What Does Sorrell v. IMS Health Have to Do Background Checks?

Nick Fishman

The U.S. Supreme Court has agreed to hear a First Amendment Case out of Vermont (Sorrell v. IMS Health) where the state questions a healthcare company’s right to buy prescription drug data from pharmacies and use it for commercial purposes.  And believe it or not, the National Association of Professional Background Screeners (NAPBS) has written an amicus brief in support of IMS Health.

Now, why is the background screening industry getting involved?  It is not as “telling” as Bloomberg’s Jim Edwards opined earlier this week.  On the surface, I don’t think that those of us that conduct background checks have an official position on whether medical records should be purchased by pharmaceutical companies so that they can target potential customers.  What we are focused on is their First Amendment right to do so.  If the court rules in favor of the state, it creates a legal precedent for curbing the use of any database, even those that are used to conduct employment background checks.

Why?  The firm that drafted our brief, Meyer, Klipper and Mohr, PLLC describes the nexus as such.

Databases can be “mined” for a wide variety of enormously useful and valuable purposes—for example, in order to locate witnesses, trace family genealogy, discover a politician’s ties to unsavory characters, uncover environmental hazards, locate blood, bone marrow or other organ donors, and assess the risk of natural disasters.

Their contents are the building blocks of discourse, education and learning in a free society. Like newspapers and other traditional print publications that collect and disseminate information, databases are deserving of the full protection of the First Amendment whether they contain information in public records information lawfully gathered from private sources, or combinations of both kinds of information.

Amici and others collect public record and other lawfully available information by querying businesses, visiting courthouses and other record depositories, and interviewing private parties and public officials.  Their publications enable businesses, scholars, journalists, law enforcement agencies, and others promptly to obtain accurate, comprehensive information for a wide variety of often essential purposes such as the investigating of political corruption, screening job applicants, locating parents who are defaulting on child support obligations, doing legal research, verifying that borrowers have sufficient assets to collateralize a loan, evaluating insurance risks, analyzing the state of the U.S. economy, and obtaining information about the health of a local business community.

The ability of databases to provide that information is greatly enhanced by the use of digital technology, which has made it possible to aggregate and explore information in ways that were previously cumbersome or impracticable.

The bottom line here is that if IMS Health is denied their First Amendment right to use this information, there are a number of other industries that might also suffer the same fate.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
Nick Fishman
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