Wednesday, April 27, 2011

Privacy vs First Amendment Rights

This week the US Supreme Court heard a case that pits doctors' and patients' right to privacy against companies' right to freely communicate with each other. Essentially, it's dataminers vs legislators, with doctors and patients stuck in the middle. Remember, there's no Constitutional right to privacy, although there is a Constitutional right to free speech.

The case came to the Court on appeal from Vermont, which passed a law banning pharmacies from selling information about which drugs are prescribed by which doctors. The drug/doctor data (scrubbed to remove individual patient info) is coveted by pharmaceutical firms that want to target doctors for promotions for specific drugs.

However, privacy advocates worry that even with "de-identification" of records, patients will be able to be identified through datamining. And Vermont's intention is to allow doctors to control what information is available to drug manufacturers about the prescriptions being written, rather than let the pharmacies control access to data.

Vermont lost a round in court when the law was deemed to infringe on companies' right to free speech, so it appealed. Supporting Vermont's appeal, 35 states and the US Department of Justice are also against allowing pharmacies to sell the doctor/drug info. On the other hand, several of the Justices seem concerned that commercial free speech may be impaired by such limits.

The outcome of this case could wind up influencing access to data for highly targeted marketing purposes in a number of industries. Which way will the Court rule?

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