Data Mining and Privacy to Face Supreme Court Scrutiny

Article excerpt

In their book Information Privacy Law, privacy scholars Daniel Solove and Paul Schwartz discuss the distinctions that exist between privacy, as it may be defined, and privacy, as a legal right. Among their definitions, the authors suggest that privacy is "whatever an individual wants to be private," the ability to "conceal certain facts about oneself," and "what society recognizes as reasonable for one to expect to be private."

However, the legal rights to privacy are somewhat different. One of those legal rights of privacy is known as "intrusion upon seclusion" and protects a person's solitude, seclusion, or private affairs from intrusion, but this happens only if the intrusion is considered "highly offensive." Another legal right prevents disclosure of matters concerning a person's private life if disclosure would be considered "highly offensive." In both cases, the right to privacy is qualified by the need for the privacy invasion or disclosure to be "highly offensive."

Privacy Versus the First Amendment

One person's legal right of privacy may also be tempered by another person's (or entity's) First Amendment rights to free speech. My right of privacy may protect against highly offensive intrusions to, and disclosure of, my information. However, information can be considered a form of speech. Consequently, a person who possesses information may have free speech rights in how he or she discloses or uses the information. This often comes up in cases involving the media, but it can also arise in cases involving data mining and the commercial use of personal data.

The challenge is that keeping a person's information private in the digital information era is increasingly difficult; disclosing pieces of information is a common occurrence. Whenever we fill out an online form, post something to Facebook or an internet forum, search the web, apply for and use a grocery store shopper's card, visit a physician, or obtain a prescription, we disclose one or more bits of information.

Data Mining and Aggregation

Individually, these disclosures may be trivial, but they can raise two problems. First, these voluntary disclosures make it more difficult to argue that these are "private matters" that would be highly offensive if disclosed. Second, and more critically, modern practices of digital data mining and data aggregation can take these individual pieces of information and combine them into highly descriptive profiles that can deeply intrude into those defined areas of privacy, but they may or may not reach that legal requirement of highly offensive.

The U.S. Supreme Court will soon be weighing in on these complex challenges in a case involving a Vermont law that attempts to protect privacy by restricting access to certain forms of medical and prescription drug information. The case, Sorrell v. IMS Health, Inc., asks the court to determine if a Vermont law restricting access to physicians'prescription drug information due to privacy concerns violates data mining and pharmaceutical firms' First Amendment rights to use the information for marketing and other purposes.

Sale of Prescription Data

When a physician writes a prescription for a patient, it marks the beginning of a lengthy chain of information points that have the potential of being mined. During the process of filling the prescriptions and dispensing the medications, pharmacies are required by law to collect and to maintain information about the drug, the physician who prescribed the drug, and the patient who was prescribed the drug. …