Sorrell and the Advance of Big Data

I spent last Friday at the Reinvent Law conference in NYC (where I did a talk on price transparency and legal services) and then flew to Miami Saturday morning for the inaugural meeting of the Digital Communications Committee of the ABA Forum on Communications Law.

(Yes, that’s a mouthful of a committee name.)

There were many, many interesting discussions at both, but the two conferences were quite different from one another.  As you’d expect, going from a chilly New York conference filled with law students and legal technologists to a sunny Miami venue populated with communications lawyers.

However, one topic brought up at both was the applicability of the first amendment to pure information.  In both cases, reference was made to the recent case of Sorrell v. IMS Health, which is relevant both to attorney advertising regulation and commercial use of information in general.

There was some concern among the media lawyers I met with in Miami that, despite Sorrell, the FTC will attempt to treat as unfair trade practices the collection and use of aggregated and de-identified consumer information.  And in New York, Michigan State law prof Renee Knake observed the long history of bars extending speech regulation beyond the legitimate-but-limited goals of protecting consumers and enhancing professional expertise – and the danger that bar regulators will seek to stymie uses of data by lawyers to better serve clients.

The use cases for big data and consumer targeting and tracking are exploding, as are privacy concerns.  But while I’m sympathetic to legitimate privacy concerns and the need for consumer choice, I’m very leery of regulatory overreach around uses of this data. As we’ve long seen with the Bars, the regulators aren’t known for their exercise of restraint.  I suspect we will see more and more first amendment litigation on this topic in the next few years.

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