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Could the fall of Roe v. Wade boost digital privacy?

Abortion-rights demonstrators during a nationwide rally in Washington, D.C., last month.Sarah Silbiger/Bloomberg

The possibility that the Supreme Court may overturn the 1973 Roe v. Wade decision has ignited a political firestorm over abortion rights but also over data privacy.

Lawmakers and abortion-rights activists are lashing out against technology companies that track the location and health-related data of millions of smartphone users. They fear that if Roe is repealed, states that adopt tough abortion restrictions could use this location data to track down those who obtain or perform abortions.

So they’re urging tech companies to stop collecting such data or to prevent its being used to enforce antiabortion laws. And they’re saying that the controversy underscores the need to enact a federal data privacy law to give consumers greater control over their personal information.


“Tech firms are putting women who seek abortion services directly in harm’s way by selling and transferring their cell phone location data,” said Democratic Massachusetts Senator Elizabeth Warren in an e-mail to the Globe. “It’s long past time for Congress to stand up for American consumers and pass meaningful legislation to protect their privacy.”

There’s considerable bipartisan support for some sort of data privacy statute. Nearly 20 such bills have been put forward during the current session of Congress.

Some proposals would require companies to clearly inform consumers about the sensitive data they collect and what will be done with it. Companies could be required to correct errors in the data, and allow individuals to demand that their information be deleted. And companies could be barred from denying services to consumers who refuse to provide their personal data.

“There is remarkable consensus on many if not most of the major policy drivers,” said Trevor Hughes, president of the International Association of Privacy Professionals.

But the Republicans have sought a law that would supersede all state laws; the Democrats want states to be free to pass even tighter privacy restrictions. Also, the Democrats want to let individuals sue companies for alleged privacy violations; the Republicans have favored allowing lawsuits only by state or federal regulators.


Hughes said that the inability to compromise on these issues “speaks more to the politics of Capitol Hill right now than it does the policy debate around privacy.”

Still, the logjam may be breaking. Days ago, a bipartisan group of senators filed compromise legislation that would allow some state privacy laws to remain in effect, while permitting individuals to sue companies for privacy breaches in some cases.

For now, Democratic lawmakers are putting pressure on tech companies to protect the privacy of women seeking abortions.

Last month, 40 Democrats in the House and Senate called upon Google to stop collecting location data about hundreds of millions of smartphone users, to prevent prosecutors in antiabortion states from using the information. “The only way to protect your customers’ location data from such outrageous government surveillance is to not keep it in the first place,” their letter said. The lawmakers urged Google to follow the lead of its archrival Apple, which stores iPhone location data on the user’s phone in an encrypted format. Apple claims that it cannot access this stored data.

Aside from Google, location data is collected by hundreds of smartphone apps thatt routinely track users’ movements, even if the app doesn’t need the information to do its job. Instead, the app maker typically turns a profit by selling the information to data brokers who resell the information to advertising companies.


Law enforcement agencies can get the location data by presenting a warrant. Or they could purchase the information from data brokers, which sell smartphone location data to anybody — including antiabortion activists. Under Texas law, a private citizen can sue anyone aiding or abetting an abortion, and win up to $10,000. This would give activists a financial incentive to purchase location data in an effort to track down doctors performing abortions.

“You could see a whole host of vigilantes seeking out that data in order to target individuals and attempt to criminalize their actions,” said Caitlin Seeley George, campaign director for Fight For The Future, a Boston-based online civil liberties group.

An antiabortion marketing firm, Choose Life Marketing of Columbia, Mo., uses location-tracking technologies to reach out to women seeking abortions. Choose Life works with crisis pregnancy counseling centers that encourage women to give birth rather than abort. Choose Life offers a “geofencing” service that detects when smartphone users are in or near an abortion clinic. The service then transmits ads for the crisis pregnancy centers to the users’ phones.

In 2017, a Boston-based company called Copley Advertising offered a similar service. After Massachusetts Attorney General Maura Healey threatened legal action, the company halted the practice.

But on its website, Choose Life says geofencing is legal. “It’s a modern advertising practice that virtually all businesses use in some way to show ads to their customers and potential customers,” Choose Life says. “If that’s creepy, then all advertising done this way by any company also has to be considered creepy.”


But would abortion foes favor using the technology to identify and prosecute doctors or patients? “The answer is No and NO!” said Barbara Whitehead, vice president of Mississippi Right to Life, in an e-mail. “We have never done anything remotely like that nor would we ever!” An e-mail from the National Right to Life Committee said that organization also had no interest in pursuing such a strategy.

Senator Warren and Democratic Massachusetts Senator Ed Markey, along with three other Democratic senators, have urged the chief executives of Apple and Google to require that smartphone apps let users block the collection of information that might be used to enforce anti-abortion laws. The senators said that users should be able to stop an app from recording location data, as well as medical information that might reveal a woman’s fertility, or search histories that might reveal that the user was seeking an abortion clinic.

In the meantime, organizations like the Digital Defense Fund and the Electronic Frontier Foundation have posted guidelines for smartphone users, to help them avoid sharing sensitive data that could reveal that they’re planning to get an abortion. Of course, antiabortion protesters could use the same advice to avoid being tracked as they protest outside clinics.

Hiawatha Bray can be reached at hiawatha.bray@globe.com. Follow him on Twitter @GlobeTechLab.