[Police access to medical databases is a major Fourth Amendment issue – one you can help keep for Vermonters who object to unwarranted search and seizure. A vote on an amendment allowing such access is due this week in the Senate. Contact info and bill text links are below the fold.]

It’s crunch time under the golden dome, and one of the things that might be crunched this week is Vermonters’ Fourth Amendment (U.S. Constitution) right to be free from unreasonable search and seizure.

GMD has for quite some time been tracking the attempts by law enforcement to go fishing in pharmacy records. And JVWalt posted just last Thursday on this issue and the “compromise” put forth in the Senate as an amendment to H.745, the Prescription Drug Monitoring Bill.

At issue is whether law enforcement officials will be able to use the Vermont Prescription Drug database to get information on individuals who might be abusing or selling certain prescription drugs – without any court review, a.k.a., warrantless access.

ACLU Director Allen Gilbert sent out an urgent message this weekend urging Vermonters who care about their constitutional protections to contact their state senators ASAP, as a vote is likely this week. by noon Monday, April 16.

The text of Gilbert’s message (posted with permission) – with text and contact links – is below the fold.

I don’t often send out personal appeals for help, but this issue is important.

A bill, H. 745, making changes to the state Health Department’s centralized prescription drug database has been working its way through the legislature. I’ve been following it closely for the ACLU because the Shumlin administration wants to allow police to obtain information from the database without a warrant.

I’m asking you to consider sending an e-mail, or making a phone call, to your senators opposing a warrantless access amendment the Senate will take up next week (the week of April 16). I provide a sample message, below.

But first, let me explain why we are worried about police having warrantless access to information in the Health Department’s prescription drug database:

1. When the state’s prescription drug database was created in 2006, the legislation promised the database would be used for health, not law enforcement, purposes. The Shumlin administration now wants to break that promise by allowing police to obtain reports on patients from the database. If the legislature breaks its promise on the privacy of prescription drug information, what’s to prevent a similar retreat from the promise to protect the privacy of information in the state’s soon-to-be-launched e-medical records exchange system?

2. While we agree Vermont and other states face a serious prescription drug abuse problem, there’s little data showing prescription drugs sold on our streets are coming through pharmacies. A federal study done in Utah described how a majority of prescription drugs on the streets of that state were not dispensed by Utah pharmacies, and therefore wouldn’t show up in the state’s prescription drug database. During legislative hearings, no one has presented anything but anecdotal evidence about the source of the drugs available for sale on Vermont’s streets. In truth, no one really knows where they’re coming from. It’s not worth undercutting privacy rights for uncertain results.

3. The Shumlin administration argues that police already have warrantless access to Vermonters’ prescription drug records in pharmacies – what’s wrong with giving police warrantless access to the Health Department’s drug database? While it’s true that police can walk into any drugstore in the state and look at anyone’s prescription drug records without a warrant, that authority is based on an outdated statute passed long before federal privacy protections (under HIPAA, the Health Information Portability and Accessibility Act) were put in place. Were the state’s drugstore access law (passed in 1968) to come up for consideration today, it’s doubtful the legislation would pass.

4. We acknowledge that there are times when law enforcement can access our private information. Indeed, the Constitution’s Fourth Amendment sets up the procedure to obtain such information — by police going to a judge, showing probable cause that a crime has been committed, and getting a warrant. This procedure has been in place for more than 200 years. It works. But increasingly, police have sought end-runs around the Fourth Amendment’s protections, particularly when seeking personal information in government or private databases. The fight over police access to prescription drug database information is really a fight over what kind of access police will have to electronic data about our private lives. What the legislature does now will likely be looked at later as a precedent in defining police access to e-data.

5. The warrant requirement plays an important role in the balance of powers among the branches of government. Allowing police access to Health Department data allows an otherwise unauthorized transfer of personal information between two administrative agencies without judicial review. It is judicial review that protects personal privacy rights. Removing that review removes citizens’ main protection against government intrusion in our private lives.

Here’s how the administration’s warrantless access would work, according to the proposed amendment: Police receive information from a pharmacist or health care provider that a person may be criminally misusing a prescription drug. Police open an investigation of the person. Police ask the Health Department for drug database information on the person. The Health Department MUST provide police with the person’s name and date of birth, and the name and address of pharmacies where s/he’s had a script filled. No specific drugs or quantities are noted – just enough information to point police to a specific pharmacy(s) to check out the individual and his/her purchases.

The text of the proposed warrantless access amendment is on our Web site; the text of the prescription drug monitoring bill (H. 745)   as it passed the House is on the legislative Web site.

I generally would assume that readers of this blog have contacted their legislators at least once in the last decade. In case that’s an (ahem) unwarranted assumption, I’ll close with Gilbert’s suggestion for how best to make your opinion on this issue known:

Here’s what to do:

Please send an e-mail to the senators in your county by Monday noon (April 16)  [Your] senator […] may be receptive to arguments that police should have to get a warrant before receiving reports from the prescription drug database. A simple message is fine: “I am concerned about the privacy of medical information. I don’t want police to have access to information in the state’s prescription drug database without a warrant. Please vote against any amendments to H. 745 that would allow warrantless access.”

If you know any other senators beyond your own county, consider contacting them, too. If you’d like to expand your efforts even further, contact all 30 senators.

Besides using e-mail, it’s also possible to fax written messages to senators. Fax to 802-828-2424 (include the senator’s name). And you can leave a simple verbal message for an individual senator by calling the statehouse Sergeant at Arms office (during business hours) at 802-828-2228. Include the number of the bill (H. 745) in your message.

Finally home phone numbers for senators can be found on the legislative Web site.

Thanks for considering this request. Please call or write with any questions.

Allen Gilbert

Executive director, ACLU-VT

137 Elm St.

Montpelier, VT 05602

802-223-6304

agilbert@acluvt.org