The end of federal protections for access to abortion could trigger laws in more than a dozen states that criminalize abortion care, with long prison sentences and hefty fines aimed at providers and others who “help and encourage” an abortion, in some cases.
An imminent U.S. Supreme Court decision overturning the 1973 ruling in Roe x Wade can have far-reaching consequences – including how law enforcement agencies use surveillance and sensitive personal data to identify and prosecute criminal anti-abortion cases.
Vice President Kamala Harris said she fears states that want to criminalize abortion care could subpoena patients’ personal data, including menstrual tracking apps and search engine results for abortion clinics.
In a meeting with legal experts on threats to privacy protection following the Supreme Court’s ruling, the vice president said she feared the “vulnerability of women who use menstrual tracking apps, those who use a search engine to find certain locations or certain help… and how vulnerable these searches will be to bad actors trying to trace their history, let alone any government forces that might be interested in investigating this for any purpose.”
Legislation in Congress would prevent intimate data collected on smartphones — including, more broadly, location data — from getting into the hands of the companies that collect it and the companies that want to buy it.
A bill by California Congresswoman Sara Jacobs would strictly limit the sexual health data companies can collect, retain and disclose, while a sweeping proposal by Senator Elizabeth Warren would ban data brokers from selling or transferring location and health data.
Last month, Senator Warren and a group of 13 senators criticized two data brokers for collecting and selling phone location data of people who traveled to abortion clinics.
One such company, Placer.ai, has offered access to reams of data on its website showing approximately where people who have visited Planned Parenthood clinics live. The company cache and related data was only removed after a consultation with Motherboard.
Another location data company, SafeGraph, also blocked the sale of its data after reports from Motherboard revealed that the company sold aggregated location data from people who visited Planned Parenthood facilities.
Anti-abortion activists already rely on surveillance methods to track patients and providers, using methods such as plate tracking and cameras outside clinics. At least one state has also reviewed confidential patient information collected at clinics; In 2019, Missouri’s top health official testified that the state extracted detailed personal information from Planned Parenthood — including reviewing patients’ menstrual cycles, medical ID numbers, dates of procedures, and gestational ages of fetuses. Patient names were not included.
Legal analysts and abortion rights advocates have warned that the availability of location data collected from smartphones could be exploited by anti-abortion activists and law enforcement.
The senator group warned that such data could be used to pursue so-called “rewards” in states that have effectively delegated citizens to sue abortion providers, with cash judgments awarding plaintiffs thousands of dollars plus attorney fees.
“These and other practices aimed at women seeking needed health services will almost certainly increase if Roe x Wade is destroyed and abortion is criminalized instantly in states across the country,” the senators wrote to data companies. “Under these circumstances, [your company’s] The decision to sell data that allowed any buyer customer to determine the location of people seeking abortion services was simply inconceivable, risking the safety of women everywhere.”
A group of Democratic senators also wrote to Google CEO Sundar Pichai, urging the company to “stop needlessly collecting and retaining customer location data, to prevent this information from being used by right-wing prosecutors to identify people who have had abortions.” .
Law enforcement routinely relied on location data for criminal investigations; In 2020, the company received nearly 12,000 requests from law enforcement agencies seeking so-called “geofence” data that reveals location data at a given time, according to reports published by Google and reviewed by senators.
Google’s decision to keep location data “is creating a new digital divide where privacy and security are a luxury,” according to senators, pointing to Apple’s data restrictions. “Americans who can afford an iPhone have greater privacy from government surveillance of their movements than the tens of millions of Americans who use Android devices.”
An investigation by Reveal, the Center for Investigative Reporting and The Markup also found that Facebook collected data from people visiting the websites of so-called crisis pregnancy centers, non-medical facilities designed to deter people seeking an abortion.
Meta, Facebook’s parent company, prohibits websites and apps that use the company’s advertising tools from submitting user “sexual and reproductive health” data to Facebook, but the investigation found that Facebook’s code was discovered on hundreds of websites. of anti-abortion clinics.
Several district attorneys said The Independent that they will not prosecute people seeking abortion assistance or performing abortions if state laws criminalizing assistance go into effect without roelet alone issue subpoenas for sensitive data in anti-abortion cases.
“It makes no sense to spend our time and energy thinking about how someone could do this,” said Travis County District Attorney Jose Garza. The Independent.
“But I think these fears and concerns are incredibly legitimate,” he said. “I think the implications for law enforcement, using their authority in this way would profoundly undermine fundamental democratic principles.”
Senator Warren and a group of senators have proposed sweeping legislation that would ban companies from selling or transferring location and health data, warning that the sale of such data poses “serious risks to Americans everywhere.”
“With this extreme Supreme Court poised to overturn Roe x Wade and states seeking to criminalize essential health care, it is more crucial than ever that Congress protects sensitive consumer data,” she said in a June 15 statement.
The Health Protection and Location Act would be enforced by the Federal Trade Commission and state attorneys general, as well as persons affected by the sale of such data, who would have the power to sue companies that violate the law.
“Health and location data is incredibly sensitive and can be used for a range of harms, from profiling and exploiting consumers to spying on citizens without warrants to carrying out stalking and violence,” said Justin Sherman, Researcher at the Data Brokerage Project. from Duke. University Sanford School of Public Policy.
U.S. Representative Sara Jacobs’ My Body My Data Act would strictly limit what sexual health data may be “collected, retained, used or disclosed” to only what is necessary to use the product.
It also aims to protect that data that is not currently covered by the Health Insurance Portability and Accountability Act, a federal law that protects confidential patient information from being disclosed without the patient’s consent.
“Since the Supreme Court leak, I’ve heard from so many people who are panicking about their personal reproductive health data falling into the wrong hands,” the congresswoman said in a statement.
The bill “would protect that information, protect our privacy and reaffirm our rights to make our own decisions about our bodies,” she said. “As a young man, reproductive health care is my health care. And like tens of millions of Americans, I’ve used period tracking apps to help manage my reproductive health. It is inconceivable that information could be handed over to the government or sold to the highest bidder and weaponized against us.”