Privacy can be a very provocative right. Actually, it is barely a right. There is no explicit right of privacy guaranteed by the Constitution or the Bill of Rights. The privacy rights we have were teased out of the Constitution by a variety of provisions that collectively suggest that privacy should be protected. These include the Fourth Amendment's right against unreasonable searches, the Fifth Amendment's right to remain silent, and even the rarely mentioned Third Amendment's right to not have soldiers quartered in your home.
These implied privacy rights often bump against explicit constitutional rights such as free speech, free press, and criminal rights protections. When that happens, privacy often has to fight an uphill battle. However, this may not always be a bad thing; hence, this is the provocative nature of the right. Should a person's privacy allow him or her to hide fraud or other criminal activity? Should another individual's privacy prevent sharing information that can provide broad societal benefits? Courts and legislatures have struggled with this tension because there is merit both in protecting privacy and in allowing information to be freely shared.
Caught in the Middle
Those in the business of obtaining and disseminating information are often caught in the middle of this tension, and they often end up looking to legislatures and courts for a resolution. An example of this struggle recently came to a head in the U.S. Supreme Court, with the court's decision having the potential for a long-term impact on data mining, internet marketing, and internet privacy issues.
In the case of Sorrell v. IMS Health, Inc., the use of prescription information gathered by pharmacies and then sold to pharmaceutical companies for marketing purposes was at stake. Pharmacies are required to maintain records of all the prescriptions they dispense, including the name of the physician, the name of the patient, and the particular medication. While the name of the patient is strictly protected against disclosure, data mining companies will frequently gather the information about physicians and the medications they prescribe and then sell this data to pharmaceutical companies. The pharmaceutical companies then use this data for their marking purposes, specifically the practice of "detailing." This is when pharmaceutical representatives meet with physicians and try to persuade them to use specific, often expensive brand-name medications.
The state of Vermont expressed both privacy and economic concerns about these practices and enacted the Prescription Confidentiality Law (known locally as Act 80) to regulate the practice. Act 80 prohibits pharmacies and similar entities from selling this data for marketing purposes and from data miners and pharmaceutical companies using this data for marketing purposes without the permission of the physician. The data can be used (without requiring permission) for research, compliance with insurance requirements, patient care management, and law enforcement purposes.
Several data mining and pharmaceutical companies sued, claiming that this information constituted speech and, as such, that they had a First Amendment right to obtain and use the information as they saw fit. Vermont responded by indicating that the law protects medical privacy and physician-patient confidentiality and that it helps improve healthcare and reduce costs by limiting the marketing of higher-cost, brand-name medications that are often detailed. …