Last June, Free Press sounded the alarm on the grim privacy circumstances people in this country would face in a post-Roe v. Wade America — anticipating a rise in tech companies and data brokers selling sensitive location- and search-history data to government agencies aiming to criminalize people for seeking or obtaining an abortion in states where it is outlawed.
Then, not two months later, we found out that Facebook gave Nebraska law enforcement access to a 17-year-old’s private Facebook messages to prosecute her for having an abortion.
Just last month the teenager was sentenced to 90 days in jail, while her mother faces up to five years in prison. Meanwhile, companies like Google are still retaining sensitive location data about health-care visits — including visits to abortion clinics — despite committing to do the exact opposite after we petitioned the company to do more.
It’s hard to avoid leaving a data trail. Browsing histories, website visits, geolocation data, purchasing histories — these are all types of data gathered and sold by data brokers, a virtually unregulated industry in the United States. Last year, Vice reported on data brokers selling geolocation data on people who visited clinics providing abortion care, including Planned Parenthood. Earlier this year, ProPublica reported on sites selling abortion pills that share information with third parties through web trackers.
While data brokers often claim that the information they sell has been anonymized, experts have shown how quickly even “anonymized” data can be linked back to specific people.
Closing a legal loophole
The United States has fallen behind other countries, particularly in the EU, when it comes to providing internet users with the sort of legal protections they need to prevent such surveillance, collection and sale of their data. Fortunately, there is one piece of privacy legislation that would help. The bipartisan Fourth Amendment Is Not For Sale Act (FANFSA) would stop the harmful and unconstitutional sale of personal information to government authorities without a warrant.
Without this, law-enforcement agencies will continue to buy our personal information from data brokers, circumventing the Fourth Amendment’s warrant requirements. Agencies like the FBI do this because the relevant federal statutes were written at a time when apps and digital brokers didn’t exist in anything like the forms they take today. As a result, these laws don’t specifically prohibit such actions.
In the age of so-called “surveillance capitalism,” many internet businesses rely on their ability to collect and package user data to attract targeted advertisers and resell this information to third-party brokers. We need a law that will protect our online privacy rights and safeguard against abuses in this digital marketplace.
Despite existing corporate privacy policies and laws that restrict unwarranted and direct disclosure of our data to law enforcement, information collected by companies like AT&T, Comcast, Google and Meta regularly slips through this resellers’ loophole and into the hands of brokers and aggregators. That lets government agencies skirt Fourth Amendment safeguards by directly paying these brokers for such data.
Communities under threat
And it’s not just people seeking information about their reproductive rights and options who need FANFSA protection. This kind of government surveillance disproportionately impacts people of color, immigrants, LGBTQIA+ individuals, political dissidents and other groups that law enforcement has historically targeted.
At the state level, lawmakers are weighing an array of both general and targeted commercial privacy bills. There is a vital need for federal laws requiring companies to minimize their data collection and prohibiting them from discriminatory data processing. Those many state bills will not and cannot comprehensively prohibit law-enforcement and intelligence agencies from evading the Fourth Amendment the way that FANFSA would.
While there’s much more lawmakers can do to protect the privacy rights of people seeking abortion information online, FANFSA is a meaningful step forward and one that has already drawn bipartisan backing in Congress.
With continued public support, we can help push lawmakers to prioritize this legislation when they return from the congressional summer recess. We need all hands on deck to get FANFSA across the finish line.