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Supreme Court Weighs Whether To Limit Data Mining

Publication Date: 
April 26, 2011
National Public Radio (NPR)
Nina Totenberg

Lecturer Thomas Goldstein spoke with NPR's Nina Totenberg on the data mining case before the Supreme Court, which may test the limits the government may put on data mining for commercial purposes, and how it could put data mining for non-marketing purpose in danger.

At the U.S. Supreme Court Tuesday, the justices for the first time will hear a case that tests what limits the government may put on data mining for commercial purposes. At issue is whether a state may bar the buying, selling, and profiling of doctors' prescription records for use by pharmaceutical sales representatives.

Under federal and state law, pharmacies are required to keep records of every doctor's prescription, and while patient privacy is protected by federal law, doctor privacy is not.


The data miners will tell the justices that the law unconstitutionally impedes free speech. "Vermont can't try and keep information out of the hands of doctors and nurse practitioners that's truthful and incredibly important about the health and safety of prescription drugs," says the industry's lawyer, Thomas Goldstein.


Goldstein counters that there is more at stake here because the state allows insurers and its own Medicaid managers to have access to prescribing information, while barring the same information from data miners and pharmaceutical manufacturers. The Constitution, he maintains, does not allow the state to "play favorites in this way."

"Vermont can and does encourage doctors to use generics," says Goldstein. "But what it can't do is at the same time tie the hands of the people who want to convey the opposite message."


Lawyer Goldstein describes the issue from the industry perspective, arguing that "if Vermont is right that the collection and manipulation of data isn't free speech, then the government can regulate it however it wants." He says that even data mining for non-marketing purposes, such as news reporting and analysis, could be in danger.