Reproductive Health Care Data Free or For Sale: Post-Roe Surveillance and the 'Three Corners' of Privacy Legislation Needed
NYU Review of Law & Social Change, Forthcoming
59 Pages Posted: 12 Jan 2023 Last revised: 22 Jan 2023
Date Written: January 10, 2023
Conditions will be harsher now for women than before Roe v. Wade for one key reason: we live in a surveillance state. While reproductive health care will continue to be a political hot button, one way to manage some of the fallout from Dobbs v. Jackson Women’s Health Organization is by placing over-due limits on state surveillance to protect the politically uncontroversial expectation of privacy for personal data. Specifically, measures are needed to protect the privacy of health care data, and, in particular, reproductive health care data. Currently, law enforcement can obtain such data not only through failings in existing legislation but also via the ample digital breadcrumbs that fall outside any regulatory construct, including data obtainable for “free” by subpoenas, orders, warrants, and geofence warrants; and data “for sale” by data brokers, including sensitive geolocation information and data from fertility apps.
Given the perfect storm of a potentially aggressive prosecutorial environment, the troves of readily accessible private digital information, and the panoply of inconsistent state solutions, this Article urges that federal legislation is needed to provide privacy safeguards for reproductive health care data that provides “three corners” of protection in the digital era. The first corner defines health care data to include a specific carve-out for reproductive health care data. The second corner provides the substantive curb of prohibiting data brokers from selling this reproductive health care data. The third corner adds a necessary procedural protection: because there is no other kind of health care data with the broad potential to subject a patient to criminalization, reproductive health care data that would not be obtainable without a warrant should not be admissible as evidence to criminalize the individual. Setting such a federal floor to limit law enforcement’s ability to mine private data for evidence of abortion, criminalize women, and, disproportionately, criminalize women of color, is more critical than ever in the surveillance state.
Keywords: Roe, Reproductive, Health Care, Data, Privacy, HIPAA, Data Brokers, Geolocation, Dobbs, Apps, Smart, Digital, Technology, Fertility, Reverse, Warrant, Warrants, Location, Keyword, Search, Fourth Amendment, Surveillance, Abortion
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