If you are a resident of California, rejoice, because the Supreme Court let stand a decision in the 9th Circuit finding that SB 1 (California’s Financial Information Privacy Act) was not preempted by the Fair Credit Reporting Act. In plain English, this means that California residents can opt-out of “affiliate sharing” among banks. Thus, if you have an account at Bank of America, you can ask the bank not to share information about your account with the company’s 2,000 affiliates! This sets the stage for other states to limit affiliate sharing, and in all likelihood, it means that some banks will simply stop affiliate sharing without direction from the consumer. Why is this important? Say that you are in charge of buying drinks for office parties, and that you regularly purchase large amounts of beer on your credit card for that purpose. Later, you apply for life insurance at Traveler’s. These entities are jointly owned, and they can make inferences from your purchase history information.
The Supreme Court also refused to review an important case from the 1st Circuit, involving the use of prescription records. In IMS Health, marketers challenged a prescription confidentiality law, which prohibited the sale of prescriber-identified prescription records. The 1st Circuit upheld the law, holding that it did not violate the free speech rights of prescription drug marketing companies. The 1st Circuit decision is important in particular because the court viewed the sale of records as mere conduct, rather than expression. If the sale of personal information is viewed in this way, marketing companies will have great difficulty framing privacy laws as restrictions on free speech. It also will mean that marketers will no longer see what drugs are prescribed on a per-physician basis in New Hampshire. Will this lower drug prices? Stay tuned!