California Leads on Reproductive and Trans Health Data Privacy

In the wake of the Supreme Court Dobbs Decision, anti-choice sheriffs and bounty hunters will seek to investigate and punish abortion seekers based on their internet browsing, private messaging and phone app location data. We can expect similar tactics from state officials who claim that parents who allow their transgender youth to receive gender-affirming health care should be investigated for child abuse.

So it’s great news that California Governor Gavin Newsom has just signed into law three bills that will help address these threats: AB 1242, authored by Asm. Rebecca Bauer-Kahan; AB 2091 written by Asm. Mia Bonta; and SB 107, written by Senator Scott Wiener. EFF supported all three bills.

This post summarizes the new California privacy protections and provides a breakdown of the specific places where they change California state law. For those interested, we’ve included the quotes on these changes. These three new laws limit how California courts, government agencies, healthcare providers, and corporations handle this data. Some provisions create new exceptions to existing disclosure requirements; others create new boundaries for disclosure.

The EFF encourages other states to consider similar bills, adapted to their own states’ civil and criminal laws.

New exceptions for reproductive and transgender health data from old disclosure requirements

Law enforcement agencies and private litigants often look for evidence located in other states. In response, many states have enacted various laws requiring domestic entities to share data with non-state entities. Now that anti-choice states are increasingly criminalizing abortion, pro-choice states should create abortion exceptions to these partition mandates. Likewise, now that anti-trans states are claiming that gender-affirming care for trans youth is child abuse, pro-trans states should create exceptions to these divisional mandates for trans health care. California’s new laws do this in three ways.

First, existing California law requires California-based providers of electronic communications and remote computing services, upon receipt of an out-of-state warrant, to treat it as if it were a domestic warrant. AB 1242 creates an abortion exemption. A provider cannot provide records if it “knows or should know” that the investigation is a “prohibited violation”. (See 8, Penal Code 1524.2(c)(1)) A “prohibited violation” is an abortion that would be legal in California but illegal elsewhere. (See sec 2, at Penal Code 629.51(5)) In addition, warrants must confirm that the investigation does not involve a prohibited violation. (See sec. 8, in penal code 1524.2(c)(2))

Also Read :  Russia missile strikes in Zaporizhzhia kill 13

Second, existing California law requires state courts to assist in enforcing out-of-state court orders. This is the Uniform Law Commission’s (ULC) California version of the Interstate Depositions and Discovery Act. It requires California court clerks to issue subpoenas at the request of litigants who have a subpoena from an out-of-state judge. California attorneys can also issue subpoenas in such circumstances.

AB 2091 and SB 107 create new abortion and transgender health exceptions to this existing law:

  • California employees and attorneys may not issue a subpoena based on an out-of-state subpoena relating to a “foreign civil criminal lawsuit” requesting information about “sensitive services.” (See AB 2091, Sect. 4.5, at Code Civ. Professional. 2029.300(e)(2); AB 2091, Section 5.5, at CodeCiv. Professional. 2029.350(c); SB 107, chap. 2.5, at Code Civ. Professional. 2029.300(e)(2); SB 107, chap. 3.5, at Code Civ. Professional. 2029. 350(c)) A “foreign criminal civil action” is an action taken outside a State “to sanction an offense committed against the public judiciary of that State”. (See Sec 3, at Code of Civ. Professional. 2029.200(b)) “Sensitive services” include sexual health care and gender-affirming health care.
  • California employees and attorneys are also prohibited from issuing a subpoena based on an out-of-state subpoena based on laws that interfere with a person’s right to permit a transgender child to receive gender-specific healthcare. (See AB 2091, Sect. 4.5, at Code Civ. Professional. 2029.300(e)(1); AB 2091, Section 5.5, at CodeCiv. Professional. 2029.350(b); SB 107, chap. 2.5, at Code Civ. Professional. 2029.300(e)(1); SB 107, chap. 3.5, at Code Civ. Professional. 2029.350(b))

Third, existing California law requires healthcare providers to share certain types of medical information with certain types of facilities. AB 2091 and SB 107 create new abortion and transgender health exceptions to this existing law:

  • Providers may not provide medical information about abortion to law enforcement officials or in response to a subpoena based either on an out-of-state law that interferes with California abortion rights or a foreign civil criminal complaint. (See AB 2091, par. 2, in the Civil Code 56.108)
  • Providers also cannot release medical information about a person who allows a child to receive gender-affirming care in response to a criminal or civil lawsuit brought outside of a state against such person. (See S.B. 107, Sec. 1, Civil Code 56.109; sec. 10, in penal code 1326 (c))
Also Read :  The Priceless Value of Implementing Safety Tech -- Occupational Health & Safety

All of these new exceptions to old release mandates are important steps forward. But that’s not all these three new California bills are doing.

New Limits for California Judges

To protect the privacy of individuals seeking reproductive health care, these new laws limit the powers of California courts to authorize or compel disclosure of reproductive health information.

First, AB 1242 prohibits California judges from approving certain forms of digital surveillance when conducted for the purpose of investigating legal abortions in California. These are:

  • Intercepting wired or electronic communications. (See sec 3, Penal Code 629.52(e)) Interception captures communications content such as: B. the wording of an email.
  • A pin register or trap and trace device. (See sec 5, Penal Code 638.52(m)) These devices collect communications metadata such as B. who called whom and when.
  • A guarantee for each article. (See sec 7, in Penal Code 1524(h)) This would include digital devices containing evidence of an abortion such as B. a calendar entry.

Second, AB 1242 prohibits California judges and clerks from issuing subpoenas related to extrastate proceedings about a person performing, assisting, assisting, or obtaining a lawful abortion in California. (See sec. 11, in penal code 13778.2(c)(2))

Third, AB 2091 prohibits state and local courts from compelling a person to identify or provide information about a person who has had an abortion if the investigation is based either on an out-of-state law that interferes with abortion rights , or a foreign criminal civil action. This protective measure also applies in administrative, legislative and other official procedures. (See sec 6, health code 123466(b))

New restrictions on California government agencies

Government agencies can also be the source of information regarding reproductive and transgender health care. For example, police may be able to identify who has traveled to a healthcare facility, and government agencies may be able to identify who received what care. The bills create two new restrictions on health information disclosures by California government agencies.

First, AB 1242 and SB 107 prohibit all California state and local government agencies and their employees from disclosing information to individuals or extrastate agencies regarding:

Also Read :  Jessica Chastain and Eddie Redmayne's serial killer movie ‘Good Nurse' examines U.S. health care system

Third, AB 2091 prohibits prison officials from disclosing medical information about an incarcerated person’s abortion if the request is based either on an out-of-state law that interferes with California’s abortion rights or on a foreign criminal civil action. (See Sec. 8, in Penal Code 3408(r))

New limit for California communications services

Finally, AB 1242 offers a new protection to protect individuals from disclosure requests made to some type of company that owns their information. These are California corporations and corporations headquartered in California that provide electronic communications services. You may not provide any “records, information, facilities, or assistance” in California in response to a non-state judicial proceeding (e.g., a warrant or other court order) related to a prohibited violation. (See sec 9, Penal Code 1546.5(a)) The California Attorney General may enforce this rule. (See Section 9, at Penal Code 1546.5(b)) However, affected companies shall have no cause of action for providing such assistance in response to such legal proceeding, unless the company “knew or should have known” that the legal proceeding referred to a Prohibited Violation. (See sec. 9, in penal code 1546.5(c))

Next Steps

These three new California statutes – AB 1242, AB 2091 and SB 107 – are strong safeguards for reproductive and transgender health privacy. Other pro-choice and pro-trans states should enact similar laws.

More work stays in California. After these important new laws go into effect, we can expect anti-choice sheriffs and bounty hunters to continue seeking abortion-related data in the Golden State. Ditto for other state officials trying to punish parents who provide their children with gender-affirming health care. California policymakers need to be vigilant and legislate when necessary. For example, an existing California law based on a different ULC model empowers state courts to order a resident to travel abroad to testify in a criminal proceeding. This law may also require an exception for abortion-related and trans-related information. California officials should also work with companies to identify efforts by anti-choice and anti-trans states to circumvent these new protections and use any means at their disposal to respond.