A legal conflict is intensifying between federal officials and civil liberties advocates defending Americans’ medical privacy rights in a case that points to the increasingly frequent use by bureaucrats of judge-less, warrant-less subpoenas.
As things stand now, the Drug Enforcement Administration is winning and privacy rights are losing.
“It’s not like there’s ten of them. There’s probably thousands — I know there are thousands,” Matt Barden, spokesman for the DEA, told the Daily Caller News Foundation about the DEA’s use of administrative subpoenas.
Maybe not for much longer. A federal district court in Oregon has ruled against DEA but more recently another federal judge, in Texas, ruled in January in U.S. vs. Zadeh that DEA agents can anonymously issue warrant-less subpoenas to search the medical records of 35 patients of Drs. Joseph and Abbas Zadeh in Dallas.
The Zadehs’ case will soon be decided by the Fifth Circuit Court of Appeals in Forth Worth in a “precedent-setting” case on the Fourth Amendment rights of individual citizens versus federal power, said Andy Schlafly, an attorney for the Association of American Physicians & Surgeons, who is representing the Dallas doctors.
“It has an enormous chilling effect on the practice of medicine,” Schlafly said. “For millennia, going back to Hippocrates, there’s been an understanding of the confidentiality of the patient and the physician, and the patient has been able to speak freely to the physician with true understanding of confidentiality. But these subpoenas disrupt that.”
It’s a case that concerns — but doesn’t surprise — former Virginia Attorney General Ken Cuccinelli, who joined U.S. Sen. Rand Paul, R-Ky., in suing the National Security Administration over its metadata cell phone collection.
“Literally, they let the DEA just go wandering through people’s medical records just to make sure laws aren’t being broken. Really? Are you serious?” Cuccinelli told the Daily Caller News Foundation.
Many Americans may be surprised to know federal agencies can and do routinely access personal information, generally from businesses, without first persuading a judge that they have “probable cause” of finding specified items, as required by the Fourth Amendment.
Agencies simply need to claim the information is “relevant” or sparks “official curiosity,” said Christopher Slobogin, professor at Vanderbilt University’s Law School who has written on administrative subpoenas.
“Administrative subpoenas have become the go-to mechanism for prosecutors trying to paint evidence,” Slobogin said. ‘They can be obtained almost at the drop of the hat.”
Nobody seems to know how many such subpoenas are issued each year by federal officials but a growing body of anecdotal evidence suggests the total originating from places like the Department of Health and Human Services and the FBI is substantial and growing.
“It’s an issue on which we only see the tip of the iceberg because, when most people get these administrative subpoenas, no matter how wrong the government might be, these businesses comply,” said Mark Fitzgibbons, an attorney with American Target who has been fighting administrative subpoenas on behalf of businesses for 15 years.
Fitzgibbons is co-author, with Richard Viguerie, of “The Law That Governs Government: Reclaiming the Constitution from Usurpers and Society’s Biggest Lawbreaker.”
Fitzgibbons has seen his fair share of administrative subpoenas.
He recalled a case in which a California assistant attorney general investigating a California charity deposed of one of the charity’s employees working in Virginia, asking the employee to remove documents from the office that didn’t belong to her.
Making that demand is a “solicitation of larceny,” a “felony” in Virginia, Fitzgibbons told the California official.
“You have these officials who are supposed to be versed in the law and don’t know the law,” Fitzgibbons said. “And the fact that they can issue these administrative subpoenas themselves is the problem.”
Officials would issue fewer administrative subpoenas if they had to go before a judge for a warrant, Cuccinelli said.
“The key is, it doesn’t mean half, but the most abusive and baseless ones would go, and what would really happen is they’d never be requested in the first place,” Cuccinelli said.
The Texas case shows not even judges can always be trusted to interpret laws in favor of the Fourth Amendment, said John Whitehead, president of the Rutherford Institute in Charlottesville, Virginia. The institute pursues litigation on behalf of individuals whose civil liberties have been violated.
“The problem here is government officials have always gotten out of control,” Whitehead said. “It’s the courts’ job to correct them.”
A big reason they are probably is because Congress has enacted multiple laws over the years that give executive branch bureaucrats the authority to issue the controversial subpoenas. Increasingly sophisticated storage and retrieval digital technology also contributes to the growth.
“In the old days, there were plenty of documents, but now, virtually everything we do is documented somehow and digitized, and subpoenas can be used to obtain any of that data, any of that information,” Slobogin said.
Once government gets its hands on information like medical data, it becomes vulnerable to hackers, Schlafly said.
Still, there’s hope, civil liberties advocates say.
Nate Wessler, staff attorney with the American Civil Liberties Union, won a somewhat similar lawsuit over the DEA and one of its administrative subpoenas last fall in Oregon. In that case, a federal judge told the DEA it had no right to use an administrative subpoena to access the state’s pharmaceutical records. That case is now headed to the 9th Circuit Court of Appeals. The outcome of that case, if it conflicts with the other case in Texas, could set up a showdown in the U.S. Supreme Court.
The power to rein in or even eliminate the use of administrative subpoenas lies with state lawmakers and Congress, the attorneys said.
Whitehead said Congress should “declare [administrative subpoenas] illegal.”
Utah Attorney General Sean Reyes said last year his office wouldn’t issue any administrative subpoenas.
“There’s been real momentum in state legislatures and real momentum in Congress to make it clear that for those kinds of records, a warrant is required,” ACLU’s Wessler said.
“I think that the public, we’re at a moment now where the public is becoming more aware of and alarmed at privacy violations by the government,” Wessler added. “I don’t think there’s a whole lot of awareness about how administrative subpoenas operate or certainly about the vast scale of their use.”
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