Magnitudes of Pain And The Third-Party Doctrine

It’s painful to pass up an opportunity to slam the Drug Enforcement Agency for overreach, for impropriety, for ignoring the constitutional rights of Americans.  But then, how can it be blamed when mindless newspaper editorials cry sad tears? How can the DEA be blamed for doing what the law allows?  Damn, this hurts.

Christopher Moraff writes about the DEA’s latest dive into people’s private lives.

The DEA has claimed for years that under federal law it has the authority to access [Oregon’s] Prescription Drug Monitor Program database using only an “administrative subpoena.” These are unilaterally issued orders that do not require a showing of probable cause before a court, like what’s required to obtain a warrant.

Oregon has fought the DEA’s efforts, and won in the district court. 

“It is difficult to conceive of information that is… more deserving of Fourth Amendment protection,” [District Court Judge Ancer L.]  Haggerty said. “By obtaining the prescription records for individuals like John Does 2 and 4, a person would know that they have used testosterone in particular quantities and by extension, that they have gender identity disorder and are treating it through hormone therapy.

“Although there is not an absolute right to privacy in prescription information… it is more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records,” he added.

The case is on appeal before the Ninth Circuit, and while Judge Haggerty’s holding with regard to people’s reasonable expectation of privacy under Katz certainly sounds persuasive, it will run head first into the countervailing argument, the Third-Party Doctrine.

Sure, the Third-Party Doctrine, our old pal from the pen register days, when everyone applauded the government’s accessing telephone numbers called by drug dealers and mobsters. Surely we want to prosecute such bad dudes, so let’s create an excuse to allow the feds free access because we hate these criminals so much and, well, it’s not like it would ever be used against us. But what excuse can we create? I know, if information finds its way into the hands of a third party, then there can be no reasonable expectation of privacy! Problem solved!

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

As new hysterias arise, the doctrine is put to new uses. The current cries over the use of prescription painkillers were custom made for a solution like this.  After all, there are children dying from drug overdoses. Some are stealing prescription drugs. Others are getting scripts from docs, multiple docs, whether to use or sell. This must be stopped.

In the rush to address a spike in overdose deaths attributed to prescription medication, few have questioned the necessity for greater monitoring of drug dispensing to prevent drug diversion and “doctor shopping.” Every state in the nation, with the exception of Missouri, now has a prescription monitoring program and several have begun expanding their programs.

In contrast to the hysteria about the abuse of prescription drugs, there are the tens of thousands, or more, of Americans who suffer from chronic pain and debilitating disease. The point of prescription painkillers is to provide them with relief for their pain. Very real pain.  Somehow, they don’t make it onto the radar of activists, as if they don’t exist and the entire painkiller industry only feeds addicts and dealers.

And as long as the hysteria persists, the feds plan to enjoy it to the fullest, pushing states to make the DEA’s job easier. For the children.

The federal government is eager to see all this data linked. The Department of Justice has developed a software platform to facilitate sharing among all state PDMPs. So far 32 states already share their PDMP data through a National Association of Boards of Pharmacy program.

Somebody gets more pills than a DEA agent thinks he should? Boom. Arrest that criminal. A doc writes more scripts than a fed deems appropriate? Boom. Arrest that dirty doc. And naturally, physicians have become painfully aware of the risk they face for writing medically necessary scripts. It’s not that they don’t care about their patients who suffer horrible pain, but they care about keeping their own butts out of jail more. Can you blame them?

“The primary purpose of PDMPs is healthcare, not law enforcement,” the AMA said, adding that while PDMPs provide for referrals to law enforcement, they are not designed to be “a tool or repository for law enforcement to initiate access to gather information,” as is the case here with the DEA’s administrative subpoena.

But then, when the resource exists and the law allows, everything becomes a tool of law enforcement.  And the reach of the Third-Party Doctrine grows with every new concept, every new hysteria.  Try having a smartphone without your information being in the hands of a third party. Unless you happen to have personal celltowers across the nation, you’re screwed. Same with medical care and prescriptions, particularly given that we’re all required to have medical insurance, which means that every facet of our health care falls into a third-party’s hands.

There are two doctrinal approaches to undoing this fiasco. The first is to legislative exempt swathes of personal data from inclusion under the Third-Party Doctrine, which faces the problem of hysterical calls for government to “do something” about whatever problem is the flavor of the month. The second is to judicially end the Third-Party Doctrine itself, as one that flies in the face of the Fourth Amendment and was improvident from the outset.

While Justice Sonia Sotomayor has raised the specter that it’s time to revisit the Third-Party Doctrine, there doesn’t appear to be any groundswell of support for it outside of a few special sectors of society.  And then, it’s only for the instances where it touches their lives, such as smartphone records access.  As for the folks with chronic pain, they’re on their own.

9 thoughts on “Magnitudes of Pain And The Third-Party Doctrine

  1. OEH

    Let’s assume that it’s OK for the state to require prescriptions be sent to PDMP but you’re trying to challenge the DEA having access without probable cause. How do you distinguish the DEA from the PDMP?

    The comforting thing about the 4th amendment for judges is that it closes certain areas to the government as a whole so that the judge doesn’t have to write in the opinion “because sometimes cops are skeezballs,” even though that’s why it’s in the constitution.

    Both the DEA and the state PDMP claim to be acting in the public interest, and they both have the same potential to have corrupt employees. Is it enough to distinguish them that the DEA is for law enforcement?

  2. Ehud Gavron

    The third-part doctrine must go T-shirts.

    On sale whenever I can find a way to make T-shirts and sell them and ship them and collect money all without any of it touching a third-party.


  3. bill mcwilliams

    Maybe the various state governments should just make OIC medication illegal. That way opioid junkies will eventually experience an internal explosion or at least an overloaded caboose that will negate the need for any external forces to bear the costs of exacting revenge on the miscreants.

    1. Enjoin This!

      Naw, I’ve got a better idea. Let’s conglomerate a national registry for anyone who has used pain-relief medication. And better yet, let’s make their prescription history known. Because, the children.

      And we should let everyone know if they’re potential abusers of pain-relief medication, too. Because the children. Let’s require them to self-identify. I mean, if you’re REALLY in pain, you shouldn’t be ashamed of that fact, and you would be helping others by letting them know that you, too, are a productive member of society.

      Identify how? Well, if you’re LEGITIMATELY in pain, a small yellow star won’t be too offensive, will it?

  4. Marc R

    Old men use pharmacies. Even doctors don’t want to hand out too many sample of Viagara, Ritalin and Ambien to patients without emailing in scripts. Ergo, market forces will fix this particular third party problem. Cf. Rush Limbaugh. CfCf. The Florida 4th DCA gave Rush the win. CfCfCf. Not everyone can afford Roy Black.

    So many trees in that pharm 3rd party doctrine. Why not:
    (1) FAA controls airspace
    (2) Voice, text and email comms moves via cable, sat, fiber or phone cables, all which go through air.
    (3) FAA controls comms; thus they’re the ultimate 3rd party with which no citizen has standing to challenge a privacy expectation

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