It’s about 1,500 miles from Austin to Sacramento, but Texas and California lawmakers are a million miles apart on how to treat private data related to reproductive health.
State lawmakers in Texas and California are staking out opposite corners of digital public policy in the post-Roe era: in Texas by trying to ban online speech about abortion, and in California by trying to protect those seeking abortions from dragnet-style digital surveillance.
How these states legislate reproductive data privacy and information access could affect millions of vulnerable people nationwide, because the internet doesn’t stop at state borders.
Texas state Rep. Steve Toth, whose heavily Republican district lies in the Houston suburbs, introduced House Bill 2690 in February, which aims to prevent the sale and distribution of abortion pills like mifepristone and misoprostol. But it doesn’t stop there: The bill would make it illegal to “provide information on how to obtain an abortion-inducing drug,” including making or maintaining websites or creating and distributing apps on the topic.
This bill goes even further still by requiring internet service providers (ISPs) like AT&T, Comcast, Charter and others to “make every reasonable and technologically feasible effort to block Internet access to information or material intended to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug.” So Toth and his seven co-authors not only want to make sure no one can start a discussion on these topics, but they also want to make sure no one can even find one.
Like Texas’ 2021 abortion-bounty law, H.B. 2690 encourages Texans to sue people or organizations that violate the proposed law—a kind of vigilante attack on free speech. An “interactive computer service” can also be sued if it “allows residents of [Texas] to access information or material that assists or facilitates efforts to obtain elective abortions or abortion-inducing drugs.”
The bill encourages people to notify ISPs of abortion-related content and “request that the provider block access to the information or material.” Intermediaries like ISPs are acutely vulnerable to improper censorship pressures because they lack any incentive to defend users’ First Amendment rights, particularly when removing that speech keeps them from being sued. And by granting ISPs “absolute immunity” against being sued for agreeing to take down abortion-related information, the bill tips the scales even further toward blocking more sites.
Toth’s bill was referred to the Texas House’s State Affairs Committee but has not been scheduled for a hearing yet.
It’s about 1,500 miles from Austin to Sacramento, but Texas and California lawmakers are a million miles apart on how to treat private data related to reproductive health. California Governor Gavin Newsom signed a law requiring out-of-state law enforcement agencies that seek data from California businesses to attest that their investigation doesn’t involve any crime related to an abortion that’s legal in California. That new law also bars California police and prosecutors from helping out-of-state agencies with probes into lawful abortions and bans the arrest of anyone for aiding or performing a lawful abortion in the state.
Newsom, at the same time, enacted another law barring healthcare providers from honoring other states’ subpoenas for medical information on a person seeking abortion care.
Now a California lawmaker wants to make sure law enforcement can’t force internet companies into unconstitutional mass searches of users’ location data and search-engine queries.
A normal warrant requires police to have probable cause to investigate an individual. Reverse warrants turn this due process on its head by compelling companies to search their records and reveal the identities of all the people who were present at a particular place or who looked up a particular keyword online. Between 2018 and 2020, Google alone received more than 5,700 reverse demands from states that now have anti-abortion and anti-LGBTQ legislation on the books.
So Assemblymember Mia Bonta, whose deep-blue district includes Oakland and Alameda, introduced Assembly Bill 793 in February to bar police and prosecutors—including those in states where abortion is now illegal—from compelling companies to turn over identities of all people whose digital data shows they’ve spent time near a California abortion clinic or searched for abortion information online. The bill is also intended to protect those seeking gender-affirming care and information.
The California Assembly Public Safety Committee passed AB793 on April 11, and the Assembly Judiciary Committee passed it on April 18.
As these and other states legislate the new boundaries of abortion rights, all Americans involved in seeking or providing abortions, or even in advocating for abortion rights, should think carefully about how their personal data is collected, stored, and shared. As a rule of thumb: If you don’t share it, it can’t be used against you.
The goalposts are moving, what used to be legal is now illegal in many places, and online speech and personal data are the new battleground—with millions of people’s health and lives in the balance.
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