A year ago this Saturday, the Supreme Court's Dobbs abortion ruling overturned Roe v. Wade. This decision deprived millions of people of a fundamental right. As we wrote then, it also underscored the importance of fair and meaningful protections for data privacy. In the past year, EFF staff have worked with reproductive justice and civil liberties organizations to protect and advocate for the digital rights of people seeking or supporting reproductive care; here are some highlights from just the past month.
Right now, EFF is a proud sponsor—along with If/When/How and ACLU California Action—of Assemblymember Mia Bonta (D-Oakland)'s A.B. 793. This bill would protect people seeking abortion and gender-affirming care from dragnet-style digital surveillance. AB 793 targets a type of dragnet surveillance that can compel tech companies to search their records and reveal the identities of all people who have been in a certain location or looked up a particular keyword online. These demands, known as “reverse demands,” “geofence warrants,” or “keyword warrants,” enable local law enforcement in states across the country to request the names and identities of all people whose digital data shows they’ve spent time near a California abortion clinic or searched for information about gender-affirming care online.
A coalition of more than 50 reproductive justice, civil liberties, LGBTQI+ and privacy groups are supporting the bill; it is also supported by Google and the Law Enforcement Action Partnership. However, the bill has faced opposition from other law enforcement lobbyists and faces a difficult path in the California Senate. If you live in California and support the privacy rights of people seeking reproductive and gender-affirming care, please tell your lawmakers that you care about this issue:
Support A.B. 793
A.B. 793 builds on some important first steps California took to step up protections around reproductive data, which EFF supported. Along with other states, including Washington and New York, California protects the right to abortion and has passed laws limiting how information can be shared with investigations originating in states that don't protect this right. Those states have also been busy, and we have worked to defeat bills aiming to silence or punish those who post about abortion online. Such bills have implications far beyond abortion. Whenever the government tries to restrict our ability to access information, or tries to decide which websites people may visit, it threatens our First Amendment rights.
EFF has also weighed in at the federal level. In addition to supporting the My Body, My Data Act by Rep. Sarah Jacobs, we were also one of 125 organizations to endorse comments from medical providers asking the U.S. Department of Health and Human Services to improve protections for health information. The comments addressed proposed changes to the Health Information Portability and Accountability Act (HIPAA), a federal law that aims to protect sensitive patient health information. The comments call on the federal government to improve protections for a wide range of services that fall under the umbrella of "reproductive health care" and ensure medical providers aren't put in a position where they feel compelled to report their patients. "Since the Dobbs decision, the specter of criminalization has increased significantly, for both patients and providers. People must feel – and actually be – safe while accessing health care, but the overturning of Roe v. Wade further erodes this very necessary trust between patients and providers," the comments said.
Finally, EFF has also built on its existing work opposing police surveillance technologies by highlighting the dangers these technologies pose to those seeking reproductive care. Along with the ACLU of Northern California and the ACLU of Southern California, EFF sent letters to 71 California police agencies in 22 counties, demanding that they immediately stop sharing automated license plate reader (ALPR) data with law enforcement agencies in anti-abortion states. This data sharing violates California law and could enable prosecution of abortion seekers and providers elsewhere.
The agencies that received the demand letters have shared ALPR data with law enforcement agencies across the country, including states with abortion restrictions such as Alabama, Idaho, Mississippi, Oklahoma, Tennessee, and Texas. Since 2016, sharing any ALPR data with out-of-state or federal law enforcement agencies is a violation of the California Civil Code (SB 34). Nevertheless, many agencies continue to use services like Vigilant Solutions or Flock Safety to make the ALPR data they capture available to out-of-state and federal agencies.
Data privacy, free expression, and freedom from surveillance intersect with just one corner of the broader fight for reproductive justice. But, in the past year, EFF has learned so much from medical providers, academics, and advocates—such as If/When/How, Planned Parenthood, Digital Defense Fund, and many others—about how we can support their long history of advocacy. A year out from Dobbs, we're still in the middle of a long battle and ready to keep up the fight.