Data Mining the Constitution*

* Disclaimer:  I served as counsel of record to amici The New England Journal of Medicine, the Massachusetts Medical Society, the National Physicians Alliance, and the American Medical Students Association, all in support of Vermont.  Read our brief here.

The Vermont data mining case (Sorrell v. IMS Health) is being briefed before the Supreme Court this month, in preparation for oral arguments on April 26, 2011.  (SCOTUS blog here; blog here)

Pharmacies sell your prescription records to data mining companies, who aggregate the information and sell it to drug companies for billions of dollars per year.  Drug companies use it to sell drugs.  Lots of drugs.

Vermont physicians were appalled, and the state passed a law in 2007 extending privacy protections to prescription records that identified the physician.  Maine and New Hampshire passed similar laws, ultimately resulting in a decision by the First Circuit Court of Appeals in Boston that these laws were constitutional.

Vermont won at the Federal District Court, but the appeal went to the Second Circuit Court of Appeals in New York City.  A divided panel voted 2-1 to reverse, saying that Vermont’s law violated the First Amendment rights of data miners and drug companies.  The Supreme Court accepted the appeal on January 7, 2011.

To the drug companies & data miners, this could be the most important commercial speech case in a decade; a counterpart to Citizens United.  The states and physicians opposed to data mining insist this case is really about medical privacy, and will be the most important Supreme Court decision on medical privacy in a generation.

Who owns this “prescriber-identifiable” information?  If it’s private and confidential – like HIPAA protected medical records – then taking it without the consent of the patients and doctors violates the law and the First Amendment doesn’t apply.  The First Amendment isn’t a defense to data theft.  I can’t steal trade secrets from a company or medical records from a hospital and expect to get off just because I publish or sell the information.  This is the core argument by Vermont and its amici.

But if this information is already public, the data miners can collect and sell it to whomever they please.  Including drug companies.

Stay tuned.


36 states and the District of Columbia filed an amicus brief yesterday supporting Vermont.

The federal government also filed a good brief supporting Vermont.  Nice to have support from the DoJ (and, indirectly, the FDA).  The one problem with the US brief was the final section, that unnecessarily tried to distinguish HIPAA.

Public Citizen and AARP each filed briefs supporting Vermont, as did the Yale Rudd Center and EPIC.

One of my favorite briefs supporting Vermont is from the Electronic Frontier Foundation.  The opening paragraph:

“This case presents no novel First Amendment issues.  Instead, the Court of Appeals misunderstood the legal background of this case in a critical aspect: it wrongly asserted that the medical records at issue here are public. This error led the Court of Appeals to ignore the privacy interests at stake. Amicus therefore focuses on how the Vermont law at issue here protects patient privacy and how upholding the decision below could jeopardize much federal privacy law.”

Briefs from the data miners, drug companies and their amici will be filed in the coming weeks.


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