A critical new California law didn’t get enough attention for protecting our digital data
In August, I wrote about the loss of reproductive rights and how it’s tied to our digital privacy after Meta, the parent company of Facebook, turned over the message data of a Nebraska teenager who was prosecuted by authorities in her state for her abortion.
People who menstruate are already deleting the apps that helped them to track their periods as a result of digital data that is being used to legally menace a girl and her mother. Privacy experts told me then what I already knew — that this travesty in Nebraska had long arms that could even reach those of us living in California.
But a new law signed by Governor Gavin Newsom last week with not enough fanfare could protect privacy rights that are being threatened in other states.
Assembly Bill 1242, written by Assemblymember Rebecca Bauer-Kahan and sponsored by Attorney General Rob Bonta, protects reproductive digital information handled by companies headquartered in California. It also prevents the arrest or turnover of information in investigations related to any abortion already legal in California.
“AB 1242 demonstrates once again how California leads the way,” said Assemblymember Bauer-Kahan. “California, as the home to many tech companies, is in the unique position to set a historic guard against extremist states who seek to punish those who seek reproductive health care,” Bauer-Kahan said.
In the months following the leaked Dobbs draft, which overturned nearly 50 years of precedent set by the U.S. Supreme Court by Roe v. Wade in 1973, California has positioned itself to protect reproductive rights and the right to an abortion. Proposition 1, which is on the California ballot this November, would enshrine the right to an abortion and to contraceptives in the state constitution.
AB 1242 is the first law of its kind in the U.S., as it seeks to protect California-held digital data from being used against women and pregnant people in other states. It could also demonstrate that California’s privacy laws can shield reproductive rights far outside of its own state borders.
State controls much of tech regulation
California, home to so many tech-related businesses, is second only to the federal government when it comes to tech regulation, and often sets the national standard for privacy.
All of the top social media platforms are headquartered in California, including Facebook, Twitter, YouTube, What’sApp, TikTok, Snapchat, Reddit, LinkedIn and Instagram, as well as other, major tech players such as Google, Apple and Uber. Many companies pledged to help their employees seek an abortion, but there has been far less discussion about how they would respond to requests for data from law enforcement. This new law takes that decision out of their hands.
The legislation blocks out-of-state law enforcement officers from using search warrants on California corporations to investigate an abortion.
For example, if another state wants to track someone traveling to California for reproductive health care, that state would be blocked from accessing the cell phone site tower location data of the patient by serving a warrant to the tech company based in California.
If someone Googles a topic related to abortion from an IP address outside of California — for example, “how to get an abortion” or “abortion aftercare” — another state cannot serve an out-of-state search warrant at Google’s headquarters in California. (These states can still serve a search warrant if they can prove the investigation is not focused on abortion services.)
And if someone talks about seeking an abortion, or aiding in one, on Facebook, Instagram, Twitter or any other California-based social media platform — either publicly or in a private message — out-of-state investigators cannot compel the company to release its user data to pursue charges.
Too late for Nebraska teen
Nebraska authorities say Celeste Burgess was 17 years old — and 23 weeks pregnant — when she and her mother used Facebook Messenger to purchase medicine designed to end a pregnancy. The police were following up on a tip when they requested and received message data from Meta, Facebook’s parent company.
The Burgesses are currently facing multiple felony charges, and for allegedly attempting to circumvent the state’s 20-week abortion ban, which Nebraska Gov. Pete Ricketts is attempting to lower to just 12 weeks, before many people even know they’re pregnant.
Unfortunately, Celeste’s case would not be covered under California’s new law. Her plight is an example of how, in some states, abortions can result in legal proceedings where bodily autonomy is stripped away and replaced by criminal charges.
With California’s new law protecting her digital data from seizure in place, perhaps Celeste could have sought a safe abortion here or in another state. Instead, her Facebook information was weaponized against her in what has become a dystopian farce.
