Today the court released their decision in the matter of Sorrell v. IMS Health Companies. This was a case pitting the privacy interests of doctors, and information related to their patients use of prescription drugs, against the wishes of pharmacy companies to use obtain and this information in their marketing efforts.
Though the case was decided on the basis of free speech issues--specifically the rights of commercial speech--this case very definitely impacts the landscape of privacy by shaping the degree of privacy any of us can expect to receive concerning the distribution of our health information and data. The outcome of this case essentially allows corporations, under the guise of free speech, to take your confidential health information, over the objection of your physician, for whatever purpose they wish. Though free speech advocates may rejoice over this commercial speech ruling, the privacy rights between patients and their doctors have been significantly eroded.
Question Presented before the Court
Prescription drug records, which contain information about patients, doctors, and medical treatment, exist because of federal and state regulation in this highly regulated field. This case is about information from prescription records known as "prescriber-identifiable data." Such data identifies the doctor or other prescriber, links the doctor to a particular prescription, and reveals other details about that prescription. Pharmacies sell this information to data mining companies, and the data miners aggregate and package the data for use as a marketing tool by pharmaceutical manufacturers. The law at issue in this case, Vermont's Prescription Confidentiality Law, affords prescribers the right to consent before information linking them to prescriptions for particular drugs can be sold or used for marketing. The Second Circuit held that Vermont's law violates the First Amendment, a holding that conflicts with two recent decisions of the First Circuit upholding similar laws. The question presented is: Whether a law that restricts access to information in nonpublic prescription drug records and affords prescribers the right to consent before their identifying information in prescription drug records is sold or used in marketing runs afoul of the First Amendment. (Supreme Court)Background
In 2007, Vermont enacted the Prescription Confidentiality Law, known as Act 80. The law stated:
“shall not [1] sell . . . regulated records containing prescriber-identifiable information, nor [2] permit the use of [such] records . . . for marketing or promoting a prescription drug, unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, §4631(d) (Supp. 2010).They also stated that:
“[3] [p]harmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents.”
Pharmacies and pharmaceutical companies opposed this law on the grounds that it violated their rights of free speech. Pharmacies wish to sell this collected prescription information for a profit to pharmaceutical companies who, in turn, use this aggregated information to craft marketing messages.
Findings
The court held that Vermont's law prohibit data mining companies from obtaining prescriber information posed an undue burden on the rights of corporate free speech. Since, the Vermont law did not forbid selling the information to other entities, except for those who would use it for marketing purposes, it represented a content based restriction on free speech. Because of this, the court noted that the Vermont law would have to receive more intense scrutiny.
Conclusions
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Findings
The court held that Vermont's law prohibit data mining companies from obtaining prescriber information posed an undue burden on the rights of corporate free speech. Since, the Vermont law did not forbid selling the information to other entities, except for those who would use it for marketing purposes, it represented a content based restriction on free speech. Because of this, the court noted that the Vermont law would have to receive more intense scrutiny.
Conclusions
What is unusual about this case from a free speech point of view is that it allows personal information to be bought and sold against the wishes of doctors and their patients. Early supreme court cases concerning commercial speech was centered more around the rights of companies to advertise and present their points of view to an audience. For instance, many states had laws forbidding doctors and lawyers from advertising and these cases overturned those laws. In the matter of Sorrell, companies were not seeking to redress some right forbidding them to market or advertise, they were seeking to obtain records that were closed to them by the wishes of doctors and their patients. This case represents yet another ruling favoring the rights of big business over ordinary citizens.
In today's climate, courts are increasingly refusing to distinguish between personal and corporate free speech--treating both as though they were equal before the law. Thus, a huge imbalance is developing where well monied corporate America is able to claim citizenship rights while trampling the rights of individuals. With profit as its motive, multinational companies, who could care less about personal freedoms or privacy rights, seek to use our constitution against actual citizens who live here. For the time being, those wishing to preserve some degree of privacy will need to find a pharmacy who values the privacy of their clients more than selling this information to pharmaceutical and manufacturing companies.
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