Thursday, January 5, 2012

Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy

Ashutosh Avinash Bhagwat, University of California, Davis - School of Law, Dec. 19, 2011

From the abstract: "I consider here an important issue that was raised, discussed, but ultimately avoided in IMS Health: what restrictions does the First Amendment place on the government’s ability to limit or prohibit the disclosure of pure data, in order to protect personal privacy….While the IMS Health majority did not decide the data-disclosure issue posed in the case, it did address it in ways that strongly suggest the six justices in the majority would treat such disclosures as fully protected speech. Moreover, the analysis provided in this article demonstrates that the majority’s hints are fully justified by current Supreme Court doctrine. As currently interpreted by the Court, the First Amendment provides full constitutional protection to disclosures of even personal data, and so restrictions on such disclosures must survive strict scrutiny, a standard that has proven almost impossible to satisfy in the First Amendment context. As a consequence, under current law most statutes seeking to protect privacy by prohibiting data disclosure are likely to be invalidated….I suggest that this result reflects a serious weakness in current doctrine, which is the failure to recognize that factual speech is distinct from, and requires different constitutional analysis than, the sorts of political and cultural speech that have traditionally been the mainstay of First Amendment litigation." Read more