Jun 29, 2022 - Technology

The future of privacy rights in a post-Roe world

Illustration of a fingerprint with an @ symbol in the center

Illustration: Sarah Grillo/Axios

Privacy experts fear the Supreme Court's decision to overturn federal abortion rights will erode other key protections and expose daily life online to criminal investigations.

Why it matters: The federal right to an abortion provided by Roe v. Wade had its foundation in the conception of a personal right to privacy, broadly believed to cover everything from contraception use to same-sex marriage.

  • The Supreme Court’s opinion in Dobbs v. Jackson Women's Health Organization opens the door to overturning those protections.

What they're saying: "I do think that there are very legitimate reasons not to trust that the rest of the conservative majority on the Supreme Court will only impact abortion and no other rights, including privacy," Caitlin Chin, a fellow at the Center for Strategic and International Studies, told Axios.

  • "It's a very, very concerning landscape out there right now."

How it works: The Constitution does not explicitly guarantee a right to privacy, but court cases over the years have formed a sort of "penumbral" one (meaning a group of rights derived by implication from other rights), Margot Kaminski, a law professor at the University of Colorado, told Axios. The Roe ruling throws that into question.

  • The right to an abortion relies on the same 14th Amendment guarantee that provides the rights to contraceptives, interracial marriage and same-sex marriage, Eleni Manis, research director for Surveillance Technology Oversight Project, or STOP, told Axios.
  • "You can't have it one way and not the other," Manis said.

Reality check: The Supreme Court has largely not extended a right to privacy to include a right to data privacy.

  • Also, users theoretically give up many protections on their data once they agree to any service provider's terms.

What to watch: Much of daily life happens online, and if the Supreme Court continues down this path, that internet activity could become fodder for criminal investigations.

  • "We could see geofence warrants and keyword search warrants used in the same manner to prosecute individuals who, by living their lives, are committing acts that states may criminalize," Manis said.
  • Kaminski said it will not be difficult for law enforcement to prove "probable cause" that someone committed a crime related to one of many newly-enacted state abortion laws and get easy access to search a cell phone.

Yes, but: Tulane law professor and privacy expert Amy Gajda notes that Justice Samuel Alito acknowledged in the Dobbs opinion that privacy can be understood both as a right to avoid unwanted disclosure of information and as the right to make decisions without government interference. 

  • "The Court then deeply undermined that second sense of privacy but did not address the first," Gajda said.

The intrigue: The Dobbs decision may prompt tech companies to minimize the data they collect. It could also recharge Congress' effort to pass a national online privacy law.

  • A bipartisan privacy bill from House Energy & Commerce Chairman Frank Pallone (D-N.J.), ranking member Cathy McMorris Rodgers (R-Wash.) and Senate Commerce ranking member Roger Wicker (R-Miss.) would provide heightened protections for location and health data and allow people to opt out of sharing information with data brokers.
  • The "My Body My Data Act" from Rep. Sara Jacobs (D-Calif.) would limit the amount of data period-tracking apps can collect and require them to obtain permission from a user before sharing or selling that data.
  • Sen. Elizabeth Warren (D-Mass.) and other Democrats recently introduced a bill that would ban data brokers from selling users' health data.
Go deeper