Prescription-Drug Policing: The Right to Health Information Privacy Pre-and Post-Carpenter

This Article operates at the intersection of privacy law, Fourth Amendment doctrine, and prescription-drug surveillance instigated by the U.S. drug-overdose crisis. Reputable reporting sources frequently frame that ongoing crisis as a prescription-drug-overdose “epidemic.” Current epidemiological data, however, indicate that the majority of American overdose deaths are now a result of illicit and polysubstance drug use and not prescription-opioid misuse. The prescription-opioid- centric frame has nonetheless sparked the rapid rise of surveillance of prescribers and patients in the form of state prescription-drug monitoring program (“PDMP”) databases. State PDMPs, which maintain and analyze significant data concerning every dispensed controlled substance, surreptitiously collect a stunning amount of sensitive health information. PDMPs are predominantly law enforcement investigative tools dressed up in public-health-promoting rhetoric. Under the guise of rogue prescriber, pill mill, and doctor–shopper crackdowns, the Drug Enforcement Administration (“DEA”) routinely self-issues subpoenas that permit the agency to conduct warrantless sweeps of the voluminous data stored in state PDMP databases. These rampant law enforcement sweeps procure highly sensitive health information and raise serious constitutional privacy concerns. The Supreme Court’s recent Fourth Amendment decision in Carpenter v. United States, however, may limit the DEA’s otherwise unfettered access to state PDMP databases. Carpenter and the Fourth Amendment doctrines central to its holding motivate this Article and animate its two core contentions. First, pertinent pre-Carpenter precedent requires the DEA to obtain a warrant in order to conduct sweeps of state PDMP databases. Second, courts are even more likely to rule that warrantless DEA searches of highly sensitive health-care data run afoul of the Fourth Amendment in the post-Carpenter world. Simply stated, patient prescribing records stored in state PDMP databases are entitled to Fourth Amendment protection