Reproductive Health Care Data Free or For Sale: Post-Roe Surveillance and the 'Three Corners' of Privacy Legislation Needed

30 Rich. J.L. & Tech. 185 (2023)

89 Pages Posted: 12 Jan 2023 Last revised: 7 Dec 2023

See all articles by Eunice Park

Eunice Park

Western State College of Law

Date Written: January 10, 2023

Abstract

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 readily accessible troves of private digital information alongside a 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.

I would like to thank the Future of Privacy Forum for selecting my paper for the 13th Annual Privacy Papers for Policymakers Award and the opportunity to present at the awards ceremony in DC on February 16, 2023. Please see https://fpf.org/fpf-event/13th-annual-privacy-papers-for-policymakers/.

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

Suggested Citation

Park, Eunice, Reproductive Health Care Data Free or For Sale: Post-Roe Surveillance and the 'Three Corners' of Privacy Legislation Needed (January 10, 2023). 30 Rich. J.L. & Tech. 185 (2023), Available at SSRN: https://ssrn.com/abstract=4321244

Eunice Park (Contact Author)

Western State College of Law ( email )

16715 Von Karman Avenue
Suite 100
Irvine, CA 92606
United States

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