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Navigating Privacy and Compliance Post-Dobbs Ruling

The recent Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization that overturned the landmark case Roe v. Wade has also effectively overturned constitutional protections for access to abortion. The political landscape is, naturally, embroiled in controversy. But what about the individual and the way this decision impacts our already-beleaguered hope for data privacy? 

The technological, legal, and compliance landscape is equally unstable. Today, we’re presenting a brief overview of Dobbs v. Jackson as well as what it means for us to live and work in a world in which Roe v. Wade has been overturned. Disclaimer: we’re addressing highly controversial issues in an explanatory and exploratory way, so please keep that perspective while reading the blog. Even when dissecting such sensitive and personal topics, however, honest conversations like these are needed because candor is part of compliance and part of being a good leader. 

Expert Analysis Ahead

In June, Dobbs v. Jackson Women’s Health Organization spurred the court to effectively overturn constitutional protections for the federal right to receive an abortion. It is now up to the states to decide their own opinions. In a domino effect of sorts, this ruling overturned Roe v. Wade

Dr. Tracy Kosa, Adjunct Professor at Seattle University School of Law, has an interdisciplinary background. She started out in political science and international human rights, then migrated into computer science. She’s fascinated by the intersection of law and human rights when technology gets involved, and specifically how privacy can or cannot be enabled in a computational system. Because what really happens to our information? 

Frank DiMarino, Principle Professor and Practitioner of Criminal Procedure, has a background in federal prosecution centered around economic crime. He was also in charge of supervising companies that were facing court orders to implement an effective compliance program. 

Frank covers the law enforcement issues stemming from the decision, paving the way for Tracy to launch into the compliance issues surrounding data privacy. Lastly, we conclude what all this means for compliance when put to a practical test. Sounds like a lot? Don’t worry, we’ll break it down into comprehensible pieces.

Law Enforcement Investigation

Frank explains some of the law enforcement investigative tools that could come into play when federal or state investigators are looking into a crime. A search warrant with probable cause, an administrative subpoena, or a grand jury subpoena is extremely difficult to contest. Also keep in mind the All Writs Acts, signed into law by George Washington back in 1789, that “grants the power to all courts established by act of Congress to issue all writs necessary and appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law” (28 U.S.C. § 1651). Though old it’s not obsolete, and still is in play today – it was recently applied to an Apple iPhone security case pertaining to privacy. 

Once permitted to search, what might law enforcement leaf through? Bank and phone records, historical cell site location information, GPS tracking, geofencing, and phone apps – all of these resources can trace a person’s whereabouts. In response to such easily accessible personal data, new legislation has arisen, like the pending “My Body, My Data” Act of 2022. If enacted, it would create privacy protections for “personal reproductive or sexual health information.” Another is the American Data Privacy Protection Act (ADPPA), which would create the right to access, correct, and delete data held by covered entities as well as for a private cause of action. 

Collecting Your Information

Moving into Tracy’s area of expertise, let’s talk data. With roughly 3,000 data points per person, tracking and manipulating human behavior is all too easy … which is what data brokering is all about. Brokers have sold information on expectant mothers for years – it’s information that anyone, anywhere can access. Just consider that any authority can request your browser history. From receipts for purchased abortion pills to period tracking apps, your data can be seamlessly shared with law enforcement. 

It’s often up to individuals to take measures to protect their own data privacy. Here are some wise moves: if you’re using a period or fertility app, check the privacy policy, then consider reverting to good old-fashioned pen and paper. Use VPN services or firewalls to guard your web searches. Location services should be off at all costs and for every app. And, of course, stay wary of online forums and discussion boards, because fake usernames are a poor disguise for privacy. 

Now that people feel forced to travel across state lines, the legal lines are blurred and increasingly complex. If you travel from a more restrictive state to a less restrictive one, you might feel a false sense of information security, but the technology we rely on every day reveals our motivations and actions regardless of our physical location. As Frank notes, the “burden put on women to obtain reproductive care … hurts the underprivileged even further with this mobility requirement and creates additional stigma.”

Protection Through Compliance

Who’s responsible for protecting and gatekeeping this data? “The real problem here,” Tracy acknowledges, is that we have a free-for-all when it comes to the use of data. As long as it’s legal they can do whatever they want with it.” This is one of the crucial topics we teach in our compliance courses at Seattle U. Compliance officers need to collaborate with other leaders in the organizations to pursue a strategy with the goal of protecting privacy, but if they don’t have sufficient resources or a seat at the table, they’re going to fail. Everybody needs to understand the boundaries and repercussions for data use and release and be on board with making proper compliance happen. 

“It’s so important for you to have all of the stakeholders in the room and for the business to have a clearly defined vision and framework well before these issues come up,” says Kelli. “Where’s our value system? Where’s our ethical line? Without that, it becomes really challenging to make these decisions quickly.” With a tagline like “Compliance with a Conscious”, we challenge some of these harder ethical questions here at Seattle U.

Growth in the Right Direction

Be cognizant of the three prongs of decision-making: the business answer, the legal answer, and the ethical answer. When considering a solution, Frank says to ask, “What does it mean to be able to do well by doing good?” It becomes a very fluid and variable set of factors when determining whether a company is acting ethically. “There has to be a question that is raised all the time – not just for the board of directors, but for every business decision. What impact does it have on the public good? Then, I think, the officers of the corporation can begin to act with a better conscience and be more productive members of society.” 

To end on a positive note Tracy adds that it’s never too late to start caring about the ethical consequences. She’s seen many people go against the grain by establishing “I want to go in and push for the right thing to happen. And if I’m the only person who’s doing that, and I lose every time, that’s okay.” Having been in those shoes herself, she knows that it’s a hard place to be. “But it means that every time you get up and look in the mirror you can be really comfortable that you’re doing something that aligns with who you are. It has to come down to intentionality.”

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