In summary

California enjoys the nation’s strongest privacy protections, but a bipartisan proposal in Congress could weaken abortion rights.

Guest Commentary written by

Hannah-Beth Jackson

Former Democratic state Sen. Hannah-Beth Jackson of Santa Barbara chaired the California Senate Committee on the Judiciary which heard all privacy-related issues.

The fight to protect abortion rights has moved online. Social media companies and third-party data brokers are releasing information to anti-abortion activists – and increasingly anti-abortion governments – to identify and punish those who seek out an abortion.

Purchased data is key to prosecutions. Previously, obtaining this data required a court-issued warrant, but thanks to the internet and technology, anyone can buy it now.

Under the landmark California Consumer Privacy Act, every California resident has the right to opt-out of the sale of their private information. But the proposed American Data Privacy and Protection Act, which is currently being considered by the U.S. House of Representatives, would eliminate that protection and preempt state laws like California’s.

The consequences could be dire. For example, a woman seeking an abortion who came to California from an anti-choice state such as Texas might search for reproductive health centers on her phone. After consulting a local physician and receiving assistance from a trusted person to travel to California, she received the care she wanted.

Police in Texas could flag the woman’s search traffic for abortion clinics, track her travel expenses, and use location-tracking features to follow her to the clinic. That data could be used as evidence to criminally prosecute everyone involved.

Even the California doctor could be at risk from the prosecutor if they traveled to Texas.

Thankfully, Gov. Gavin Newsom just signed a law that prevents companies from providing data in response to a law enforcement warrant in another state, specifically if the goal is abortion prosecution. But under the federal proposal, a law enforcement official in Texas could do what has become much easier than seeking a warrant: simply buy the data.

As a state senator, I worked closely with privacy advocates to pass the consumer privacy act four years ago, giving Californians the strongest privacy protections in the nation. Voters then passed even greater protections in 2020, ensuring that lawmakers could not weaken their rights without voter approval.

This potential government loophole threatens more than just reproductive rights. People of color, low-income workers, undocumented immigrants and the LGBTQ community could also be impacted if government agencies can simply buy data. Immigration and Customs Enforcement has weaponized data location to conduct raids, unleashing fears about government tracking that have led to a decrease in the use of services ranging from food stamps to health care.

Other government agencies, including the FBI and DEA, have contracted with data brokers to covertly monitor the location and identity of people who assembled during Black Lives Matter protests.

Under the federal proposal, Californians could also lose the right to strengthen our laws. Unlike a long history of federal privacy laws that let states do more, this one would set a ceiling that no state could improve upon. Privacy rights would be frozen in time while technology develops at lightspeed.

The right to opt-out of profiling and automated decision-making would also be affected, further enabling biased algorithms to make decisions on creditworthiness, employability, insurance eligibility and home purchases.

The right to view, correct and delete all information a company has collected without time limits is also in jeopardy. The federal law only allows a two-year review.

Californians are enjoying the protections of our law now, and even stronger rules take effect in just a few months. But it would take years for the FTC to finish writing the rules for implementing the federal law, if it passes.

Last month, President Joe Biden praised Congress for moving forward on bipartisan data protection, but House Speaker Nancy Pelosi drew a line in the sand on preemption, saying, “it is imperative that California continues offering and enforcing the nation’s strongest privacy rights.”

Preemption is a false choice. Congress can protect everyone’s rights by amending the federal proposal to make it a floor and not a ceiling for privacy rights.

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