A tech trade organization is pushing the Department of Justice (DOJ) to reassess its stance on electronic privacy to protect women seeking abortions.
Elizabeth Banker, vice president of legal defense for the Chamber of Progress, sent a letter to Attorney General Merrick Garland on Wednesday urging the DOJ to support the protection of private data from “unwarranted law enforcement intrusions.”
The letter says federal prosecutors’ repeated arguments in court to obtain data held by third-party service providers violate Fourth Amendment protections against unreasonable search and seizure.
Banker argued that these data seizures could expose people who use the Internet to research and schedule abortion appointments to threats from states to sue health care providers performing abortions and people who obtain them.
“The ability of state law enforcement to compel online service providers to disclose this type of information places women in the impossible position of having to choose between exercising their reproductive rights and avoiding creating evidence that could lead to their criminal prosecution under state law that restricts those rights,” the letter reads.
Banker wrote that while online service providers can take some steps to protect the privacy of people requesting abortion procedures, they have limited ability to prevent law enforcement from obtaining the data.
Since the Supreme Court overturned Roe v. Wade last month, more than a dozen states triggered or passed laws banning or severely restricting access to abortion. Conservative lawmakers in several states have also discussed ways to punish those who help someone obtain an out-of-state abortion in a jurisdiction where the procedure is legal.
While Banker acknowledged the DOJ’s statement after the ruling that affirmed the right to travel for abortions, she noted that patients and the reproductive health organizations that help them can still face criminal charges.
Banker acknowledged President Biden’s executive order issued last week ordering Garland to address the potential privacy threat that the transfer and sale of health-related data, as well as digital surveillance, can pose to individuals. seeking an abortion. But she also pointed out that the executive order does not address law enforcement access to data.
Banker wrote that arguments made by the DOJ to obtain data from third-party service providers are often useless in pursuing criminal prosecutions.
“The DOJ is instrumental in setting legal precedent and interpretations of how the Fourth Amendment applies to modern technologies that permeate our lives,” the letter states.
Banker said the increased use of “geofence” warrants – which allow law enforcement to identify mobile devices that were in a certain area at a certain time – shows how people seeking abortions could be susceptible to “warrantless intrusions into privacy”.
“We share your interest in the successful prosecution of dangerous criminals, but we believe that interest is compatible with the recognition that important constitutional protections should apply to Americans’ most personal information, whether it resides in them, on their phone, or held by a service provider,” Banker wrote.
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