Digital privacy in the post-Dobbs landscape

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Following the Supreme Court’s decision to overturn Roe v. Wade, experts discuss data privacy concerns related to abortion.

As society’s reliance on technology has increased in recent decades, both those who seek abortion services and those who oppose them have discovered that they can access online resources aligned with their respective goals. People seeking abortions could use technology to find nearby abortion clinics and reproductive health guidance, while abortion opponents have use geolocation data to spread targeted ads to those who visit specific abortion clinics.

Today, after the ruling of the Supreme Court in Dobbs v Jackson Women’s Health Organizationtechnology is creating new complications, perhaps even a double-edged sword. As the ever-evolving digital sphere increases access to safe abortion resources, digital surveillance of those seeking and providing abortions is increasingly growing to unprecedented levels with little regulation of what information is protected.

Facebook messages, emails sent through disposable accounts, Applications that track menstrual cycles, and geolocation the data is just a few examples of potentially incriminating fingerprints faced by people seeking abortions. Law enforcement capabilities are seemingly limitless. A woman in Nebraska was recently stopped after police discovered private Facebook messages that implied she was trying to help her teenage daughter get an abortion.

Even after the US Supreme Court’s 1973 ruling in the landmark case Roe vs. Wadecultural taboos and restrictive state laws submitted significant barriers for pregnant people seeking abortions, resulting on US residents who cross state lines to safely and legally obtain the procedure. But today, the imperatives of cross-border travel and the digital communication needed to organize access to abortion services raise new questions about how regulatory agencies and lawmakers can and should address digital privacy in a post-termination setting. .dobbs it was.

the Health Insurance Portability and Accountability Act of 1996 (HIPAA) currently It allows abortion providers to provide patient information to law enforcement. Employees who can receive reimbursement from their employers for Travel to another state for an abortion are also not protected by HIPAA.

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Federal legislators are clamoring for Address the looming privacy implications of abortion-related digital communications. A proposal US data protection and privacy law, for example, would classify reproductive health data as “sensitive” and therefore protected. In another matter, the Federal Trade Commission appears to be positioning to take legal action against a company for licensing data that reveals users’ whereabouts, including visits to abortion clinics.

Although the future after dobbs remains unclear, a responsive regulatory framework could emerge for to protect the privacy and autonomy of those seeking abortions. In this week’s Saturday Seminar, scholars discuss the digital landscape of data privacy both before and after the dobbs decision, and proposed solutions to protect those seeking abortions.

  • in a Article in JAMA Health Forum, Kayte Spector Baghdadof University of Michigan Medical School Y Michelle M Melloof Stanford Law School, argue that abortion providers should consider ways to prevent reproductive health information from being used to incriminate them or their patients. HIPAA allows facilities to disclose otherwise protected health information to regulatory agencies if such information is deemed relevant to an investigation of the facility’s delivery of health care, explain Spector-Baghdad and Mello. This means that health care facility records can be used by law enforcement officials to incriminate a facility or its providers for performing abortions. Spector-Baghdad and Mello argue that providers should seek to mitigate this risk by recording only a necessary amount of clinical documentation and avoiding words within the documentation that could be construed as evidence of illegality.
  • In a recent reportthe organization International Privacy holds that the lack of regulation targeting Facebook and other major online sites allows dangerous health-related misinformation to develop. According to the report, some abortion opposition groups use Facebook ads to promote “abortion pill reversal,” an unsafe intervention with a scientifically misnomer. Also, International Privacy warns that anti-abortion groups are using smartphone apps to collect and exploit data related to users’ health because such data mining is largely unregulated. One organization, for example, has allegedly created an app that requires users to enter personal information and then uses that information to create health care-related ads targeted to those users.
  • Demand for abortion-related resources through telehealth has been greatest in states with anti-abortion policies, according to Abigail R.A. Aiken and several co-authors in a Article published in the American Journal of Public Health. Since restrictions on abortion have raisenorth following the dobbs decision, he also has an interest in “self-abortion”, that is, in the independent search for abortion drugs online. Although taking note Similar motivations of accessibility and convenience for those searching for abortion medications online, Aiken’s team found that those in so-called hostile states faced greater barriers, such as higher expenses and travel implications. Consequently, Aiken and his coauthors argue that populations in states with restrictive policies face the most detrimental repercussions and will therefore see an increase in demand for abortions outside the clinical setting.
  • in a Article in University of Baltimore Law Review, Cynthia Conti Cook of Ford Foundation tracks the trend toward self-managed abortions and the potential for future criminalization of both pregnant people and abortion providers. Although searching online for information about terminating a pregnancy can look to pose few risks to online users, increased surveillance has actually increased the risks of criminal liability for these users. Members of marginalized communities are also at higher risk of prosecution, argues Conti Cook. She explains that as long as advances in surveillance technologies remain unregulated, those who seek autonomy over their reproductive health will face devastating penalties. Chef Conti concludes that private law of action bills and enhanced data sharing regulation at both the federal and state levels can help protect privacy rights.
  • in a Congressional Research Service report, Library of Congress legislative attorney Chris D Linebaugh provides a legal overview of data privacy and law enforcement access by following dobbs. the fourth amendment and various privacy statutes protect individuals against law enforcement officials who seek abortion-related personal data for prosecution in states that criminalize abortion, Explain Linebaugh. It maintains, however, that the 2018 Supreme Court ruling carpenter vs. USA, protecting a cell phone company’s data storage of consumers’ cell site location information poses a potential limit to these protections. Linebaugh offers Potential congressional actions that could further protect people seeking abortions as well as abortion providers, including enacting a law that specifically addresses the disclosure of abortion-related data or creating a bill comprehensive privacy law.
  • in a trial published online by Brookings Institution, John Villasenor of UCLA School of Law examines the possibility of statewide bans on online abortion services through a historical analysis of Supreme Court precedents. Whether the First Amendment will protect people who provide information about abortion-related services remains an open question, according to Villaseñor. In cases like Bigelow vs. Virginiadecided in 1975, abortion advertisements, even when not aligned with the Court’s opinions, were treated as constitutionally protected. Villasenor warnshowever, that the complexities of the Internet and the recent use of civil actions against those who help others with abortion present a new list of uncertainties
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The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be broadcast in a live seminar featuring regulatory experts. Weekly, Regulatory Review publishes a brief overview of a selected regulatory topic and then draws from recent research and scholarly writing on that topic.