You might think that, given the severe restrictions on sharing Americans’ private health information under HIPAA, it would be illegal to sell data concerning your personal health information. You might also think, that given the need for a warrant imposed on cellphone location data by the U.S. Supreme Court in the Carpenter decision, it is also illegal to sell your location history tracked by your cellphone.
And, of course, you’d be wrong.
The $200 billion private data industry routinely sells not only your location information, but also your health data collected by apps and social media platforms. Not only can a large ecosystem of corporations buy your data, so can – and does – the government. From the FBI to the IRS, Department of Homeland Security and other law enforcement and intelligence agencies, the government routinely buys this data.
Now Democratic senators are rushing to make this practice illegal under the Health and Location Data Protection Act, sponsored by Sen. Elizabeth Warren (D-MA), and co-sponsored by Sen. Ron Wyden (D-OR), Sen. Patty Murray (D-WA), Sen. Sheldon Whitehouse (D-RI), and Sen. Bernie Sanders (D-VT).
This bill would ban data brokers from selling or transferring location data and health data under rules to be promulgated by the Federal Trade Commission. It would empower the FTC, state attorneys general and individuals to bring suits to enforce the provisions of the law. And it would add $1 billion in funding to the Federal Trade Commission budget.
So will this bill pass in this Congress? Not a chance. Since the Dobbs opinion from the U.S. Supreme Court that overturned Roe v. Wade, the Health and Location Data Protection Act has been spun by Democrats as a means of protecting women seeking abortions. It would protect, in Sen. Murray’s words, women from “extremist Republican lawmakers [who] work around the clock to criminalize essential health services.” From the pro-choice point of view, it is natural to include women’s reproductive freedom in the bill. From the pro-life point of view, supporting a bill that is being touted by others as a protection for reproductive freedom could be seen as supporting abortion.
Before Dobbs, such a bill would have had an excellent chance of securing bipartisan support and passage. Now that it is caught up in abortion politics, it has become a partisan talking point. It seems unlikely that either party will relent, and that the larger issue of our lack of privacy in health and location will remain caught up in the tug of war between pro-choice and pro-life forces.
The constructive course of action, one that can be taken by members of both parties, is to pass the Fourth Amendment Is Not for Sale Act, which has strong bipartisan support in both the House and Senate. This bill would at least require the government to obtain a probable cause warrant before examining our private information purchased from data brokers.