The FTC and other executive entities were urged to examine and reinforce data protection policies by an executive order signed by the president. Attempts to criminalize private medical activity across borders may be harder without a digital trail to follow.
Data will be an important part of the legal battles over reproductive rights in the post- Roe era. As a medical procedure, abortion is covered by the federal patient privacy law, but that will likely conflict with state rules. Digital services may track and sell data that could be incriminating.
The executive order is limited in what it can do, but it emphasizes which resources will be used in the legal conflicts to come. The full text of the EO is here, but let's take a closer look at the parts that are relevant to the tech industry. The quoted text is very short.
A report will be issued by the Secretary of Health and Human Services.
… identifying ways to increase outreach and education about access to reproductive healthcare services, including by launching a public awareness initiative to provide timely and accurate information about such access, which shall … share information about how to obtain free or reduced cost reproductive healthcare services through Health Resources and Services Administration-Funded Health Centers, Title X clinics, and other providers; and … include promoting awareness of and access to the full range of contraceptive services, as well as know-your-rights information for those seeking or providing reproductive healthcare services.
Some states plan to make it difficult to know what options are actually available, whether it's legal to travel to another state for a procedure or medication, and so on. The feds can ensure that the information on where to get abortion pills is available in the state through other means, even though they can't force it. They may be able to get in touch with hospitals that accept federal funding.
The federal government can put whatever it wants on its own sites, but the real goal is to show how states will try to control information.
New safety and security risks associated with providing or seeking reproductive care will be considered by federal entities.
To address the potential threat to patient privacy caused by the transfer and sale of sensitive health-related data and by digital surveillance related to reproductive healthcare services, and to protect people seeking reproductive health services from fraudulent schemes or deceptive practices:
The Chair of the Federal Trade Commission (FTC) is encouraged to consider actions … to protect consumers’ privacy when seeking information about and provision of reproductive healthcare services.
The Secretary of Health and Human Services shall consider actions, including providing guidance under [HIPAA] and any other statutes as appropriate, to strengthen the protection of sensitive information related to reproductive healthcare services and bolster patient-provider confidentiality.
The first part of this is a warning to major tech companies that have the means and opportunity to track peoples behavior down to a disturbingly granular level. People are horrified when they see ads for baby products before they announce they are pregnant. Imagine if a state required a company to reveal if a user sought an abortion.
Congress probes period tracking apps and data brokers over abortion privacy concerns
The trade in potentially sensitive information to the likes of data brokers is more important than protecting people from fraud. Guidance may be issued by the FTC regarding claims of privacy that are not based on actual practices.
There will be a conflict between federal non-disclosure laws and state forced-disclosure laws when it comes to the HIPAA part. It may be simpler in states where abortion is legal than it is in states where it is illegal.
The Health and Human Services is likely to give guidance and interpretation of the regulations that favor privacy in a way that caters to cross-border requests. If state law and federal law stack up to protect a patient's privacy, suits and requests from states looking to criminalize behavior in other states may not work.
The AG will give technical assistance to states on the matter of protection for out-of-state patients, which is similar to saying "let's write that law together"
If this is all the administration can bring to bear, it's disappointing to those who want more concrete action. It shows the administration's intent to stand behind states fighting to protect reproductive rights rather than those who curtail them.
8 ways the tech industry can step up to protect abortion rights
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