Court Hears Arguments In Data Mining Case
The U.S. Supreme Court appeared split on Tuesday as it considered a case testing state limits on data mining. At issue is whether states can bar the buying, selling and profiling of a doctor's prescription records without the physician's consent.
Since the state requires pharmacies to keep this information, why can't it require it not be sold? The law already prohibits selling the information about who received the prescription.
Chief Justice John Roberts began by asking whether the "purpose" of the law isn't really "to prevent sales representatives from contacting particular physicians."
No, the purpose is to protect the privacy of doctors. Drug companies don't have a right to know what a doctor prescribes.
Asay said no, that "the purpose of the statute is to let doctors decide whether sales representatives will have access to this inside information" about physicians' prescribing habits.
To that, Justice Antonin Scalia replied, "Let's not quibble." The purpose of the law is to make the drug companies' marketing efforts "less effective."
Nor did Scalia buy 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 said.
The privacy breach is that doctors shouldn't need to divulge their prescription practices to just anyone willing to pay for it. It's not that they're forced to talk to sales representatives.
[Deputy Solicitor General Edwin Kneedler] noted 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, he observed, 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.
How our information is collected and used is a huge issue. People aren't required to give out much of the information that they do. But people are required to have a doctor's prescription to buy certain drugs, and the law rightly prevents the pharmacies who know what you buy from selling that information to the highest bidder.
Could the Supreme Court really find it unconstitutional for the state to protect both names on a drug prescription from being put up for sale?