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Rep. Raja Krishnamoorthi (D-IL) is one of the House members leading an investigation into digital privacy in the wake of the Supreme Court’s decison abolishing Roe v. Wade.
For decades, Big Tech has operated in an essentially unregulated market where collecting, packaging, and selling data without consent has become the norm. These companies take advantage of reliance on technology and the average citizen’s inattention to terms of service or the implications of privacy loss. In a post-Roe world, these practices can and have had biting repercussions that people are still unequipped to fully predict.
This is now being put to use to hamper reproductive justice and further erode the right to privacy. As I wrote previously, location, search, and cookie data can all be used to bring evidence against a person who gets an abortion in a restrictive state. This is especially concerning with the “vigilante” provisions that allow private citizens to sue each other over reproductive health decisions, such as in Texas’s law SB 8. A state with its hands on geolocation data or email/text evidence could punish anyone seeking, aiding, or abetting an abortion.
The U.S. House Oversight Committee has initiated a probe into tech companies that may be privy to reproductive health information to try to gather answers for the public. This investigation, which is led by Reps. Carolyn Maloney (D-NY), Raja Krishnamoorthi (D-IL), and Sara Jacobs (D-CA), questioned period-tracking app makers and data brokers on their data collection practices. Companies such as Glow, BioWink, and SafeGraph were issued a letter of inquiry raising these concerns directly.
The Prospect spoke to Rep. Krishnamoorthi about what brought on the initiative, its current status, and what outcome the committee is looking for.
“This is a situation we did not necessarily know would happen a year ago,” Krishnamoorthi said. “We have no choice but to assume the worst with regards to this data.” He told the Prospect that the investigation was needed given the widespread use of data to manage reproductive health.
Before the Supreme Court’s decision in Dobbs was final, lawmakers became aware that this data was potentially being monetized and obtained by data brokers who then sold the data without the consent of the user. The letter of inquiry refers to a Motherboard investigation where reporters were able to obtain location data for people who visited Planned Parenthood clinics from SafeGraph for less than $200. As the committee notes, SafeGraph was banned from Google’s app store over these practices in 2021. Krishnamoorthi noted that law enforcement, including ICE, were accessing data this way as well.
“After Roe was overturned, these practices have become very dangerous,” Krishnamoorthi said, continuing, “especially in trigger states where abortion is practically banned.”
To investigate this matter, the House committee asked for documents and information related to the “collection or purchase of location data information.” The committee also asked about policies and procedures to anonymize location data, how many people the data is collected from, and more questions about how these companies obtain, anonymize, and share the data collected.
While Krishnamoorthi suspects that there are some companies that have thought these scenarios through, he also acknowledges that the problem may be bigger than the scope the committee is looking at right now. Tech companies like Google and Facebook regularly obtain location data as well, and states have made thousands of law enforcement requests to Google for geolocation data in the past few years. “There are potentially a lot of players in this space,” he said.
Digital location, search, and cookie data can all be used to bring evidence against a person who gets an abortion in a restrictive state.
“The big issue,” Krishnamoorthi said, “is this data is not protected by HIPAA.” This raises concerns over who has access to the data, and whether the data is properly protected and anonymized. When asked if the existence of the data makes it inherently available for misuse, Krishnamoorthi agreed. He pointed to legislation he and Rep. Jacobs initiated to protect the privacy of abortion seekers, believing that legislation is the final safeguard against states infringing on women’s rights.
“The bottom line is this is absolutely a place where the government needs to step in and say what is and is not allowed with regard to the use of data,” he said. “The stakes have just become higher than they were before.”
Government and public pressure has already led to some clarifications. Google has said it would not retain users’ location history when they visit abortion clinics, along with other personal data. In response to an inquiry from Sen. Elizabeth Warren (D-MA), SafeGraph claimed that it “does not sell data that identifies individuals” and restated its commitment to data privacy. Period-tracking apps such as Clue have recommitted publicly to protecting user data, while Stardust now offers end-to-end encryption.
But voluntary measures or self-enforcement are unlikely to be good enough for Krishnamoorthi and his colleagues. Even the White House has strongly cautioned women to be wary of apps that track menstrual cycles, in case their data could be used in abortion investigations.
The battle is certain to be feisty and litigious. Still, Krishnamoorthi stands by the need for government interference, given the fear that he and many others have that this ruling will have downstream effects on other rights formerly defended by the Supreme Court. Cases deciding the right to contraception (Griswold v. Connecticut), same-sex marriage, and bodily autonomy are now up for reinterpretation.
“I don’t think it’s a total figment of our imagination that this is a possibility,” Krishnamoorthi said. “That our rights to privacy will be so eroded that any info we put out there will be subject to sharing, including [with] those with malign intentions.”
We “may not have final answers for some period of time,” Krishnamoorthi said. Ultimately, the committee hopes to collect enough responses and information that they can make publicly available in order to “shed light on the policies of these companies.”
Until then, “I would caution all women to ask the questions that we are asking,” he said. With plenty of companies making commitments to protecting privacy, a period-tracking app may seem safe to use. But there are many unknown factors.
And the larger question is: If apps and platforms that store and collect data can be wielded as weapons and used to surveil a person’s most intimate activities, is it worth giving up that level of data at all?
