Prescriptions at a Price: America’s Opioid Crisis and the Increasing Toll on Drug Record Privacy

Reem Blaik· 21 Vand. J. Ent. & Tech. 277

Abstract

How should the US Constitution govern patient privacy in the face of a public health emergency? Declaring the United States’ opioid crisis as a public health emergency may put the already-compromised integrity of drug record privacy at higher risk by virtue of emerging administrative responses, existing Supreme Court precedent, and acquiescent state laws. The White House convened a summit on opioids where the then-US attorney general discussed law enforcement responses to the crisis. Although the Fourth Amendment protects against unreasonable searches and seizures, the Supreme Court’s third-party doctrine generally grants state and federal actors access to records released to third parties. Moreover, the Court has not clearly defined society’s “reasonable expectation of privacy,” especially in the context of a public health emergency in the digital age. Some states have further compromised prescription record privacy by creating prescription drug monitoring programs that acquiesce to government concerns. If a warrantless search of a state-managed monitoring program takes place during a public health emergency, government actors should not be permitted to circumvent privacy safeguards established by state and constitutional law. Rather, legislatures and courts should protect prescription drug records under the Fourth Amendment and through redaction initiatives that keep private and sensitive information safe.