The Security Scrutinizer with Howard Anderson

Privacy Case Raises Complex Issues

Supreme Court Hears Arguments in Data Mining Case

The court is expected to rule in the case by summer. Many are waiting to see whether the court's ruling in this data-mining case will have implications for the marketing of information in a variety of industries.

The case, Sorrell v. IMS Health, involves an appeal by the state of Vermont of an appellate court decision last year. The appellate court overturned as unconstitutional a state law seeking to control the use of prescription drug data -- which identifies the physician who prescribed the drug, but not the patient receiving it -- for the purposes of marketing pharmaceuticals to doctors. The Vermont law requires physicians to give their consent before information about their prescription-writing habits can be sold. Data mining firms, including IMS Health, provide this information to drug companies, which use it to tailor their sales pitches.

The case sets up a potentially dangerous conflict between privacy and the First Amendment. 

The HIPAA privacy rule already prohibits the sale of patient-identifiable data for marketing to patients or doctors. The Vermont case focuses on the use of prescriber-identifiable data for marketing purposes.

More than 100 similar data-mining restriction bills have been introduced nationwide, but only three, including Vermont's, have been enacted, and none since 2007, when the legal challenges began, CNN reports.

In enacting the law, Vermont legislators said it would help shrink healthcare costs by making it harder for drug companies to persuade doctors to use newer, more expensive, patented medicines rather than cheaper, generic alternatives, according to CNN.

But a majority of the Supreme Court justices Tuesday strongly questioned the motives behind the Vermont law, CNN reports.

Chief Justice John Roberts argued that Vermont was interested in punishing the pharmaceutical industry. "You want to lower your healthcare costs, not by direct regulation, but by restricting the flow of information to the doctors, by censoring what they can hear to make sure they don't have full information, so they will do what you want them to do when it comes to prescribing drugs. ..."

In its coverage of the arguments, National Public Radio said the court appeared split on the issues, with conservative justices questioning the state's arguments in favor of the law and more liberal justices sympathetic.

First Amendment Issue

During oral arguments, Bridget Asay, of the Vermont attorney general's office, said, "Drug companies would certainly like to have this [prescription-writing] information for marketing, but they have no First Amendment right to demand it, just as they have no right to demand access to the doctor's tax returns, his patient files or to their competitors' business records."

The Obama administration backs the Vermont law. Some privacy advocates, including the Electronic Privacy Information Center, had argued in favor of it as well.

But in a recent commentary, Deven McGraw, an attorney who is director of the health privacy project at the Center for Democracy & Technology, argued that the privacy issues in the case are far from black and white.

For example, she acknowledged "The case sets up a potentially dangerous conflict between privacy and the First Amendment." But she went on to say "Claims that doctors have a privacy right in their prescribing practices could upset a host of policy goals associated with improving the efficiency and safety of the health care system." Her comments are well worth reading.

A transcript of the oral arguments is available on the Supreme Court website.



About the Author

Howard Anderson

Howard Anderson

News Editor, ISMG

Anderson is news editor of Information Security Media Group and was founding editor of HealthcareInfoSecurity and DataBreachToday. He has more than 40 years of journalism experience, with a focus on healthcare information technology issues. Before launching HealthcareInfoSecurity, he served as founding editor of Health Data Management magazine, where he worked for 17 years, and he served in leadership roles at several other healthcare magazines and newspapers.




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