Live in Obedient Fear, Citizin

Did you know that your pharmacy is giving law enforcement warantless access to your medical records?

So, if your Cop ex-spouse wants a copy of your prescription records in order to contest custody arrangements, for example, all they have to do is ask.

I do not find this reassuring:

All of the big pharmacy chains in the US hand over sensitive medical records to law enforcement without a warrant—and some will do so without even running the requests by a legal professional, according to a congressional investigation.

The revelation raises grave medical privacy concerns, particularly in a post-Dobbs era in which many states are working to criminalize reproductive health care. Even if people in states with restrictive laws cross state lines for care, pharmacists in massive chains, such as CVS, can access records across borders.

Lawmakers noted the pharmacies' policies for releasing medical records in a letter dated Tuesday to the Department of Health and Human Services (HHS) Secretary Xavier Becerra. The letter—signed by Sen. Ron Wyden (D-Ore.), Rep. Pramila Jayapal (D-Wash.), and Rep. Sara Jacobs (D-Calif.)—said their investigation pulled information from briefings with eight big prescription drug suppliers.

They include the seven largest pharmacy chains in the country: CVS Health, Walgreens Boots Alliance, Cigna, Optum Rx, Walmart Stores, Inc., The Kroger Company, and Rite Aid Corporation. The lawmakers also spoke with Amazon Pharmacy.

All eight of the pharmacies said they do not require law enforcement to have a warrant prior to sharing private and sensitive medical records, which can include the prescription drugs a person used or uses and their medical conditions. Instead, all the pharmacies hand over such information with nothing more than a subpoena, which can be issued by government agencies and does not require review or approval by a judge.

Some members of Congress are concerned by this and are asking the Department of Health and Human Services to declare that such data is private.

I would not hold my breath on this one.  HHS Secretary Xavier Becerra has a long history of opposition to meaningful regulation of law enforcement.

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The “required by law” phrase is important here. Law enforcement agencies have their own legal interpretations of the Third Party Doctrine, but none of that matters much in the case of HIPAA. All it would take to prevent pharmacy chains from handing out this data without a warrant would be the federal Department of Health and Human Services (HHS) taking this out of the Third Party Doctrine’s hands and placing a presumption of privacy on it.

That’s the gist of the letter [PDF] recently sent to HHS Secretary Xavier Becerra by Senator Ron Wyden, Rep. Pramila Jaypal, and Rep. Sara Jacobs. It cites a bit of courtroom and private company precedent to urge this situation along.

We urge HHS to consider further strengthening its HIPAA regulations to more closely align them with Americans’ reasonable expectations of privacy and Constitutional principles. Pharmacies can and should insist on a warrant, and invite law enforcement agencies that insist on demanding patient medical records with solely a subpoena to go to court to enforce that demand. The requirement for a warrant is exactly the approach taken by tech companies to protect customer privacy. In 2010, after just one Federal Court of Appeals held that Americans have a reasonable expectation of privacy in their emails and that the 1986 Congressionally enacted law permitting disclosures of email pursuant to a subpoena was unconstitutional, all of the major free email providers — Google, Yahoo, and Microsoft — started insisting on a warrant before disclosing such data.

Looks pretty simple. All that’s needed is a change of policy, even if there’s no change in law. The problem with this, though, is that the head of the HHS has had plenty of time to change this policy to erect a higher standard for demands for customers’ information. The letter notes the legislators first informed Becerra of this potential issue in July, following the Dobbs decision in June, hoping the HHS would erect more protections to prevent people from being prosecuted for obtaining birth control products.

Unfortunately, unless and until a Republican lawmaker's drug habit becomes public as a result of this loophole, Congress will not pass any legislation preventing this abuse of process.