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Are our prescription drug records used for law enforcement? Pt. 2

In our last post, we began a discussion of a recent constitutional lawsuit against Florida’s prescription drug monitoring database E-FORCSE. A local attorney, joined by the ACLU of Florida, brought the lawsuit after learning that some 3,300 confidential prescription records, including his own, had been harvested by state and federal law enforcement and given to our local State Attorney’s Office.

While only six people among the 3,300 whose records were seized were under any suspicion, all of the records were mistakenly forwarded to five attorneys representing people accused of prescription drug violations.

"Just think about it," said an ACLU spokesperson. "The state attorney has the prescription drug information of over 3,000 people. That's wrong, unless those over 3,000 people were the legitimate targets of a criminal investigation. But no one has suggested that. This was a very, very broad net that was cast and it got a whole lot of fish."

The state attorney insists that law enforcement must to go through specific procedures and request the records from the Department of Health. Officers do not, she says, have direct access to the database.

Yet the ACLU found evidence purporting to show that five investigators with the State Attorney’s Office had direct access in Nov. 2011, and at least 57 from the Florida Department of Law Enforcement had direct access between 2011 and 2013. And, as a matter of fact, there is a law enforcement login button right on the E-FORCSE website.

The ACLU argues that E-FORCSE breaches Floridians’ privacy in violation of Article 1, Sections 9, 12 and 23 of the Florida Constitution, and subjects us to unreasonable searches in violation of the Fifth Amendment of the U.S. Constitution.

E-FORCSE was not set up as a tool for policing criminal prescription drug violations. It was meant to tell doctors whether their patients were in danger of being over-prescribed highly addictive drugs. In fact, in response to the ACLU’s complaints, the Florida Attorney General’s Office merely commented that prescription drug-related deaths are trending downward for the first time in years.

Its possible effectiveness at preventing drug abuse, however, is not a defense of its unconstitutionality, or to the serious privacy concerns of completely innocent Floridians whose private health information is being perused by strangers.

"Were there people gathered around a monitor saying ‘Oh, I know her,’” asked the ACLU spokesperson, “or ‘Oh, look what she's taking' or 'Oh, I'm not going to let my kids play with hers anymore?'"

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