As part of our multi-blog review of friend-of-the-court briefs submitted to the U.S. Supreme Court in the prescription data-mining case IMS v. Sorrell, today we look at the amicus briefs filed by major consumer groups and policymakers in favor of Vermont’s law.
Brief of AARP and the National Legislative Association on Prescription Drug Prices (pdf)
AARP and the National Legislative Association on Prescription Drug Prices (NLARx) filed a brief noting how the Vermont law helps protect patient privacy, safeguards the doctor-patient relationship from undue industry influence and misleading marketing, and helps reduce unnecessary and inappropriate prescribing driven by marketing. They note that "the data-mining companies do not meaningfully de-identify the records at all" but only "encrypt the name of the patient . . . [using] an individual identifier to 'track the patient over time.'"
A recent Wall Street Journal article revealed that TV advertising companies have started to use such so-called de-identified patient data concerning prescription drug purchases to profile discrete individuals for more effective TV advertising. These alarming threats to personal privacy should signal to the Court that protecting the privacy of personal health information is increasingly more important in the data-rich, computer-driven world today. And they offer a compelling argument -- that even if data-mined information is commercial speech, this type of private health information, which is never publicly disclosed into the commercial marketplace, is a type of commercial speech that warrants a lower level of protection by the First Amendment.
"The Vermont law directly advances its interest in protecting against disclosure of records containing the most personal of information as well as its interest in protecting individual autonomy in decision making on important personal matters," said Sean Flynn of American University’s Washington College of Law and counsel to AARP and NLARx in a statement. "Protecting the confidentiality of records advances important goals of our health system, including combating undue influence of in-person pharmaceutical marketing that raises costs and damages public health interests."
These groups argue that if the Second Circuit’s ruling were to stand, it would jeopardize a slew of federal and state consumer-protection laws around privacy of information such as financial data, emails, and health and education records, and would unleash a landslide of litigation from companies who would profit from selling private consumer data the law now requires them to protect.
“The information being sold, highly detailed prescribing data, belongs to a doctor just as other private data such as bank and health records do,” they maintain.
“Such information is confidential under state law, and drug companies have no more right to access it than they have to access a doctor’s private bank records,” they write. They worry that the Second Circuit’s holding would give advertisers First Amendment cover “to surreptitiously track the websites that users visit and sell that data, complete with identifying information, for a profit.” They also point out that the Court has before acknowledged states’ need for “broad latitude” in experimenting with ways to protect their citizens’ privacy.
Notable quotes:
"Laws limiting certain uses of private information reflect the common-sense judgment of federal and state governments that consumers who supply their private information for a specific purpose—such as applying for a driver’s license or a credit card—do not expect that information to be sold to mass marketers.
"That problem is essentially the one that Vermont sought to address here—doctors writing private prescriptions for their patients do not expect that information to come back to them in the form of drug-company marketing efforts. Because [such data-mining laws] do not restrict what anyone can say or to whom they can say it, federal and state governments should be free to make such judgments with the same 'broad latitude' that the Court has given to other essentially economic regulations."
--Kate Petersen, PostScript blogger