Published by LawTechie - April 27, 2011 - LawTechie

The US Supreme Court heard arguments yesterday in Sorrell v. IMS Health, No. 10-779, which touched on marketers’ right to collect and communicate consumer data. The facts of the case dealt with Vermont’s recent attempt to prevent pharmacies from selling to drug companies records of the prescriptions local doctors had written (the prescriptions did not include patients’ names).

Vermont passed a law preventing such data sale, but pharmacies managed to convince the 2nd Circuit that such law unconstitutionally hindered the pharmacies’ first amendment right to communicate relatively anonymous marketing information.

At Tuesday’s oral hearing before the Supreme Court, internet marketing activists weighed in on the issue:

[T]he trade groups Association of National Advertisers, American Advertising Federation and American Association of Advertising Agencies argue in a joint brief that marketers have a constitutional right to collect information. “The First Amendment safeguards the entire communication process, including the gathering of data used to create a commercial or non-commercial message,” the associations say in their brief.

On the other side of the argument:

The EFF says that enabling doctors to prevent the sale of their prescription-writing histories — even with patients “de-identified” — ultimately protects people from the risk that their identities will be pieced together. “There are substantial concerns today about the efficacy of this ‘de-identification’ for protecting privacy given the enormous trade in consumer data,” the EFF argues.

The resolution of this case will, in some ways, decide whether online ad and marketing companies have the right to mine and communicate “de-identified” user data such as locations, browsing histories, and perhaps even purchases (assuming all such data has the user’s identity disconnected from it).

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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