The Beef Jerky Business


Kudos to American Business Media for providing a heads-up on an important legal development relating to data publishing. Here's the story (I'll keep the legal details short - my holiday gift to you!):

A while back, both Vermont and New Hampshire passed laws severely restricting the collection and sale of data on drug prescriptions. Since that is the primary business of data behemoth IMS Health, you will not be surprised to learn that IMS Health challenged these laws in federal court. The federal First Circuit (covering New Hampshire) court ruled against IMS Health, drawing the now notorious comparison between data producers and producers of beef jerky:

The plaintiffs, who are in the business of harvesting, refining, and selling this commodity, ask us in essence to rule that because their product is information instead of, say, beef jerky, any regulation constitutes a restriction of speech. We think that such an interpretation stretches the fabric of the First Amendment beyond any rational measure

Just to keep things interesting, the federal Second Circuit court, which covers Vermont, has now rendered a decision that goes in the opposite directions and supports IMS Health:

Vermont here aims to do exactly that which has been so highly disfavored-namely, put the state's thumb on the scales of the marketplace of ideas in order to influence conduct ... In other words, the statute seeks to alter the marketplace of ideas by taking out some truthful information that the state thinks could be used too effectively.

 

These cases and decisions turn on some nuanced points, but more broadly what is taking shape is a view as to whether data publishers are entitled to First Amendment protections. If so, the ability of any level of government to regulate what types of data could or could not legally be collected or sold would be highly restricted. Arguably, this could also impact data gathered for online ad targeting and other related purposes. In short, this  is big.

 

Split decisions between Circuit Courts are often resolved by the U.S. Supreme Court, and there is already some movement in that direction for these decisions. It's important that we all stay alert to this potential Supreme Court review and make our voices heard on this important issue.

 

In the meantime, pass the Slim Jims!

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