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New Law Buffers California Companies From Abortion Data Requests

Sept. 28, 2022, 9:12 AM

Companies such as Alphabet Inc. and Meta Platforms Inc. are shielded from turning over user messages or searches to law enforcement in states that ban abortion under a new California law that’s likely to sow legal uncertainty.

The bill, signed into law by the state’s governor Tuesday, seeks to prevent California-based companies that provide communications or computing services from cooperating with out-of-state search warrants related to abortion investigations. The law is likely to affect “a large swath” of internet and telecommunications companies, said Andrew Crocker, a senior staff attorney on the nonprofit Electronic Frontier Foundation’s civil liberties team.

“In terms of protecting data in abortion investigations, California has the most leverage” as the home-base to many top tech companies, Crocker said.

It’s one of several policymaking efforts to establish California as a sanctuary for abortion-seekers in the wake of the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that overturned the federal right to terminate a pregnancy.

The new law, based on the legislature’s AB 1242, also prohibits California law enforcement from sharing information with or assisting in an abortion investigation by other state agencies. Its warrant-blocking measure is expected to create a legal quandary for companies that face conflicting directives from different states.

“If one state tells you to comply with a warrant and another state says you can’t, it will leave a lot of uncertainty for companies,” said Adam Kovacevich, founder and CEO of the Chamber of Progress, a tech policy group. Kovacevich previously led public policy strategy on privacy and other issues at Alphabet’s Google.

The issue has come under a national spotlight since a Nebraska woman was charged with two felonies related to an allegedly illegal abortion after authorities found information about the pregnancy in private messages on Meta’s Facebook Messenger. Law enforcement used a search warrant to obtain the messages, though the warrant itself didn’t mention abortion.

Data Access Protocol

Law enforcement demands for emails or other similar digital data typically don’t offer much detail about what’s being investigated, according to Jake Laperruque, deputy director of the nonprofit Center for Democracy and Technology’s Security and Surveillance Project.

“That might not send up a red flag for a company that this is an abortion investigation,” Laperruque said.

California’s new law would direct out-of-state law enforcement agencies seeking data or records from companies headquartered there to provide an attestation that their investigation doesn’t involve a crime related to an abortion that is lawful in California.

Big tech platforms typically require a search warrant before they’ll share user data with law enforcement. Google and other companies often push back on such requests to narrow them, as with location records, or object to some demands entirely.

In response to the Supreme Court’s Dobbs ruling, Google announced that it would start deleting location records for visits to places that people would want to keep private, such as abortion clinics, fertility centers, and domestic violence shelters.

California’s new policy may thwart some abortion-related data requests, said Andrea Frey, an associate at Hooper Lundy & Bookman PC who co-chairs the firm’s digital health task force. But she expects companies to face challenges in disregarding another state’s request for information.

“This is going to be a pretty thorny and potentially difficult law to implement in practice,” Frey said, adding that it raises legal questions that ultimately may need to play out in court.

To contact the reporter on this story: Andrea Vittorio in Washington at avittorio@bloombergindustry.com

To contact the editors responsible for this story: Tonia Moore at tmoore@bloombergindustry.com; Adam M. Taylor at ataylor@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com