A Victory for Privacy Rights

08/13/10

The plaintiffs in the case are middlemen – data miners that collect vast amounts of information about the prescribing habits of doctors and specialists and then sell that information to pharmaceutical companies for use in direct marketing campaigns. They raised two challenges: first that the law was an unconstitutional suppression of speech and second that it violates the dormant commerce clause by regulating the interstate sale of information.

The court had no problem disposing of the first amendment claim since it was bound by a recent case in the same jurisdiction regarding a similar New Hampshire law (IMS Health Inc v Ayotte, 550 F.3d. 42) The court noted the reasons the Ayotte court rejected the free speech claim; the law regulates conduct, not speech and not present in Ayotte, the Maine statute also ''...constitutionally protects Maine prescribers' choice to opt in to confidentiality protection to avoid being subjected to unwanted solicitations based on their identifying data.''

The court had very little problem dispensing with the dormant commerce clause argument as well. ''The statute constitutionally reaches plaintiffs' out-of-state transactions as a necessary incident of Maine's strong interest in protecting opted-in Maine prescribers from unwanted solicitations, a policy that Maine also rationally believes will lower its health care costs.''

Hopefully this is one small sign of things yet to come. Currently, only Maine, New Hampshire and Vermont have laws protecting the privacy of medical practitioners when it comes to prescription decisions. According to the First Circuit, prescription data mining was worth 1.75 billion dollars in revenue in 2005 for the plaintiff, and that’s just one of many companies involved in the growing industry of data collection for marketing purposes. Without state privacy laws, doctors in Maine would have no practical means of protecting their individual privacy while continuing to practice medicine. But the issue shouldn’t stop with doctors and pharmacies. After the ''do not call'' list became federal law, advertisers increasingly turned to other forms of direct marketing campaigns based on data mined from countless sources. It has become nearly impossible to exist in American society today without our habits and preferences scrutinized by data mining companies and sold to manufacturers, marketers, and others. I for one would like the option to not have my Internet usage tracked, dissected, analyzed and then sold to the millions of companies that spam my inbox or target banner ads on the pages I visit.