Abortion, Data Privacy, and Law Enforcement Access: A Legal Overview

Abortion, Data Privacy, and Law Enforcement Access: A Legal Overview

Legal Sidebari

Abortion, Data Privacy, and Law Enforcement
Access: A Legal Overview
Updated July 8, 2022
In light of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, some
Members of Congress and commentators have expressed concerns that law enforcement officials may
seek to collect abortion-related personal data for prosecutions in states that have criminalized abortions.
In Dobbs, the Court overruled Roe v. Wade and held that the U.S. Constitution does not grant individuals
a right to an abortion. States now have much more discretion to criminalize abortion. Moreover, in the
years before the Dobbs decision, 13 states passed “trigger laws” that were set to prohibit abortion, either
automatically or following action by a state official, if the Supreme Court overturned Roe. Various types
of personal data—such as health records, financial records, geolocation information, and electronic
communications—might shed light on an individual’s abortion decision, and law enforcement could seek
such information, either directly from the entity collecting the data or from another entity to whom the
data has been shared or sold.
Federal law may affect law enforcement’s ability to collect this information. The Fourth Amendment to
the U.S. Constitution generally requires law enforcement officials to obtain a warrant before collecting
personal data, although this requirement typically does not apply when the information is held by a third
party. Beyond the Constitution, federal privacy statutes create disclosure protections for some categories
of personal data, such as healthcare data, financial data, and electronic communications. Many entities not
subject to these specific federal privacy statutes may still collect, directly or indirectly, data relevant to an
individual’s abortion decision, such as their geolocation data or web browsing activity. Data brokers, for
example, collect a broad range of data on individuals and often resell those data. While not subject to any
bright-line statutory privacy rules, these entities are still subject to the Federal Trade Commission Act’s
(FTC Act’s) broad prohibition on “unfair and deceptive acts or practices.” President Biden has sought to
employ some of these federal laws to protect the privacy of abortion-related data. On July 8, 2022, the
President issued an executive order that, among other things, prompts the Department of Health and
Human Services (HHS) and the Federal Trade Commission (FTC) to use their statutory authorities to
protect this data.
This Legal Sidebar provides a high-level survey of the relevant constitutional and statutory law on this
topic, and it concludes with considerations for Congress and links to other relevant CRS products.
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The Fourth Amendment
The Fourth Amendment prohibits federal and state officials from conducting “unreasonable searches and
seizures.” Under Supreme Court case law, a “search” may be unreasonable, even when there is not a
physical intrusion, if the official violates an individual’s reasonable expectation of privacy. For a search to
be considered reasonable, outside of some specific exceptions, the official must obtain a search warrant
from a court based on probable cause. The Fourth Amendment’s protections against unreasonable
searches and seizures seldom apply when the official is collecting information about an individual from a
third party. For example, the Court has held that the Fourth Amendment’s protections did not apply when
law enforcement is seeking a suspect’s financial records maintained by a bank or phone records showing
the phone numbers the suspect has dialed. The rationale behind this third-party doctrine is that, by sharing
their information with a third party, such as a bank or a telephone provider, the individual no longer has a
reasonable expectation of privacy in that information.
On the other hand, the Court recognized a limitation to the third-party doctrine in the 2018 case Carpenter
v. United States. In Carpenter, law enforcement collected a large volume of customers’ historical cell-site
location information (CSLI) from cell phone providers, which showed the suspect’s detailed movements
over the course of 127 days. The Court held that this information was protected by the Fourth
Amendment, despite being maintained by phone providers. The Court emphasized that the data collection
was a necessary byproduct of consumers’ cell phone usage, which itself is “indispensable to participation
in modern society.” The Court said that there is a “world of a difference” between the bank records and
call records in its prior third-party doctrine cases and the “exhaustive chronicle of location information”
that showed a person’s physical presence “every day, every moment” over a long period of time. The
Court presented this decision as an extension of a prior line of cases discussing a person’s reasonable
expectation of privacy in their physical location and movements, where a majority of the Court agreed
that the Fourth Amendment would protect against law enforcement surreptitiously using GPS tracking to
conduct extended and comprehensive surveillance of a person's movements.
In the abortion context, the Fourth Amendment’s protections against unreasonable searches and seizures
would apply whenever law enforcement is gathering information directly from the individual who has a
reasonable expectation of privacy in it. For example, before confiscating an individual’s cell phone and
reviewing text messages or other evidence of an individual’s abortion decision, law enforcement would
likely need to first obtain a search warrant. On the other hand, if law enforcement collects abortion-related
records from a third party, such as records from a health care provider or financial institution, it would
likely fall under the third-party doctrine and not be considered a “search.” However, the third-party
doctrine may not apply to a situation with similar characteristics as Carpenter, such as where law
enforcement seeks exhaustive location information from a third party that tracks an individual’s
movements over a long period of time, particularly if that information has been gathered by virtue of the
individual’s use of a technology that has been deemed essential to participation in modern society, and
where the technology does not meaningfully permit the consumer to opt out of the collection and storage
of the relevant data. Even when the Fourth Amendment applies and law enforcement must seek a warrant
in court, the Fourth Amendment may still limit the scope of the warrant. For example, a federal district
court recently held that a “geofence” warrant, which directed Google to turn over location information for
all devices that entered a defined location within a specified time frame, was invalid because the
government had not shown there was probable cause to believe that all of the accounts sought were
associated with persons involved in the crime.

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Relevant Privacy Statutes
Although the Fourth Amendment may be largely inapplicable when law enforcement gathers information
from third parties, federal privacy statutes may govern or limit law enforcement’s access to this data.
Many of these statutes apply to specific types of data held by particular entities, such as healthcare data,
financial data, electronic communications, and personally identifiable records held by federal agencies.
These privacy statutes typically prohibit covered entities from disclosing protected data to third parties
without the individual’s consent or opportunity to opt out of the disclosure. These laws generally have
law enforcement exceptions, however, enabling covered entities to disclose, without consumer consent,
data to law enforcement officials pursuant to a warrant, subpoena, or other legal process. Beyond these
targeted privacy laws, the FTC Act serves as a catch-all standard that allows the Federal Trade
Commission (FTC) to address privacy practices by a broad range of entities.
Health Information Portability and Accountability Act: Healthcare
Information
The main law protecting health information is the Health Information Portability and Accountability Act
(HIPAA). HIPAA and its implementing regulations require covered entities (healthcare providers, health
plans, and healthcare clearing houses) and their business associates to comply with various data privacy
and data security requirements (known respectively as the HIPAA Privacy and Security Rules). Most
relevantly, the HIPAA Privacy Rule generally prohibits covered entities from sharing an individual’s
identifiable health information to third parties without the individual’s authorization, other than
disclosures for treatment, billing, or health care operations. However, the Privacy Rule also includes
several exceptions to this general prohibition on sharing, including a law enforcement access exception.
Under this exception, covered entities may disclose health data to law enforcement officials pursuant to a
court order or warrant, a grand jury subpoena, or an administrative subpoena meeting certain conditions.
Additional exceptions may also be relevant, including the exception allowing a covered entity to disclose
health information that is evidence of criminal activity that occurred on its premises and health
information that it believes in good faith to be necessary to avert or lessen a serious and imminent threat
to the health or safety of a person or the public.
In the July 8 executive order, President Biden directed the Secretary of HHS to “consider actions,” such
as issuing guidance under HIPAA, to “strengthen the protection of sensitive information related to
reproductive healthcare services and bolster patient-provider confidentiality.”
The Gramm-Leach-Bliley Act and Right to Financial Privacy Act:
Financial Information
Financial records, such as charges at abortion clinics, might also be relevant to abortion investigations or
prosecution. Two key statues govern the privacy of financial records: the Gramm-Leach-Bliley Act
(GLBA) and the Right to Financial Privacy Act (RFPA). The GLBA generally prohibits financial
institutions from disclosing a consumer’s financial information to third parties without first notifying the
consumer and allowing them to opt out of the disclosure. The GLBA also has a law enforcement
exception. Financial institutions do not have to follow the notice-and-opt-out requirement if they are
responding to a “properly authorized” civil, criminal, or regulatory investigation or subpoena or summons
from a federal or state law enforcement authority.
The RFPA contains additional privacy protections that apply to federal law enforcement investigations.
Generally, the RFPA prohibits financial institutions from disclosing financial records to federal law
enforcement officials unless the official obtains a warrant, judicial subpoena, administrative subpoena,

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formal written request authorized by regulation, or national security letter. It also requires at times that the
individual whose records are being sought be given notice and an opportunity to challenge the disclosure
in court. While the RFPA only applies to federal law enforcement officials, it might be relevant if, for
example, a federal law is enacted criminalizing abortions. Federal investigations may also occur if the
Department of Justice changes its current position and prosecutes federal employees performing abortions
under the Assimilative Crimes Act (which generally makes it a federal crime to violate state law on
federal land).
The Stored Communications Act: Electronic Communications
Text messages, emails, and private messages over social media platforms or other platforms might
provide evidence of an individual’s abortion decision and might be sought by law enforcement. The
Stored Communications Act (SCA) is the primary law that restricts tech companies from disclosing
electronic communications like emails or social media messages, as well as non-content customer
records. The SCA applies to “electronic communications services” (ECS) (such as cell phone providers,
email providers, or social media platforms) and “remote computing services” (RCS) (such as cloud
computing providers). The SCA restricts these entities from disclosing the contents of electronic
communications to federal and state law enforcement officials. Absent customer consent or another
discrete exception, an RCS may generally disclose the contents of an electronic communication only if
the law enforcement official obtains a court-issued warrant, or, with notice to the customer, a court order
issued under procedures laid out in the Act or an administrative subpoena. For electronic communications
held by an ECS for 180 days or less, only a court-issued warrant is sufficient. To access other kinds of
non-content customer records held by an ECS or RCS, law enforcement generally must obtain a search
warrant, a court order, or a subpoena, depending on the circumstances.
The SCA also restricts disclosures to non-law enforcement third parties. ECSs and RCSs may generally
only disclose the contents of an electronic communication if either the sender or recipient of the
communication gives authorization. The SCA does not, however, restrict an ECS or RCS from disclosing
non-content information about a customer’s communication (such as the IP address of the device used to
send the communication).
The Privacy Act: Data Held by Federal Agencies
At times, a federal agency may obtain an individual’s abortion-related data. For instance, the Veterans
Benefits Administration (VBA) in the Department of Veterans Affairs (VA) might obtain a veteran’s
abortion-related data in connection with a claim for VA benefits. VBA—unlike VA’s Veterans Health
Administration—is not subject to HIPAA. Another privacy law, however, applies generally to federal
agencies: the Privacy Act of 1974. The Privacy Act applies to how agencies treat certain “records” that
contain an individual’s personal information. The Privacy Act generally prohibits federal agencies from
disclosing these records without the individual’s consent, unless an exception applies. There is an
exception for disclosure to law enforcement for civil or criminal law enforcement purposes, but for the
exception to apply, the head of the law enforcement “agency or instrumentality” must make a written
request that specifies the particular portion of the record desired and the relevant law enforcement
activity. Even if a record falls under the Privacy Act’s law enforcement exception, the agency may be
able to voluntarily withhold it. The Privacy Act only requires disclosure if the individual who is the
subject of the record is the one requesting it. Other laws, however, like the Freedom of Information Act
(FOIA), may require disclosure if the proper procedures are followed.

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The FTC Act: Non-HIPAA Health Data, Geolocation Data, and Other
Commercial Data
There are many commercial data practices that fall outside the scope of the various statutes mentioned
above. For instance, non-HIPAA covered entities, such as health smartphone applications (apps) and
wearable fitness trackers, might track menstrual cycles or collect other health information. Other
smartphone apps might collect users’ geolocation data. Data brokers collect troves of data on individuals
that are compiled from various sources to resell that data. Such activities, while generally not regulated by
any specific privacy statute, are still subject to the FTC Act. The FTC Act prohibits “unfair or deceptive
acts or practices” in commerce, and it is enforced by the FTC. While the FTC Act does not contain any
bright-line restrictions or prohibitions on companies’ disclosure of personal information to law
enforcement or third parties, the FTC has brought enforcement actions against companies that mislead
consumers about their data disclosure practices. Some Members of Congress have recently called on the
FTC to use this authority to investigate data practices that might disclose an individuals’ abortion-related
activity, specifically asking the Commission to investigate Apple’s and Google’s collection and sale of
consumers’ movements and web browsing activity. Furthermore, in the July 8 executive order, the
President “encouraged” the Chair of the FTC to “consider actions” to protect consumers’ privacy when
they are seeking information about reproductive health care services. The Executive Order also directs the
Secretary of HHS to consult with the FTC and the U.S. Attorney General about options to address
deceptive or fraudulent online practices.
Considerations for Congress
As explained above, federal data privacy law provides relatively limited constraints upon law
enforcement’s ability to acquire privacy data relating to criminal activity, potentially including abortion
activity proscribed under the state laws of the requesting law enforcement agency. Although Fourth
Amendment caselaw recognizes some limits on law enforcement’s ability to acquire third-party data,
those limits seem unlikely to be triggered by requests for information related to a suspect’s criminal
activity, except if that information enabled the government to engage in prolonged surveillance of the
suspect. Numerous federal statutes place limits on information access, but most include carve-outs for law
enforcement requests.
Should Congress want to build on or change the current mix of statutory requirements, one approach
might be to enact a standalone law specifically addressing the treatment and disclosure of abortion-related
data. For example, while it does not specifically address disclosure to law enforcement, the My Body, My
Data Act of 2022 (H.R. 8111/S. 4454) would create various privacy protections for “personal reproductive
or sexual health information,” including a requirement that entities only collect and use these data if the
individual has consented or if they are strictly necessary to provide a service or product that the individual
has requested. Another approach might be for Congress to address this issue as part of a comprehensive
privacy bill, such as the American Data Privacy and Protection Act (ADPPA) (H.R. 8152). The ADPPA
would create a comprehensive federal consumer privacy framework, including giving consumers various
rights to access, correct, and delete their data held by covered entities. It also would require, absent a
specific exception, that entities obtain a consumer’s consent before transferring their “sensitive covered
data” (which includes, among other things, health information, geolocation information, and private
communications) to a third party. The ADPPA does not explicitly specify how this consent requirement
would apply to disclosures to law enforcement. Other proposals introduced in the 117th Congress that
would prohibit or limit the government’s ability to obtain communications information from third parties
include the Fourth Amendment Is Not For Sale Act (H.R. 2738/S. 1265), which would prohibit law
enforcement and intelligence agencies from purchasing communications data from data brokers.

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Other CRS Products
CRS Legal Sidebar LSB10768, Supreme Court Rules No Constitutional Right to Abortion in Dobbs v.
Jackson Women’s Health Organization, by Jon O. Shimabukuro
CRS Legal Sidebar LSB10779, State Laws Restricting or Prohibiting Abortion, by Laura Deal
CRS Legal Sidebar LSB10157, UPDATE: Supreme Court Takes Fourth Amendment Case about Cell
Phone Location Data, by Ben Harrington
CRS Legal Sidebar LSB10449, COVID-19, Digital Surveillance, and Privacy: Fourth Amendment
Considerations, by Michael A. Foster
CRS Report R45631, Data Protection Law: An Overview, by Stephen P. Mulligan and Chris D.
Linebaugh
CRS Report R41733, Privacy: An Overview of the Electronic Communications Privacy Act, by Charles
Doyle
CRS Legal Sidebar LSB10776, Overview of the American Data Privacy and Protection Act, H.R. 8152,
by Jonathan M. Gaffney, Eric N. Holmes, and Chris D. Linebaugh
CRS Legal Sidebar LSB10787, Congressional Authority to Regulate Abortion, by Kevin J. Hickey and
Whitney K. Novak

Author Information

Chris D. Linebaugh

Legislative Attorney

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