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Data-Mining Ban Struck Down By US Supreme Court 176

Posted by timothy
from the about-your-nasty-std dept.
smitty777 writes "The Supreme Court struck down in Sorrell vs IMS Health a Vermont law banning data mining which has been in place since 2007. The court ruled that the data on medications prescribed by doctors is protected by the First Amendment and can be used for marketing by the pharmaceutical companies. This follows similar declarations in Maine and New Hampshire."
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Data-Mining Ban Struck Down By US Supreme Court

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  • Big Corporation (Score:5, Insightful)

    by Anonymous Coward on Friday June 24, 2011 @08:49AM (#36553858)
    Big corporations always win in the end. They have the money to pay the lawyers and the lobbyists. It's their world; we just live in it. This has basically become a country by the corporations for the corporations. One nation, under CEO, with corruption and insider trading for all.
    • by Anonymous Coward

      Alternatively: Information wants to be free.

    • This isn't a new phenomenon. In the Middle Ages, Barons and Earls constantly vied with kings for supremacy over the nation. In the early modern era, merchants literally seized control of certain states, and corporations like the East India Company rules territories as vast as India.

      The price of freedom might be eternal vigilance, but the price of control is simply a lot of money.

      • The Boston Tea Party was a protest against the East India Company as much as it was against British Rule and taxes.

        That's something they don't like to teach at school any more...

      • The price of freedom might be eternal vigilance, but the price of control is simply a lot of money.

        Sig-snarf'd! Nice.

    • by AngryNick (891056)
      IANAL, but I actively follow the SCOTUS -- what I consider to be the most interesting, and respectable branch of government. Say what you will about the conservatives vs. liberal biases of the justices, but they are all really smart and tend to make sound arguments (except for the one about corporations = people).

      As I read the case, my understanding is that the data is already out there and available to the public (miners, corporations, journalists, me) via the pharmacies who are collecting the info dur
  • by Nimey (114278) on Friday June 24, 2011 @08:57AM (#36553934) Homepage Journal

    We can expect more and more of this because he replaced two fairly liberal judges with very conservative ones.

    Not that liberal judges are a panacea - they all voted in favor of eminent domain in Kelo v. New London - but they tend to not believe in corporate power so much.

    • by DoofusOfDeath (636671) on Friday June 24, 2011 @09:14AM (#36554152)

      I'm mostly a conservative, and I don't recognize these rulings as conservative. These are corporatist, which I mostly view as a form of treason.

      • by Hatta (162192) on Friday June 24, 2011 @10:41AM (#36555542) Journal

        I'm mostly a conservative, and I don't recognize these rulings as conservative. These are corporatist

        What's the difference?

        • What I mean by political conservatism is a preference for limited scope of the federal government, an general aversion to a welfare state, and a preference for limited taxation. Also, it's underpinnings are a general distrust in the competence of central planning, and an assumption that power corrupts.

          None of that entails pretending that corporations are persons, which I think is the root of this current nonsense.

          • by rtb61 (674572) on Friday June 24, 2011 @11:28AM (#36556526) Homepage

            Actually conservatives by definition seek no change, so at the time of the founding of the US, which all the current rank of conservatives pretend is about them, the conservatives at the time of founding of the US government were of course, Royalists.

            Conservatives do not normally call for a limited scope of Federal Government, in fact conservatives, likes lots of regulations to 'limit' the actions of others, whether those others are exploiting or polluting the shared environment or in others ways seeking to change the shared socio-economic environment. Your are confusing conservative with libertarian and or exploitative.

            The welfare state is about limiting the affects of downturns in the economy (it provides an economic cushion and prevents an economic death spiral) and of course reducing crime brought about by desperation and a lack interest in the shared economy resulting from exclusion from it. Of course the libertarians and the exploitative abhors the welfare state because it prevents the ruthless exploitation of those around them in economic downturns, this with total disregard for the impact upon the shared socio-economic environment, the prime driver being the fulfilling of personal greeds and lusts.

            No matter how loud the current rank of pretend 'conservatives" scream they are religious conservatives, they are not, they are quite simply lying pseudo religious libertarian exploiters.

            • by marnues (906739)
              Those are nice, rational definitions. Too bad those that espouse rational thought don't subscribe to much of it.
          • This description would better fit the terms 'Paleo-Conservative, Libertarian, or Classical Liberal' these days. 'Conservative' has come to mean corporatist, supportive of the military-industrial complex, and for big government to control people on moral issues and vices. Unfortunately, the Republican Party, on a national level, has become Conservative.

            • by marnues (906739)
              Has come to mean? That's what conservative has always meant. Even in America's history. Except the corporatist part. When it was new (ie the North and the South fought a war over this stuff) it was liberal, now that it is the status quo it is conservative. But always supporting the military and big government control of social issues has been the conservative ideal in almost every society everywhere. It's a shame that libertarians are trying to convince people that economic issues can be separated fro
          • by hey! (33014)

            I don't think in this case corporate personhood is behind this "nonsense". Rather, it is one of those situations where the naive interpretation of one right (the right to free speech) conflicts with another right (the right to privacy).

            Nobody really believes in a "right to free speech" that allows you to say anything you want, any time you want. For example, a lawyer can't divulge confidences his clients make to him because somebody offers to pay him for it. As an IT professional for many years, I've often

        • by pnutjam (523990)
          There WAS a difference, conservatives need to stand up and make sure there is a difference tomorrow.
      • by pugugly (152978)

        The Lifecycle of Conservative Politics.

        Step 1) Conservative voters fight tooth and nail to get people that espouse certain libertarian/objectivist/fundie christian philosophies elected to office/appointed to lifelong judicial positions.

        Step 2) These people do . . .exactly what the philosophies they espoused implied they would do. The results are entirely predictable, devastating to the economy, destructive to the environment, creating about one millionaire for every few thousand people it drives into povert

      • You may want to look at your party John Roberts has NEVER voted against a corporation's interest.

        • I'm actually trying to draw a distinction between the Republican party, and conservatism.

          The Republicans have gone so insane that, sadly, I find myself far closer to Libertarians than Republicans.

    • by Kupfernigk (1190345) on Friday June 24, 2011 @09:18AM (#36554224)
      In the US today, "Liberal" and "Conservative" seem to have reversed meaning. You would expect a Conservative to say "this (data mining) didn't exist when the Constitution was written, and therefore should come under States Rights. And, anyway, we should be very wary of allowing any part of the community to bring about social changes that may affect the majority in ways we can't yet predict". And you would expect a Liberal - i.e. a free-market, laissez-faire capitalist - to say "if they want to do it let them, and then if it goes wrong someone can sue."

      But in fact "Conservative" now seems to be used to mean "someone who sells the intent of the Constitution to the highest bidder", and "Liberal" means someone who wants the Government not to interfere so much in people's private lives and their privacy - which I imagine the Founding Fathers would be in favor of.

      In the late 80s it was the Democrats - Lloyd Bentsen in particular - that were in bed with Big Oil. Now it's the Republicans. Why the switch?

      • by iluvcapra (782887)

        Lloyd Bentsen was a Texan. It's sort of complicated, but in the late 80s/early 90s the Republican leadership in the House prevailed on conservative Democrats in Texas and the rest of the south -- people who were very conservative but were Democrats for historical reasons -- to switch to the Republican party and/or to withhold their votes for the Democratic Speaker when organizing the House. This effort gave the House to the Republicans in 1994, and the decades-long Democratic control of the House has be

      • and "Liberal" means someone who wants the Government not to interfere so much in people's private lives and their privacy - which I imagine the Founding Fathers would be in favor of.

        Not really, since I doubt there's anyone in the government who falls under that description, but that word sure gets thrown around a lot anyway...

      • by dkleinsc (563838)

        That's because "Liberal" and "Conservative" are basically meaningless.

        Consider, for instance, the recent issue of the US war in Afghanistan. The 'liberals' Barack Obama, Hillary Clinton, Nancy Pelosi, and Harry Reid support it, along with the 'conservative' John McCain, John Boehner, and Mitt Romney. Opposed to the war are 'liberal' Dennis Kucinich and 'conservative' Ron Paul. Or another example: the Sierra Club really liked self-described conservative Senator Bob Smith (R-NH) back when he was in office, be

      • But in fact "Conservative" now seems to be used to mean "someone who sells the intent of the Constitution to the highest bidder", and "Liberal" means someone who wants the Government not to interfere so much in people's private lives and their privacy - which I imagine the Founding Fathers would be in favor of.

        Actually, it is much simpler and sadder than this - in the US these definitions are really used for social issues only. Both major political parties are wings of the multinational corporate government. The conservative and liberal tags no longer denote any difference of opinion on most real issues and both sides are going to prefer larger and stronger federal governments. These monikers simply give an idea on where a person might stand on something like abortion or gay marriage. To find differences of o

      • by zzsmirkzz (974536)
        Here is my understanding of the difference between "Liberals/Democrats" and "Conservatives/Republicans" in the US. Since they are always treated as synonymous here, I will do so.

        Democrat: Wants Big Government interfering with individual citizens economically via taxes (attacks financial freedom). Their apparent end-goal is for every dollar earned to be taxed and then have the Government ration out all services. Essentially, Communism/Communists.

        Republicans: Want Big Government interfering with individual
      • by Darinbob (1142669)

        Because these have always been relative terms. Even left wing and right wing are subjective, as these terms were initially describing post revolutionary French legislature which just doesn't apply very well to other times and countries.

        In the recent past in the US you could see that conservative legislators tended to be mostly influenced by and favorable to corporations, whereas Liberal legislators instead favored or were influenced by unions. These has changed in the present mostly because of extremely w

    • The two "fairly liberal" justices Bush replaced were the ultraconservative Chief Justice Rehnquist and the fairly conservative O'Connor. Since this was a 6-3 ruling with Obama appointee Sotomayor in the majority, I'm not too sure either of them would have voted differently if they were still there, and I'm pretty sure it wouldn't have made a difference if they did.
    • Re: (Score:2, Insightful)

      by Anonymous Coward

      http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London

      "On June 23, 2006, the first anniversary of the original decision, President George W. Bush issued an executive order instructing the federal government to restrict the use of eminent domain '...for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.'"

      Sounds like Bush didn't entirely agree with it.

    • I see most of them a just being 2 sides of the same coin. The "conservatives" tend to favor the corporations more and the government when it comes things that relate to the military industrial complex, where as the "liberals" tend to favor the government more and the corporations if they are the right type. In both cases neither one favors the individual. I hated the Kelo v. New London case as well as the Citizens United case. I feel Kelo v. New London was just decided wrongly, where as I feel that Citizen
      • I see where you're coming from, but I think your thoughts need to be taken just a little further. It's not that conservatives (me being one, for full disclosure) inherently favor corporations. It's that we generally feel that free enterprise is a good thing and that when corporations are allowed to thrive, they create wealth which creates jobs which, in turn, makes life better for the individual (and obviously for the higher-ups in the corporations, probably to a much higher degree). That's an over-simplifi
  • Of course (Score:3, Insightful)

    by Anonymous Coward on Friday June 24, 2011 @08:59AM (#36553970)

    Where individuals and corporations collide, in the US the corporations win.

  • by SpryGuy (206254) on Friday June 24, 2011 @09:04AM (#36554036)

    This after Citizens United and several other recent decisions...

    Man, Scalia, Thomas, and Alito are three of the worst things to happen to the Supreme Court in recent memory. Ugh.

    • This can be positive, though. If we think in terms of government, it helps push for more open government and governmental data as a freedom of speech issue, even in cases where certain things are "copyrighted" by governments, such as NYC subway maps.

  • Makes me wonder if these judges have heard of things such as maybe HIPA? Whatever happened to that whole privacy of medical records idea?
    • by Anonymous Coward

      HIPAA is specific in allowing information to be gathered for research as long as identifying information of the patient is removed. Since this involves the names of the prescribing doctors and not the patients, HIPAA doesn't really apply.

      • by Khyber (864651)

        From the name of a prescribing doctor I have the potential range of patients.

        From the potential range of patients, that can be narrowed down by medication.

        From medication, it's usually not too difficult to find a person, because many people will talk about that kind of stuff openly, or someone that knows the situation will, and with today's internet, we've seen that people blab all too often, myself included.

        All it takes is a little logic and research, and you have violated someone's medical privacy.

        • From the name of a prescribing doctor I have the potential range of patients.

          From the potential range of patients, that can be narrowed down by medication.

          From medication, it's usually not too difficult to find a person, because many people will talk about that kind of stuff openly, or someone that knows the situation will, and with today's internet, we've seen that people blab all too often, myself included.

          All it takes is a little logic and research, and you have violated someone's medical privacy.

          That is the worst misunderstanding of HIPPA I have ever seen. Your strawman failed with the very first statement.

          • by Khyber (864651)

            There is no strawman here. This is a simple exercise, one which I have tested and was EASILY able to find references to medications and my own brother (a particular steroid, in fact.)

            I think your name does you justice. Perhaps you should actually try my idea before dismissing it as something it isn't.

    • by will_die (586523)
      That does not matter because the data is already be sold, the court just said you cannot the speech of a sub-set; limit it for all or none.
  • by AarghVark (772183) on Friday June 24, 2011 @09:18AM (#36554226)
    Now that the gloves are off and they can mine data to their hearts content, what is to prevent them from using the data for more than just advertising? I think some people will start seeing letters like this in the future from their insurance companies: "Dear Sir/Madam, due to the number of your relatives receiving (cancer/alzheimers/diabetes/etc) treatment, we are electing to no longer cover you due."
    • by Twon (46168)

      They'd have to figure out who the insured is, first, as well as their relatives are -- I'm not sure it'd be impossible with a sufficient quantity of data, but the patient's name gets stripped out of the data in question. I think this is a bad idea for other reasons, but at least there's that. FTFA:

      When filling prescriptions, Vermont pharmacies collect information, including the prescribing physician's name and address; the name, dosage, and quantity of the medication; the date and place where the prescripti

    • by bws111 (1216812)

      That would be discrimination based on genetics, which is against the law [nih.gov].

  • Now what I wonder is how this impacts the Roe V Wade decision as I am not a legal scholar nor do I pretend to be one on /. but to me it seems that this ruling clashes because of the right to privacy which was found in that decision. The Vermont law wasn't outside that right, but supposedly violated the free speech rights of the corporations. It is rather sad commentary that it seems corporations now have more rights than individuals. I am not trying to troll but if one really wanted to stir the pot with this ruling just mention that it would allow data mining of individuals who have taken the morning after pill or other similar ones (I don't know if they exist).

    I find the law to be fascinating being that I am engineer. this is mostly due to how it seem the law claims to be fair, and only concerned with the facts, but never seems to be. Additionally I get the impression that there really isn't much logic in how justice is handed out as there are very different ruling from different courts on the same issue.Maybe I should submit my resume the next time a spot opens up on the U.S. Supreme Court.

    • I think the key is the de-personalized data that is being used. We can surmise that they were not talking about Patient X using Medication Y showing up in an ad. While that's not analogous, there probably is a yet-to-be defined area between the areas of doctor-patient privacy, personal rights, and information first amendment rights. I doubt it will ever be totally settled except on a case-by-case basis.

  • by erroneus (253617) on Friday June 24, 2011 @09:35AM (#36554512) Homepage

    Oh that explains a LOT. So every time a legislator or a judge sells a law or a ruling, it's free speech they are exercising... on all our behalves. And of course, by this standard, laws against prostitution are all unconstitutional as their selling themselves is protected by the first amendment as what they do is speech and not conduct.

  • The courts are there to enforce the letter of the law. Their response to this sort of thing is generally the same, "If you don't like the law, change it." In the past, they've interpreted "Freedom of speech" as having potential limitations, but with this court I'm pretty sure you could get away with yelling "Fire" in a crowded theater.

    Limiting speech in general would be a contentious issue, and it would be a tricky thing to get right. I think we should expand on the whole "A person has the right to be sec

    • by Nimey (114278)

      No. Enforcement of the law is left to the Executive Branch. It is the job of the Judicial Branch to /interpret/ the laws and ensure that they are in keeping with the Constitution.

  • You got a lot of Slashdotters praising hacker groups for exposing all sorts of information. However when there is a legal sharing of information it is just horrible.

    Data mining isn't bad it is about collecting data. Business Intelligence is processing the data and its trends to solve issues. Ok yes for the case Pharma is using it to sell to doctors. They are going to do that anyways, now they can do it more directly and cheaper, and that cost savings does get passed down.

    And for you IT people wanting co

    • Yes, Slashdotters are largely using double-standards in regards to Wikileaks.

      • by ukemike (956477)

        Yes, Slashdotters are largely using double-standards in regards to Wikileaks.

        Hardly. In one case you have governments that are supposed to serve their people and don't; that reflexively classify everything mostly to hide the foul deeds of people in government from the people. In this case some sunshine is a good thing. It is beneficial to people and to societies to know what their governments are up to.

        In the second case you have massive corporations that have access to the most intimate details of all our personal lives. They wish to use this data for profit. This almost al

        • by bws111 (1216812)

          Oh, 'massive corporations' - scary. Gee, I wonder what makes them so 'massive'. It surely is not the thousands or millions of people that make them up, is it?

          • by ukemike (956477)

            Oh, 'massive corporations' - scary. Gee, I wonder what makes them so 'massive'. It surely is not the thousands or millions of people that make them up, is it?

            The people who are employed by a corporation do not "make up" that corporation anymore than the corporate headquarters building "makes up" that corporation. The employees are entirely incidental and replaceable, so is the building. The corporation is a person in and of itself under our current law. The size or power of a corporation has much more to do with it's ability to exert power in the public realm, to bend our society to its interests at the expense of mine. The corporation has all the rights t

            • by bws111 (1216812)

              Your post makes no sense. You talk as if a corporation is some magical sentient being, with the will and power to act independent of the people involved in it. The people involved in a corporation have exactly the same rights and responsibilities as you do. What additional rights do you think they gain, or responsibilities they lose? Of course a corporation can't be arrested and thrown in jail - it has no ability to act. How can a corporation possibly kill someone? The actions of the PEOPLE in a corpo

              • by ukemike (956477)

                How can a corporation possibly kill someone? The actions of the PEOPLE in a corporation may result in someone's being killed, and if their actions rise to the level of a crime they can and will be arrested. The thing that people value most is liberty, so if they commit a crime we remove their liberty. The thing that corporations value most is money, so if the corporation as a whole commits a crime we remove it's money.

                For decades W.R. Grace Inc. mined vermiculite from a mine in Libby, Montana. There is ample documentary evidence that they knew that the vermiculite was contaminated with tremolite asbestos. For decades they concealed this fact from their workforce and the inhabitants of the town. Many people died of asbestosis, lung cancer, and mesothelioma. That is how a corporation kills people.

                No criminal charges were filed since there was not enough evidence to convict any one particular living person. Grace

    • Repeat after me:

      "The open and free sharing of information regarding publicly elected officials, public government offices, and actions taken in the name of a country's citizenry by it's public: good.
      The open and free sharing of information regarding private individuals, private individuals' habits, lifestyles, or time schedules, and private individuals' actions: bad."

      Do you see the difference? The issue is not a binary, "Share all data, hide all data." The issue boils down to who we, as a country, w
  • All I do is win-win-win no matter what! I got money on my mind, I can never get enough!

  • by will_die (586523) on Friday June 24, 2011 @10:07AM (#36554968) Homepage
    Again a very poor summary and let me predict that most of the comments on this board will be from idiots who think they understand the decision from the summary.
    The decision said that states cannot limit the speech* of companies that purchase info from pharmacies to one specific group, in this case manufacturers of drugs. If they want to limit the speech it has to be to everyone not just one class.

    *There have been previous longstanding decisions that say that some data is free speech and cannot be limited by the states or federal government.
    • Having RTFA just once, what I find most disturbing is that pharmacies can sell the information of what doctor is prescribing what drug.

      This eases the opportunities for pharma bussiness of going to doctors and telling them "If we receive x prescription of our product from you, we will pay you a % as our agent. And we do not care if the drug is what the patients really needed or not, we only care about units sold."

      The rest of the data is mostly harmless (it needs to be linked to medical history to retrieve th

  • by jvkjvk (102057)

    The Supreme Court and Big Business want information to be free?

    So be it.

    Regards.

  • "I'm sorry ma'am, we don't call in prescriptions to that pharmacy, they sell the prescription data to pharmaceutical companies and we disagree with that policy. May I suggest Pharmacy Y, it's the next closest to your home?"

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