Tech trade group warns dangerous precedent being set on privacy

A technology trade organization is pushing the Justice Department (DOJ) to reevaluate its position on electronic communications privacy to protect women seeking to obtain an abortion. 

Elizabeth Banker, vice president of legal advocacy for the Chamber of Progress, sent a letter to Attorney General Merrick Garland on Wednesday to urge the DOJ to support the protection of private data from “unjustified law enforcement intrusions.” 

The letter states that federal prosecutors’ repeated arguments in court to obtain data held by third-party service providers violate the Fourth Amendment’s protection against unreasonable searches and seizures. 

Banker argued that these data seizures could put people who are using the internet to search for and schedule abortion appointments at risk of states’ threats to prosecute health care providers performing abortions and the people getting them. 

“The ability of state law enforcement to compel online service providers to disclose this type of information puts women in an impossible position of having to choose between exercising their reproductive rights and avoiding creating evidence that could lead to their criminal prosecution under a state law that restricts those rights,” the letter states. 

Banker wrote that while online service providers can take some steps to protect the privacy of people seeking abortion procedures, they have limited ability to prevent law enforcement from obtaining the data. 

Since the Supreme Court overturned Roe v. Wade last month, more than a dozen states have triggered or passed laws that ban or severely restrict access to abortion. Conservative lawmakers in multiple states have also discussed ways to punish those who help someone obtain an abortion out of state in a jurisdiction where the procedure is legal. 

While Banker recognized the DOJ’s statement after the ruling that affirmed the right to travel to get an abortion, she noted that patients and reproductive health organizations that help them can still face criminal prosecution. 

Banker acknowledged President Biden’s executive order issued last week directing Garland to address the potential threat to privacy the transfer and sale of health-related data, as well as digital surveillance, can pose to people seeking an abortion. But she also pointed out that the executive order does not address law enforcement access to the data. 

Banker wrote that the arguments the DOJ has made to obtain data from third-party service providers are often unnecessary to achieve successful criminal prosecution. 

“The DOJ plays an instrumental role in setting the legal precedent and interpretations of how the Fourth Amendment applies to the modern technologies that pervade our lives,” the letter states. 

Banker said the increased use of “geofence” warrants — which allow law enforcement to identify mobile devices that were in a certain area at a certain time — shows how people seeking abortions could be susceptible to “warrantless privacy intrusions.” 

“We share your interest in successful prosecution of dangerous criminals, but believe that interest is compatible with recognizing that important constitutional protections must apply to Americans’ most personal information regardless of whether it is located in their home, on their phone, or held by a service provider,” Banker wrote.