Payment Data Could Become Evidence of Abortion, Now Illegal in Some States

When prosecutors seek transaction data during abortion investigations, what will financial app providers do?

It is a question that is likely to be asked in the wake of the overturn of the abortion law. Criminal investigators will be looking for evidence to prosecute those who broke the law now that abortion is illegal in many states.

Medical records are likely to be the most conclusive proof of a crime, but officials who can't get those may look for other evidence. The payment trail is a priority.

This seems to be a new area for banks and other payment companies. Card issuers have become accustomed to receiving requests for user data in terrorist investigations. The kind of political, legal and emotional backlash that abortion investigations are likely to provoke have not been provoked by those.

Individuals have protections against governmental intrusion thanks to the fourth amendment. Legal experts said that the protections are weakened when individuals share information. Financial institutions can be asked to hand over customer data with a simple subpoena.

Health and medical information can be fair game. The privacy of a patient's health records can be protected by the Health Insurance Portability and Accountability Act.

There is an exception to the protections of the Health Insurance Portability and Accountability Act for law enforcement. Information shared with law enforcement can't be too broad or unrelated to the request. It's important how companies and health plans interpret this.

Visa and Mastercard don't have itemized lists of everything that people pay for when they shop for prescription drugs or health care services online or at the doctor's office. Someone could be given away by a pharmacy that only sells abortion pills.

If an investigator has collected other data on a person's travels, then a charge at an out-of-state Planned Parenthood for an amount that's much higher than a standard checkup would be useful evidence. For a patient living in a state where abortion pills are illegal, a tele-health visit with an out-of-state doctor is the best way to get them.

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Financial institutions will be pushing back on requests for this data.

A New York-based bank is one of the ones.

The bank said it would carefully scrutinize any subpoenas for information related to the prosecution of women for exercising their right to choose. Unless investigators force the bank not to reveal the existence of the subpoena, it will notify customers.

The companies that issue the debit cards could be subpoenaed. Health care spending accounts are provided by many employers.

HealthEquity is a leading administrator of these accounts. Jon Kessler, the company's chief executive, said in an email that the company doesn't comply with requests for medical expense data unless they are specifically compelled to do so. We would oppose any request to broadly search member data.

The New York Times contacted a number of large financial firms to find out how they would handle data privacy around abortion.

Visa and USAA declined to comment.

Bill Day, a spokesman for Frost, which is based in San Antonio and is one of the 50 biggest banking companies in the United States, said he was not able to speculate about the situation you described. At this time, they are all hypothetical.

USAA wouldn't say if it is instructing bank employees to deal with customers. Texas has a new law that allows residents to file lawsuits against people who helped facilitate an abortion.

Brad Russell, a USAA spokesman, said that it was premature to know the full impact of the ruling. USAA will always follow the law.

American Airlines Credit Union, Bank of America, Capital One, Discover, Goldman Sachs, Prosperity Bank USA, Navy Federal Credit Union, US Bank, University of Wisconsin Credit Union, Wells Fargo and Western Union did not return phone calls.

If employees travel to other states for abortions they will be reimbursed for their expenses. No one has commented on how they would respond to the subpoena for the transaction records of the employees who would be eligible for reimbursement.

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It isn't surprising that a lot of financial services companies are silent. They are racing against time to navigate a landscape that has changed completely. The American Bankers Association didn't say anything.

There are three digital payments services that straddle the line between technology and finance.

The companies didn't reply to at least two messages.

Caraballo read the user agreements with her students for the course. She said that they realized that all of them are bad. All of them have said they will comply with the legal process and will turn over documents.

Tech companies have wrestled with the issue of standing up to subpoenas.

New forms of payment don't come along as frequently as new forms of communication so financial services companies have not faced that much complexity.

Privacy activists are getting ready for the fight.

The acting executive director of the National Advocates for Pregnant Women said that everyone is trying to figure out what can be done. Public pressure will be applied to fight the subpoenas. It will be harder for these prosecutors, who have limited resources and a lot of work to do in their communities, if they do.

Amie Stepanovich is the Vice President of U.S. policy at the Future of Privacy Forum. She said that they could fight the use of gag orders. Sometimes they win and other times they don't.

Sometimes prosecutors don't say what they're looking into when they ask for transaction records. It is up to the financial institution to ask more questions or figure it out on their own.

One way to avoid detection is to pay for abortion services with cash. People who need financial help are supported by many abortion funds.

Cash and electronic transfers are not completely safe.

Ms. Stepanovich said the amount of residual information that can be used to reveal health status and pregnant status is significant even if you pay with cash.

Users may inadvertently give up sensitive information through apps that track their financial behavior.

The purchase of a pregnancy test on an app where financial history is public is probably the biggest red flag.

The kinds of cards that people can buy off a rack in a drugstore are also mentioned. They said that achieving anonymity is difficult withcryptocurrencies.

The lack of certainty is one of the things that every expert emphasized. There is a feeling that corporations will get more attention than judges.

Payment companies will be at the forefront of the fight.