Andrea M. Matwyshyn, Talking Data

Andrea M. Matwyshyn, Talking Data

Comment by: Andrew Selbst

PLSC 2013

Workshop draft abstract:

In the wake of Sorrell v. IMS Health, open questions remain regarding the limitations on privacy regulation imposed by the First Amendment.    A conceptual classification problem that is simultaneously also visible in other bodies of law has crept into the intersection of privacy and the First Amendment:  confusion over when (or whether) a data aggregator’s code (and its attached information) is a type of expressive, socially-embedded act of communication or a type of free-standing communicative yet regulable “product.”   This article argues that although the statute at issue in Sorrell failed First Amendment scrutiny, privacy regulation which restricts onward transfer of databases of consumer information – even transfers of anonymized data – if carefully crafted, can pass First Amendment scrutiny.    Through blending doctrinal First Amendment principles with the fundamental tenets of human subjects research protection imposed by Congress and the Department of Health and Human Services,  this article explains the doctrinal limits of the First Amendment on future consumer privacy laws and offers an example of a possible First Amendment-sensitive approach to protecting consumer privacy in commercial databases.