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Post-Dobbs, Your Private Data Will Be Used Against You

Sept. 22, 2022, 8:00 AM

In the past few years, state legislatures have taken the promising step of passing comprehensive consumer privacy laws.

Many courts have started viewing privacy violations as real harms that deserve compensation, and massive judgments have been won against companies responsible for those harms.

Too often, philosophical debates over privacy distract from progress, and whether the harms caused by privacy violations are too theoretical to count as “real” harms. But the recent Dobbs Supreme Court decision lays bare the real risks of this approach.

According to the tech sector and its lawyers, if a company collects your biometric data without your knowledge but doesn’t do anything explicitly nefarious with it, you have not really been harmed.

In a recent lawsuit brought by our firm against Facebook over its collection of its users’ biometric data, Facebook’s lawyers tried to persuade the court that its users hadn’t suffered any real harm.

But Dobbs proves otherwise.

Privacy attorneys note that once a tech company knows where you’ve been, what you’ve Googled, and even how your fingerprints look, you’re incredibly vulnerable if that data gets into the wrong hands. Lawmakers and courts increasingly agree with us. But tech firms have managed to keep theoretical questions at the center of the debate.

The Supreme Court’s decision in Dobbs has fundamentally changed that debate. It’s going to be virtually impossible for tech giants to argue that the harms that come from losing our privacy are purely hypothetical. These are now obvious, and terrifyingly real.

A New World

Before Dobbs, privacy lawyers argued that your personal data could be abused if it got into the wrong hands, but some lawmakers and judges struggled to understand how that could happen.

Now, it’s all too easy to picture. Location data will show if you visited an abortion provider. Search history will record that you Googled an abortifacient. Period-tracking apps can reveal that you missed your last period.

In 2015, an anti-abortion group used women’s location data to display anti-abortion ads around abortion clinics. And a data broker is reportedly selling location data for women who visited Planned Parenthood, including where they came from, how long they stayed, and where they went afterwards.

It is not difficult to see how valuable that information would be to an anti-abortion group hoping to identify women who may be considering abortion or already had one.

Dobbs is a harsh reminder of just how valuable our privacy is, and what happens if we lose it. As Dobbs demonstrates, governments and many of our neighbors are incredibly interested in our private lives. Data collection can provide far too much insight into our personal choices to the last people we would want to know.

Defense of Big Tech

This leaves tech companies in a difficult position. For years, they have paid major law firms to argue that tech’s violation of our data privacy doesn’t create any real harms. But in the wake of Dobbs, they will face lawmakers and courts that understand exactly who might misuse personal data .

Mark Zuckerberg’s refrain that Meta only uses your data to create more accurate targeted ads is difficult to take seriously when in June, Meta turned over a teen girl’s private messages to police in Nebraska investigating an abortion.

Tech companies are now attempting to re-cast themselves as staunch defenders of abortion rights. In the weeks following Dobbs, almost every major tech company committed to cover costs for employees traveling to get abortions. Google promised to delete location data around abortion clinics, creating “blackout areas.”

But because Google still tracks all your other location data, it will be easy to see a user entering and leaving a “blackout area”—a dead giveaway that the user visited an abortion clinic.

Big Law has joined in, with more than 4,000 male and female partners signing an open letter with a “call to action” to protect women’s autonomy after Dobbs.

Noticeably absent from that open letter is any commitment to fighting for stronger privacy laws, or to stop representing the tech companies collecting data that can be used to identify women who have had abortions.

Dobbs has drastically altered how judges, lawmakers, and juries are going to view privacy. The value of our privacy is clear and the harms that come from violating it are easy to see.

If Big Tech hopes to weather that coming storm, it needs to radically change how it treats our data.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Jay Edelson, founder of Edelson PC, is one of the nation’s leading plaintiffs’ lawyers with his firm having helped secure over $45 billion in settlements and verdicts on behalf of classes, individuals, and governmental entities.