On May 29, 2019, the ACLU of New Hampshire and New Hampshire Medical Society filed a federal court amicus brief to support the State’s defense of patients from warrantless searches of medical records. Also filed by the national ACLU and four other ACLU affiliates, the brief is part of the federal case U.S. Department of Justice v. Jonas, and explains that not only are these types of unjustified searches unconstitutional, but that they can have adverse consequences and deter patients from receiving needed medical care.
New Hampshire, like 48 other states, the District of Columbia, and Puerto Rico, has established a statewide Prescription Drug Monitoring Program (PDMP), a system that allows physicians and pharmacists to look at a patients’ past prescriptions for medications that have addictive potential. Because these records are so sensitive, state law prevents law enforcement agents from accessing the database unless they have a search warrant signed by a judge.
New Hampshire received a warrantless search demand from the federal Drug Enforcement Administration (DEA) for two years of a patient’s PDMP records last year. The N.H. Department of Justice correctly and courageously refused to comply, because doing so would violate the state law requiring a warrant and infringe on privacy rights. After the DEA sued in court, they stood firm, arguing that the subpoena was improper under federal law and the Fourth Amendment to the U.S. Constitution. The ACLU/Medical Society's amicus brief supports the N.H. Department of Justice's position.
A 2018 U.S. Supreme Court case, Carpenter v. United States, held that police needed a warrant to obtain historical cell phone location data of an individual. The Supreme Court rejected the government’s argument that any time a person shares sensitive records with another entity, that person loses their constitutional right against unreasonable searches and seizures. This is the same argument the DEA makes in this case, only with medical records instead of location data.