- Associated Press - Wednesday, January 15, 2014

PORTLAND, Ore. (AP) - The American Civil Liberties Union asked an Oregon federal court judge on Wednesday to review the constitutionality of the federal government’s use of warrantless subpoenas.

The request came during oral arguments before U.S. District Court Judge Alcer Haggerty in U.S. District Court in Portland over the U.S. Drug Enforcement Administration’s demand to search the records of a state pharmaceutical monitoring database.

The state of Oregon launched the database, the Oregon Prescription Monitoring Program, in 2011 in the hopes of tracking prescriptions and identifying abuse. Within a year, the DEA sought information from the database as part of drug investigations. Four patients and a doctor intervened, saying they were concerned their records could also be accessed.

The state objected, saying the records were private, but a U.S. magistrate judge found that the federal law trumped state law. The state was ordered to turn over the records. The state sued, and the ACLU joined them.

The DEA contends that the warrantless subpoenas, called administrative subpoenas, are a critical investigative tool. The ACLU responds that such searches violate patients’ Fourth Amendment rights to be free from illegal searches and seizures.

“The fact people are forced to choose between protecting their health and protecting their privacy is offensive, and it’s wrong,” said ACLU attorney Nathan Freed Wessler.

Congress authorized the U.S. Attorney General to issue administrative subpoenas in any investigation related to controlled substances, a responsibility delegated to the DEA. As it stands now, the DEA can request patient records from a pharmacy and, should the pharmacist refuse, seek a judge to issue a court order demanding their release.

But instead of a warrant based on probable cause, the DEA need only show in that instance that what they’re seeking is “material and relevant,” a lower standard of proof.

The DEA says Haggerty should toss the case because the ACLU and the state of Oregon failed to show that the DEA ever used an administrative subpoena to obtain specific prescription medical information, and to assert that they will is “purely speculative.”

“They have no evidence that the DEA might access those records at some future time, we don’t know,” Assistant U.S. Attorney Kevin Danielson told Haggerty.

Even if the court does allow the suit to proceed, federal attorneys wrote in a memo, the patients and the doctor “do not have a reasonable expectation of privacy interest in their prescription information that is protected by the Fourth Amendment.”

Haggerty said Wednesday he would rule “fairly soon.”

Reach reporter Nigel Duara on Twitter at https://www.twitter.com/nigelduara

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