Supreme Court Grants Cert in Sorrell v. IMS

FOR IMMEDIATE RELEASE

Contact: Meredith Jacob
202-274-4235 | mjacob@wcl.american.edu

Last week, the Supreme Court granted cert in Sorrell (Vt.) v. IMS Health, a case involving whether the First Amendment prohibits legislation regulating the commercial secondary uses of data disclosed (under government mandate) in prescription records. http://sblog.s3.amazonaws.com/wp-content/uploads/2011/01/orders-for-1-7-11.doc

The Supreme Court has agreed to review a split between the First and Second Circuit Courts of Appeal on the issue. The First Circuit held that the trade of confidential data released to pharmacies in prescription records is not “speech” protected by the First Amendment. The Second Circuit held that such trade is a form of protected commercial speech, and that there are not adequate governmental interests on the part of states to regulate such trade.

Sean Flynn, Associate Director of the Program on Information Justice and Intellectual Property at American University Washington College of Law, and counsel for consumer organizations as amici in the First and Second Circuit cases, explained:

“The Second Circuit decision is based on a key error in analysis. It is not true, as the court presumed, that all exchange in information is “speech” protected by the First Amendment. The goal of the First Amendment is to protect public discourse that supports democracy, and doctrine is tailored to that end. Thus, the Supreme Court has refused to grant First Amendment rights to access closely held and privately traded information, especially when that information derives from government disclosure mandates. Patients and doctors only disclose prescription records because state laws require them to; states thus obtain a keen interest in the ability to regulate the re-disclosure of that information. To give a First Amendment right to trade such data to third parties for purely commercial interests would serve no First Amendment protected purpose. And it would wreak havoc on the emerging set of data privacy protections that exist or are being formulated to prevent the digital age from arriving with a license to companies to monitor and trade every private detail available through electronic record keeping.”       

More information on the case, including Amicus briefs drafted in the First and Second Circuits and legislative testimony on the bills at issue, are at http://www.wcl.american.edu/pijip/go/rx-data




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