Why I Oppose PDMP and Hope You Will Too

Dear Colleague:

According to the Supreme Court, the “right to privacy” is a “fundamental human right” and “the right most valued by civilized men.” Far from being a mere “emanation” or “penumbra,” the right to privacy finds explicit support in the First, Second, Third, Fourth, and Fifth Amendments to the United States Constitution.

The idea that there are vast spaces in our lives upon which government should not, and, by constitutional and statutory limits, cannot intrude is a fundamental principle of liberty and a quintessentially American idea.

In 1928, Supreme Court Justice Louis Brandeis warned that telephone wiretapping was just the first of many new technologies capable of invading the privacy of Americans:

The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts, and emotions. “That places the liberty of every man in the hands of every petty officer” was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed “subversive of all the comforts of society.” Can it be that the Constitution affords no protection against such invasions of individual security?

      Olmstead v. United States, 277 U.S. 438 (1928), 474, J. Brandeis dissenting.

Justice Brandeis was ahead of his time. The Court held that the Fourth Amendment did not protect telephone conversations intercepted by government wiretap.

It should not be surprising that Justice Brandeis was on the losing side. It often takes government decades to catch up with new technologies and understand their broader implications. 

Nearly 40 years later, Brandeis was vindicated in Katz v. United States, 389 U.S. 347 (1967), a case where the Supreme Court held in a 7-1 decision that warrantless wiretapping is prohibited by the Fourth Amendment. Just a year later, Congress passed the Wiretap Act to require a super-warrant before government could intercept a person’s communications. Then, in 1986, in a minor miracle, Congress got ahead of the computer technology curve bypassing the Electronic Communications Privacy Act, which was designed to give the same protections to electronic communications that already existed in statute for wire and oral communications.

The Wiretap Act and ECPA are just two examples of dozens of how American legislatures have taken action to protect privacy. As Congress put it in the legislative history to the ECPA:

[T]he law must advance with the technology to ensure the continued vitality of the Fourth Amendment. Privacy cannot be left to depend solely on physical protection, or it will gradually erode as technology advances. Congress must act to protect the privacy of our citizens. If we do not, we will promote the gradual erosion of this precious right.

Rather than pass legislation that intrudes on privacy, Congress and state legislatures have consistently enacted statutes to enhance privacy. To my knowledge (with two significant exceptions), federal and state statutory enactments affecting privacy have been almost completely one-sided.

I give you this history as background to why I oppose a dragnet prescription drug monitoring program and strongly believe you should too.

Under PDMPs, all painkiller prescriptions are monitored by government. The tracking occurs whether the Missourian is an innocent 82 year old grandmother with a broken hip or a three-time convicted drug dealer. Because you receive the prescription, government tracks you.

The PDMP logic tree works like this: because some people abuse prescription painkillers, government should track all people who use them – regardless of whether a person has done anything wrong.

When you take a step back, it should not take long to see how absurd this logic is. If it’s acceptable logic for prescription painkillers, why should we stop there? There are a host of public health risks more serious than prescription drug abuse to which the same logic could be applied.

For example, according to the CDC, nearly 2,000 Missourians die annually from alcohol-related deaths, significantly more than drug overdoses. The data are clear: Alcohol is a worse problem for society. If government simply put a tracker in every grocery store in our state, problem drinkers could be identified and deaths avoided. By the logic of trackers of prescription drug monitoring programs, you’re a technophobe if you wouldn’t support such a database. After all, lives are at stake!

How about junk food? Obesity and its related illnesses cost American taxpayers billions of dollars a year in Medicaid and Medicare. Its associated illnesses also kill more Americans than alcohol and drug overdoses combined. Junk food purchases are far less private today than prescriptions. Every grocery store tracks what you buy, and many provide the data to third-parties for internal (or perhaps external) marketing purposes. Because the data are maintained by third-parties and there’s no statutory protection, Americans have no privacy right in their junk food purchases at all. So why not enact a law requiring grocery stores to pass along their data on massive junk food purchasers? The Department of Health and Senior Services could use the information to aggressively target those Missourians who buy too much junk food.

Tanning beds? It took three years to pass legislation in Missouri just to require tanning bed proprietors to get parental consent before allowing a minor to tan. Yet, we also know tanning is a leading cause of skin cancer. It will literally kill you. So why not require proprietors to report the name of every person to use a tanning bed every time they use one? DHSS could use the data to bombard the most frequent users with anti-tanning messages, and we’d likely save some lives.

Smoking? Similar story.

Next, move beyond behaviors that can only harm a single person. If you buy the logic that government should track a law-abiding person’s behavior to save them from themselves, then you must certainly also agree that government should be able to track someone to prevent them from harming someone else. Just put the product into the same logic structure as the PDMP argument: some people will misuse X, therefore government should track all people who use X.

In this second category, government would start with guns. How would you feel if, instead of replacing X with “prescription painkillers,” we used the word “guns?” There may be some Democrats in the House who would be yes votes, but I doubt there’d be a single Republican. And yet, it’s the same argument.

Back to alcohol, some people misuse X and drive cars, therefore government should track all people who use cars. The technology is available to put a breathalyzer in every car. We could eliminate drunk driving accidents by requiring every driver to blow into a breathalyzer every time they started their car. If you’re for a PDMP, you should consider this as well.

PDMP proponents are well-intentioned. We all would like to reduce drug abuse and deaths in Missouri. But we should not do so in a way that treads upon the privacy rights of hundreds of thousands of Missourians who have done nothing wrong.

Until this year, it was PDMP or nothing. This year, however, there’s a better option available. House Bill 1922 protects the innocent and limits a prescription drug abuse database to those Missourians who have actually done something to create the reasonable suspicion that they are a drug abuser. It would work like the problem gambler’s list, and would capture a significant majority of those Missourians whose prescription drug use eventually puts their life in jeopardy.

PDMP proponents have reacted to this non-dragnet approach by arguing it would not be capable of identifying a potential drug abuser before they become one. That is true. But think about the implication of that argument? Do you want to live in a society where government tracks your activities so that it can stop you from doing something you haven’t yet decided to do? I’m confident algorithm-makers think computers can categorize people better than humans. But we’re each more than a computer program, and the thought that government might create a program designed with a “pre-crime” component is scarier than the tracking itself.

There’s also a second key difference that I believe illustrates the absurdity of the dragnet approach. HB 1922 provides that a person whose name is submitted for inclusion on the prescription drug abuse registry has the right to a hearing before being placed on the list. This is not in the bill merely because I think it’s a good idea to give a person the right to prove their innocence. Instead, it is necessary under the Constitution. Putting someone on a list to which a stigma would attach is something for which we must also give them the right to contest. The dragnet approach, on the other hand, does not require any hearing. In this case, when government violates the rights of everyone, it need not make any provision for procedural due process for those who object.

If you have voted no on PDMP in the past, I request that you remain steadfast in your opposition. If you have voted yes, I respectfully ask that you reconsider. You wouldn’t vote to create a government database tracking every alcohol, cigarette, tanning bed, junk food, or gun purchase. And you shouldn’t vote to create a government database for tracking prescription drugs either. Instead of the dragnet approach, signal your support for a targeted list of known drug-abusers. This will allow doctors to cross-check patients they suspect of pill-shopping. It will give recovering drug addicts a tool in their recovery. And it will protect the innocent.

Sincerely,

Rep. Jay Barnes