TOC Framing Justice: open letter to Justice Thomas Your Turn

May 3, 2011

Dear Mr. Justice Thomas,

True to your reputation, you have not showed your hand during the recent oral arguments about the right of the state of Vermont to limit "the uses of a doctor's prescription records for marketing", as Natasha Singer put it in summary (*).

Is it because it would have been a waste of time in such a clear cut case? For despite her summary, Natasha Singer's reporting shows the disputed statute (1) imposes no such limit. Adam Liptak writes it only "forbids the sale of prescription data to market drugs and bars drug companies from using the data to market drugs, unless the prescribing doctor consents" (**). The case is about doctors' control over their own professional profile.

With your forbearance, as such ventures are in disrepute in this country, who would condone online poker companies, were they to discreetly sell their users' hands in real time without asking players for their prior consent? While in order to fulfill their avowed role, such online companies take possession of the corresponding data, this fact couldn't even begin to justify its wanton repurposing. Possession is not the same as ownership.

Or perhaps you disapprove of the pyrotechnics of oral arguments, in which your colleagues may be too prompt to indulge and risk showing bias and framing Justice as they speak. "At times [the three senior justices] seemed a juggernaut bearing down on Ms. Asay", who represented Vermont in the case. Chief Justice Roberts even suggested Vermont was "censoring what [physicians] can hear to make sure they don't have full information".

Or you may prefer to reserve your judgment as you listened carefully to what was being said in the heat of the moment. Indeed barely above an hour of sparring (***) revealed a lot. A lot now rides on the outcome you are called to shape together with your more vocal colleagues.

The first observation you must have made is how highly hypocritical both parties are. They mainly speak the truth when they attack each other.

Vermont gives physicians greater control over the use of their prescribing profiles. But, as Chief Justice Roberts sneaks in, although Wermont takes upon itself to judge what uses to disallow, " it's an interested party" with the explicit goal of containing healthcare costs. Mr Goldstein, representing IMS Health, is correct in pointing out "this statute says every use of the information is just fine, except this one", the basis for his client's activity.

When Justice Scalia asks "for all other uses you don't require the doctor's consent, right?" to Ms Asay, her evasive answer stresses rather than covers her weakness. And Justice Alito to insist "what about the doctor who didn't want the information to be distributed to anybody [...], does the law give [...] the doctor that option?". Mr Kneedler, speaking for the Department of Justice in support of Vermont, can only confirm "it does not".

On the other hand it is hard to see how IMS Health can claim with a straight face its First Amendment rights are being abridged. Justice Kennedy pressing her to acknowledge Vermont wants to contain costs by means of "regulating speech", Ms. Asay confidently declares "it's not a restriction on speech because it's a restriction only to the access to the information that the pharmaceutical companies would like to use" and submits such access is subject to superior rights. Ignoring "their competitors' trade secrets" restricts their speech. Why single out access to physician records?

Hadn't she been hobbled by the self interest of Vermont, Ms. Asay could have added that the statute does not even prevent the pharmaceutical companies from accessing any information at all. It only forbids the pharmacies to self-appoint themselves as a sales channel and proceed to rob their unvoluntary data suppliers using the well known logic that, since I can, I may. Who prevents paying the physicians themselves for their profiles?

If you find this disingenuous because doctors will be wary to give, let alone sell, their own professional information for privacy and ethical reasons, ask an intern to contact ePrio. You will learn how physicians can, without compromising either, manage prescription-based targeting to their benefit.

What is disingenuous is for IMS Health to pretend it fights for the freedom of speech of pharmaceutical companies when its sole interest is to preserve its very business model as the favored intermediary between pharmacies and pharmaceutical companies.

On the other hand you have not failed to notice a few good points made went a long way to clarify the underlying issue, i.e. physician privacy.

When it concerns data rights in the Information Age, privacy or, as I call it, eprivacy can be approached from two perspectives. As Justice Scalia remarks to Ms Asay, "when you say "privacy", you don't mean the prescriber's concern that people will know that he prescribed certain drugs [...] right". Indeed eprivacy is not only a protection for one's secrets, it is also about money through the control of one's own negotiating hands.

As Justice Ginsburg wonders about a physician's prescriptions, "whose record is it? Is it the pharmacist's record the way goods, stock in trade, would be?" Were possession equivalent to ownership, her question would be moot. For public safety, the pharmacy must and do possess such a record. Yet is has no title to it the way it does with its own drug purchase profile. Does it want its suppliers to sell this profile without its consent?

Justice Sotomayor amplifies, "why can't the State say, your desire to enter into a transaction in which you're doing just that transaction and not others is something we can protect?" Indeed forbid bundling a consent waiver with some other transaction the consenting party cannot refuse and you have the practical remedy for reestablishing a level field on the marketplace of confidential personal data.

When Justice Kagan reasonably asks "how about the pharmacy can't sell [physician prescriptions] to anybody", meaning without the physician's consent, Mr Goldstein is prompt to call this issue one of "commercialization", unrelated to "privacy" and beneath the concern of government. As he proudly declares, "we have a capitalist economy". Please Mr Justice Thomas, take him to his word and give him his wish.

Find for IMS Health and you create a precedent which says it is all right to pick the pockets of confidential data providers. Observed data being "commercialized" by observers rather than the observed is not Adam Smith's invisible hand. As Justice Breyer would tell you, a capitalist economy, where free markets further economic growth, is not the same as the capitalists' economy where rogues skim the profits and oi polloi reap the risks.

Now you grasp what is at stake. The Vermont statute is far from perfect but, despite this, despite the biased intent of the State, finding for it will achieve a useful precedent towards an information economy for the Information Age based on trade rather than plunder, i.e. a capitalist economy.

Some of your colleagues may try to question how the economy can benefit if the first and clear result of finding for Vermont is to destroy the value of IMS Health and other data aggregators. What little faith in fair and free markets! For aggregating a doctor's profile is one thing, best left to the doctors themselves, aggregating doctors is another. IMS Health would soon retool to focus on the latter demand for which it remains competitive.

At the other extreme others may worry about patients too. As Natasha Singer quotes Professor Latanya Sweeney (****), the current system "ends up building a detailed prescription profiles of individuals". True but better reserve this separate issue for the next step. In fact, once aggregated over several thousand patients on average, a physician's prescription profile makes patient re-identification all but impossible. Using ePrio's approach to compute this profile under the authority of the very physician who already store these patients' records would create no new risk for the patients.

And so, depending on how the Court frames its opinion, it may frame Justice or take a sure step towards the legal framework needed by our Age.

Respectfully submitted.

Philippe Coueignoux

  • (*) ....... A Fight Over How Drugs Are Pitched, by Natasha Singer (New York Times) - April 56, 2011
  • (**) ..... Justices' Debate Turns To Privacy For Doctors, by Adam Liptak (New York Times) - April 27, 2011
  • (***) ... transcript of the oral arguments of Sorrell v. IMS Health, US Supreme Court - April 26, 2011
  • (****) . Data Privacy: Put to The Test, by Natasha Singer (New York Times) - May 1, 2011
  • (1) the Vermont statute in question is the Confidentiality of prescription information law, passed in 2007
  • (added on 05/15/2014) note: the US Supreme Court decided against Vermont
May 2011
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