The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Supreme Court Hears Oral Arguments in Data Mining Case

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Today, the Supreme Court heard oral arguments in Sorrel v. IMS.  At issue was a Vermont law that banned the selling and buying of prescription information without a doctor’s consent. The law also requires that doctors fill out a form as part of their license renewal application that indicates whether they agree to have their prescription information sold for marketing purposes.  The Second Circuit previously held this law was an impermissible restriction upon commercial speech, and therefore unconstitutional.

At oral arguments, it was clear that the Justices viewed this case as one concerning commercial speech.  In response to Vermont’s arguments, Justice Kennedy stated Vermont was “regulating speech,” and Justices Kennedy, Scalia, and Chief Justice Roberts all suggested that Vermont was attempting to limit drug companies’ speech only because the speech was effective in selling their products.  Although privacy observers have suggested that the ruling will have a large impact on both data mining companies and consumers, only at the end of arguments did at least some of the Justices appear open to allowing states some ability to regulate data-mining that threatened privacy. 

The Court is expected to issue a decision before recessing for the summer.  The transcript of today’s arguments is available here

Author: Heather Enlow-Novitsky

VP, Assistant General Counsel, Bank of America Merchant Services

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