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Roe v. Wade reversal could hinder data privacy rights

Tech companies could start feeling pressure from consumers to limit data collection should Roe v. Wade be overturned.

Experts have raised concerns about the potential loss of data privacy rights for women should Roe v. Wade be overturned.

The Supreme Court draft opinion leak last week on overturning Roe v. Wade, which protects women's rights to safe access to abortion, has experts worried that previously private data, such as internet searches for information on medical procedures such as abortions, could serve as a gateway for law enforcement if abortion was criminalized. If the ruling is overturned, 26 states are highly likely to ban abortion, according to research from the Guttmacher Institute, a research and policy organization.

Rep. Suzan DelBene, D-Wash., said the personal data of millions of women will be at risk.

"Should the Supreme Court move forward with this decision and overturn Roe, law enforcement officials or even community members could purchase and abuse this data to target women seeking an abortion and medical professionals providing them," DelBene said in a statement.

Loss of data privacy rights

If Roe v. Wade is overturned, there will be ramifications for data protection in the U.S. as companies could likely receive requests to hand over data, said Michela Menting, digital security research director at global technology intelligence firm ABI Research.

Women's health apps collect loads of user data. Often, free apps, or products from tech giants like Google, Amazon, Apple and Meta, are offered in exchange for data collection, which those companies monetize and use to improve their products.

Companies holding data related to abortion searches could face legal uncertainty if abortion rights are no longer protected under Roe v. Wade. Apple has already faced requests from law enforcement for its data -- in 2015, the FBI requested data extraction from locked iPhones of suspected criminals. Apple declined to assist, and the FBI dropped its request after finding a third party to help unlock the iPhones.

"A similar scenario is likely to unfold if abortion is criminalized," Menting said. "Companies that have Apple's clout and resources may well be able to fight these requests, but that will not be the majority of cases."

Indeed, data is being recognized as a tool for law enforcement as evidenced through the use of reverse search warrants, which force tech companies to provide information to law enforcement to help identify individuals who could be suspects of a crime. Geofence warrants, another option, allow law enforcement to search databases for active mobile devices within a particular area.

A keyword search would identify them, and then if they actually visit a clinic, a geofence search could identify them.
Stephen WickerEngineering professor, Cornell University

Because of the data collected by a company like Google, law enforcement can go to the company with a geofence warrant and ask for everyone in a given area between particular times and Google will comply, said Stephen Wicker, an expert on privacy and security in information networks and engineering professor at Cornell University.

"When you think about someone who's going through the admittedly terrible process of trying to decide whether or not to end a pregnancy, they're going to use the tools that are available to them, like the internet," Wicker said. "That will involve them in a search, so a keyword search would identify them, and then if they actually visit a clinic, a geofence search could identify them."

The leaked Supreme Court opinion draft suggests that much, if not all, of the right or privacy granted to U.S. citizens by the constitution would be removed, said Matt Fisher, general counsel at virtual healthcare platform Carium.

Companies operating outside existing regulatory protections provided by legislation such as HIPAA, like healthcare tracker apps that are direct-to-consumer, will face tough decisions about whether to block access to its users' data or inform users about how their data may be released.

"For data privacy, it means that more challenges will be pushed to gain access to information that could help create repercussions under new restrictive laws," he said.

How tech companies may respond

Not keeping the data or keeping it for a short period of time is the best protection tech companies could provide to consumers, according to Wicker.

App users currently have more control over how their personal data is shared
Experts worry that law enforcement could use data collected by tech companies to see individuals' search history and app data related to medical procedures such as abortions, should Roe v. Wade be overturned and abortions criminalized.

Wicker said it is highly unlikely tech companies will cease current data collection practices, since those companies monetize the data. However, tech giants will start to feel a greater push from consumers to take steps limiting data collection, said Justin Brookman, director of privacy and tech policy at Consumer Reports.

"There will be a lot of pressure on them now with this being front of mind," Brookman said.

ABI Research's Menting said tech companies are more likely to buckle down on shielding data.

"I suspect you will see a lot of companies start focusing more heavily on data protection security technologies that cannot be easily broken," Menting said. "Perhaps even outsourcing hosting or storage of the data outside of the U.S., to countries with greater privacy laws."

Another concerning aspect of Roe v. Wade being overturned, Menting said, is that states could possibly criminalize not just abortion, but also abortion support. Such a move could affect companies that are responding to the leaked draft opinion with non-data-related measures.

Companies including Amazon, Apple, Microsoft and Salesforce have offered to provide financial support for travel or to help relocate employees who are worried about access to abortions or other medical procedures. Sen. Marco Rubio, R-Fla., has already introduced a bill that would deny business expense reimbursements to companies covering travel costs for abortions.

Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.

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