Big Tech at the Center of Roe Reproductive Data Privacy Debate

The health data privacy debate after the Supreme Court’s overturning of Roe v. Wade is focusing on social media platforms. Nearly 20 Republican state attorneys general asked Google Friday not to comply with Democrats’ request to “skew” search results and bury information on crisis pregnancy centers (see 2206290058). The Dobbs v. Jackson decision renewed questions about whether police should be able to access health data when prosecuting or blocking access to reproductive health services.

It should be illegal for law enforcement to use digital health data against individuals seeking abortion, Democratic senators and privacy experts said in interviews. Republican senators offered mixed takes on whether Big Tech should cooperate with demands for data.

The overturning of Roe is “extremely disturbing” because it could mean conservative states upend privacy protections for digital health data, Sen. Kirsten Gillibrand, D-N.Y., told us. She and Democratic colleagues introduced legislation to protect a woman’s right to travel across state lines in response to Dobbs. It threatens data privacy for location, search, ride-share app and shopping history, said Gillibrand: “It could be devastating to the right to privacy in every context that we know to be something Americans count on.”

“It opens the door for many concerns about your digital footprint, your privacy when it comes to location, your [Health Insurance Portability and Accountability Act] information,” said Sen. Catherine Cortez Masto, D-Nev. “All of your private information can now be opened up and accessed.” She supported protection against police accessing this information for prosecution against women “seeking healthcare” in Nevada.

Sen. Josh Hawley, R-Mo., sided with privacy advocates. If it's a question of whether companies should have to turn over location data, he said, “I’m not a fan of that. I don’t like that in any context. I don’t like location tracking very much, and I’m not a fan of it being used without people’s consent for any reason.”

Privacy advocates are making a “straw dog argument to try to create fear,” said Sen. Ron Johnson, R-Wis. “Police, when they’re solving crimes, obtain data. I don’t have a problem with police trying to solve crimes” as long as it’s constitutional. Sen. John Cornyn, R-Texas, told us if those questions arise, they'll be solved at the state level, not in Washington. Various anti-abortion groups didn’t comment.

“There’s an idea that it’s all about your period tracker app, and of course that could be an issue, but that’s a tiny piece of what’s happening and the different kinds of tracking,” said Electronic Frontier Foundation Legal Director Corynne McSherry: “The digital surveillance web is broad and deep.” Law enforcement has used cellphone and computer data to prosecute people in the past, she said, noting state governments can track location history using automated license plate readers.

President Joe Biden issued an executive order this month intended to combat “digital surveillance” due to Dobbs (see 2207080060). The president directed FTC Chair Lina Khan to look at ways to “protect consumers’ privacy when seeking information about and provision of reproductive health care services.” The EO is a “good start,” but there’s a “much longer way to go” toward reproductive data privacy, said McSherry. The ultimate goal should be for Congress to act, but the FTC can use its unfair and deceptive practice authority to address apps and websites that aren’t straightforward with data collection and sharing, she said.

It’s not just about patients but also the privacy of those providing services, because service providers often face threats, said Sutter Health Clinical Informatics Director-Privacy Steven Lane, an American Medical Informatics Association (AMIA) member. One thing Congress could do is update HIPAA so it keeps pace with the digital era and the threat of “data weaponization," said Lane.

“Any use of personal health records to punish for giving or receiving an abortion should be against the law,” said University of Miami bioethics professor Kenneth Goodman, an AMIA member. “As long as extremists are taking over state legislators, and for that matter the Supreme Court, then you should be worried.” Professionals across the political spectrum tend to agree health information shouldn’t be used to further law enforcement goals, said Goodman: “It’s reasonable to be pro-life and at the same time say, ‘But that doesn’t include intruding on people’s medical records.’ We don’t want privacy to be a tradeoff for the sake of a religiously motivated abortion law.”

Google didn’t comment about the letter from AGs in Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, Virginia and West Virginia. “We must not allow Google to succumb to political pressure,” said Missouri AG Eric Schmitt (R). “Pregnancy crisis centers provide helpful, free services to women in need across the country -- to censor their locations or information in searches deprives women and expectant mothers of those services and infringes on freedom of speech.”