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Tech companies silent on role of consumer data in enforcing state abortion bans

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A person looks at their smartphone to see four white pills for Mifepristone.

In this photo illustration, a person looks at an Abortion Pill (RU-486) for unintended pregnancy from Mifepristone displayed on a smartphone on May 8, 2020, in Arlington, Virginia. (Olivier Douliery/AFP)

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Last week, the U.S. Supreme Court overturned Roe v. Wade, the landmark 1973 ruling that guaranteed abortion rights throughout the country.

Since Friday, states like Alabama and Arkansas have been legally empowered to ban abortions, with exceptions under certain circumstances. And trigger laws, like those in Mississippi and Texas, have new restrictions that will go into effect within the next month.

Since the draft of the opinion was leaked in early May, businesses have had time to prepare for the formal ruling.

While many tech companies have publicly discussed their strategies for supporting employees who may need abortion care, they’ve been a lot more cagey about what the change in the law will mean for users and their data.

Vittoria Elliott is a reporter for Wired who covers tech platforms and power. She said the big companies’ user data could be “an incredibly rich target for police departments trying to get information to prosecute people.” The following is an edited transcript of her conversation with Marketplace’s Kimberly Adams.

Vittoria Elliott: Google said it would relocate employees without question who wanted to move to other states, particularly out of Texas. Tesla has said that it will pay for people who need to travel out of state for medical treatments. Uber and Lyft, particularly in places that criminalized aiding and abetting abortion, said that they would protect their drivers. I think the proof is sort of going to be when the rubber hits the road to see if these states find it worthwhile to go after those particular employees or these particular companies.

Kimberly Adams: So those are the policies for employees. Let’s talk about the users of some of these tech products and platforms. How could that data be used for potentially prosecuting illegal abortions moving forward?

Elliott: When you have companies that are functioning as large data dragnets, they could be an incredibly rich target for police departments trying to get information to prosecute people. And whether or not they choose to fight those orders, we don’t know. I emailed Meta, Amazon, Twitter, Uber, Lyft, Google and Apple to ask them about how they would handle that. And none of them responded to me. This was the week of the draft ruling, when I reached out to them. But as Albert Fox Cahn, who is the head of the Surveillance Technology Oversight Project, says, the easiest way for these tech companies to sort of get out of the line of fire, in terms of having to worry about the legal implications of turning over user data, is to not keep the data. But the issue then becomes how will they have a functioning business model if they don’t hang on to that data that allows them to be a very successful platform for advertisers.

Adams: In other circumstances, these companies would rush to the front and say, “We do all we can to comply with the law.” In this case, we have a circumstance where a lot of these companies are coming out and saying, “We are doing our best not to comply with these laws.” What do you think that means for the role of these companies in states putting more restrictions on abortions moving forward?

Elliott: They are, in many ways, essential services to people’s lives. I don’t think we’ll see a future where Google or Amazon is not operating in Oklahoma. In Turkey, in Russia, social media platforms are already under immense amount of pressure to control certain types of speech. And in those cases, a lot of times they do fight back, they do resist. So there is precedent in other places in the world where these platforms say, “No, we’re not going to take that down. No, we’re not going to comply.” I think the big difference is that these are American companies, and they’re operating in America. And so whether or not they’ll push back in the way that they have in some of these other places is also an open question.

Adams: Moving forward, what do you think we can expect? Or what should we be looking out for when it comes to the next step for tech companies in responding to these Supreme Court rulings?

Elliott: I don’t think that any of these companies believed that they would ever be in a position where they would have data like this, and we’d be in a situation where that data could be used to criminalize people seeking abortion care. I don’t think they ever designed their policies or products in a world that was starting to look like this. That means that we are probably going to see a very reactive response to sort of seeing what moves individual state or local governments make and eventually maybe the national government, but I think there’s still just a lot of unknowns at this point.

Elliott has more on this topic in her story for Wired, along with her article about the data potentially at risk in period-tracking apps.

We also had a conversation with lawyer Jessica Lee about those apps and the privacy policies behind them.

If you’d like to keep track of the reactions from tech companies, TechCrunch outlines some of the statements and policy announcements companies have made in regard to the Supreme Court decision.

The New York Times reports that Meta is limiting conversations about the ruling within the company, citing a May 12 memo that said “discussing abortion openly at work has a heightened risk of creating a hostile work environment.”

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