|
Computers, Privacy & the Constitution
|
|
Legal Loophole: Government Can Buy Health Data, Paving the Way to Criminalize Abortion-- By SisadeeDeesombat - 24 Mar 2025, revised 8 May 2025IntroductionIn the digital age, people increasingly rely on health-related apps for nutrition advice, menstruation tracking, and health provider searching. Without awareness or bargaining power, they are compelled to give consent to collect and use their private information. This results in their data being packaged and sold to whoever offers the highest bid, especially government agencies.(1) Moreover, there are legal loopholes that authorize the government to warrantlessly purchase this sensitive information and use it as a surveillance mechanism. Abortion seekers are the recent target of this digital surveillance.The Legal LandscapeConstitutional concernsThe Fourth Amendment protects individuals from unreasonable searches and seizures, requiring warrants for compelled disclosure of private information; however, this protection only extends where individuals have a reasonable expectation of privacy, but voluntarily sharing information with a third party may waive this protection. (2)Criminal InvestigationIn Carpenter v. United States (2018), the Supreme Court confirmed an individual’s legitimate expectation of privacy concerning digital information. The court held that the officials must generally obtain a search warrant supported by probable cause before acquiring location tracking from a wireless carrier, even when held by third parties.(3) However, the decision in this case was left unresolved for non-coercive seizure. Government agencies have argued that the protections apply only when the government ‘compels’ people to disclose information, not when they ‘sell or voluntarily disclose’ information.(4) As a result, there would be no legal mechanism prohibiting the government from purchasing data from willing sellers(5)Administrative Search DoctrineAdministrative Search Doctrine permits government officials to perform a duty without seeking warrants for every inspection. This doctrine should be carefully applied to balance individual privacy and governmental interest.(6) Under Camara v. Municipal Court (1967), administrative searches for non-criminal investigations are also subject to the Fourth Amendment. Moreover, in New York v. Burger (1987), warrantless administrative searches are limited only to closely regulated businesses, a substantial government interest, and a constitutionally adequate substitute for a warrant.(7) However, the factual scenario of this doctrine in those cases does not align with the government's commercial purchase of information. Instead of directly conducting a ‘search’ by themselves, the government engages in a commercial transaction to acquire information that third parties have already collected.Existing law and its limitationsAnother relevant federal law is the Health Insurance Portability and Accountability Act (HIPAA), which protects individuals' health information by prohibiting Covered Entities from disclosing patients’ protected health information without consent. However, HIPAA has notable limitations because it only governs Covered Entities who are health care providers, such as doctors, hospitals, nursing homes, pharmacies, and other entities that provide health care in exchange for payment.(8) Therefore, data brokers who may buy or collect users’ information from various free health application developers or other electronic communication providers are not subject to this act and freely sell the information to the government without violating the law.Real-World ConsequencesOutlawing abortionA few years ago, the Supreme Court overturned the constitutional right to abortion in Roe v. Wade (1973), allowing states to criminalize abortion in Dobbs v. Jackson (2022), reasoning that the right was not "deeply rooted in this Nation's history or tradition". This raises concerns under the Due Process Clause of the Fourteenth Amendment, which used to recognize abortion as a fundamental right. When women’s choices of reproduction are no longer protected, this case poses risks for abortion seekers, providers, and others who aid them. Consequently, police can obtain a warrant or purchase digital information to collect location data, browser searches, or online messages and use them for investigation and prosecution.Impact on digital surveillanceIn Nebraska, a woman was accused of helping her teen daughter have an illegal abortion. Here, investigators sent a warrant to Facebook requesting the mother-daughter’s private messages. The message showing that the mother told her daughter how to take abortion pills was used as evidence.(9) In Mississippi, authorities utilized a woman’s personal search history regarding the purchase of abortion pills as evidence to charge her with second-degree murder in connection with a miscarriage.(10) Recently, it was revealed that an anti-abortion political group used mobile phone location data sourced from data brokers to send misinformation to people who visited reproductive health clinics in many states.(11) These cases illustrate how individuals’ sensitive personal records are weaponized against them. The exploitation of location and healthcare data to facilitate excessive surveillance without proper safeguards must urgently end. Otherwise, people’s privacy will be consistently violated, and their everyday activities will be monitored and sold without their consent.Closing the LoopholeProposed legislationPost Carpenter, it is evident that current regulations fail to protect privacy rights sufficiently, and the ruling in the case has been interpreted far beyond its principle, which guarantees the expectation of privacy. To address these concerns, lawmakers have proposed legislative reforms like the Fourth Amendment Is Not For Sale Act. This bill aims to close the legal loophole that enables the government to buy personal information from data brokers without judicial oversight.(12)Key provisionsFirst, this legislation mandates that the government obtain a court order before acquiring data from data brokers. This would expand the definition of ‘search’ protected under the Fourth Amendment to include purchase transactions and close the loophole wherein the ‘voluntary sale’ does not align with the stringent definition. Consequently, the government can no longer exploit the legal loophole, and their actions must be reviewed judicially. In other words, the Senators stated that this bill "ensures that the government can't use its credit card to end-run the Fourth Amendment.";(13) Secondly, this bill prevents law enforcement agencies from buying illegitimately obtained information, which means it was obtained from a user's account or device or via deception, hacking, or violations of a contract, privacy policy, or terms of service. This may prompt providers or developers to be more considerate when using users’ data and give users a greater opportunity to choose to disable their permissions, disconnect from the application, or delete the shared data.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
|
|
