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Vt. backs wider police access to drug data

House, Senate split over requirement for search warrants



Contributing writer

Faced with what some are calling an “epidemic” of prescription drug abuse in Vermont, state legislators have passed two competing bills to give police greater access to a state database of prescription records.

But the state House and Senate have so far disagreed about whether police should be required to obtain a warrant before getting information from the database.

After an emotional debate in late April, the Senate voted 18-11 for a bill that would allow police access to the Vermont Prescription Monitoring System without a warrant. All five senators from Bennington and Rutland counties supported that proposal.

The House, however, had earlier approved its own version of the bill, including a provision requiring police to get a warrant before using the database.

As May arrived, a conference committee was running out of time to reconcile the differences between the House and Senate bills before this year’s legislative session ended.

The concept of giving police more access to the prescription drug database appears to have strong support across party lines and from Gov. Peter Shumlin.

Law enforcement officials say greater access to the database will give police more information to combat prescription drug abuse.

But civil liberties advocates argue that if a search warrant isn’t required, the legal changes will allow an invasion of privacy and could lead to a digital-age erosion of the limits on police search powers.

Vermont’s prescription drug database was created in 2006, originally as a way for physicians to ensure that their patients weren’t abusing prescription drugs.

But from the beginning, some legislators worried that the database could wind up being used by law enforcement rather than as a public health tool. With these concerns in mind, the law creating the database was written so that the system depersonalized much of the medical information.

Even so, civil liberties advocates say opening the database to warrantless searches would amount to allowing police access to Vermonters’ private medical information.

New tool to track drugs
Under current law, police can only gain access to records in the database if the state public health commissioner sees an imminent public health threat in prescription drug behavior.

But Vermont has a decades-old law that gives police the right to walk into any pharmacy in the state and ask for an individual’s prescription drug records – without a warrant.

Under the new legislation, which has been supported strongly by Sens. Richard Sears, D-Bennington, and Kevin Mullin, R-Rutland, the state public safety commissioner, who oversees the state police, would be able to request access to records within the database as part of an ongoing police investigation.

Public Safety Commissioner Keith Flynn said he believes legal changes are necessary to staunch the flow of prescription drugs for use as recreational street drugs. Law enforcement officials say addiction to prescription drugs like OxyContin is behind many thefts and burglaries in Vermont, as users seek quick cash to buy the drugs on the black market.

The bill would enhance the state’s policing capabilities, but it also could help police refer prescription drug abusers to community resources, Flynn said.

He contends the powers given to police in the competing bills are not really new. Rather, Flynn said, they are an extension of the 1968 law that allows police officers to seek prescription data from pharmacies. Instead of long hours of legwork to get that information, officers now could get it through a computer, he said.

“Law enforcement officers won’t have to run around to all 200 or so pharmacies in the state to see what’s going on,” Flynn said.

The 1968 law so far has held up to scrutiny over privacy concerns, Flynn said. It was never really challenged until 1992, in a case involving a state jail nurse accused of illegally funneling drugs into the prison system. In that case, Flynn said, judges ruled the law did not violate privacy requirements set out in either the Fourth Amendment to the U.S. Constitution or the more-strict Article 11 of the Vermont Constitution.

The only thing that really has changed is where the information is located, Flynn said.

“We already have access to this info,” Flynn said. “Moving it into a central depository … does not create a greater need for privacy.”

Flynn said the Senate version, with its provision for warrantless searches, would be the more useful of the two bills. The threshold for a getting a search warrant requires suspicion of a crime actively taking place, while requests for database information often would come in earlier stages of an investigation, he said.

“We would very rarely, if ever, have enough information to obtain a warrant to access the prescription drug database program,” Flynn said.

A threat to privacy?
But Allen Gilbert, executive director of the state chapter of the American Civil Liberties Union, says the new legislation corrupts the original intent of the 2006 law that created the prescription database. In setting up that law, legislators made sure the information remained in the hands of public health officials, with police only getting a glimpse in “a breaking-the-glass kind of exception,” Gilbert said.

In 2006, he said, civil libertarians argued that the database shouldn’t be as readily available to police as the records of individual pharmacies.

“The legislators agreed,” Gilbert said.

The new legislation will shift power so that police control their own access to drug records if they can prove a threat to public health safety, he said. Considering that the governor has already called prescription drug abuse an imminent public health threat, police would have broad justification to seek information from the database under the new guidelines, he said.

Gilbert says the issue of database access is a part of a new struggle over privacy rights of personal information gathered electronically by third parties.

If police can review the database’s information regularly, especially without a warrant, they could begin to expand the argument for warrantless access to other third-party electronic records, like data from smart meters or cell phone tracking records, Gilbert said.

The result could erode the standard for needing search warrants in the digital age, he said.

“We don’t think that trimming a corner off the Constitution is a good thing to do,” Gilbert said.

That theme was echoed in the Senate floor debate on the issue, according to an Associated Press account of the session.

“The Fourth Amendment prohibits unreasonable search,” said Sen. Richard McCormack, D-Windsor. “It also allows for the granting of a warrant, based on probable cause. That’s the compromise. If you compromise the Fourth Amendment, you’re compromising on the compromise.”

He added: “We have heard that we should trust the people who make the decisions to violate people’s privacy, that they won’t do it lightly. I would ask that we trust the judgment of our judges, who are in fact charged with making those decisions. ... Let the police go to the court. Let the police make their case and get a warrant. People have bled and died for that to be our system. Let us not monkey with it.”

Sears and other supporters of the change stressed, however, that police would need to identify specific suspects and would only be able to obtain certain information about those suspects’ prescription records. Supporters also said this access would be limited to a handful of specially trained officers.

Mental health advocates have joined civil libertarians in expressing concern about the proposals for wider police access to the prescription database.

Floyd Nease, executive director of the Vermont Association for Mental Health, said he worries the change would lead to a stronger stigma against people suffering from mental illness, as many of the abused medications under scrutiny are to treat mental illness.

Both Nease and Gilbert also predict the proposed laws will do little to slow the flow of prescription drugs onto the streets of Vermont. They point to a recent study in Utah that found that most prescription drugs sold as street drugs came from out-of-state sources, not in-state pharmacies.

Nease estimated that, at most, the proposed new laws might curb just a fraction of the prescription drugs that end up on the street.

“We’re giving up a lot for not much gain,” he said. “We’ve been treating opiate addiction as an enforcement problem for over 30 years. There’s really no data anywhere to suggest that this would do anything.”


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