Ovulation app. (Photo by: SCIENCE PHOTO LIBRARY via AP Images)

In May, when a draft Supreme Court opinion in the Mississippi abortion case indicated that Roe v. Wade would be overturned, a torrent of social media users sounded the alarm. They warned women to delete their period tracking apps and protect other data that could reveal their being pregnant or obtaining an abortion. Some menstrual cycle apps sell data that could enable law enforcement to identify users who might be seeking or just considering an abortion. Vice reported that one data broker was selling data on persons visiting Planned Parenthood locations. All of this underscored the surveillance threat in a post-Roe America.

In June, Senator Elizabeth Warren introduced a bill that would ban most sales of Americans’ health and location data, a step that the privacy expert Justin Sherman, a senior fellow at Duke University’s Sanford School of Public Policy, says is long overdue. Sherman leads a research team on data brokers, and he advised Warren’s staff on her bill.

I spoke with Sherman after the Dobbs ruling about regulating data brokers—and why surveillance threatens all marginalized persons, not just those seeking reproductive health care.

This conversation has been edited and shortened for clarity.

WN: What is the data broker industry? And why does it need regulation?

JS: Data brokers are companies that buy and sell people’s information. Some of these companies most Americans have probably never heard of. They’re third parties who have spreadsheets listing everything from what people buy to how they vote, to their race, gender, income level, and a lot of other information. Some companies in this industry you have heard of: They’re companies like your internet service provider [or] social media platforms, who are buying and selling and trading in people’s data.

The reason this presents risks is that the data that data brokers trade in a lot of the time is sensitive, like someone’s home location or whether or not someone’s pregnant. And a lot of that buying and selling is not covered under any privacy law.

WN: Who can buy this kind of data? How easy is it to access?

JS: There aren’t really any controls on what kinds of individuals can buy data, which means it’s entirely on a company. Technology companies buy data to understand potential customers; law enforcement purchasing information from private companies can circumvent a lot of search-and-seizure protections and laws. We’ve even seen individuals purchase data from data brokers to commit violence.

For two and a half decades, white pages websites have made people’s addresses and other location information available. Abusive individuals have bought this data to hunt down, stalk, harass, intimidate, or even kill predominantly women and members of the LGBTQ community. The Grindr incident last year is an example where the Catholic website The Pillar bought location information that it acquired directly or indirectly—it’s not clear—from Grindr, used it to follow a closeted gay priest, and then outed him. I can go on. There’s others: a federal judge had her house shot up.

WN: What are some of the sources that data brokers mine for reproductive health information?

JS: Data brokers get data from all over in the reproductive health context. You might have period tracking apps that are sharing data with advertisers. You might have reproductive health organization websites—like the recent Washington Post story showed with Planned Parenthood—that have trackers sending data on people who visit the websites.

Those are two of the most cited examples, but there’s a range of data about reproductive health. You could buy someone’s credit card purchase history to understand if they are seeking something like a Plan B pill. You could buy someone’s internet search history to understand if they’re looking up reproductive health centers.

WN: Why is regulating this data especially important when there’s more right-wing illiberalism? I’m thinking of conservative prosecutors and vigilante extremists targeting pregnant women, transgender people, immigrants, and others.

JS: You can’t talk about surveillance without talking about power. Since the inception of the United States, surveillance has been disproportionately or exclusively targeted at marginalized communities, whether that’s policing women’s bodies, spying on Black and brown communities, or monitoring the poor. We can go on and on. When we look at the state of political affairs in our country today, [there’s] the overturning of Roe, or law enforcement agencies that are compiling databases on citizens without warrants, or companies that are allowed to buy data and then micro-target [online consumers]. The longer we wait to regulate, the worse it’s going to get for U.S. citizens.

That you can buy lists of people’s HIV/AIDS status, to me, is disgusting. Just like it’s disgusting that you can dance around the Fourth Amendment and buy location data on Black Lives Matter protesters or even geo-locate people on military bases.

WN: And now Roe has been overturned. Can you describe a scenario where the sale of reproductive health information could endanger someone in this context?

JS: Because all of this health and location data is out there, it risks individuals buying up location data around clinics and location data around people who travel across state lines. It risks people buying lists of those who were believed to be pregnant or late on their period, for example.

And if you have aggregate data on which clinics in a state are most visited, you can imagine a right-wing organization weaponizing that to identify the most trafficked facilities, for example.

WN: What would this Elizabeth Warren bill do?

JS: The bill that Senator Warren wrote would essentially prohibit data brokers from buying and selling people’s health and location information. This is important because health and location information are some of the most sensitive data out there because they describe a very intimate part of an individual’s life [and] because it’s very easy to link it to a particular person. If you know someone’s entire medical chart, or you know everywhere a phone has gone in the last week, it’s very unlikely that any two people will have the same set of data.

WN: Does this bill have any chance of passing in some form close to what it is now?

JS: I guess you’re required to ask that question. [laughs]

As with any bill now, the prospects of getting passed are probably small because we have a dysfunctional branch of government. But this issue touches so many different things that different members and, I hope, their constituents care about—civil rights, consumer privacy, and national security. I hope that more members of Congress realize that this does matter.

Will Norris

Will Norris is an editor at the Washington Monthly.