Supreme Court Reviews Data Mining & Free Speech

After several years of courtroom battles, the US Supreme Court has agreed to review whether laws that ban data mining - specifically, the sale of prescription drug info that identifies prescribers and patients for commercial marketing purposes - are unconstitutional (court order).

The move, which is not surprising, comes after conflicting rulings issued by different federal appeals courts. Last November, the US Court of Appeals for the Second Circuit shot down a Vermont law after deciding it violated the First Amendment right to free speech (see here). Previously, the US Court of Appeals for the First Circuit upheld similar statutes passed by Maine and New Hampshire.

The challenges to the state laws were made by three healthcare research firms - IMS Health, SDI, Wolters Kluwer health - along with the PhRMA trade group, which have argued in various courts that the statutes hurt public access to healthcare info and violated commercial speech. Drugmakers want this data so they can learn which docs are high prescribers and figure out who to target for the hard sell.

The states, however, have maintained the laws can protect doctor-patient relationships and consumer privacy, promote patient safety and contain health care costs. Consequently, the Supreme Court will decide the extent to which the data mining controversy involves commercial transactions or speech.

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