Following the Supreme Court’s decision to overturn Roe v Wade earlier this year, which opened the door for a number of states to make abortion illegal once again, technology companies have found themselves in the middle of a new data privacy debate. The primary concern being that personal data, including location data, could be used by law enforcement agencies to carry out criminal charges against people seeking out abortion services.

This issue was raised as a concern by the White House shortly after the ruling, with President Biden seeking to limit personal data relating to reproductive healthcare being shared by tech companies. 

But the problem became very real for US citizens after Facebook, owned by Meta, provided police in Nebraska with private messages between a mother and her teenage daughter, in which they discussed ending the girl’s pregnancy. After police secured the information from Facebook, the pair were charged with additional felonies by the authorities. 

And although the pregnancy and the court order took place prior to to the Supreme Court’s decision, it brought to light how the future might play out for people seeking abortions in certain US states and the uncomfortable role tech companies may play in this area. 

Facebook soon released a statement after details of the case were made public, saying that the requests for data didn’t mention abortion. 

In the US, law enforcement agencies can get user data directly from tech companies through various legal request mechanisms – and transparency reports show that the number of requests being made each month are in the thousands. 

Legal obligations

With this in mind, Democratic leaders have written to Meta CEO Mark Zuckerberg, requesting a briefing on how the company is planning to handle personal data requests, within the context of Roe v Wade being overturned. 

The letter highlights the lawmakers’ concerns that it is going to become increasingly likely that personal data is going to be requested from Facebook/Meta regarding people attempting to gain access to reproductive healthcare services. The letter states: 

We write to express our concern with recent reporting about Meta releasing consumers’ sensitive data, including private communications, in state criminal proceedings related to abortion. Following recent reporting, your company issued a statement claiming that “[m]uch of the reporting about Meta’s role in a criminal case against a mother and daughter in Nebraska is plain wrong,” and that “[t]he warrants did not mention abortion at all.” Given the sensitivity of this issue and the likelihood that such requests from law enforcement will increase, we write to seek clarity on how your company protects users’ sensitive data while complying with its legal obligations.

Your users rely on Facebook and your other platforms to communicate with each other about their personal lives and therefore your company has access to highly sensitive information. In light of the Supreme Court’s decision overturning Roe v. Wade and the constitutional right to abortion, your company will increasingly be asked to turn over data to law enforcement for the purpose of criminalizing those who seek abortion services. Personal conversations about accessing health care services may now be considered evidence of crimes by law enforcement in certain jurisdictions.

We fear it is only a matter of time before Meta is asked by law enforcement to turn over personal data of users in which they specifically cite attempting or performing abortion as the crime being investigated. It is completely foreseeable that Meta may be asked to turn over other sensitive data based on conversations related to assisting a friend or family member with transportation to obtain an abortion or providing money for cab fare or hotel accommodations. The possibilities are endless and are endlessly troubling. 

The letter says that “extreme Republican policies” create oppressive and chaotic legal frameworks, which mean that American people and businesses are faced with increasingly complicated and uncertain personal health decisions. 

It adds that safeguarding personal information and communications on Meta’s platform is “paramount. The lawmakers add: 

Following the Supreme Court’s decision and the ongoing chaos and legal uncertainty that the decision has generated, the security and treatment of personal and private information on your platform is more crucial than ever. We therefore request a briefing regarding Meta’s treatment of personal data, its policies and procedures regarding the sharing of that data with law enforcement and other outside parties, and any steps that Meta is taking to provide users with greater security of their data and greater clarity as to the circumstances under which Meta would release that data to a third party.

The letter was signed by Chairman Frank Pallone, Jr., Health Subcommittee Chairwoman Anna G. Eshoo, Oversight and Investigations Subcommittee Chair Diana DeGette, and Consumer Protection and Commerce Subcommittee Chair Jan Schakowsky. The leaders have requested the briefing by September 21, 2022. 

The letter comes as the Federal Trade Commission (FTC) has announced that it is taking legal action against Kochava, a firm that allegedly sold location data from hundreds of millions of mobile devices – claiming that the data could reveal visits to abortion centers. 

In addition, Google said back in July that it would delete location data that could be used to reveal when someone is accessing reproductive health services, as employees petition the company to strengthen privacy protections for Google users searching for abortion information online. 

My take 

This story cuts right to the heart of why it is users, not companies or governments, that should have complete control over their personal data – particularly health data. Can you ever really trust a private company or an administration with your data over the long term? Changes in leadership and strategy will always mean there’s a risk that that data will be used in a way that is dangerous for you. The control needs to sit with the user – not lawmakers in Washington DC, CEOs in boardrooms, or police officers with an agenda.