Appeals Court Doesn't Seem To Like Much About A Criminal Defamation Law Police Used To Arrest A Critic

from the come-on,-they-already-have-'resisting-arrest'-to-abuse dept

Three years ago, cops in New Hampshire arrested Robert Frese for the crime of… insulting some cops. Frese, facing a suspended sentence for smashing the window of a neighbor's car, left a comment on a local news site, claiming Exeter Police Chief William Shupe was a "coward" who was "covering for dirty cops."

Instead of taking his online lumps like a true public servant, Shupe had Frese arrested, apparently hoping to use an outdated criminal defamation law to trigger Frese's suspended sentence to get him locked up for the next couple of years.

That effort failed. The ACLU got involved, as did the state's Justice Department, which said Frese's comment was not unlawful. Shortly thereafter, the criminal defamation charge was dropped. A wrongful arrest lawsuit followed, netting Frese a $17,500 settlement. The police, of course, admitted no wrongdoing. Instead, they continued to claim the arrest was lawful and supported by a law that managed to make its way from the 15th century to the 21st century almost untouched.

It isn't over yet. Frese, along with the ACLU, is still trying to get that law stricken from the books, hopefully in the form of a ruling finding it unconstitutional. Given what's happening during oral arguments in front of the First Circuit Court of Appeals, it looks like Frese may be on his way to victory. Here's Thomas Harrison of Courthouse News Service with more details.

“How is law enforcement supposed to determine what would subject a person to hatred, contempt or ridicule?” U.S. Circuit Judge O. Rogeriee Thompson asked the parties assembled at the Boston courthouse this morning. “It’s odd in this political environment that that’s the standard.”

Assistant Attorney General Samuel Garland replied that it’s an “objective” standard because it’s based on “what a reasonable person would believe, not some hypersensitive person.”

Ah, the "objective" standard -- the same one deployed by the Exeter Police Chief to arrest a man who had insulted him and his officers. This happened after the Chief approached the local newspaper and asked it to remove Frese's comment from its site. One overreach led to another and the "objective" police chief decided to arrest someone who had slighted him in a comment section.

The law is undeniably a bad law. Even the person blowing tax dollars to defend it couldn't do much to defend it.

Chief U.S. Circuit Judge Jeffrey Howard noted that, under New Hampshire law, a group can qualify if it’s “respectable.” He asked, “Does ‘respectable’ have a definition?”

“I’m not sure,” Garland admitted. He suggested a Rotary Club or a church group.

“Doesn’t that give elevated protection to ‘recognized’ social groups and not others?” Thompson shot back.

Unequal protection under the law. That doesn't sound very constitutional. Neither do the other aspects of the law, which allow police to act as judges and jurors when arresting people for "objective" violations.

In New Hampshire, police can decide whether to prosecute someone for defamation without a neutral magistrate being involved — circumstances that the ACLU claims creates a conflict of interest when the person is being prosecuted for disparaging the police. Defendants also don’t get a court-appointed attorney or a jury trial.

That sounds more like 15th century England than 21st century United States of America. The fact that this law was used by police to punish someone who insulted police officers is about all the argument against it anyone should need. The state is inexplicably trying to keep this law alive long past its expiration date, knowing full well it was recently abused in an attempt to silence a critic of the local government.

It doesn't sound like the judges are too impressed with the law or the arguments in defense of it. Hopefully, it will help get this law overturned. The district court said the law wasn't quite vague enough to sustain Frese's constitutional allegations, but the Appeals Court judges seem less willing to cut this bad law any slack.

Filed Under: 1st amendment, criminal defamation, criticism, free speech, law enforcement, new hampshire, police, robert frese, william shupe

New Hampshire PD's Recruitment Pitch Lists Qualified Immunity As A Job Perk

from the reasonable-officer-would-know-not-to-say-this-out-loud dept

Every so often law enforcement forgets to keep the mask on. The public front is all about safety and providing a line of defense against criminal chaos. Behind the front, it's a bunch of people with the same flaws as regular humans, only with access to an incredible amount of power and an almost nonexistent amount of accountability.

When law enforcement agencies are looking to hire, they're generally not looking for the best, most honest people. They're looking for the kind of people who desire power and disdain personal responsibility. A recent open call for applicants on Facebook -- posted by the Manchester, New Hampshire Police Department -- made the mistake of being a bit too direct.

The Manchester Police Department is looking for reliable, motivated, and personable recruits for both entry level and certified positions. Located less than an hour from Boston, Manchester enjoys proximity to great schools and attractions, the beach, and the White Mountains. The department offers many opportunities to advance and additional unique benefits including qualified immunity. Click the link and apply now! There is no application fee and remote testing is now available. Come enjoy the high quality of life NH offers and work for a great department backed by community support!

"Qualified immunity" is indeed a "unique benefit." You can't find it in the private sector. It's for public servants only. It is, however, a pretty effective benefit -- one that provides yet another avenue for misbehaving law enforcement officers to elude the consequences of their actions.

But should agencies really be pitching qualified immunity as an employment perk? Pretty much everyone but the employee posting this to the PD's Facebook page says no. And that (belatedly) includes the head of the Manchester PD, Chief Allen Alderberg, who posted an apology for the hiring notice less than 24 hours later.

“Earlier today Manchester Police published a recruitment post that referenced qualified immunity. This post was not the place for the mention of qualified immunity and was not appropriate. The post was removed and archived appropriately. As Chief of Police I take full responsibility for this post and the inappropriate mention of qualified immunity”.

This is a good (and appropriate) response. Hopefully the response from the chief includes more than simply manning the PR desk momentarily. If this sort of thing is being posted publicly, it would seem to indicate officers believe qualified immunity is a side benefit, rather than a litigation option they'll hopefully never have to use.

Filed Under: accountability, job perk, new hampshire, police, qualified immunity

New Hampshire Supreme Court Issues Very Weird Ruling Regarding Section 230

from the but-that-makes-no-sense dept

In New Hampshire, Facebook has been dealing with a pro se lawsuit from the operator of a cafe, whose Instagram account was deleted for some sort of terms of service violation (it is never made clear what the violation was, and that seems to be part of the complaint). The Teatotaller cafe in Somerset, New Hampshire, apparently had and lost an Instagram account. The cafe's owner, Emmett Soldati first went to a small claims court, arguing that this violated his "contract" with Instagram, and cost his cafe revenue. There are all sorts of problems with that, starting with the fact that Instagram's terms of service, like every such site, say they can remove you for basically any reason, and specifically says:

You agree that we won’t be responsible . . . for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to [the Terms of Use], even if we know they are possible. This includes when we delete your content, information, or account.

And then there's the Section 230 issue. Section 230 should have wiped the case out nice and quick, as it has in every other case involving a social media account owner getting annoyed at being moderated. And, indeed, it appears that the local court in Dover tossed the case on 230 grounds. Soldati appealed, and somewhat bizarrely, the New Hampshire Supreme Court has overturned that ruling and sent it back to the lower court. That doesn't mean that Facebook will definitely lose, but the ruling is quite remarkable, and an extreme outlier compared to basically every other Section 230 case. It almost reads as if the judges wanted this particular outcome, and then twisted everything they could think of to get there.

To be clear, the judges who heard the case are clearly well informed on Section 230, as they cite many of the key cases in the ruling. It says that to be protected by Section 230(c)(1) (the famed "26 words" which say a website can't be held liable for the actions of its users), there's a "three pronged" test. The website has to be an interactive computer service -- which Facebook clearly is. The plaintiff has to be an information content provider, which Teatotaller clearly is. That leaves the last bit: does the lawsuit seek to hold Facebook liable as a publisher or speaker.

Let's take a little journey first. One of the things that often confuses people about Section 230 is the interplay between (c)(1) and (c)(2) of the law. (c)(1) is the websites not liable for their users' content part, and (c)(2) is the no liability for any good faith moderation decisions part. But here's the weird thing: in over two decades of litigating Section 230, nearly every time moderation decisions are litigated, the website is considered protected under (c)(1) for those moderation decisions. This used to strike me as weird, because you have (c)(2) sitting right there saying no liability for moderation. But, as many lawyers have explained it, it kinda makes sense. (c)(1)'s language is just cleaner, and courts have reasonably interpreted things to say that holding a company liable for its moderation choices is the same thing as holding it liable as the "publisher."

So, in this case (as in many such cases), Facebook didn't even raise the (c)(2) issue, and stuck with (c)(1), assuming that like in every other case, that would suffice. Except... this time it didn't. Or at least not yet. But the reason it didn't... is... weird. It basically misinterprets one old Section 230 case in the 9th Circuit, the somewhat infamous Barnes v. Yahoo case. That was the case where the court said that Yahoo lost its Section 230 protections because Barnes had called up Yahoo and the employee she spoke to promised to her that she would "take care of" the issue that Barnes was complaining about. The court there said that thanks to "promissory estopel," this promise overrode the Section 230 liabilities. In short: when the company employee promised to do something, they were forming a new contract.

Barnes is one of the most frequently cited case by people trying to get around Section 230, and it almost never works, because companies know better than to make promises like the one that happened in the Barnes case. Except here, the judges say that the terms of service themselves may be that promise, and thus it can be read as the terms of service overrule Section 230:

However, to the extent that Teatotaller’s claim is based upon specific promises that Facebook made in its Terms of Use, Teatotaller’s claim may not require the court to treat Facebook as a publisher. See Barnes, 570 F.3d at 1107, 1109 (concluding that the defendant website was not entitled to immunity under the CDA for the plaintiff’s breach of contract claim under a theory of promissory estoppel because “the duty the defendant allegedly violated springs from a contract—an enforceable promise—not from any non-contractual conduct or capacity of the defendant”); Hiam v. Homeaway.com, Inc., 267 F. Supp. 3d 338, 346 (D. Mass. 2017) (determining that “the Plaintiffs are able to circumvent the CDA” as to certain claims by asserting that “through [the defendant’s] policies, [the defendant] promises (1) a reasonable investigatory process into complaints of fraud and (2) that the website undertakes some measure of verification for each posting”), aff’d on other grounds, 887 F.3d 542 (1st Cir. 2018).

This is not a total win for Teatotaller, as the court basically says there isn't enough information to know whether the claims are based on promises within the terms of service, or if it's based on Facebook's decision to remove the account (in which case, Facebook would be protected by 230). And thus, it remands the case to try to sort that out:

Thus, because it is not clear on the face of Teatotaller’s complaint and objection whether prong two of the CDA immunity test is met, we conclude that the trial court erred by dismissing Teatotaller’s breach of contract claim on such grounds. See Pirozzi, 913 F. Supp. 2d at 849. We simply cannot determine based upon the pleadings at this stage in the proceeding whether Facebook is immune from liability under section 230(c)(1) of the CDA on Teatotaller’s breach of contract claim. See id. For all of the above reasons, therefore, although Teatotaller’s breach of contract claim may ultimately fail, either on the merits or under the CDA, we hold that dismissal of the claim is not warranted at this time.

So, there are still big reasons why this case against Facebook is likely to fail. On remand, the court may recognize that the issue is just straight up moderation and dismiss again on 230 grounds. Or, it may say that it's based on the terms of service and yet still decide that nothing Facebook did violated those terms. Facebook is thus likely to prevail in the long run.

But... this ruling opens up a huge potential hole in Section 230 (in New Hampshire at least), saying that what you put into your terms of service could, in some cases, overrule Section 230, leading you to have to defend whether or not your moderation decision somehow violated your terms.

That sound you hear is very, very expensive lawyers now combing through terms of service on every dang platform out there to figure out (1) how to shore them up to avoid this problem as much as possible, or (2) how to start filing a bunch of sketchy lawsuits in New Hampshire to exploit this new loophole.

Meanwhile, Soldati seems to be celebrating a bit prematurely:

“I think it’s kind of incredible,” said Soldati, who represented himself as a pro se litigant. “I think this is a very powerful message that if you feel a tech company has trampled or abused your rights and you don’t feel anyone is listening ... you can seek justice and it will matter.”

That's... not quite the issue at hand. Your rights weren't trampled. Your account was shut down. That's all. But in fighting this case, there may be a very dangerous hole now punched into Section 230, at least in New Hampshire, and it could create a ton of nuisance litigation. And, that even puts business owners like Soldati at risk. 230 protects him and the comments people make on his (new) Instagram account. But if he promises something... he may wipe out those protections.

Filed Under: emmett soldati, new hampshire, section 230, terms of service
Companies: facebook, instagram, teatotaller

Federal Court Says Man Arrested For 'Criminally Defaming' Cops Can Continue Suing To Block The Law From Being Enforced

from the thugs-gonna-thug dept

As we've noted multiple times here at Techdirt, criminal defamation laws are unconstitutional, outdated, and almost exclusively used by law enforcement agencies to punish their critics. The ACLU -- along with a victim of New Hampshire's terrible criminal defamation law -- is hoping to have this law struck down as unconstitutional.

Despite the law being clearly unconstitutional and its history of use in the state showing it has mainly been used by cops to go after critics, the state's Attorney General is spending taxpayers' money to defend a law that provides zero benefit to taxpayers.

The problems inherent in an abusable law like this are only made worse in New Hampshire, where law enforcement officers are not only allowed to arrest people, but also initiate prosecution for misdemeanor charges like this one. The state also does not respect the right to counsel in misdemeanor cases, leaving it up to defendants without the means to hire a lawyer to defend themselves against charges brought by cops who are now acting as prosecutors.

The state claims the law is perfectly fine and that Bob Frese -- the man arrested and prosecuted by Exeter police officers for saying Exeter cops were "dirty" and were being covered up for by their "corrupt" chief -- has no grounds to sue the law out of existence. The court disagrees, finding plenty that's disagreeable about the law itself and its use by police officers to punish critics. (via NHPR)

As the court notes in its denial [PDF] of the state's motion to dismiss, Frese has already twice been subjected to arrest and prosecution under this law.

In 2012, the Hudson Police Department interviewed Frese after a local life coach complained about comments Frese posted on the online platform Craigslist. In those posts, Frese repeatedly called the coaching business a scam and claimed the coach had been charged with distributing heroin. The Hudson Police Department ultimately charged Frese with harassment and criminal defamation and obtained an arrest warrant signed by a justice of the peace. Frese, without counsel, pleaded guilty to the charges and was fined $1,488, with $1,116 suspended on the condition he stay in good behavior for two years.

More recently, in 2018, the Exeter Police Department arrested and charged Frese with criminal defamation after he pseudonymously posted comments on the Exeter News-Letter’s Facebook page concerning a retiring Exeter police officer. In his first comment, Frese, under the pseudonym “Bob William,” stated that the retiring officer was “the dirtiest most corrupt cop that I have ever had the displeasure of knowing . . . and the coward Chief Shupe did nothing about it.” The Exeter News-Letter removed this comment at the police department’s request. After the comment was deleted, Frese submitted a second comment under the pseudonym “Bob Exeter” stating: “The coward Chief Shupe did nothing about it and covered up for this dirty cop. This is the most corrupt bunch of cops I have ever known and they continue to lie in court and harass people . . . .”

The second prosecution of Frese was terminated after the state's Civil Rights Division determined the officers had no probable cause to arrest him due to a lack of "actual malice" in Frese's online comments. It's this second arrest that forms the basis for Frese's lawsuit, which seeks a permanent injunction against enforcement of the law.

The state argued Frese had no standing to sue, because he did not state he intends to… um… keep violating the law, I guess. In other words, the AG says Frese has nothing to fear from the state since he hasn't said he's just going to keep making defamatory statements. The court says Frese's intent isn't the issue here. It's that Frese has already been baselessly arrested and charged for criticizing law enforcement. Since he intends to keep criticizing law enforcement, he has established a credible fear that he'll be arrested and prosecuted again for future criticism.

[T]he criminal defamation statute “arguably . . . proscribe[s]” Frese’s intended future conduct… The criminal defamation statute sweeps broadly, carving out no exceptions for speech concerning law enforcement or other public officials. [...] The Exeter Police Department already commenced a criminal defamation action against Frese in 2018 when he commented that “Officer Shupe did nothing” and covered up “the dirtiest most corrupt cop that [Frese] ever had the displeasure of knowing.” Although the department eventually followed the advice of the State’s Civil Rights Division in terminating the prosecution, Frese was nonetheless arrested and, for a time, prosecuted.

Defamatory statements, by definition, must be false. The AG says all Frese has to do is not lie. Again, this is beside the point. Law enforcement officers have the power to decide what's true or false under the law, which allows them to arrest and prosecute people who officers only believe are lying. Since there's almost no adversarial process involved, cops acting as judges and juries make the call on the truthfulness of people's statements. Not intending to violate the law doesn't matter since cops get to assume intent whenever they find criticism they don't like.

Even if Frese does not plan in the future “to lie or recklessly disregard the veracity of his speech,” see id. at 156, his complaint sufficiently alleges that the State’s prosecutorial arms, which include non-attorney police officers, retain overly broad discretion to determine whether an individual knew his speech to be true or false. Like the SBA List plaintiff, Frese’s insistence that his 2018 comments were true did not prevent Exeter police officials from filing a criminal complaint against him or prevent a Circuit Court judge from finding probable cause to arrest Frese based on the police’s filings. Accordingly, Frese has demonstrated that his intended future conduct is “arguably . . . proscribed by the statute.”

The court also says the law itself may be unconstitutionally vague. First, the definition of the forbidden act is little more than a recitation of the definition of the term "defamation" with "any statement that would hold another up to public hatred, contempt or ridicule" attached to the end of it. There isn't enough detail in the law to provide guidance to citizens on how they can avoid violating it. Worse, since cops are also prosecutors in misdemeanor cases -- acting without guidance from actual prosecutors -- they get to decide what violates the vague law, which obviously leads to the type of thing seen here: the punishment of law enforcement critics by the law enforcement agency being criticized.

Frese alleges that, “[o]n information and belief, individuals throughout New Hampshire routinely violate the criminal defamation statute, but [he] was arrested and prosecuted because he criticized law enforcement officials.” As clarified by his objection, Frese urges this court infer that because the statute “gives law enforcement far too much discretion in deciding whom to prosecute,” the motivation to prosecute criminal defamation is often political.

The court isn't willing yet to decide whether or not the law is unconstitutional. But it will allow Frese's lawsuit to proceed. And the court's closing statement suggests the law isn't going to make the constitutional cut.

Although some criminal defamation prosecutions may collapse on close scrutiny, as was the case with Frese in 2018, this fact does not negate the risk of an excessively discretionary scenario created by the statutory language challenged here. Frese’s encounters with prosecutions under the statute highlight several of these risks. As such, the discretion afforded to police departments to prosecute misdemeanors, taken together with the criminal defamation statute’s sweeping language, may produce more unpredictability and arbitrariness than the Fourteenth Amendment’s Due Process Clause permits.

The state will continue fighting Frese in court, even though there's really no compelling reason the law should remain on the books. It's the sunk cost fallacy in action, but with other people's money. This law doesn't need defending. This law needs to die. Defamation should be handled in civil courts, not by cops who are also judges and juries.

Filed Under: 1st amendment, bob frese, criminal defamation, defamation, exeter police, free speech, law enforcement, new hampshire
Companies: aclu

Totally In-Touch NH Lawmaker Blocks Device Repair Bill, Tells Constituents To Just Buy New $1k Phones

from the let-them-eat-smartphones dept

For years we've discussed the need for better and stronger "right to repair" laws in the United States. Were one to look for a pure example of legislative capture by corporate interests, it's hard to think of a better example than the way hardware makers of various stripes have managed to lock their own hardware behind various flavors of DRM and/or warranty restrictions to make it illegal for a person to get the thing they bought repaired. Arguing that such repairs fall within the scope of anti-circumvention laws, these hardware makers, including those of smartphones like Apple, have attempted to construct a world in which people don't just own what they bought, but are rather forced to continue to buy things they don't own when the hardware is damaged or fails them.

Despite how ridiculous this all is, few states have even attempted to enact right to repair legislation, in large part due to corporate lobbying efforts. One of the latest to make the attempt was New Hampshire, except that the bill was blocked by representatives who apparently look to the legend of Marie Antoinette as some kind of a guidebook.

The bill would have forced manufacturers such as Apple to share repair manuals and parts with independent repair stores. House members didn’t kill the bill, but sent it back to committee for a year of interim study, citing security concerns and, in the words of Rep. John Potucek (R-Derry) the ubiquity, cheapness, and—in his opinion—disposability of new smart phones.

“In the near future, cellphones are throwaways,” Potucek said, according to New Hampshire Business Review. “Everyone will just get a new one.”

Everyone? Nobody would want to repair their cellphone rather than spending the $700 to $1000 on a new one? The phrase "let them eat cake!" is said to be incorrectly attributed to Marie Antoinette, but we can certainly attribute "Cellphones are throwaways!" to Potucek. It's an absurd rebuttal on many levels, not simply that cellphones certainly aren't priced to be thrown away at the first sign of hardware trouble.

There is also the simple fact that people having to get a new phone when theirs malfunctions is exactly the problem this legislation is attempting to address. It's the device version of, "Why attempt to give children healthcare? Parents can just make another baby!" It also ignores that a huge reason companies like Apple lobby so heavily against these laws is so it can monopolize the repair market, purposefully making it so expensive that buying new devices is the only real option.

The comments also ignore just how many New Hampshire residents are already seeking to repair their devices.

“At our three locations throughout [New Hampshire], we serve tens of thousands of our neighbors and visitors each year,” Chad Johansen, president of NH iPhone Repair, said in an email. “Many of our customers are happy with their devices and would rather spend $100 to fix their current device instead of $1000 for a new one with little to no updates or added features. Now the [manufacturers] such as Apple and Samsung are making it harder for residents of NH to repair the devices they own.”

For purely greedy corporate interests, too. There is not a single thing about blocking this bill that benefits the NH resident. The only beneficiaries here are hardware manufacturers focused on stock prices that move with the waves of phones going out the company doors.

The tone-deaf comments aside, it would be nice if Potucek could articulate a single reason in the interest of the New Hampshire citizen for blocking this law. My guess is he cannot possibly do so.

Filed Under: devices, disposable tech, john potucek, new hampshire, right to repair

Federal Elections Committee Chair Is Sick Of Donald Trump's Bullshit: Put Up Or Shut Up About Voter Fraud

from the the-hero-we-need dept

Just days after the two Republican members of the Federal Election Commission (FEC) blocked an investigation into the NRA and its use of Russian funds to influence the election, the chair of the FEC (who voted for that investigation) has pointed out that Donald Trump should put up or shut up with his totally baseless, absolutely insane, claims that "voter fraud" cost him millions of votes in the election.

The letter itself is too good not to share, so I'll reprint it here. Don't miss the kicker at the end.

Mr. President,

Back in February 2017, when you first alleged a voter-fraud scheme of astonishing scale in New Hampshire in 2016, I publicly called upon you to provide your evidence to the American people and the appropriate law enforcement authorities so that your very serious claims could be investigated. I followed up in March 2017 with a letter to you repeating my request.

You have not, so far, provided any proof of these allegations.

Last night, you repeated your claim: "New Hampshire should've been won last time," you told reporters before your rally, "except we had a lot of people come in at the last moment, which was a rather strange situations, thousands and thousands of people, coming in from locations unknown. But I knew where their location was." During your rally, you told the crowd that New Hampshire was "taken away from us."

What I wrote to you in March 2017 is just as true now: Our democracy depends on the American people's faith in our elections. Your voter-fraud allegations run the risk of undermining that faith. Just as seriously, baseless allegation of fraud have been used to rationalize indefensible laws that deter certain U.S. citizens from exercising their right to vote. Words matter, and facts matter.

The American people count on me, as the Chair of their Federal Election Commission, to protect the integrity of our elections. So I ask you, once again, to provide any evidence you may have to the American people and the appropriate law-enforcement authorities to substantiate your claims. The American people are ill-served when our leaders put forward unfounded allegations of voter fraud.

To put it in terms a former casino operator should understand: There comes a time when you need to lay your cards on the table or fold.

This is an excellent letter that will make no difference in the world, unfortunately. The FEC has no real power, and as the vote on the NRA/Russia shows, even if she wanted to do something about it Weintraub is blocked by the others on the Commission. But the larger point is that the President doesn't care. Because he doesn't need to. He will make up whatever he wants, and whatever he needs to soothe his ego of himself and his angry sycophantic fans (yes, I'm looking forward to the comments on this one), because that's really all he's got to go on these days. He can and will ignore the chair of the FEC and he will continue to spout this completely made up nonsense of voter fraud in New Hampshire because it suits his narrative -- and his narrative is always facts-optional.

Filed Under: donald trump, ellen weintraub, evidence, fec, new hampshire, voter fraud

New Hampshire, ACLU Fighting Back Against DEA's Warrantless Access To Sensitive Medical Records

from the you-can-have-your-rights-or-our-failed-drug-war,-citizens dept

The DEA regulates controlled substances, including medications containing controlled substances. The DEA has taken this to mean any number of medical privacy laws don't apply to it. If the DEA was forced to respect the law, well, it might just mean some drug dispensation wouldn't be quite as closely regulated as the agency wants it to be.

Since drugs have a war on them, the DEA has been given a long leash to investigate drug use/abuse. The DEA has argued in court that federal law overrules state-level privacy provisions. It has also done less legal things, like impersonate medical board investigators to gain access to denied records and ignored warrant requirements instituted by state legislatures.

This last tactic worked -- up to a point -- in Oregon. It resulted in the state suing the DEA for ignoring state warrant requirements when pulling records from Oregon's Prescription Drug Monitoring Program. The same thing is happening in New Hampshire. The fed DOJ got stiff-armed by the state DOJ when seeking warrantless access to medical records.

New Hampshire received a warrantless search demand from the federal Drug Enforcement Administration (DEA) for two years of a patient’s PDMP records last year. The N.H. Department of Justice correctly and courageously refused to comply, because doing so would violate the state law requiring a warrant and infringe on privacy rights. After the DEA sued in court, they stood firm, arguing that the subpoena was improper under federal law and the Fourth Amendment to the U.S. Constitution.

The ACLU has stepped in to argue in favor of requiring the DEA to use warrants. Its amicus brief [PDF] argues the records contained in the PDMP are not third-party records requiring nothing more than a subpoena. And even if the court does determine they are third-party records, the Supreme Court's decision in the Carpenter case has changed the contours of third-party record access.

The prescription records at issue in this case reveal intimate, private, and potentially stigmatizing details about patients’ health, including details of those patients’ underlying medical conditions. For that reason, as with other medical records, people have a reasonable expectation of privacy in them. As the Supreme Court explained in Carpenter v. United States, when law enforcement seeks records from a third party in which the subject of the investigation has a reasonable expectation of privacy, use of an administrative subpoena is unreasonable under the Fourth Amendment, and a warrant is required instead. Such is the case here.

While the records may be held by a third party, there's nothing voluntary about the records' creation. These records are created by healthcare professionals to comply with a state mandate. Patients do not volunteer to hand over this sensitive information. The only way to opt out is to never see a doctor.

The records expose at least as much personal information as the location records protected by Carpenter. The Supreme Court didn't believe going through life without a cellphone was a realistic option for citizens. I'm sure the Supreme Court would similarly conclude going through life without ever consulting a physician to be even more unlikely.

The DEA's position isn't based on an investigative need. Unless you're just fishing around, warrant requirements won't slow down the DEA much during investigations. It's just that the DEA is used to doing things its way, which is often the easiest way that involves the least amount of oversight possible.

Unfortunately for New Hampshire residents, trying to make the DEA respect state-level warrant requirements hasn't worked out yet. Oregon's lawsuit against the DEA ended with a defeat in the Ninth Circuit Appeals Court, which held that federal subpoena requirements trumped state-level demand for warrants. Sooner or later, this issue is going to end up in the Supreme Court, but for now, the DEA can still rely on subpoenas to hoover up sensitive patient records.

Filed Under: 4th amendment, dea, medical records, new hampshire, warrants