Roe Ruling Sparks Balancing Act on Privacy Legislation Approach

Democrats and civil rights advocates are maneuvering on how to tie abortion rights to the protection of sensitive data—but not jeopardize Congress’s efforts to pass landmark bipartisan privacy legislation.

The Supreme Court’s decision to overturn Roe v. Wade thrust data protections into the limelight, as browsing histories, online medical records, and location data could be used to incriminate people seeking abortions. Some Democrats have sought to use the Supreme Court’s decision to fire up their base and get support for partisan data legislation—but others worry about torpedoing privacy negotiations in Congress that rely on Republican support.

Lawmakers broke years-long gridlock on privacy negotiations with a bipartisan, bicameral proposal unveiled last month. While other proposals have been introduced — most notably from Senate Commerce, Science, and Transportation Chair Maria Cantwell (D-Wash.) — the American Data Privacy and Protection Act (H.R. 8152) is seen as Congress’s best shot at getting a law passed that would set a data protection regime nationwide.

Photographer: Samuel Corum/Bloomberg

Senator Roger Wicker (R-Miss.), left, speaks to Sen. Maria Cantwell (D-Wash.) during a hearing in Washington, D.C., in April 2022.

Backers of the bipartisan bill haven’t explicitly tied it to Roe, though its data protections would apply to those seeking abortions.

The measure is backed by Senate Commerce ranking member Roger Wicker (R-Miss.), who believes life begins at conception and touts his record of upholding “the sanctity of life.”

“As we work to finalize this legislation, we are continuing to receive feedback about how to provide strong protections for consumers’ sensitive personal information, including health care information not covered by HIPAA,” Wicker said. “We welcome input from all interested stakeholders.”

India McKinney, federal affairs director at the nonprofit digital rights group Electronic Frontier Foundation, contended this is a “yes, and” situation, in which lawmakers can frame privacy as a reproductive rights issue, and avoid weaponizing it in the bipartisan negotiations.

“It’s all important, but we don’t focus on reproductive data rights, we focus on privacy. Reproductive privacy is not the end goal,” according to McKinney, who says she has been lobbying on privacy issues for more than five years.

Earlier: Data Privacy Bill Advances as Panel Punts on Differences (1)

‘Sensitive’ Data

The bipartisan measure would require data brokers, who today can largely operate in the dark, to register their information and adhere to a consumer’s express, affirmative, consent to collect their data. The Federal Trade Commission would also be required, if feasible, to create a tool through which consumers can globally opt out of data collection across all platforms.

The bill also requires companies to collect the least possible amount of data needed to provide services, and places special restrictions on data defined as “sensitive,” including location and health information.

“It’s pretty tight on substantive protections,” said David Brody, managing attorney of the Digital Justice Initiative at the Lawyers’ Committee for Civil Rights Under Law.

But Cantwell, who has a competing privacy measure, has framed her proposal as the best set of protections for people seeking abortions, contending the bipartisan bill is weak on enforcement because it wouldn’t allow individuals to directly sue tech companies for significant privacy harms until four years after enactment.

Further, Cantwell notes that under the bipartisan bill, people seeking to take a private right of action would first need to notify the FTC and their state attorney general, who is politically appointed, and then wait 60 days after that notice to learn if either agency plans to take action itself. Those are barriers for people seeking justice in court, Cantwell argues.

Other Democrats have also sought to tie their data legislation directly to the stripping away of abortion rights.

Sen. Elizabeth Warren (D-Mass.) this month introduced a bill (S.4408) that would specifically ban the sale of health and location data. Warren said her bill is too urgent to be tied to the broader bipartisan proposal because “we have a crisis facing us over women who travel to abortion clinics, and right now can be tracked, and that information can be sold to anyone with a credit card.” Warren has no Republican cosponsors.

Read More: Anti-Abortion Centers Find Pregnant Teens Online, Then Save Their Data

‘Fundamental Privacy Issue’

“Republicans’ extremist agenda to criminalize the rights of a woman to control her own body has made privacy a life-or-death issue, so pretending that reproductive rights are not the fundamental privacy issue of our time is not an option,” Senate Finance Committee Chair Ron Wyden (D-Ore.), a cosponsor of Warren’s bill, said in an email.

Wyden has come out against the bipartisan privacy bill and said that “it would be a massive failure for Congress to pass watered-down privacy legislation that does not protect abortion-related data, and bars states from passing their own protections for that information.”

It makes sense to tie Roe to privacy, and scaring abortion opponents away shouldn’t be Congress’s concern, said Jelani Drew-Davi, director of campaigns at Kairos. The grassroots organization focuses on the intersection of tech and equity.

“From our perspective, it’s not something we should be afraid to talk about,” Drew-Davi said. “Privacy is on voters’ minds, and it will become even more of a point with Roe.”

Separately, Rep. Sara Jacobs (D-Calif.) this month introduced a measure (H.R. 8111) to protect the privacy of personal reproductive and sexual health information. In an accompanying press release, Jacobs notes her perspective as “a young woman” and recounts conversations with people who are “panicked” about their data falling into the wrong hands after the overturning of Roe. Wyden has backed companion legislation (S. 4434) that Cantwell also supports.

“We think that is an extremely good bill but, tellingly, there are only Democrats on it,” said McKinney, of Electronic Frontier Foundation.

Alan Butler, Electronic Privacy Information Center executive director, echoed McKinney, saying, “bills focused exclusively on protecting abortion don’t get introduced in a bipartisan way, and don’t get federal traction.”

To contact the reporter on this story: Maria Curi in Washington at mcuri@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Andrew Small at asmall@bgov.com