Privacy experts worry that the Supreme Court’s decision to strike down federal abortion rights could erode other key protections and expose everyday life online to criminal investigation.
Why is this important: The federal right to an abortion provided by Roe v. Wade had his basis in the conception of a personal right to privacy, widely believed to cover everything from contraceptive use to same-sex marriage.
- The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization opens the door to voiding these protections.
What they say“I think there are very legitimate reasons not to believe that the rest of the conservative majority on the Supreme Court will only impact abortion and no other rights, including privacy” , Caitlin Chin, a member of the Center for Strategic and International Studies, told Axios.
- “It’s a very, very concerning landscape right now.”
How it works: The Constitution does not explicitly guarantee a right to privacy, but court cases over the years have formed a kind of “penumbra” (i.e. a group of rights derived by implication from other rights), Margot Kaminski, a law professor at the University of Colorado, told Axios. The Roe decision calls this into question.
- Abortion rights rest on the same 14th Amendment guarantee that provides rights to contraceptives, interracial marriage and same-sex marriage, Eleni Manis, research director for Surveillance Technology Oversight Project, or STOP, told Axios.
- “You can’t have it one way and not the other,” Manis said.
Reality check: The Supreme Court has hardly extended a right to privacy to include a right to data confidentiality.
- Additionally, users theoretically give up many protections on their data once they agree to a service provider’s terms.
What to watch: Much of everyday life happens online, and if the Supreme Court continues down this path, such internet activity could become fodder for criminal investigations.
- “We could see geofence warrants and keyword search warrants being used in the same way to prosecute individuals who, while living their lives, commit acts that states can criminalize,” Manis said.
- Kaminski said it won’t be difficult for law enforcement to prove “probable cause” that someone has committed a crime related to one of the many recently enacted abortion laws and have easy access to find mobile phone.
Yes, but: Tulane law professor and privacy expert Amy Gajda notes that Judge Samuel Alito recognized in the Dobbs opinion that privacy can be understood both as a right to avoid unwanted disclosure of information and as the right to make decisions without government interference.
- “The Court then deeply undermined this second sense of privacy but did not address the first,” Gajda said.
The plot: The Dobbs ruling could prompt tech companies to minimize the data they collect. It could also recharge congressional efforts to pass a national online privacy law.
- A bipartisan privacy bill from House Energy & Commerce Chairman Frank Pallone (DN.J.), Cathy McMorris Rodgers (R-Wash.) and Roger Wicker (R-Miss.), member of the commerce classification in the Senate, would provide increased protections for location and health data and allow people to opt out of sharing information with data brokers.
- Rep. Sara Jacobs (D-California)’s “My Body My Data Act” would limit the amount of data period tracking apps can collect and require them to obtain a user’s permission before sharing or sharing. sell this data.
- Sen. Elizabeth Warren (D-Mass.) and other Democrats recently introduced a bill that would ban data brokers from selling users’ health data.