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Supreme Court to Decide if Data Mining Is Free Speech

June 01, 2011

The case Sorrel v. IMS Health could determine how far lawmakers can go in restricting data use. According to an article published in InformationWeek magazine, the case challenges a Vermont law that lets doctors decide whether their names can be sold to pharmaceutical companies for marketing purposes. Pharmacists sell the information to data mining companies, which then sell data and analysis to pharmaceutical companies with patient names removed or encrypted.

Vermont’s case argues that,“ By letting doctors, rather than the state control the use of this information for marketing, the legislature avoided impinging on the ‘protected interest’ in communication between pharmaceutical manufacturers and willing doctors.”

The article noted that IMS Health, SDI Health, and Source Healthcare Analytics have made the argument that these actions are protected by the First Amendment of free speech. They have stated that pharmacists know prescriber data as part of fulfilling everyday transactions for patients, they have a constitutional right to share it, and pharma companies have the right to use it.

“The only restriction on the non-consensual use of prescriber data is that the information cannot be used for marketing by drug companies,” the data miners argue. “The statute thus is not a genuine attempt to protect prescribers’ privacy.”

According to the article, an appeals court struck down the law as a violation of free speech, but a different appeals court upheld a similar law in New Hampshire, saying it regulated only the conduct, not the speech, of data miners.  Now the Supreme Court must decide. A decision is expected in June.

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Washington Policy Brief