Heymann and Falco

Testimony before the U.S. Senate
Joint Testimony of Philip Heymann, Professor of Law, Harvard Law School, and Former Deputy US Attorney General in Cambridge Massachusetts and Mathea Falco, President of Drug Strategies

U.S. Senate Committee Committee on the Judiciary
May 16, 2008

Mr. Heymann: Thank you very much, Mr. Chairman and members of the Committee. With Mathea Falco, the Director of Drug Strategies, who is sitting behind me, we assembled a group of people from the major facilitators of this traffic and from the major enforcement agencies. On page 6, we list them in short: Verizon, AOL, AT&T, Earthlink, Microsoft, Comcast, Google, Yahoo!, UBS, Morgan Chase, MasterCard, Visa, Paypal; UPS, DHL, FedEx, the DEA with Joe as their representative, the Department of Justice, and so on.

Because we wanted to address one aspect of this problem—which has been so well described that I am not going to repeat it. We find it of the same size and importance and danger that the others have described. But we saw in it the prospect of a new form of sale of contraband which is, we think, the world of globalization merged with the world of Internet. And we think that is going to change everything, limiting the reach of drug law enforcement no matter how important that may be, too.

The fact of the matter is the Internet service provider may be in the Ukraine, the drugs may be in Somalia, the credit card user—the seller of the drugs, the receiver of the money may be in Turkmenistan. We are dealing with a brand-new world out there, and the aspect of this problem that engaged us was the international aspect—not yet the largest, probably. Most people probably get their prescription narcotics out of their parents medicine cabinet. But it will be the largest, and it will be the future. And we wanted to tackle the future, and we did in six full-day meetings.

Now, the secret, we discovered, was that we could—that this traffic in Internet globalized contraband can only take place with the cooperation of credit card companies, Paypal, Internet service providers, search engines. If you think of it from the beginning, a search engine is out there advertising the sale of the drug. You cannot get to the advertisement—I am sorry. You click on the Google advice, and it will send you to thousands and thousands of responses to the search by OxyContin without prescription. And they will all be selling it without prescription at all. Of course, it is just as bad if they use a phony prescription, but they will not even bother to use a phony prescription. It will be sent in in a brown bag that looks like 2 trillion others coming into the customs offices in New York, and it will get through. And if it does not get through, the drugs will be replaced.

So what can you do about this? The Judiciary Committee is looking at a brand-new problem, a brand-new dimension of a very old problem—a massive dimension—and it will be the same with everything that can be sold over the Internet, and it will be worldwide.

OK. Here is what you can do. There is no reason why Internet service providers should be putting—they can easily remove from your household Internet connection anybody who is promising to sell OxyContin, Vicodin, any of a list of drugs, without prescription. It is no burden to them. They know how to do that. They are doing it now as to other things, such as pornography. They can do it in a minute. No cost.

Google and Yahoo! and Microsoft can, when somebody puts in, as I did on Mother’s Day, “Buy OxyContin without prescription,” and got 800,000 responses, including a chat room run by Google where you can talk to friends about where to buy OxyContin without prescription. When anybody searches for OxyContin without prescription, there can be a banner at the top of the Google, Yahoo!, or Microsoft search saying it is illegal to buy this without prescription. That message ought to come right away.

MasterCard, Visa, Paypal, American Express should trace anybody who is offering to use their credit card as a device to pay for the purchase of one of these prescription narcotics without a prescription. They can do that, too. They do it if somebody is misusing their credit card. They do it if someone is cheating on their credit card. They can do it in a minute, no problem.

So why aren’t they doing it? In other words, we have powerful local companies, thankfully local, facilitating the sale of powerful narcotics to children over the Internet. They say they have two big problems. One problem is they do not know who they are dealing with. The other problem is that they are worried about legal liability.

With this large group—and without them necessarily all agreeing with all of our recommendations, by a long shot, but generally in the same ballpark—we put together a model bill that would solve those two problems by: No. 1, creating a small, inexpensive but technically sophisticated organization, an Internet monitoring group that would go onto the Internet and see who is advertising the sale of powerful narcotics without a prescription, and notify the Internet service providers, the search engines, the carriers, like Federal Express, and the credit card companies. That would send them all into action, and we would not have to worry about their not being able to know. We can tell them who, if the Congress will create this small unit.

Second of all, they need a safe harbor from liability if they act on the basis of the recommendations of the Internet monitoring group.

With those two things, the only thing that we think is—right now we believe that the finance companies are bound by Treasury regulations to act vigorously to stop the use of credit cards in these sales. We believe that the Internet service providers are serious about their willingness to do this on their own, but we do not like the idea of not monitoring them and the finance companies.

We, therefore, propose that there be an annual accounting to the Congress of the number of children—we take those figures every year—who are continuing to use narcotics over the Internet and an annual accounting of the cooperation of these large companies in their delivery.

Thank you, and sorry for being over.

[The prepared statement of Mr. Heymann appears as a submission for the record.]

Chairman Leahy:
That is all right. It is an important subject, and I have allowed time for everybody to go over. Senator Feinstein is leaving for a vote that has started, and I don’t know whether, Senator Sessions, if you want to go. I am going to stay here and ask some questions. I will go to vote. When she comes back, she will reconvene it, or whichever one of us gets back first, we will reconvene it.

Joseph Rannazzisi is the Deputy Assistant Administrator for the Office of Diversion Control at the Drug Enforcement Agency. He is responsible for overseeing and coordinating major diversion investigations, establishing drug production quotas and conducting liaisons with the pharmaceutical industry, international governments, State governments, other Federal agencies, and local law enforcement agencies. He has a degree in pharmacy from Butler University, received his J.D. degree from the Detroit College of Law at Michigan State University. He is a registered pharmacist in the State of Indiana.

Thomas McLellan, Ph.D., is a professor of psychiatry at the University of Pennsylvania and Founder and Executive Director of the Treatment Research Institute in Philadelphia. He has published more than 300 articles and chapters in addition research, recently became the editor-in-chief of the journal Substance Abuse Treatment. Dr. McLellan is well known for his leading role in creating the Addiction Severity Index and the Treatment Services Review, two of the most widely used instruments in the field of substance abuse. His work at TRI is dedicated to reducing the devastating effect of alcohol and other drug abuse on individuals and families. He is a graduate of Colgate, Bryn Mawr College, and Oxford University.

They will be available to answer questions. Their statements will be placed in the record. Under our rules, it did not arrive in time for statements to be given at this hearing.

[The prepared statements of Mr. Rannazzisi and Mr. McLellan appear as submissions for the record.]

Chairman Leahy:
Ms. Haight, if I might–and, again, I emphasize, as both Senator Feinstein and Senator Sessions have said to me, I know this is painful. First, let me compliment you for speaking out. Those of us who can speak out from theoretical knowledge or reading the statistics is one thing. You speak out from personal knowledge. I think that is a far more compelling story. Unfortunately, I believe there are other people that could give the same kind of testimony, as you have discovered.

What is the most important thing young people should know? Assuming somebody is actually watching this, what is the most important thing they should know about the dangers of purchasing prescription drugs over the Internet?

Ms. Haight:
Well, first of all, I think quite a few of the kids today, they are not aware of how prescription drugs are very dangerous and that they can cause death or addiction. And the kids really need to be aware and be educated upon prescription drugs because they are mostly afraid of cocaine or meth and those type of drugs and thinking that they are dangerous. And there has been a lot of education out there about that. But prescription drugs really is kind of the new trend for our youth to be using, and so I think it is really important that they are educated how dangerous these drugs really are.

Also, they need to be educated that some of these drugs on the Internet are not what they are. A lot of them can be counterfeit. They have actually found that some drugs have been laced with heroin. Some drugs are twice the potency of what they say they are because they want them to become addicted. These drug dealers want them to come back and buy.

Chairman Leahy:
Do we change the law then? Do we have to change the law to protect the public from these kinds of online—

Ms. Haight: Yes, and, therefore, we need a law. And these doctors that are writing prescriptions are saying, hey, it is not illegal.

Chairman Leahy: You would like to see us make it illegal?

Ms. Haight: Absolutely. Absolutely. We need to do everything we can to protect our youth, and adults as well, that are finding themselves in this situation.

Chairman Leahy: Mr. Rannazzisi, would you agree with that?

Mr. Rannazzisi: Yes, absolutely. The perception of children, the perception of adults that controlled substances that are pharmaceutical are safe and effective because they are manufactured—or safe because they are manufactured by a drug company is really—it is a misperception that could be deadly. We have seen this over and over again. There was a study done where a large percentage of adolescents showed—basically reported that they thought—their perception was that these drugs were safe to take, where they would rather take those drugs than cocaine or heroin. So that perception is out there. So that is absolutely correct.

Chairman Leahy: Secretary Califano?

Mr. Califano: I think that what Joe just said is absolutely right. We survey teens every year. We have been surveying 12- to 17-year-olds for 11 years, Mr. Chairman, and it is quite clear that they think these drugs are safer than street drugs. They do not understand that they aren’t.

I think it is very important, in addition to law, the kind of legal suggestions that Professor Heymann made, which are very similar to the ones in the CASA report released today to also think parents are very important here. I think parents have really got to understand they are the front line, until we get a law passed, in terms of how their kids use the Internet, what they are using the Internet for. And it is very difficult. It is very difficult, but they—

Chairman Leahy:
Well, and I think there, I think if parents are watching this, this may be an eye opener to them, what is available there. If we have prescriptions to be filled, we go to the same pharmacy. They make it easy. You can call up on a touch-tone phone or a computer, but it is a pharmacy and it is the same pharmacist, it is with the records. We will get questions asked when we go there, and I am delighted to see it. I mean, they know who I am. They will ask for an ID just the same. And I think this should be done. And a lot of parents are used to that same thing.

I think this may be an eye opener to a lot of parents. You know, we have—going on computers, these kids are pretty smart, and it is pretty easy to hide what they are doing, the chat rooms, the number of chat rooms. The professor raised about on OxyContin, I mean, the back-door way you can go. Professor, I assume you feel we should be changing the law to make this tighter.

Mr. Heymann:
Mr. Chairman, we believe that the law should be changed and tightened, and certainly the doctors who issue prescriptions without ever seeing the patient should be subject to sanctions of some sort. But we keep seeing the end game as a question of companies spread across the globe dealing highly anonymously with kids in—

Chairman Leahy: Azerbaijan.

Mr. Heymann: And the only way to deal with that is to enlist the cooperation—and I think it will be forthcoming—of the search engines, the Internet service providers, and the financing companies.

Chairman Leahy: But don’t you need something beyond just a banner that says “Caution, this is an illegal”—I mean, you have got to have the site blocked, don’t you?

Mr. Heymann: That is correct. The banner comes from the search engine. The Internet service provider should block the site at the request of any parents.

Chairman Leahy: I think it should be blocked, period, I mean, if you are doing it this way.

Mr. Heymann: It should be blocked, period. There is some remote First Amendment problems. It is easy, otherwise.

Chairman Leahy: I think we can handle that part. I yield to nobody in the defense of the First Amendment, but I think there is a way of doing that. I think you are getting very close to yelling “Fire” in a crowded theater here. Dr. McLellan?

Dr. McLellan: One thing I would like to add is that in a sort of darkly paradoxical way, it is safer to buy drugs over the Internet; at least the drugs are much more dangerous than commonly perceived. But if your choices are to go—I live in Philadelphia—to 52nd and Baltimore and purchase something from a thug versus have it delivered into the comfort and privacy of your home with virtual certainty, it is safer.

So in many ways, it is an enticement to start drug use, and that is something that I think has not been brought out. A lot of policy in this country is considered around starting drugs, like cigarettes and marijuana. There are kids today starting drug abuse with Vicodin, starting drug abuse with OxyContin, because it is easier.

Chairman Leahy:
Thank you. Doctor, I am not trying to cut you off, but I just got handed a note I have 4 1/2 minutes to get to the floor to vote. We will stand in recess until either Senator Feinstein or I come back, and we will pick up where we left off.