Lobbying is intensifying to protect evidence in potential abortion cases

“The best time to take strong measures to protect data would be today Dobbs leaked. The second best time is now,” said Matthew Cortland, a senior fellow at Data For Progress, referring to a Supreme Court decision last month ending the constitutional right to abortion. “This is an urgent matter of life and death for millions of Americans. And, frankly, the administration can’t wait any longer.

The growing concern comes amid disillusionment with key Democratic constituencies, including young voters, professional activists and many of the party’s lawmakers. They are dismayed by what they describe as an inadequate response from the White House to the court’s decision – both in tone and content.

On data privacy, the focus is on HIPAA, the 1996 law that governs the privacy of personal health information, and how the Biden administration can strengthen its regulatory response by using the Federal Trade Commission’s broad powers to crack down on “unfair and deceptive” practices of online data by tracking firms.

With Congress deadlocked on privacy rights, “the Biden administration needs to do as much as possible on health privacy now, as well as ensure that HIPAA is enforced as much as possible and stronger guidelines are issued,” said Justin Sherman, a senior fellow at Duke University. Sanford School of Public Policy.

Instead of showing impotence — Becerra said last week that “there is no ‘magic bullet’ to restore abortion rights” — the Biden administration could be more vocal about the importance of strong privacy laws, Sherman said.

Sherman is not alone. Activists and advocates from the Electronic Privacy Information Center, the Surveillance Technology Oversight Project, and the American College of Obstetricians and Gynecologists are proud. Democrats in Congress have proposed legislation that, despite significant hurdles to enactment, increases pressure on Biden.

progressive sensor. Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.) and Ron Wyden (D-or.) has Introduced Senate legislation Banning companies from selling health and location data. Rep. Sarah Jacobs (D-California.) has a house bill It would limit the non-HIPAA-covered health data companies could collect and give the FTC new enforcement responsibilities.

Wyden called prosecutors’ access to information about people’s abortions a “five-alarm crisis” and “womb surveillance.”

HIPAA “Exercise Room”

No state has yet enacted a law that threatens to prosecute people who obtain early-term abortions. But existing abortion laws in some states are vague, and legal experts told POLITICO that cases are possible. Laws now on the books target abortion clinics.

The data prosecutors can use falls into two categories: health information covered by HIPAA and information collected by websites and apps.

The administration issued the guidelines last month Includes protection for both data sets. HIPAA-covered data is said to be protected from routine disclosure, but not necessarily from court order.

In the event of such an order, the abortion clinic would be permitted, but not required, to disclose the information. But the guidance didn’t offer complete peace to providers or abortionists.

“He clearly explained, explained and established how the rules work. It’s not a perfect solution,” added Kirk Nahra, a privacy lawyer at law firm WilmerHale. “There is still some room in the rules.

A section of the HIPAA rules allows providers to disclose protected health information without an individual’s consent if it is evidence of a crime in the provider’s possession. The provision is meant to cover situations where, for example, a patient assaults a nurse, Nahra said, but could be applied to abortions.

Changing that would require the administration to go through a lengthy rulemaking process. On Friday, the White House said HHS would explore further action on HIPAA, but did not elaborate. Biden also said the Justice Department would hire lawyers to help patients and providers on a pro bono basis.

Privacy advocates are pushing Biden to help patients and providers out of court. Ellen Manis, research director of the Surveillance Technology Oversight Project, said the administration should prohibit abortion providers from sharing health information about their patients.

“Their proper role is as caregivers to protect the sanctity of the doctor-patient relationship, not as prosecutors,” Manis said.

In addition to introducing legislation, Democrats in Congress are lobbying the administration directly. You. Michael Bennett Colorado and Nevada Catherine Cortez Masto wrote to Becerra last week Urges him to update HIPAA rules to prevent clinics from sharing health information with law enforcement who handle abortion cases.

This issue could not be more urgent,” Masto said in a statement to POLITICO. “I will consider all options to implement stronger patient privacy protections.”

Online data sharing

Other data that may be relevant to prosecution, such as web searches, location history and correspondence with abortion providers, are more vulnerable, the HHS guidelines acknowledge. The administration has suggested that people considering abortion turn off information sharing with websites and apps as a stop-gap solution.

“Ultimately, the best way to protect your health and personal information from being collected and shared without your knowledge by your personal cell phone or tablet is to limit what personal information you send and store to or through the device,” the guide says.

Privacy advocates were unhappy, noting that it would put responsibility on individuals instead of targeting tech companies and lawmakers for inaction.

While the administration urged Congress to take action, its messages did not include a push for data privacy legislation, which could discourage Democrats unwilling to pass a compromise bill.

“Comprehensive privacy legislation is good for a number of reasons, one of which is that it will protect people who want reproductive health services,” said John Davison, senior counsel at the Electronic Privacy Information Center. “This should be part of the response to the privacy threats that have occurred post-Roe the world.”

Without the encouragement of Biden in particular, Congress is unlikely to do anything anytime soon. House Energy and Commerce Subcommittee Bipartisan legislation passed It would limit the data that internet companies and data brokers can collect and store and require firms to get customers’ consent to share their health information last month, but the bill faces major hurdles as some Democrats say it doesn’t go far enough.

The administration said Friday that Biden had asked the Federal Trade Commission to take steps to protect patient privacy. A person familiar with the White House’s plans, who spoke on condition of anonymity to disclose them to POLITICO, said Biden wants the agency to crack down on websites and apps that engage in “unfair or deceptive practices related to the release, sharing or sale of personal information.” Information, including sensitive health information”.

Becerra said the administration is considering its options: “If there’s something we can do, we’ll find it and we’ll do it.”

But the FTC has limited resources, which can limit its influence.

“Regulation is not just about having a law on the books, it’s about having people who can enforce the law,” Sherman said. “In the case of the FTC, we need more funding for people working on privacy.”

Whatever the regulatory and legislative hurdles, abortion rights advocates say they want Biden to use his bully pulpit more forcefully to push those who hold patient data to change their collection practices.

Biden discussed his concerns about data brokers selling information that could be used by law enforcement in a speech on Friday, but stopped short of targeting tech companies and asking Congress to take action.

“The press assembled before me probably knows more about this than I do,” Biden said. “I’m not a technical person. I’m learning. “

Others have more specific ideas. Writing for STAT First Opinion, Eric Perakslis of the Duke Clinical Research Institute said hospitals should stop sharing data for commercial research purposes before it allows prosecutors to get hold of it.

And Google this month said it would delete location data on visits to abortion clinics, evidence that such a strategy could lead to voluntary changes in data collection practices.

“The only responsible thing to do is to emphasize that the solution is not in the hands of pregnant women,” Manis said.

Lobbying is intensifying to protect evidence in potential abortion cases

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