At the July 13 Legislative Interim Session, legislators reviewed an audit of Utah's Controlled Susbtance Database (CSD), and the impact of legislation passed in 2015 (with significant support from the ACLU of Utah) on use of that database by law enforcement.
That audit shows that, when law enforcement agencies were required to obtain a warrant to search the database, searches of the CSD by law enforcement dropped precipitously. The ACLU of Utah is confident that SB119 was a strong piece of Fourth-Amendment-protective legislation that should be preserved as is. That is why we made the following remarks before the Interim Judiciary Committee on July 13:
In 2015, the Utah Legislature passed SB 119, which dealt with the Utah controlled substance database (“CSD”). The CSD is intended for use by doctors, pharmacists and medical professionals to identify potential cases of drug over-utilization, misuse, and over-prescribing of controlled substances throughout the state. Increasingly, it is also being used as a tool by law enforcement.
During the 2015 legislative session, and in part motivated by several highly publicized instances of law enforcement’s inappropriate use of the CSD, the legislature passed legislation requiring law enforcement to obtain a warrant before accessing the prescription drug database. In doing so, the state joined ranks with ten states that had already enacted legislation prohibiting law enforcement from accessing records in those states’ prescription drug monitoring programs unless the government gets a warrant or otherwise demonstrates probable cause: Alabama, Alaska, Arkansas, Georgia, Iowa, Minnesota, Montana, New Hampshire, Oregon, Rhode Island. In addition, Vermont does not permit any law enforcement requests for prescription drug database records. Louisiana, by court decision, requires a warrant for searches of prescription records. State v. Skinner, 10 So. 3d 1212, 1218 (La. 2009).
Additionally, a federal district court in Oregon has held that law enforcement violates the Fourth Amendment when it obtains prescription drug records without a warrant. The case is now being briefed in the Ninth Circuit after the DEA appealed.
The Utah legislature’s policy decision to require a warrant before allowing law enforcement to access the virtual medicine cabinets of Utahns is now also being questioned by the federal government. Earlier this year, the DEA challenged the decision by the state of Utah to require a warrant before providing access to sensitive medical information. Because this litigation is underway, and because the question of whether law enforcement should need a warrant will now be decided by both a federal court and most likely the 10th Circuit, the legislature should refrain from any modifications to the law until the conclusion of that case.
Additionally, it is our belief that these courts will agree with the Utah legislature that it is only reasonable, and certainly consistent with the 4th Amendment values that we all hold dear, that highly sensitive medical information be deserving of stringent constitutional protections.
Reasonable suspicion is a low standard. It is used by police to justify brief, minimally intrusive stops of people walking on public streets to ask them about suspicious behavior. Probable cause is the standard that the Fourth Amendment’s framers intended to be required for invasive searches or searches of private and sensitive information. The Utah CSD contains a staggering quantity of highly private and sensitive information about people’s prescriptions, which can reveal details about their medical ailments, their doctor’s treatment advice, and more.
A probable cause warrant is required in Utah before law enforcement can listen to the contents of phone conversations, obtain the contents of emails or text messages, or track a person’s location using their cell phone information. A probable cause warrant should also be required for the extremely sensitive information contained in prescription records in the CSD.