Roe v. Wade reversal spurs Democrats’ call for data privacy protections

Supporters of proposals offering protections around data that could provide information about people seeking abortions are pushing for swift action after the Supreme Court’s Friday decision to overturn Roe v. Wade.

As Democrats weigh responses to the 6-3 court decision that will trigger abortion bans in 13 states, and likely lead to severe restrictions in others, supporters of key data privacy proposals said it is urgent to ensure Americans’ location, search and call data isn’t used to target people seeking abortion care. 

“We need to make sure that we in Congress are doing everything we can to protect people’s most sensitive and personal data, their reproductive and sexual health data, so that it can’t be used against them, especially in the states that are going to be criminalizing abortion,” said Rep. Sara Jacobs (D-Calif.), the lead House sponsor of a bill aimed at protecting said health data. 

Without additional protections, users’ location, search and calling data can be easily accessed and shared with law enforcement in ways that could be used to target people seeking abortions, especially in states that ban or severely restrict abortion access.

Such information could also be accessed and published by right-wing hackers, said Electronic Frontier Foundation senior staff technologist Bill Budington. 

Democrats introduced a couple of proposals aimed at giving users more data protections in recent weeks, following the leak of a draft majority opinion in May that indicated the court was prepared to strike down Roe v. Wade. 

Additionally, last month, more than 40 Democrats sent a letter to Google urging the tech giant to stop collecting and storing location data over concerns that it could be used to target people seeking abortions. 

“Unfortunately, we haven’t seen a shift in the data retention policies or data policies by Big Tech in response to the Dobbs draft,” Budington said, referring to the leaked draft opinion for the Dobbs. v. Jackson Women’s Health Organization case that was decided Friday.

“So companies were just, I suppose, waiting for themselves to be legally compelled to hand over this information,” he said. 

“But I think that putting meaningful limits on the ability for these companies to just deliver your data to third parties is certainly a welcome development,” Budington added. 

Earlier this week Jacobs and Sens. Ron Wyden (D-Ore.) and Mazie Hirono (D-Hawaii) introduced a bill, known as the My Body, My Data Act, that would ban companies from retaining data about users’ reproductive health without consent. The proposal has 43 cosponsors in the House and 10 in the Senate, including Senate Commerce Committee Chairwoman Maria Cantwell (D-Wash.).

“We can’t rely on the goodwill of individual companies who right now say they’ll do the right thing, when there are no protections to make sure that they do for the most sensitive and personal reproductive health data and we need to do everything we can in order to protect it and that’s our job as a government,” Jacobs said. 

Wyden also pushed for Congress to take action on data privacy in response to the Supreme Court’s ruling. 

Wyden said Congress must pass legislation protecting search, text and location tracking data so it isn’t “weaponized against” people.

“Technology companies must take immediate steps to limit the collection and retention of customer data so that they don’t become tools of persecution,” Wyden said in a statement. 

Wyden joined Sens. Elizabeth Warren (D-Mass.), Patty Murray (D-Wash.), Sheldon Whitehouse (D-R.I.) and Bernie Sanders (D-Vt.) in introducing a bill earlier this month that would ban data brokers from selling Americans’ location and health data. 

Rep. Cathy Castor (D-Fla.) also urged Congress to take action on data privacy as part of the response to the court’s decision. 

“We’re going to be working on legislation to protect people’s privacy. We already are doing that on a broader scale, but now this really raises the stakes for that,” Castor said. “I mean, how outrageous is this, that women and doctors in America in 2022 will be targeted for simply taking care of themselves and making these very personal, private decisions about their health care and their future?”

There’s been growing momentum in Congress to take action on data privacy. Members of a House panel, including Castor, voted unanimously on Thursday to advance a bipartisan comprehensive data privacy bill to the full House Energy and Commerce Committee.

But given the deep partisan divides on abortion issues, bills related to protecting reproductive health data likely face a tougher battle ahead. 

“I think that it’s important that Congress is having a broader conversation about all data,” Jacobs said. “As a millennial who’s lived my life online, I think it’s time that Congress has had that very important conversation. But I think it’s also very clear that right now, there are particular protections we need for this specific kind of data that we must put in place immediately.” 

As Congress mulls action, Budington said people seeking abortion care can take action on an individual scale to protect themselves from having their data accessed as they look to terminate pregnancies.

He said people can turn off location services on their phone, or leave their phone at home if possible, when going to an abortion provider. They could also consider turning off cellular data. 

Individuals and abortion providers can also use encrypted communication apps, such as Signal, and browsers with stricter privacy settings, such as Brave, Firefox and DuckDuckGo on mobile, for more protection.

He also said people can turn off advertising identifiers on their phone. The Electronic Frontier Foundation has provided a guide showing users how to do so through settings on iOS and Android devices.