Colorado's Department of Revenue unveiled draft regulations for the medical marijuana industry at a marathon meeting yesterday -- and most concerning for the Cannabis Therapy Institute's Laura Kriho was a plan to phase out the current MMJ registry and replace it with a database she says will include "24-7 access for law enforcement." In her opinion, the result is a serious threat to patient privacy that violates the Colorado and U.S. constitutions.
According to Kriho, the get-together of the DOR's medical marijuana advisory committee, largely emceed by the department's Matt Cook and associate Fern Epstein, lasted from 9 a.m. until nearly 5 p.m., and there was no opportunity for public comment. (That chance will come during two days of hearings tentatively expected to take place at the Jefferson County Justice Center in January.) "There's been no transparency with the board," maintains Kriho, whose complaints helped open up meetings to the public in the first place. "There's been no minutes published, no agenda published, and the dispensary owners on the committee have done a very poor job of representing the industry. They were asking minute questions about the specific circumstances of their personal businesses while the rest of the people in the audience had to remain silent."
Little of what Kriho heard about the new regs pleased her. "It's really hard to imagine medical marijuana centers being able to comply with all of these rules," she says, "and it's really hard to imagine patients wanting to comply with them. The only reason people felt safe getting on the registry was that it was confidential -- and now they're taking that confidentiality away by making everything open to law enforcement for inspection on demand.
"The Colorado constitution sets up a confidential registry run by the state health department," she continues, "and the only reason law enforcement ever gets to question the registry is if they stop somebody or detain them -- and then they can call the registry and ask if this person is on the registry. That's as far as it's supposed to go. But they're talking about replacing that with this monstrous database that's shared by the Department of Revenue, the department of health and law enforcement that's going to confirm not just that a person is a patient, but what medicine they bought, when they bought it and where they bought it. And there'll be a 24-7 video surveillance system of dispensaries and grow operations. Wherever medical marijuana is processed, cultivated or sold is going to be under surveillance accessible to law enforcement on demand. It's going to be the most scrutinized substance on the planet."
As Kriho acknowledges, HB 1284, the measure regulating Colorado's MMJ industry, opened the door for greater law enforcement involvement. But in her view, the draft rules "have no safeguards for how far the information goes or for keeping track of who accesses the information or when. If the DEA pores through your files, you'll never know about it -- unless something bad happens."
The public will have thirty days to comment on the rules once the final versions are made available, probably within the next week or two. But Kriho thinks the best way to put the kibosh on those she sees as most onerous as in court.
"We've contacted the ACLU for help on this, and hopefully they'll be receptive," she allows. "Because not only is this an issue of violating the confidentiality requirement in the Colorado constitution, but it's a question of medical-records privacy, which is a broader issue than just for medical marijuana patients. It's giving law enforcement access to medical information on an unprecedented scale.
"The other thing is, as you can see by our friend Chris Bartkowicz, who's sitting in federal prison right now, that all of this stuff is illegal by federal law. And once you create a record of purchases by patients, it can be used as evidence against them in a court of law. There's no protection whatsoever for patients that this information will remain confidential if they should wind up in a legal situation. So we believe this is also an unconstitutional violation of the Fifth Amendment's protection against self-incrimination, because it requires you to incriminate yourself in a federal crime."
Page down to see a video assembled by the Cannabis Therapy Institute from yesterday's meeting, as well as a CTI release about the database.
State to Replace Confidential Medical Marijuana Registry with Law Enforcement Database
Denver -- At the Colorado Department of Revenue's Medical Marijuana Advisory Board's final meeting on Monday, Dec. 6, 2010, the DoR unveiled details about the monolithic database it is creating to gather volumes of private information on medical marijuana patients.
Fern Epstein, a consultant with Rebound Solutions who was hired by the Department of Revenue to help design the database, gave an overview of the plan. Click here to watch the video of her presentation:
(Note: The powerpoint slides were impossible to see even in the room.)
The database will be shared among several state agencies, including the Department of Revenue, the Colorado Department of Public Health and Environment, and all state, local and federal law enforcement, including the Colorado Crime Information Center and the Colorado Bureau of Investigation.
Epstein stated that there "needs to be some interface between various information technology databases." She explained, "Revenue needs information from the Registry. The Registry needs information from the Department of Revenue, and law enforcement needs information from both of those organizations."
She also stated that law enforcement will have "24/7 access to Registry data" and the new database will "give access to officers on the street and in their patrol cars -- access to registry and Department of Revenue data."
Epstein said, "The goal is for replacement of the Registry probably within a year's time."
This patient and medicine tracking database is a clear violation of the Article XVIII, Section 14 of Constitution, Colorado's Medical Marijuana Amendment, which requires that the health agency maintain a confidential registry of patients, which can only be accessed by law enforcement for the purpose of determining whether a person who has been detained is a member of the Registry.
Colorado Constitution -- ARTICLE XVIII. Section 14
(3) The state health agency shall create and maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set forth in this subsection, effective June 1, 2001.
(a) No person shall be permitted to gain access to any information about patients in the state health agency's confidential registry, or any information otherwise maintained by the state health agency about physicians and primary care-givers, except for authorized employees of the state health agency in the course of their official duties and authorized employees of state or local law enforcement agencies which have stopped or arrested a person who claims to be engaged in the medical use of marijuana and in possession of a registry identification card or its functional equivalent, pursuant to paragraph (e) of this subsection (3). Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the state health agency's confidential registry only for the purpose of verifying that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card.
Now is the time for the industry to fight back and protect patients' Constitutional right to privacy.
Patients fear that their formerly private medical information will be used to prosecute them. Patients are already opting out of the Registry out of fear of this new "data fusion" system. Many more patients will opt-out of the MMC-model if this database is developed.
If you are concerned about the DEATH of the state's confidential medical marijuana registry, please contact the Cannabis Therapy Institute's Patient Advocacy Project at: firstname.lastname@example.org
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For a different take on yesterday's meeting, read, "Medical marijuana database not as threatening as some fear, says CMMR's Betty Aldworth." More from our Marijuana archive: "Marijuana and driving impairment: Rep. Claire Levy on setting a standard in Colorado."