By Jennifer L. Saunders, CIPP
In the wake of the U.S. Supreme Court’s decision on Thursday in Sorrell v. IMS Health et al., experts are weighing in on the implications for privacy protection.
In a 6-3 decision, the nation’s highest court found that Vermont’s state law that required physicians to give consent before information about their prescription drug records could be used by pharmaceutical or data-mining companies.
GovInfoSecurity reports on the majority opinion that the law violated First Amendment rights, citing Justice Anthony Kennedy’s writing that the law "prohibits pharmaceutical manufacturers from using the information for marketing (but) allows prescriber-identifying information to be purchased, acquired and used for other types of speech by other speakers…pharmacies may share prescriber-identifying information with anyone for any reason except for marketing…Given the information's widespread availability and many permissible uses, Vermont's asserted interest in physician confidentiality cannot justify the burdens that (imposed) on protected expression."
Shortly after the decision was announced on Thursday, Kirk Nahra, CIPP, a partner at Wiley Rein, told the Daily Dashboard, “From the privacy perspective, the court rejected the efforts of Vermont and others to turn this case into a privacy case, and focused instead on the impact of the law as a commercial speech issue.”
Asked for its reaction to the outcome of the case, the Center for Democracy and Technology issued a statement explaining that although the state of Vermont had argued its statute’s aim was protecting privacy, “the court concluded that it did little to protect privacy and was instead aimed at suppressing a particular type of speech—marketing messages—that the state did not like…The Supreme Court's decision explicitly states that a statute imposing a more comprehensive privacy regime ‘would present quite a different case than the one presented here.’ The court explained that had the state restricted all disclosure except in ‘a few narrow and well-justified circumstances,’ then the court would have viewed the challenged law through quite a different lens.”
Sen. Patrick Leahy (D-VT), who has been one of the driving forces behind privacy legislation efforts at the federal level, had a different reaction to the outcome of the case.
In a statement issued on Thursday, Leahy said the “Supreme Court has overturned a sensible Vermont law that sought to protect the privacy of the doctor-patient relationship. This divided ruling is a win for data miners and large corporations and a loss for those of us who care about privacy not only in my home state of Vermont but across the nation.”
Leahy added that state legislatures “must be able to protect the privacy of sensitive information exchanged between a doctor and patient. This decision undermines that ability… to protect their citizens’ privacy rights over corporate interests in profits.”
Summing up its position on the case, the CDT referenced that court’s written opinion that “Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.”
In this case, the CDT wrote, the Supreme Court “refused to allow privacy to be used as a smokescreen to shield a law that on its face discriminated based on the type of speaker.”
Nahra offered a similar assessment, telling the Daily Dashboard, “There are many current means of regulating patient privacy directly, and it would not have been useful to the overall protection of patient privacy to address these issues in an essentially unrelated context, through the back door.”