The US Supreme Court’s ruling in Roe v. Wade has raised concerns that tech companies could be forced to hand over information about women seeking abortions. The Europeans were shocked.
European citizens, policy makers and leaders have They voted Furious that US prosecutors may demand access to personal information they believe should remain confidential.
While Americans are tightening abortion rights, Europeans are moving in the opposite direction. As of 2018, conservative Catholic countries such as Ireland have voted to legalize the procedure. Of the 27 EU members, only Malta and Poland maintain restrictive laws. After the Supreme Court’s ruling, the European Parliament voted 324-155 to make abortion a part of the EU’s Fundamental Rights Act.
The split comes at a time of caution in Atlantic Digital Communications. Data transfers across the Atlantic are at risk from 2020, when the European Court of Justice suspended the data transfer system known as the Privacy Shield. US surveillance of EU data sent across the Atlantic violates Europe’s General Data Protection Regulation (GDPR), the European Court of Justice has ruled.
Both European and American leaders have prioritized solving the problem. In March, EU Commission President Ursula von der Leyen and US President Joe Biden announced a political agreement on ‘Privacy Protection 2.0’. The list remains to be filled. The White House is expected to publish an executive order outlining its compliance plans within weeks.
But after the Supreme Court’s decision, Europeans are worried that US law enforcement will want access to information to prosecute abortion providers. American data brokers make money by collecting and reselling large amounts of data. The federal government obtained consumer data to bypass warrants, and a reporter recently purchased a list of people who visited Planned Parenthood, an abortion-provided health care provider, for $160. “While the right to privacy is respected as a fundamental human right in Europe, it is not in the United States,” said Stearns Weaver Miller, a law professor at Florida State University College of Law.
“Location information is the biggest issue,” said Jake Laperruck, deputy director of the Security and Surveillance Project at the Center for Democracy and Technology. Individuals may claim to have stopped using a perm tracking app, but phone records showing abortion clinic visits are hard to disprove, and US courts have accepted such evidence. Location data is more robust than period tracking or other signals to “verify an abortion,” Ziegler says.
Tech companies are squeezed. In a blog post, Google said it will automatically delete location history that is considered “private.” Examples include domestic violence shelters, abortion clinics, and addiction treatment facilities. Police warrants have increased significantly since 2018, representing 25 percent of warrants received by 2020, according to Google.
Other tech companies will follow suit. Placer.ai and Safegraph, which previously sold information on individuals who visited Planned Parenthood, have agreed to stop selling abortion information.
For Atlantic Communications, the upcoming disaster will focus on new privacy protections. According to Eduardo Ustaran, a partner at Hogan Lovells International LLP in London, Europe’s GDPR provides stricter protections for ‘sensitive data’ including the environment.
European companies in the US can be guaranteed to hand over information. Law enforcement’s environmental, health and other sensitive questions “will be considered a violation of privacy principles,” Ustara warns.
Despite the risk, the abortion debate still may not derail the construction of Privacy Shield 2.0. Leaders in both Washington and Brussels are looking for a deal as a concrete step to improve tensions with the Trump administration and create a common front against Russia’s invasion of Ukraine. Ivana Bartoletti, global privacy officer at Indian technology company Wipro, said: “There is a strong commitment to reforming privacy protections on both sides of the Atlantic, and it is unlikely that these threats will completely derail the effort.”
However, pending a new negative ruling by the European Court of Justice, any renewed privacy protections will be weak. The separation caused by abortion could make some European judges risk allowing European personal data to be transferred across the ocean. “Some form of legal challenge is inevitable,” law firm Herbert Smith Freehills LLP concluded in a recent analysis.
Possible reforms in Washington could avert this disaster. A bipartisan group of senators recently introduced the Fourth Amendment Not For Sale Act, which would close the data broker loophole. Broad US federal privacy law reassures Europeans. But given the difficulty of passing legislation in a divided US Congress, such new legislation seems unlikely.
Before the Supreme Court decision, analysts said the US and Europe appeared to be moving in the same direction to expand privacy protections. Analysts now believe the momentum has been broken. Ustaran said, “It has brought the global understanding of the right to privacy that much closer.” This fight over abortion threatens to “destroy years of work.”
Grace Andrud and Daniel Hayes are interns at CEPA’s Digital Innovation Initiative. Bill Etchikson adjusts bandwidth.
