'Informing and Reforming the Marketplace of Ideas: The Public-Private Partnership for Data Production and the First Amendment' (Uni of Wisconsin Legal Studies Research Paper No. 1189) by Shubha Ghosh notes that -
In 2011, the Supreme Court held that the First Amendment applied to the commercialization data in Sorrell v. IMS. While the case at issue dealt with state regulation of pharmacy data, the Court's holding extends to regulation of data in many contexts from government created databases to search engines and social media sites. This Article contains a critique of the decision, emphasizing that the majority and dissent take polar opposite positions without adequately addressing the normative foundations for data regulation and the institutional arrangements within which such regulation occurs. The critique provides a normative framework for the free flow of data and information that takes into consideration classic liberal principles, autonomy principles, and fairness. This normative framework is used to analyze the regulatory structures within data commercialization occurs, including intellectual property law, state law on open records, and information access initiatives. The Article offers three examples drawn from disputes involving tax assessment data, the data transparency projects of the Obama Administration, and protection of databases in Europe, to illustrate the issues raised by the Sorrell decision.
Ghosh concludes that -
As the Supreme Court's analysis in its 2011 Sorrell decision, the marketplace of ideas is grounded in the free flow of data and information. While the majority viewed this marketplace in laissez-faire terms, the dissent recognized that the marketplace for data is created through a network of government regulations and policies. Unfortunately, however, neither the majority nor the dissent addressed adequately either the normative framework for the marketplace of ideas or the regulatory structures that make the generation and exchange of data possible. This paper fills both of those gaps.
The normative framework for the marketplace of ideas requires a consideration of class liberal principles with regards to freedom and rules, of autonomy with respect for individual notions of privacy, and of fairness with respect to distribution across individuals. The First Amendment as a check on communication of data and information needs to adequately balance these three notions with more weight applied to one or two of these principles depending upon the context. The majority in Sorrell emphasized the concept of autonomy by deciding in favor of a laizzez-faire [sic] view of the marketplace of ideas. The dissent leaned towards the classic liberal position with an emphasis on the market harms that arise from a concentrated market for data arising from the market power of pharmaceutical companies in targeting doctors. Neither adequately balanced the principles nor fully considered fairness to patients and consumers in the analysis. Such consideration may have produced a more nuanced set of decisions, as opposed to ones that turned on the dichotomy between free markets and regulation.
Neither majority nor the dissent addressed the network of government regulation that makes communication of data possible. The dissent came closer to acknowledging this network but focused largely on food and drug regulation. As set forth in this paper, however, the network is more complex, consisting of intellectual property laws as well as state and federal regulations of information provided to and used by administrative agencies. This set of regulations give rise to a host of compelling legal problems involving the use of data from the sale of tax assessment records to the open government initiatives under the Obama Administration. This paper details this set of information and shows that the free speech concerns raised in Sorrell may be quite extensive. Given the varied contexts for the commercialization of data, the laissez-faire approach adopted by the majority may not do justice to the range of regulatory issues and governmental interests.
How government can both create and regulate the dissemination of data and information will continue to be a policy issue. Private companies see data as a resource for exploitation at the same time that data is generated through the panoply of transactions and regulations that define our lives. The Sorrell majority decision leads to an unregulated market for data. This paper has made the case that the dissent's views may become more salient once we recognize the complex web of governmental interests that inform data commercialization.
