In the information age, data of varying types have become increasingly valuable. Data can be used particularly to better target advertising and other forms of marketing to specific individuals. The preferences of individuals can be aggregated and analyzed in such a way as to better predict future habits. This general process is used across a wide array of industries, and it raises a number of First Amendment and privacy questions. For example, courts have struggled with fundamental questions, such as whether the sale and aggregation of data is speech at all, and, as discussed in the cases below, what standard of scrutiny to apply to restrictions on trade in data if it is speech. These questions are particularly salient in the market for health related data. Health related data can be very valuable to researchers, scientists, and other academics. It can be just as valuable to participants in the market for the provision of health care. For example, pharmaceutical manufacturers use a process known as detailing to market prescription drugs. Detailing involves sending representatives of the pharmaceutical manufacturers to individual doctors' offices with information about prescription drugs and their various uses. Detailing is very expensive; as a result, pharmaceutical manufacturers only engage in detailing for more expensive (i.e., brand-name) prescription drugs. The more information a detailer has about the doctor (or medication prescriber) that he or she is planning to market to, the better targeted, and more effective, the detailing becomes. Consequently, information about the past prescribing practices of doctors can be valuable to detailers in designing their marketing strategies. An industry has developed to collect, aggregate, and analyze these prescriber data. Data gatherers collect information (by purchasing it) from pharmacies and other entities that have vast troves of prescriber history data. They then aggregate and analyze the data. The information they collect from pharmacies and hospitals about prescriber practices is then sold to pharmaceutical manufacturers for use in marketing. They also sell the data to researchers and others that might use the data for purposes unrelated to marketing, but this market is far smaller than the market consisting of pharmaceutical marketers. Some doctors find better-targeted detailing to be useful. Other doctors find the sharing of their prescriber history without their consent, and its subsequent use as a marketing tool, to be an invasion of privacy. Three states—Maine, New Hampshire, and Vermont —enacted statutes to restrict the sale and use of prescriber history data for the purposes of marketing (though not for any other purpose) without the consent of the doctor. As discussed below, the states claimed to be protecting the privacy interest of the doctors. Also, the states were interested in lowering the costs of health care. Because detailing effectively encourages the prescription of more expensive, brand-name drugs, data suggest that health care costs are measurably increased by detailing. The states reasoned that if detailing were less effective, then doctors might be more likely to prescribe generic drugs, which are cheaper than brand-name drugs, and health care costs overall would go down. The companies that collect, analyze, and sell these data challenged the laws, claiming that they were an unconstitutional restriction of their free speech rights under the First Amendment, as incorporated against the states by the Fourteenth Amendment. The First and Second Circuit Courts of Appeals reached opposite conclusions regarding the constitutionality of the state laws that restricted the sale and use of prescriber data. The First Circuit, in two separate cases, found the laws to be constitutional, because they did not restrict "speech." The Second Circuit not only found a similar Vermont law to be a restriction of speech, but also found the law to be unconstitutional under the commercial speech standard of scrutiny, a standard considered to be less rigorous than the constitutional standard applied to fully protected speech. The first case, IMS Health v. Ayotte , was decided in 2008. The First Circuit examined a New Hampshire law that made it a crime or a civil offense for entities, such as aggregators and sellers of prescriber-identifiable and patient-identifiable information, to sell that information for commercial purposes. The court determined that this was primarily a regulation of conduct and not speech. In the court's view, the law prohibited only the aggregation and transfer of certain information for a narrow purpose. The law thus sought to place restrictions on a class of speech to curb certain unwanted effects of the speech, and such regulation was not offensive to the First Amendment. The court likened the regulation of the distribution of this data to the prohibition on agreements in restraint of trade in the antitrust laws. The agreements to which the law applies may be speech, but the law actually seeks to prevent the conduct that is the unlawful restraint of trade. According to the First Circuit, prescriber-identifiable information had become a commodity, akin to beef jerky, and regulation of its distribution for commercial purposes was similarly a regulation of conduct and not speech under the Constitution. In the alternative, the court also found that if this was in fact a regulation of speech rather than conduct, the law was a regulation of commercial speech, subject to intermediate scrutiny, and that the law passed constitutional muster under that test. Commercial speech is most often defined as speech that primarily concerns the economic interests of the speaker, or speech that proposes a commercial transaction. Since the New Hampshire law regulated only the transmission of data for commercial purposes, the court found the law regulated commercial speech. In order for a restriction on commercial speech to be constitutional it must serve a substantial interest of the government, directly advance that interest, and be no more burdensome than necessary on protected speech. New Hampshire asserted three interests in enacting the law: protecting prescriber and patient privacy, protecting patients from skewed prescription practices, and cost containment. The court analyzed only cost containment and found it to be a substantial interest. The court also found that the law directly advanced that interest. The court found evidence that the inability to use prescriber identifiable information to detail decreases the effectiveness of detailing. If detailing is less effective, fewer expensive brand-name drugs will be prescribed, and the cost of health care would therefore decrease in the aggregate. Finally, the court found that there were no viable alternatives for reaching the state's goal without restricting speech, and that the law was no more restrictive than necessary to achieve that state's goals because it restricted only speech made for commercial purposes. In 2010, the First Circuit considered a Maine law that was similar to the statute enacted by New Hampshire and upheld in Ayotte . The Maine law prevented pharmacies and other prescription drug intermediaries from licensing, selling, or otherwise transferring prescriber identifiable information to data aggregators for marketing purposes for prescribers that have filed for confidentiality protection. In other words, the Maine statute created an opt-out system for prescribers. If prescribers informed the state that they no longer wished that their data be shared by pharmacies and others in possession of the raw data for marketing purposes, the data could no longer be shared for that purpose. Though the system for achieving the state's goal was somewhat different than the New Hampshire statute, the First Circuit reached the same conclusion it had in Ayotte . The court found that the statute regulated conduct rather than speech, and that even if it regulated speech the regulation was constitutionally permissible pursuant to the Supreme Court's commercial speech case law. The court also found that the law constitutionally protected the privacy of physicians and prescribers that did not wish to allow their prescriber information to be shared and protected them from unwanted solicitations on that basis. By contrast, the Second Circuit Court of Appeals reached the opposite conclusion when it considered a similar Vermont law. The court found that the law regulated speech, thus implicating the First Amendment. The Second Circuit applied the constitutional test for regulations of commercial speech and found that the law could not survive constitutional scrutiny because it did not directly advance the state's interests. The Vermont statute in question banned the "sale, transmission, or use of prescriber-identifiable data for marketing or promoting a prescription drug unless the prescriber" consented. This meant it prohibited data miners from selling the information for commercial purposes without consent and it prohibited pharmaceutical manufacturers in possession of the data from using it to market prescription drugs without consent. The statute expressly permitted the sale or transfer of the data for other purposes including pharmacy reimbursement, other health insurance related transfers, health care research, and care management. In its legislative findings, the state listed a number of interests that it sought to advance by enacting this statute. Taken together, the court found that the findings expressly stated Vermont's intent "to interfere with the marketplace of ideas to promote the interests of the state." The idea behind the statute, the state seemed to make clear, was to handicap detailers by denying them access to information that would improve their message. This handicap would "even the playing field" in a marketplace where speech about brand-name drugs is far more accessible to prescribers than speech about generic drugs. The court found this reasoning particularly troublesome. The Second Circuit found that the First Amendment protects even "dry information, devoid of advocacy, political relevance, or artistic expression." It was clear to the court that Vermont sought to restrict speech, because the legislation stated that "the marketplace for ideas on medicine safety and effectiveness is frequently one-sided." The state also attempted to argue that, pursuant to Supreme Court precedent in Los Angeles Police Department v. United Reporting Publishing Corp. , the pharmaceutical manufacturers had no right to access non-public health related records without consent. The court found that the precedent cited was distinguishable. In United Reporting , the Supreme Court had held that there was no First Amendment right to access information held by the government. The statute in this case prevented private parties from accessing information in the hands of other private entities, and the private entities in possession of the information were more than willing to provide it to those who sought it. In other words, it was a statute that restricted the communication of information between private parties, a very common restriction on speech that should be subject to review under the First Amendment, in the court's view.