In the wake of the blockbuster Supreme Court leak about overturning Roe v. Wade in May, a battle has played out in Congress and Silicon Valley over data that may put people seeking abortions in danger.
Lawmakers and advocacy groups keep sounding the alarms that, if the decision were to come to fruition, location data mined by companies like Facebook and Google could be used by police or vigilante groups to track people seeking an abortion.
“If abortion is made illegal, it is inevitable that prosecutors will use geofence orders and Google’s location data to hunt down, prosecute, and jail people for obtaining critical abortion care,” digital advocacy group Fight For the Future said in a statement last month.
On Wednesday, Senator Elizabeth Warren (D-Mass.) announced sweeping legislation that would ban the sale of location and health data by private companies, effectively safeguarding abortion seekers from having their data used against them.
“Data brokers profit from the location data of millions of people, posing serious risks to Americans everywhere by selling their most private information,” Warren said in a statement. “With this extremist Supreme Court poised to overturn Roe v. Wade and states seeking to criminalize essential health care, it is more crucial than ever for Congress to protect consumers’ sensitive data.”
The legislation is sponsored by a number of progressive senators, including Bernie Sanders (I-Vt.) and Ron Wyden (D-Ore.) and would bar “data brokers from selling or transferring location data and health data” with few limitations, making the bill one of the most aggressive attempts at regulating location data sales.
If the legislation passes, the bill would allow the Federal Trade Commission (FTC), state attorneys general, and people hurt by location data sales to sue brokers in violation of the law. The FTC would also receive an additional $1 billion in funding over the next decade to help the commission enforce the new rules.
The legislation was announced on the same day that a collaborative report from Reveal from the Center for Investigative Reporting and the Markup found that Facebook has been collecting data from people who visit the websites of crisis pregnancy centers, which are quasi-health clinics, usually run by religious groups whose mission is to dissuade people from getting an abortion.
This seems to contradict the company’s own rules, as Meta—Facebook’s parent company—prohibits websites and apps that use Facebook’s advertising technology from sending Facebook “sexual and reproductive health” data. After investigations by the Wall Street Journal in 2019 and New York state regulators in 2021, Facebook claimed it created a machine-learning system to detect and block sensitive data that contained any of 70,000 health-related keywords.
But the Markup and Reveal showed Facebook’s code on hundreds of anti-abortion clinics. Using a Markup-developed tool called Backlight, which detects cookies, keyloggers, and other types of user-tracking technology on the websites, Reveal analyzed nearly 2,500 crisis pregnancy centers and found 294 of them shared data with Facebook. Not only that, but the data shared was highly sensitive, including “whether a person was considering abortion or looking to get a pregnancy test or emergency contraceptives.”
Facebook declined to answer detailed questions from Reveal about the data, but spokesperson Dale Hogan reaffirmed Facebook’s policies and said it is against company policy for “websites and apps to send sensitive information about people through our Business Tools.”
However, Reveal found that anti-abortion clinics sent information to the company anyway.
“More than a third of the websites sent data to Facebook when someone made an appointment for an ‘abortion consultation’ or ‘pre-termination screening,’” the report states. “And at least 39 sites sent Facebook details such as the person’s name, email address or phone number.”
The Health and Location Data Protection Act, introduced by Warren this week, is likely a long way from passing. But the European Union already announced sweeping new regulations that would prohibit similar data mining. And as advocacy groups and politicians across the globe try to crack down on the sale of location data—and with the official court decision yet to be announced—the issue will only grow in scope in the coming months.
