's police powers?

I'm bettin' that ain't in the cards either.

It's about community ... RAMABAHAMA DOT NET (only it is still under construction ... isn't that life?)


[ Parent ]
It isn't all on Douglas ... (0.00 / 0)
The current war on the American people we euphemistically refer to as "the drug war" was launched by Richard Nixon and Congress back in 1973.

Since then Democratic and Republican politicians at all levels of government have zealously pushed more and more onerous big government police powers down our throats. All in the name of of Nixon's war on the American people. Trying to pin all the blame on the Douglas donkey (yeah - Democratic and Republican parties bein' the same in results don't ya' know) is, in my opinion, ignoring history.

So the story line right now is: Vermont's legislature briefly put up a stink about police intrusion into our medical privacy. After assurances by said police, however, the legislature said "Never mind" and went on to presumably other more pressing matters.

And now I'm being asked to say this is all on Douglas? Not a chance ... I'm a real elephant ... I've got a memory.

It's about community ... RAMABAHAMA DOT NET (only it is still under construction ... isn't that life?)


[ Parent ]
a contrarian response... (0.00 / 0)
Ok, I know I'm gonna get in trouble for this....

I'm not reading this issue as a huge, overarching 4th Amendment issue.  I think it's really great that GMD sunlighted the fact that inappropriate information gathering on the part of the State Police has been taking place.  I also think that the pharmacists, advocacy groups and legal counsel moving hard against the State Police is completely warranted  and even heroic.  But I'm not convinced that this issue is comparable to wholesale sequestering of telephone/internet communications on the part of the Bush administration and an invasion of 4th amendment rights.  Conversely, I think of it as a misunderstanding on the part of the State Police officers regarding HIPPA combined with their usual intimidating approach of enforcement authority.  There's no question that the State Police officers were completely out of line when requesting/demanding a full list of patient information at the three pharmacies in question.  And there's no question that these actions deserve the type of media response they are getting.  

But on the other hand, I think we might want to recognize that our State Police could benefit from using the law which allows them to gather individual information in order to pursue the rising number of cases involving prescription drug theft.  So I guess what I'm trying to point out is that we can benefit from an even-handed discussion which balances our individual privacy rights secured by HIPPA and the ability of the State Police to protect the public from crimes related to prescription drug abuse.  If we simply bury the conversation as an "us vs. them" 4th amendment issue, then we're likely to 1.  Heighten anti-government attitudes in a somewhat misplaced manner and 2.  prevent a necessary conversation about a significant issue in the rising number of crimes associated with prescription drug abuse.  

In my opinion, rather than going back to change the law regarding law enforcement abilities in addressing prescription drug abuse, it might be far better to step back and consider a more comprehensive approach to how we handle oversight and regulation not only of prescription drugs, but of non-prescription and "illegal" drugs as well.  We can improve oversight by more appropriately placing this duty within the administration vs. the legislature.  We can generate the required revenue for Oversight, Enforcement, Education, and Rehabilitation by legalizing and taxing the number one cash crop in the state.  If we begin to consider the reasons why people habitually use prescription drugs, non-prescription drugs, and "illegal" drugs for pretty much the same reasons others use alcohol, then I think we can begin to get to a healthier place so that enforcement and oversight of laws become less expensive and time consuming.

Such a comprehensive approach to this issue would require political will and political capital on the part of individual legislators, since what I'm proposing includes hemp legalization.  On the other hand, in my opinion, this would be an appropriate way to approach the entire drug issue and would be recognized as such if presented in such a manner.  

Vermonters are reasonable people, and if legislators simply said, "Look, you probably know a couple of people who use marijuana on a regular basis, whether you are aware of it or not.  Wouldn't it be better if we could help these people with their addiction by providing a stand-up equivalent of AA -- so they don't have to be in the company of criminals when attempting rehab -- than to keep the problem in the closet?  Wouldn't it be better for Jane Wife to be able to confide with her family and friends that Joe Husband has a little problem that affects the family, so Joe can get help and no one has to worry about the cops showing up?  And by the way, this new law would allow the State Police to use more resources to go after the black market and the people who are breaking in to pharmacies and your neighbor's houses so they can get their fix.  And the same new law would also provide better education for kids and families who at risk from habitual drug abuse."

Now that's my version of an ideal approach to current drug laws and 4th amendment rights.  Let the sun shine in....

Respectfully submitted,

Nate Freeman

Nate Freeman

Northfield, VT

natefreeman@gmail.com


not a contrary analogy (0.00 / 0)
Nate,
If the police suspect criminal behavior, they can obtain a warrant. The threshold is extremely low to obtain a warrant to see our medical records if there is a reasonable suspicion that criminal activity is occurring.

But I'm not convinced that this issue is comparable to wholesale sequestering of telephone/internet communications on the part of the Bush administration and an invasion of 4th amendment rights. . .
. . . I think we might want to recognize that our State Police could benefit from using the law which allows them to gather individual information in order to pursue the rising number of cases involving prescription drug theft.  So I guess what I'm trying to point out is that we can benefit from an even-handed discussion which balances our individual privacy rights secured by HIPPA and the ability of the State Police to protect the public from crimes related to prescription drug abuse.  If we simply bury the conversation as an "us vs. them" 4th amendment issue, then we're likely to 1.  Heighten anti-government attitudes in a somewhat misplaced manner and 2.  prevent a necessary conversation about a significant issue in the rising number of crimes associated with prescription drug abuse.

The way you frame the issue is precisely the core of the FISA problem.

The government has an easy tool to tap into and listen to our conversations. Judges are extremely liberal in granting warrants to listen to everything from terrorist suspects to garden variety drug, gambling and prostitution conspiracies. Warrants are issued everyday with little difficulty to law enforcement with anything close to a showing of a legitimate need for one.

The Vermont State police have the same tools when it comes to obtaining search warrants. If they suspect criminal activity, they can obtain a search warrant and see highly sensitive and confidential medical records -- like the records some troopers obtained illegally on Fishing Derby Friday.  

There is no need to resort to illegal searches and seizures whether it is the federal government diverting our snail-mail, email and phone conversations or the State Police taking the highly sensitive medical records of sick and vulnerable Vermonters.

What happened on Fishing Derby Friday had nothing to do with catching the source of illegal supplies of street pharmaceuticals, except in name and pretense. This was intimidation and misguided illegal behavior conducted by a wayward and poorly planned police operation.

The only thing DPS accomplished on Fishing Derby Friday was to prove to Vermonters that they have no respect or understanding of our rights, at least when it comes to medical privacy. And they showed a big ZERO in their understanding of the primary sources of the illegal street trade in pharmaceuticals, which are generally stolen from the chain of distribution, stolen from pharmacies or stolen from sick people. The street trade just isn't traceable back to patient profiles at the local drugstore of our neighbors who live with debilitating pain or have terminal cancer, for instance.

The amount of direct prescription dispensing to illegal street market drug diversion is a minuscule piece of the public health puzzle. Regardless of its portion of the diverted pharmaceutical problem, it in no way justifies a coordinated and systematic police program that blatantly violates the civil and privacy rights of Vermonters.

The regulatory statute in question is also outdated, unnecessary and, because of the legally available procedures already available to the police to obtain our medical records, the law is no longer needed. It's only remaining purpose in the post-HIPAA era is to encourage the type of police abuses we saw last week.

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.


[ Parent ]
Ok, fair enough (0.00 / 0)
Thanks for the clarification.

I wasn't clear in my subject line, however.  By "a contrarian response" I was referring to my own post, which I felt was contrary to everyone else's in this string.

Regarding the concept of a comprehensive approach to prescription, non-prescription, and "illegal" drugs, including legalization of marijuana, what's your thought on that?

Nate Freeman

Northfield, VT

natefreeman@gmail.com


[ Parent ]
I'll jump in. (0.00 / 0)
Prohibition leads to abuses of civil liberties and to public corruption. See, for instance how drug prohibition led to massive police corruption here in clean, open Vermont. Just read about the case of Paul Lawrence, the star drug cop who arrested hundreds of people on drug charges, only it turns out they were fake. http://books.google.com/books?...

So yes, I'm in favor of a public health/harm reduction approach to the problem of drug abuse, whatever the drug is, and also in favor of legalization of marijuana.  I suspect that would be the majority view around here, although I don't claim to speak for anyone but myself.


[ Parent ]
I'm in agreement (0.00 / 0)
I haven't used marijuana in, lessee, two decades now.  My motto is a modified version of "Back to the Future's" final words: drugs?  Where we're going, we don't need... drugs.

But that's beside the point.  I know the damage that addiction does and have seen it first hand.  I also know that people who suffer from it are less likely to come forward because of fear of incarceration.  

As far as legalization goes: I'm in favor of partial legalization of marijuana, combined with extremely severe penalties for anyone who provides any controlled substance to anyone who isn't legally allowed to drink alcohol.  I don't care so much what the specific age is for alcohol, but once you're allowed to drink beer, you should be able to smoke pot and providing either alcohol or pot to someone who isn't legally allowed to use it should have a penalty which comes with teeth (similarly, driving while impaired should be the same no matter what causes the impairment-- alcohol, marijuana, etc.)

But as far as personal privacy goes?  If you're in the privacy of your own home and not caring for any children at the time, you should be able to ingest, smoke, etc., pretty much anything you damned well please.  As long as you (and any other consenting adults) are the only ones involved in the behavior, it's completely up to you how to behave, but the minute it crosses outside your personal zone (i.e., you decide to drive somewhere, you have kids to take care of, etc.), you're in a whole different territory.

Musician, Web Designer, Photographer


[ Parent ]
"what's your thought on that?" (0.00 / 0)
A lot in that question.  Jack summed it up nicely.  To give a quick answer about my overall view, this is a public health issue not a criminal justice issue.  

I concur with Jack's comments. I am far more concerned about the failures of prohibition. There costs are higher and the damage to society greater by going down the criminalization path as opposed to focusing resources on health education and undertaking harm reduction policies and strategies.

I fall squarely in the harm reduction model camp, and I reject the harm induction camp that advocates prohibition and criminalization of behavioral health and substance use & abuse.

sláinte,
cl

-- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.


[ Parent ]
Oxycontin (4.00 / 1)
Big tip of the hat to Odum on this one.

The oxycontin problem is very real and very dangerous.  My best friend from high school became a crystal meth freak after college.  Needless to say, that experience ended with a trip to rehab and a car smashed into a parked Georgia state patrol car.    

7 years later she busted up her knee and the ortho surgeon very stupidly put her on oxycotin for the pain.  Not surprisingly, she got addicted and ended up using internet sites to get prescriptions- racking up $25k in credit card charges in less than 6 months.  Fortunately, she went back into rehab and is now healthy and clean, though buried in debt.

Abuse of prescription drugs is very serious and very hard to detect.  My friend paid a heavy price, but what about the unscrupulous doctors who kept refilling her prescriptions?  My guess is it is this type of thing the cops are looking out for.  Thus, the motives for the search were likely quite legit.

While their motives may have been legitimate, that does not excuse police actions.  As Julie and others have pointed out, the lack of oversight and the lack of internal controls (on data) are troubling.      



Publisher: odum
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