Medical marijuana database puts patients at risk of federal prosecution, advocate says (VIDEO)

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Fern Epstein.
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."

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Laura Kriho.
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.

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