The rights to sell information and possess technologies that protect your privacy will conflict.
— Michael R. Nelson of the White House Office of Science and Technology Policy, February 1995
If Orwell were alive today, he’d be concerned that Big Brother isn’t always the government. Sometimes it’s a drug company peering over a doctor’s “shoulder and into his prescription pad” in the form of “a letter from a drug representative.”
So reports the Washington Post (okay, not the Orwell reference) in an article about the datamining of prescription information that you thought—incorrectly—was a private matter between a patient and a doctor.
The situation is even more Orwellian than that.
Last year, New Hampshire became the first state to try to curtail the practice, but a federal district judge three weeks ago ruled the law unconstitutional.
Okay, it’s not quite Freedom=Slavery, but it’s a little bit like the free speech rights of dataminers put us under the thumb of the drug companies. When Mike Nelson noted more than a decade ago that if we’re to have robust free speech rights, we have to sacrifice some of our privacy, this isn’t what he had in mind. He was thinking, for example, that if we’re to be able to take photographs freely in public, then people who thought they had more privacy than they do would be in them.
You can understand the reasoning of the court. I’m sure it’s something like this: Dataminers are publishers, albeit of data. And there’s some truth to that. What’s less clear is where the data is coming from. Is it pharmacists? If so, we could close the flow of data right there. The article doesn’t say, but does say this:
Data-mining companies and the pharmaceutical industry argue that the practice has value far beyond the corporate bottom line. The information helps companies, federal health agencies and others educate physicians about drugs, track whether prescribing habits change in response to continuing medical education programs, and promote higher-quality care, they say. They stress that patient names are encrypted early in the process and cannot be accessed, even by the data-mining companies.
So the drug prescription information is being collected for epidemiological and other more justifiable medical reasons, and then mined for its value to drug company marketers. Interestingly, the prescription data seems to include only the barest of identification data about the physician—the entity the drug companies want to market to. The rest of the needed information comes from the AMA itself.
The American Medical Association, a larger and far more established group, makes millions of dollars each year by helping data-mining companies link prescribing data to individual physicians. It does so by licensing access to the AMA Physician Masterfile, a database containing names, birth dates, educational background, specialties and addresses for more than 800,000 doctors.
This is hardly the first time dataminers have been given new rights via some bizarre twist on the First Amendment. Drivers’ license data has long been in the hands of data companies because driving is a privilege, not a right, a distinction that conveniently allows the 50 states to make millions of dollars selling our data, including, for many states, our Social Security numbers along with our addresses and dates of birth. Voter registration data is also sold by many states (see for example, here and here).
So the problem needn’t be with the First Amendment, even though that’s the thrust of the Washington Post’s report. Before the First Amendment enters into it, there are the organizations we initially entrust with valuable data, who then turn around and sell our privacy for a few million dollars. We can start with the 50 states. Sure, they’d have to raise our taxes a few pennies each to make up the miniscule revenue shortfall. So the real question is, what value do we put on our privacy?