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Economics and Privacy If Data = Speech

Economics and Privacy If Data = Speech. Professor Peter Swire Ohio State University/Center for American Progress U. Colorado Law School Conference of Law & Economics of Privacy December 2, 2011.

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Economics and Privacy If Data = Speech

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  1. Economics and Privacy IfData = Speech

    Professor Peter Swire Ohio State University/Center for American Progress U. Colorado Law School Conference of Law & Economics of Privacy December 2, 2011
  2. The winning lawyer in IMS Health v. Sorrell:“It casts serious doubt on either privacy or economics as a justification for any law aimed at stopping targeted or behavioral marketing”BNA, Sept. 5, 2011
  3. Data = Speech? This limit on marketing “imposes a speaker- and content-based burden on protected expression” Speaker = law focused on pharma marketers Content = the data used for marketing That justifies “application of heightened scrutiny”
  4. If a Broad Reading … Case filed that FCRA unconstitutional because it limits speech = data FCRA rule prohibits credit reporting of data over 7 years old Speaker based: credit reporting agencies Content based: true data in credit histories
  5. Implications of Heightened Scrutiny Compelling or substantial state interest Opinion discusses “privacy” but emphasizes benefits of pharma marketing Narrowly tailored Judge’s role to strike down any “extra” limits on data, with burden on state to build a record Announced skepticism of “speaker” and “content” based limits on marketing Speakers – hospitals, banks, telecoms? Content – psychiatric records, credit card records, to/from on calls and emails?
  6. Role of Economics if Data = Speech Might try to document compelling/substantial state interest in privacy Might try to build record that no “extra” limits on data If heightened scrutiny is really applied, though, then wide range of speaker- and content-based limits are subject to serious attack
  7. Responding to the Broad View Sorrell not “privacy” – corporate practitioners Dumb statute, classic commercial speech Data = speech means these are surprisingly in doubt: Limits on doctors selling patient records Limits on lawyers selling data about clients Limits on phone companies selling my list of calls BUT, Court said HIPAA different because only a “few narrow ” disclosures (query their knowledge of HIPAA) Maybe state can regulate the contract with consumer, with conditions to protect privacy in downstream use
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