infoJustice

For immediate release.
Attribute to Sean Flynn, Associate Director, American University Washington College of Law Program on Information Justice and Intellectual Property, on the decision of the Supreme Court in IMS v. Sorrell:

For the first time in the Court’s history it has extended heightened First Amendment protection to the commercial trading of information that is neither from the public sphere nor destined for it. Vermont regulated only the commercial trade in prescription records that were purely for the purpose of targeting marketing to doctors to alter prescriptions toward more profitable outcomes. Doctors and patients do not advertise their records to the public when they use them to process prescriptions. And pharmaceutical marketers do not use prescription records like newspapers to inform the public about matters of generalized import — indeed, their contracts with dataminers prohibit them releasing any information from them to the public, or even the doctors they track. The First Amendment’s interests in promoting a marketplace of ideas and facilitating democratic decision making through the free flow of public information are not furthered by protecting from regulation the private commercial trade of private information in medical records.

Indeed, speech in this case was not regulated at all. As the Dissent correctly noted: ‘Vermont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product.’ All Vermont did was require consent before pharmacies traded prescription records to pharmaceutical marketers. Now, pharmacies have a First Amendment right to trade these records to marketers without consent of anyone — a fairly frightening development for the cause of data privacy.

The bright spot in the Court’s opinion is its recognition that there is, in fact, an interest of governments in protecting the confidentiality of prescription records. The Court opined that ‘Perhaps the State could have addressed physician confidentiality through a more coherent policy,’ such as ‘by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances.’ For an example of such a law, it cites the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which bans many commercial and other uses of medical records, but does not extend its protection to prescriber-identified prescriptions. Accordingly, the advice to States and Federal legislators concerned about the privacy and other public policy implications of permitting the free trade in prescription records for commercial marketing purposes is to pass laws that extend the protections of HIPAA to prescriber identified prescription (and other medical) records. When they do so, more litigation is sure to follow since the logic of the Court is that these laws, and HIPAA itself, is subject to heightened scrutiny under the First Amendment as a regulation of the “speech” of those who come into possession of private records.