Media Contact

Ariana Schechter, 603-227-6679

May 29, 2019

The ACLU of New Hampshire and New Hampshire Medical Society today filed a federal court 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.

“The State of New Hampshire is sticking up for the privacy rights of all Granite Staters, and we are proud to stand with them,” said Henry Klementowicz, staff attorney at the ACLU of New Hampshire. “The DEA cannot ignore state law and request these sensitive records with an administrative subpoena instead of a signed warrant. That’s not the New Hampshire way, and we are proud to stand with the N.H. Department of Justice to protect patient rights.”

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.

“The DEA’s most concerning argument in this case is that medical patients have no reasonable expectation of privacy in their prescription records. The medical community rejects this view,” says James Potter, the Executive Vice President of the New Hampshire Medical Society. “Not only is this argument legally incorrect, but it undermines why medical confidentiality is so important. Protecting patients’ medical information is essential to ensuring that patients feel comfortable to seek medical care from health care providers. Patients who trust their health systems to protect their data receive better outcomes. Maintaining patient privacy is also essential to protecting our patients’ dignity. We are proud to join the New Hampshire Department of Justice’s commendable efforts to ensure that Granite Staters will not be inhibited when they seek medical care.”

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 state 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.

“Our medical records can reveal our most sensitive and private details, which is precisely the kind of information the Fourth Amendment is intended to protect,” said Nathan Freed Wessler, staff attorney with the national ACLU Speech, Privacy, and Technology Project. “Requiring a search warrant for law enforcement access to our private health information isn’t just good Fourth Amendment law, it’s good policy. Robust protections against unjustified police searches of prescription monitoring databases help ensure that the opioid addiction crisis is primarily addressed using public health tools, not a broken criminal justice system.”

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.

 

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