The Supreme Court has called the right to privacy both a "fundamental human right" and "the right most valued by civilized men." It finds support in the First, Second, Third, Fourth, Fifth, and Fourteenth 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 in one of the first technological surveillance cases in U.S. history that telephone wiretapping was just the first of many new technologies capable of invading the privacy of Americans. "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," he wrote. "Advances in the ... 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.'"
Justice Brandeis was ahead of his time - and on the losing side of the case called Olmstead v. United States. That should not be surprising. 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, a case where the Supreme Court nearly unanimously took the opposite position. 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 jumped ahead of the computer technology curve by passing 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. (Though passed 30 years ago, the ECPA remains relevant and effective today because Congress purposely used broad terms in the statute that described the types of intrusions they were prohibiting rather than the precise technology a violator might use.)
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, "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), legislation affecting privacy in this country has been almost completely one-sided. As a nation, we rarely pass laws intruding on privacy.
I give you this history as background to why I oppose a dragnet prescription drug monitoring program and strongly believe you should too.
Under a PDMP, 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 is 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. Alcohol is a worse problem for society. If government tracked alcohol purchases, problem drinkers could be identified and deaths avoided.
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. So why not enact a law requiring grocery stores to pass along their data on massive junk food purchasers?
Tanning beds? Smoking? Guns? If you agree with the logic of PDMP, why not track all of these 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, there's a better option. House Bill 1922, which I have sponsored, protects the innocent by limiting the drug abuse database to those 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 humans are more than bits of data to be analyzed by algorithms, 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 constitutionally required. 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 wouldn't support a government database to track every alcohol, cigarette, tanning bed, junk food and gun purchase, you shouldn't support PDMP either. Instead, Missouri should take a targeted approach that would allow doctors to cross-check patients they suspect of pill-shopping, give addicts a tool in recovery, and protect the innocent.
State Rep. Jay Barnes, R-Jefferson City, represents Missouri's 60th District.