Biden order bolsters data privacy ahead of state-to-state lawsuit over abortion

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In an executive order signed by President Biden, the White House strongly supports states that guarantee access to abortion and calls on the Federal Trade Commission and other executive agencies to study and strengthen data protection policies. Without a digital footprint, attempts to criminalize private medical practice abroad can be much more difficult.

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The upcoming legal battles over reproductive rights in the post-Roe era are likely to be complex and unprecedented, and data will be an important part of it. As a medical procedure, abortion is covered by the federal HIPAA Patient Privacy Act, but this is likely to be against state regulations requiring disclosure. In addition, digital services how to track your period and even fitness and wellness platforms can track and even sell data that can be incriminating.

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The executive order fundamentally limited what he could achieve (Trump issued dozens of executive orders to little effect, as many will remember), but it highlights what and where federal resources will be deployed in the coming legal conflicts. Full text of EO herebut let’s look at the portions most immediately relevant for the technology industry. (The quoted text has been very lightly edited for brevity.)

First, the Secretary of Health and Human Services will release a report…

… identifying ways to increase coverage and education about access to reproductive health services, including by launching a public awareness initiative to provide timely and accurate information about such access, which should…

share information about how to get free or subsidized reproductive health services through Health Resources and Services Administration-funded health centers, Title X clinics, and other providers; as well as…

include raising awareness of and access to the full range of contraceptive services, as well as information about their rights for those seeking or providing reproductive health services.

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This is clearly aimed at trying to limit the information available to people seeking help; some states are planning to make it hard to know what options are actually available, whether it is legal to travel to another state for a procedure or treatment (it is), and so on. While the feds cannot force, say, a state health agency to provide information about where to get abortion pills or the like, they can make that information available in the state in other ways. They may even enter the door of federally funded hospitals and clinics.

While this may seem rudimentary (of course, the federal government is free to post whatever it wants on its websites), the real purpose here is to list the ways in which states will try to control information and how best to counteract it.

Federal agencies, including the Attorney General and Homeland Security, will then “consider actions” to address new security risks associated with providing or seeking reproductive assistance.

To address the potential threat to patient privacy caused by the transfer and sale of sensitive health-related data and digital surveillance associated with reproductive health services, and to protect people seeking reproductive health services from fraudulent schemes or deceptive practices:

The Chairman of the Federal Trade Commission (FTC) is encouraged to consider measures … to protect consumer privacy when seeking information about and providing reproductive health services.

The Minister of Health and Human Services should consider action, including providing guidance in accordance with [HIPAA]as well as any other legislation, if necessary, to enhance the protection of confidential information related to reproductive health services and to ensure confidentiality between the patient and the health care provider.

The first part of this is clearly a warning to big tech companies like Google and Meta, which have the means and ability to track people’s behavior at an alarmingly detailed level. We’ve all read horror stories about people who saw commercials for baby products before they announced they were pregnant. Now imagine if the government required a company to disclose whether a user discussed or was algorithmically classified as seeking an abortion.

Protecting people from “scams” seems less of an issue than the day-to-day trading of potentially sensitive information with data brokers. The FTC may well issue guidance on the matter regarding “privacy” claims that are not supported by actual company practice.

The HIPAA part is tricky because there will almost certainly be a direct conflict between federal non-disclosure laws and state enforcement laws that will have to be resolved in court. While this is likely to be a years-long conflict, and speculation over its outcome will be fruitless at this stage, it may be easier in states where abortion remains legal.

Health and Human Services is likely to issue guidance and interpretations of HIPAA rules that encourage privacy in a way that is specifically designed for tainted cross-border requests. If state and federal law combine to protect patient privacy, lawsuits and inquiries from states seeking to criminalize conduct in neighboring jurisdictions may not start.

Added to this in the next section is that the AG will provide “technical assistance” to states to protect out-of-state patients, which is tantamount to “let’s write this law together.”

To some, this executive order will seem like a trifle; and indeed, if this is all the administration can do after weeks of inactivity, it is rightly disappointing to those calling for more concrete action. But while it does little on its own, it clearly shows the administration’s intent to at least support states that fight to protect reproductive rights, not those that restrict them.

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