Government Initiatives to Protect Reproductive Health Data

Several state governments and federal regulators have been taking steps to safeguard individuals’ reproductive health information. This comes in the wake of a recent report by a U.S. senator, which revealed how cellphone location data was utilised to target millions of anti-abortion advertisements towards individuals who had visited Planned Parenthood facilities.

While federal law prohibits medical providers from sharing health data without explicit consent from patients, it does not prevent digital technology companies from monitoring menstrual cycles and individuals’ whereabouts, subsequently selling this data to data brokers. Efforts to introduce federal bans on such practices have faltered, primarily due to resistance from the tech industry.

The issue of data privacy has become a contentious political issue in a country where most Republican-controlled states have enacted restrictive abortion laws, while Democratic states have sought to uphold access to reproductive healthcare services following the overturning of Roe v. Wade by the U.S. Supreme Court in 2022.

Concerns Over Data Privacy

Advocates for abortion rights are concerned that the lack of privacy safeguards for sensitive health data could not only result in targeted advertising but also potentially be used in law enforcement investigations or by anti-abortion groups to harm individuals seeking abortion services.

Washington state Representative Vandana Slatter, who sponsored a law aimed at curbing unauthorised use of health information, emphasised the harmful effects of data exploitation, stating, “It isn’t just sort of creepy. It’s actually harmful.”

Despite these concerns, there is currently no widespread evidence of such data being used in law enforcement activities. Albert Fox Cahn, the Executive Director of the Surveillance Technology Oversight Project, highlighted that the risks are more future-oriented at this stage.

Senator Ron Wyden’s Investigation

A recent report by Senator Ron Wyden shed light on the largest known anti-abortion advertising campaign that targeted individuals who had visited abortion providers. The investigation revealed that a now-defunct data broker, Near Intelligence, had facilitated the dissemination of anti-abortion ads by The Veritas Society, a nonprofit associated with Wisconsin Right to Life, to individuals who had visited over 600 locations across 48 states between 2019 and 2022.

Senator Wyden has called on the Federal Trade Commission to intervene in the bankruptcy proceedings of Near Intelligence to ensure that the location data collected on Americans is destroyed and not sold to another data broker. Additionally, he has urged the Securities Exchange Commission to investigate potential securities fraud committed by the company in relation to the investigation.

This is not the first instance of such practices coming to light. In 2017, Massachusetts reached a settlement with an advertising agency that ran a similar campaign, while the FTC has taken legal action against data brokers like Kochava and X-Mode Social over similar allegations.

State Laws and Initiatives

Several states have either passed or are considering legislation specifically aimed at protecting sensitive health information. Washington, Connecticut, and Nevada have adopted laws that restrict the sale of personal health data without consumer consent and prohibit the tracking of individuals visiting reproductive or sexual health facilities.

California and Maryland have enacted laws preventing the sharing of sensitive health information within computerized health networks without consent. Illinois has also introduced legislation that prohibits the provision of government license-plate-reading data to law enforcement agencies in states with abortion bans.

Various states, including Hawaii, Illinois, Maine, Maryland, Massachusetts, Missouri, South Carolina, and Vermont, have introduced bills addressing the issue of data privacy around reproductive health. In Virginia, a bill that would prohibit the issuance of search warrants, subpoenas, or court orders for electronic menstrual health data has passed through both chambers of the General Assembly.

While concerns over data privacy continue to mount, the efficacy of legislation in addressing these issues remains uncertain. Sean O’Brien, founder of the Yale Privacy Lab, highlighted the pervasive nature of data tracking in the software supply chain, suggesting that companies may choose to overlook potential consequences and continue exploiting sensitive information.

Information for this article was contributed by Frank Bajak and Sarah Rankin of The Associated Press.