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How Will Big Tech Navigate the Criminalization of Abortion?

Many states are moving to pass the criminalization of abortion. As a result, tech companies are caught in a legal and ethical trap. What happens now?

Ultimately, tech giants like Google and Apple have data that may be able to implicate people who give or get reproductive healthcare.

A Concerning Situation

Tech plays such a large part in almost every aspect of modern life. Questions surrounding how it should be used are everywhere.

After all, you can find apps everywhere from doctors’ offices to active warzones.

The situation in the US has left many asking hard questions. For one, if the state demands it, will companies hand over healthcare data?

If abortion is legal in some states and illegal in others, which state takes precedent? If reproductive healthcare is illegal in a US state but considered a human right globally, what will these companies do?

Which Kinds of Data Are We Talking About?

Big tech companies have records of everything users have done with their services. In the case of data relating to abortions, this could be things like Google searches. This could also include private text conversations.

In the past, large tech companies have been against law enforcement data requests. They have even launched high-profile legal action.

However, so far, these companies have been mostly silent about what they will do after the dissolution of Roe v. Wade.

Bloomberg provides an excellent example of why exactly the differing abortion laws between states can and will create an absolute legal nightmare.

People who seek healthcare, tech companies, and healthcare providers are caught in the crossfire:

Consider a hypothetical online search for abortion pills: A woman in Texas searches for “mifepristone” and buys it from a New York pharmacy. Google may have a record of the web search, and the receipt may land in a Microsoft Outlook inbox. Google is based in California and Microsoft in Washington, but digital records of her queries and her inbox may be stored at Google’s data center in New Albany, Ohio, or Microsoft’s in Des Moines, Iowa. If law enforcement officials in Texas seek evidence from Google or Microsoft, a clash of four different sets of state laws and two companies may ensue.

Balancing These Laws State by State Will Be Almost Impossible

Before Roe v. Wade was passed, in 1972, the world was very different. It was not surveilled and connected via data. If different states wanted to have different laws, it would not have resulted in such chaos.

These days, the world is different. A confusion similar to what Bloomberg has described will likely occur again and again across online services and data sources.

This will leave people who seek critical healthcare, healthcare providers, and tech companies in a potential legal mess.

The Pressure is on Big Tech to Navigate the Criminalization of Abortion

Tech companies are already facing public pressure to deny abortion-related data requests from the government.

However, as this type of healthcare is so polarized in the US, it is likely that many companies are waiting to publically announce what their policies will be.

A lot remains to be seen.

Google Takes Early Steps To Reassure Customers, But Does Not Guarantee Anything

July 1, Google said that it will automatically delete certain location-tracking records. User visits to what it deems sensitive places will disappear too. This includes abortion clinics.

The company also said that they will make it easier to delete period logs from its Fitbit app.

Alphabet Inc., the parent company of Google, also highlighted its long record of fighting the government. They have tried to deny sharing user information that they found inappropriate before.

This is true. In 2006, Google fought a government request to turn over search records of millions of users to federal prosecutors.

This request was in relation to prosecuting pedophiles.

In 2017, they were fighting over half a dozen legal cases. These were to keep the US government out of our Gmail inboxes.

In a recent blog post, Google said:

“We remain committed to protecting our users against improper government demands for data, and we will continue to oppose demands that are overly broad or otherwise legally objectionable.”

However, Google has not said that it will decline abortion-related data requests. Also, by their own admission here, if the criminalization of abortion related healthcare is successful, this implies that they will ultimately hand over that data.

Meta Takes The Most Decisive Stance On Protecting Abortion Rights?

Via Meta

Apple has said that it builds privacy protections into its products. It also says it takes extra steps when it comes to health care privacy. However, it has not commented on how it will respond to an abortion-related warrant ot subpoena from the government for user data.

Microsoft and Amazon all have declined to comment on exactly what they will do.

However, in May, Meta did say this:

“We comply with government requests for user information only where we have a good-faith belief that the law requires us to do so. In addition, we assess whether a request is consistent with internationally recognized standards on human rights.”

may actually be the most concrete suggestion by a tech giant that they will go to bat for those who seek reproductive healthcare.

Access to reproductive healthcare is actually considered to be an internationally recognized human right.

According to Human Rights Watch:

The human rights on which a right to abortion access is predicated are set out in the Universal Declaration of Human Rights, the Convention Against Torture, among others.

There are established international human rights laws protecting people from being the victims of forced births. As such, Meta can fall back on them.

However, tech companies have taken the side of user privacy in extreme circumstances in the past.

For example, in 2016, Apple refused to turn over the phone data of one of the gunmen in a mass shooting in San Bernardino, California. They did so even after being sued by the FBI.

However, as of now, it is not clear if most tech companies are willing to go as far to protect the data of those seeking healthcare.

Update on Acts Companies Have Taken in Response to the Criminalization of Abortion as of 08/26/2022

This post was originally written in July of 2022. Since then, Meta has come under fire for aiding in an abortion investigation and removing a post by Planned Parenthood.

Some tech companies, like Amazon, have said that they will reimburse employees who have to travel to get abortion care, but many have still remained silent on how they will handle the data of millions of people in the face of the criminalization of abortion in the US.

Final Thoughts on the Criminalization of Abortion and What that Means for Big Tech

The dissolution of Roe nationally is a complex mess legally. As of now, it’s unclear how large tech companies will try to navigate it.

If every state has its own laws, and the patient seeking care, provider, tech companies’ headquarters, and the data stored for both the patient and provider are all in different states, how can all of that be legislated?

Which jurisdiction would win in the fight over data? Tech companies will likely be facing an onslaught of warrants and subpoenas in both civil and criminal cases all over the US too.

What do you think tech companies will ultimately do? Comment below.

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