Data Mining, Prescription Sales and Privacy, Oh My

04/29/11

The U.S. Supreme Court is considering a case regarding state limits on data mining, as it relates to whether states can prohibit the ''buying, selling and profiling of a doctor's prescription records without the physician's consent'', according to the April 26th npr.org article, Court Hears Arguments In Data Mining Case''.

The main issues at stake are whether the current law is unconstitutional, and how the law affects privacy. What appeared to be black and white on the surface became, upon further discussion of the justices, a bit grey.

Currently, pharmacies must keep records of all doctors' prescriptions, according to government regulations. These records can be, and are often sold to data mining companies by the pharmacies. The data mining companies then sell the information to drug makers, who use it to target sales pitches to doctors - a practice that appears, at the outset, to blatantly violate privacy and shamelessly promote commercial greed.

According to the article, the case under consideration came about when doctors in Vermont learned their prescription records were being sold in this manner, they protested to the state Legislature, and a law was created to prohibit the practice.

Both data miners and the pharmaceutical industry challenged the law, saying it was unconstitutional because it makes it harder for drug makers to pinpoint which doctors might be good sales prospects.

However, Vermont says the law ''constitutionally allows doctors to decide for themselves whether information about their prescription habits can be sold to data miners.''

Excerpts of the ensuing discussion were reported in the article as follows:

Vermont Assistant Attorney General Bridget Asay told the justices that ''law does not discriminate. Insurers and the state, as Medicaid manager, get prescription information directly from doctors and patients in order to pay for the drugs. In contrast, she said, pharmacies sell the information to data miners for drug marketing.''

Chief Justice John Roberts asked whether the ''purpose'' of the law isn't really ''to prevent sales representatives from contacting particular physicians.''

Asay disagreed, saying rather, ''purpose of the statute is to let doctors decide whether sales representatives will have access to this inside information'' regarding the prescribing habits of physicians.

Justice Antonin Scalia was quoted as saying in response: ''Let's not quibble'', and that ''the purpose of the law is to make the drug companies' marketing efforts less effective.''

In addition, Scalia did not support the argument that the law is ''aimed at protecting doctor privacy. All the doctor has to do is refuse to talk to the drug representatives when they come calling'', he was quoted as saying.

Asay was quoted as saying that ''The Constitution allows limits on the effectiveness of speech''. ''Drug companies could speak more effectively if they had access to patient information or to their competitors' trade secrets, but the law bars them from having access to that information.''

Justice Sonia Sotomayor was quoted as saying: ''Assuming there's some form of privacy that relates to not being harassed, wouldn't it be better if the doctor were required to opt out of having his information sold? ''Isn't an opt-out less restrictive?''

Asay responded that ''The state law is in fact an opt-out process because it asks a doctor to make a decision one way or the other on the form he fills out every two years for relicensing. In completing the form, the doctor checks off a box agreeing to have his prescription information disseminated, or not.''

Justice Ruth Bader Ginsburg said that ''the state does seek to promote the sale of less expensive generic drugs in place of more expensive brand names.''

Chief Justice Roberts said in regard to the state wanting to lower health care costs ''not by direct regulation but by restricting the flow of information to the doctors," and ''censoring what they can hear.''

However, Asay said that ''the statute does not limit any of the information that doctors receive. ''The issue in this case is whether [the drug companies'] right trumps the right of the doctor.''

Deputy Solicitor General Edwin Kneedler observed that ''pharmacies only have doctors' prescription information because the federal and state governments require them to have it. The patient's privacy is protected by federal law, and this law merely puts the doctor 'on an equal footing' with the pharmacy in determining how the doctor's information is used in marketing.'' He was also quoted as saying that the law isn't an ''all or nothing'' statute, but rather it's ''like a 'do not call' statute or a 'do not mail' statute.''

Attorney Tom Goldstein, in representation of the data mining and pharmaceutical industries, told the court that the ''Vermont law unconstitutionally singles out pharmaceutical marketing.''

However, Justice Sotomayor wasn't convinced, and said: ''Today with the Internet and with computers, there's virtually no privacy individuals have. Any transaction you do could be spread across the world instantaneously.'' She posed the question: If the state is interested in ''in protecting that part of the public who says ... 'I didn't really want you to sell my name,' why can't the state allow you to take steps to protect individual privacy?''

Goldstein said: ''It can,'' but that ''this statute was not intended to protect privacy, and ''it denies doctors important and truthful information about drugs. What you can't do is have a rule that says one side is going to have a much harder time getting to their audience'' and that's what Goldstein felt Vermont did.

Chief Justice Roberts said: ''If this law is unconstitutional, and you really are concerned about physician privacy, how could you write a statute to avoid a constitutional problem?''

Goldstein said: ''The statute would have to bar pharmacies from giving prescription information to anyone.''

To which Justice Elena Kagan replied: ''How about a bar on selling this information to anyone?''
This, Goldstein said, ''would not be constitutional'', because it would not protect privacy, however, it would enable commercialization but not privacy.

''We have a capitalist economy,'' he was quoted as saying, and ''commercialization isn't a bad thing.''

Indeed - will almighty commercialism trump the shreds of privacy that struggle to survive? Will privacy continue to become scarcer, in direct correlation with the proliferation of technology? As well, will what is, and is not, constitutional, continue to be pushed to the very limits of the law? Some may even be asking themselves if the splitting of hairs will continue to be taken to new levels. At any rate, the discussion as put forth here is undoubtedly one likely to be repeated across a wide range of industries and areas in the years to come.