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Data Mining: A Look Into the Future of Privacy Regulation

Jordan A. Finfer

You are being watched. Every time you access the internet and peruse the halls of the world’s information database you leave a trail. This trail is bits of data, identifying where you have been and what you have looked at. This information is also being collected and used to predict where you will go and what you will look at. This practice is referred to as data mining and its practice has become ubiquitous among companies (and governments) with savvy marketing/internet teams. Used properly, this information provides a great service to the consumer and vendor alike, and has untold potential to improve the way we interact.

Anyone who has followed the Edward Snowden affair is not surprised by the revelation that you are leaving bits of data to be collected and analyzed when you access the internet. Despite the media attention that the practice of data mining has received of late, the law has yet to really sink its teeth into the obvious privacy implications that arise from its practice. The following will briefly discuss the privacy issues the law has addressed regarding data mining, and then suggest what the future of the law may hold.

In Sorrell v. IMS Health Inc., the United States Supreme Court found a Vermont statute that sought to prevent pharmaceutical companies from using information data mined from databases that showed the medications physicians prescribed, violated the first amendment. The Court’s ruling was based in large part on the fact that under the statute the State of Vermont granted itself access to the information so it could promote generic medications, but at the same time barring pharmaceutical companies from promoting their medications. There are two major lessons from the Sorrell decision. First, that efforts to protect data mined information will be subject to first amendment scrutiny, and thus must be consistent with the established precedents on first amendment protections. Second, that the law has a ways to go on addressing the myriad of privacy implications brought on by data mining.

The Sorrell court speculated on the future efforts to protect information obtained by data mining. Information that is data mined may be protected by statutes if those statutes are more even in their bar of the use of that information. Meaning, if the State of Vermont prevented its use of the medications physicians prescribed, in the same manner it prevented pharmaceutical companies, the statute may have been constitutional. The bigger issue for DiMonte & Lizak clients and consumers at large is: what about information you leave behind when you are on the internet looking for something as innocuous as new shoes (as opposed to medical related information). It is likely that the law will develop some protections for consumers, unlikely to prohibit the use of data mining entirely, but rather limiting how that information is used. Companies will likely be permitted to use information about things you like, to offer you other things you may like. This already occurs; when you shop for a Brooks Brother’s suit, you begin to see advertisements on your web pages for other suit makers. The limitations will likely occur within specific industries that have a higher propensity to use the information to commit fraud against its consumers. Another possibility is that certain web pages, and companies, may offer its consumers a way to opt-out of their information being data mined; this could be provided as a way to enhance a company’s relationships with its customer base.

The practice of data mining is here to stay and if used properly it provides a wonderful service to the world. As the practice further develops, and flaws with its use arise, the law will react and serve to instill standards, ideally permitting data mining to continue to provide benefits, while not impinging upon your constitutional rights.

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