How an abortion case turns the screw on Big Tech

July 26, 2022 08:47
Photo: Reuters/EJI

The United States Supreme Court’s recent decision to overturn Roe vs. Wade has firmly engulfed American society in heated debates. Beyond the strife on the volte-face of abortion right, this epochal case might now turn data-driven companies into the means to a political end and force businesses to affirm or retract their positions on privacy.

Location data can now be weaponized by abortion-ban advocates to convict women seeking pregnancy termination in abortion-banning states. Many mobile applications nowadays track a user’s geolocation data in the name of optimizing the user’s experience and the app’s functionality. Individuals who conduct or undergo abortions might be subject to criminal witch-hunting, further exacerbating the entrenched moral stigma associated with abortion.

Location data is a small fraction of the entire digital weapon arsenal. Other obvious targets include menstrual tracking, ovulation, and pregnancy data. These examples may barely scratch the surface of all possible data harvesting activities. Download any applications from an app store, and it is possible to find an alarming level of data, tangential or otherwise, harvested for commodification. Surveillance capitalism, a system centered around companies capturing and monetizing personal data, may now be a foregone conclusion.

To avoid being caught in legal crosshairs, Google announced that they would automatically delete users’ location history to places such as abortion clinics. Sure, Google earned cautious applause in a move that is palatable to abortion advocates. But it also begs the question: why did it take so long for companies like Google to recognize the effect of over-zealous data mining practice? Or was the move a fig leaf intended to cover the cracks in its system? From a pragmatic perspective, it is also unclear how, and how dependably, Google can identify sensitive locations to guarantee automatic data deletion.

Businesses have long understood that hoovering up a treasure trove of user’s data creates a fast track to power and competitive edge. The decision of Roe shows, for the first time, that even aggressive data collectors might see the value in a “less-is-more” approach. Frequent run-ins with legal enforcement have long sounded alarms to market players, signaling that their data monopolies are far from secured. Didi’s recent RMB $8 billion fine levied by the Cyberspace Administration for violation of China’s data laws, is likely to imbue companies possessing large volumes of data with a sense of fear. As the public begins to come to grips with the peril of surrendering too much data, can they now trust companies to have the bottle to take a stand to stamp out further abuse?

While most companies do not decidedly take sides in controversial legal battles, their present modus operandi means that they may be unable to avoid getting involved. How would firms react when receiving legitimate requests from law enforcement? Under what obligations, legal or ethical, are companies like Google responsible or liable to relinquish information? Companies drawn into this conflict might assume different and often tendentious positions on a case-by-case basis. A small pivot in managerial direction could change the fate of millions of people. It must be asked how, and in what ways, can companies truly insulate themselves from legal crossfire?

Roe provides a live example of how decisions about bodily autonomy can cut across elusive digital boundaries with grave consequences. One can argue that our government watchdog should strictly enforce the principle of data minimization – the practice of limiting the collection of personal information. This might also prove to be illusory at best. Determining exactly what data a company needs to carry out a task properly has always been challenging. Whipsawed by cutthroat competitions and bulging consumer demands, companies typically adopt a toxic “collect-first, think-later” culture at the expense of individual privacy. There is also the irreconcilable duality between data privacy and data collection. The more shackles we place on data mining activity, the fewer insights we can gather, hindering innovation and creativity.

Privacy, in its permutations, crisscrosses multiple legal territories. It involves giving individuals the right to control decisions about themselves. As can be gleaned from Roe, a judgment about abortion can introduce an unavoidable element of unpredictability into privacy principles. The abortion debate quickens the need for companies to decide what to do with sensitive data within that regulated boundary, whether for good or for evil. But the debate also shows how elastic our wider digital ecosystem is to the ebbs and flows of real-life frictions. As we broaden our viewfinders, we must be prepared to accept that societal realities could sometimes bend our understanding of the borderless digital experiences. And only through coordinated efforts and carefully-designed policies could we expect to shake off the yoke of a grimly uncertain future.

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The writer is a lawyer based in Hong Kong.