One Year After Dobbs, a California Abortion Privacy Bill Is Under Attack From Law Enforcement

A coalition of law enforcement groups and prosecutors are holding up a California bill with bipartisan support meant to protect people seeking reproductive and gender affirming health care and fighting to weaken its provisions.

The bill, AB 793, would prohibit so-called “reverse demands,” requests to tech companies such as geofence or keyword search warrants, which typically pull in data about masses of people who may not even be suspected of a crime. Law enforcement and prosecutors say these are critical tools for public safety that need to be maintained, but civil liberties advocates argue that law enforcement’s recent lobbying efforts will narrow the bill to the point that it leaves people unprotected.

“The intent of the bill was to ensure that these general warrants could not be used against people seeking sensitive services in the state of California,” said Assemblymember Mia Bonta, a state representative for Oakland, CA who introduced the bill.

At first, Asm. Bonta said the bill sailed through committee with bipartisan support. But AB 793 faced opposition late in the game as previously supportive lawmakers changed their positions under pressure from lobbyists, prosecutors, and law enforcement officials. The bill passed the Assembly by a single vote. Its fate now lies in the Senate, where it may need significant cuts to its protections if it has any hope of passing, Bonta said.

There’s a long list of people and groups opposing the bill. That includes the California District Attorneys Association, the Peace Officers Research Association of California, the California Police Chiefs Association, and California State Sherriff’s Association, as well as a number of county sheriffs and district attorneys.

“The bill was originally scaled to essentially eliminate these practices altogether. This digital privacy issue is about fundamental rights. It’s in the constitution. The ways our digital footprints are being used are the modern day equivalent of some of the problems that caused the American Revolution,” Bonta said.

In general, law enforcement and prosecutors argue that those seeking reproductive and gender affirming care should be protected, but they say losing access to reverse demands would do more harm than good.

A representative for the Peace Officers Research Association of California (PORAC) pointed to a letter the association wrote in opposition to the bill. AB 793 would prohibit using reverse location and keyword searches, essential methods that investigators use to solve some of the most serious crimes,” the letter reads. The other law enforcement groups, sheriffs, and district attorneys mentioned in this story did not immediately answer requests for comment.

Like other groups, PORAC offers an alternative path forward. The organization says it would consider withdrawing opposition if the bill was amended to limit the ban on reserve demands to cases specifically involving reproductive rights and access to gender-affirming care.

However, some civil liberties advocates argue that narrowing the bill in this way would render it ineffective.

“It would mean we’re going to lose protections even for those exact communities we’re trying to help, because there are are a lot of ways law enforcement could use reverse demands to get their hands on this information without asking for it specifically,” said Hayley Tsukayama, a Senior Legislative Activist at the Electronic Frontier Foundation.

For example, law enforcement could create a geofence warrant for a gas station across the street from a Planned Parenthood clinic, rather than the clinic itself. Officials could ask for a keyword search warrant for search terms that aren’t obviously related to issues surrounding the transgender community.

Moreover, Tsukayama said reverse demands are unconstitutional in the first place. “In a densely populated city, these warrants can pull in information about hundreds or thousands of people, people who aren’t suspects. There is no probable cause to justify that kind of search,” Tsukayama said. “There are plenty of other tools law enforcement has used for decades that are much more protective of people’s rights, and there’s evidence these kinds of warrants often don’t even help solve crimes. to more cases being closed.”

One recent example came after an investigation by the Kentucky Center for Investigative Reporting found widespread use of geofence warrants by Louisville Metro Police Department, but data showed these efforts weren’t leading to more closed cases. “Law enforcement is arguing for tools with opaque benefits that are difficult to see,” Tsukayama said.

One year ago this week, the Supreme Court’s Dobbs decision overturned Americans’ constitutional right to abortions. It sparked a new debate over the importance of digital privacy. As states across the county work to criminalize once accessible health care procedures, advocates worry that the trail of data we all leave behind could be used to catch and prosecute marginalized individuals.

The fight to protect reproductive healthcare and the LGBTQ community is now tied into older concerns about law enforcement surveillance. Normally, law enforcement and prosecutors need to show probable cause and obtain a warrant or a court order to get their hands on information about suspects. But in recent years, a new practice has emerged that circumvents the Fourth Amendment’s protection against unlawful searches and seizures. Rather than single out an individual, officials ask a company like Google for a report on everyone who searched for certain keywords, or a list of everyone whose location data shows they were in a particular area, known as “geofencing.”

AB 793 isn’t the first attempt at protecting these sensitive healthcare procedures. Immediately after the Supreme Court’s Dobbs decision, California passed three laws that carve out exceptions for healthcare providers and state officials, allowing them to ignore out-of-state subpoenas related to reproductive and gender affirming care.

The data hoovered up by tech companies, however, is a gray area, one that AB 793 hopes to address. Google, Meta, and Amazon, three companies that receive the lion’s share of geofence and keyword search warrants, did not immediately respond to a request for comment.

Asm. Bonta said the bill would still have teeth with the proposed amendments. “It raises the bar for law enforcement requests. If we’re able to do this work over the next several weeks, it’s going to be an incredibly big win around issues of reproductive health and gender affirming care,” Asm. Bonta said. “People are going to have an assurance that those actions will be protected, even if they’re deemed criminal by their other states.”

It’s going to take compromise if the bill has any hope of passing. AB 793 faces an uphill battle, as its proposals require a two thirds majority in the legislature. But Asm. Bonta said that won’t get in the way of her efforts.

“We’re planting a flag, and I’m very hopeful that we’ll be able to get to a place that is going to move the ball forward for digital privacy and its nexus with law enforcement,” Asm. Bonta said.

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