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US senators seek ban on sale of health location data

With Supreme Court set to overturn Roe v Wade, privacy is key

A group of senators wants to make it illegal for data brokers to sell sensitive location and health information of individuals' medical treatment.

A bill filed this week by five senators, led by Senator Elizabeth Warren (D-MA), comes in anticipation the Supreme Court's upcoming ruling that could overturn the 49-year-old Roe v. Wade ruling legalizing access to abortion for women in the US.

The worry is that if the Supreme Court strikes down Roe v. Wade – as is anticipated following the leak in May of a majority draft ruling authored by Justice Samuel Alito – such sensitive data can be used against women.

"When abortion is illegal, researching reproductive health care online, updating a period-tracking app, or bringing a phone to the doctor's office all could be used to track and prosecute women across the US," Sen. Ron Wyden (D-OR), a co-sponsor of the Health and Location Data Protection Act, said in a statement. "It amounts to uterus surveillance. Congress must protect Americans' privacy from abuse by far-right politicians who want to control women's bodies."

The legislation filed by Warren would ban data brokers from selling or transferring location and health data – with exceptions for compliance with HIPAA and speech protected by the First Amendment – require the FTC to develop rules to implement the law within 180 days, enable the FTC, state attorneys general and individuals to sue those who violate the law and give the FTC $1 billion over the next decade to carry out the work.

In a statement, Danielle Citron, a law professor at the University of Virginia School of Law and vice president of the Cyber Civil Rights Initiative, said the bill lays out clear rules against sharing such data and the penalties for violating it.

"Our health and location information should not be sold or shared but rather treated with utmost care," Citron said. "It paints a detailed picture of our close relationships, health conditions, doctor visits, and other aspects of our intimate lives for which we expect and deserve privacy."

Other co-sponsors are Sens. Patty Murray (D-WA), Sheldon Whitehouse (D-RI) and Bernie Sanders (I-VT).

Privacy has never been more important

Warren said that "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 Health and Location Data Protection Act will ban brokers from selling Americans' location and health data, rein in giant data brokers, and set some long overdue rules of the road for this $200 billion industry."

The leaked draft ruling essential overturns not on the 1973 Roe case, which guaranteed federal protection of a women's right to terminate a pregnancy under the 14 Amendment, but also the 1992 Planned Parenthood v. Casey ruling to upheld it. In the draft, Alito wrote that "Roe was egregiously wrong from the start" and that the majority believes that "Roe and Casey must be overruled."

The draft was leaked as some states like Texas and Mississippi passed law drastically curtailing reproductive rights – the Mississippi law was at the center of the case the Supreme Court is ruling on – announced plans by others to follow similar routes. The Texas law included a provision enabling private citizens to sue women, doctors and anyone else they believe violated the law – such as a person who drives a pregnant woman to an abortion clinic – for a $10,000 bounty and other states have proposed making it illegal for citizens to seek abortions in locations where the procedure is legal.

There are so-called "trigger laws" in 13 states that would make abortions illegal there if federal protection is ever ruled unconstitutional.

The debate around privacy and data collection has raged for years. However, such provisions around reproductive rights and the Supreme Court's upcoming ruling have lent more urgency to the concerns about data brokers and the sensitive information of millions of citizens they collect and sell.

In May, 42 members of Congress led by Wyden sent a letter to Sundar Pichai, CEO of Google and its parent company, Alphabet, asking Google to stop collecting customer location data that could be used to prosecute women who have obtained abortions.

"We are concerned that, in a world in which abortion could be made illegal, Google's current practice of collecting and retaining extensive records of cell phone location data will allow it to become a tool for far-right extremists looking to crack down on people seeking reproductive health care," they wrote. "That's because Google stores historical location information about hundreds of millions of smartphone users, which it routinely shares with government agencies."

Also in May, Democrat senators sent a letter to the Federal Trade Commission (FTC) asking what the agency was doing about data brokers that are buying and selling location data collected from apps on smartphones. In the letter, they note a report on Vice that found that some data brokers are selling information showing how many people are visiting a site – such as Planned Parenthood and other reproductive services offices – and when.

The Vice report said that data detailing the number of people visiting more than 600 Planned Parenthood sites in a week could be bought for $160. ®

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