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FTC threatens to sue firm allegedly revealing abortion clinic visits

A lawsuit against the agency shows how it might defend health data after the Supreme Court left states free to outlaw abortion

(AP Photo/Alex Brandon)
4 min

The Federal Trade Commission is threatening to sue an adtech company it alleges reveals people’s visits to sensitive locations, including women’s reproductive health clinics, according to a lawsuit against the agency.

The agency’s proposed complaint, against Idaho-based Kochava, argues the company violates laws that prohibit “unfair or deceptive practices” by allowing its customers to license data collected from mobile devices that can identify people and track their visits to health-care providers.

In addition to women’s reproductive health clinics, the agency argues that the data can be used to trace people to therapists’ offices, addiction recovery centers and other medical facilities. Because the coordinates the company collects included a time stamp, they can be used to identify when a person visited a location.

Kochava revealed the threat in a Friday lawsuit, where the company says that the agency “wrongfully alleges” that it is in violation of consumer protection laws. The FTC declined to comment.

The action is an early indication of how the agency might assert itself as a defender of health-related data, in the wake of the Supreme Court’s decision to overturn Roe v. Wade in June. The FTC action comes as prominent Democrats, privacy advocates and technologists warn that people’s digital trails could become evidence in abortion prosecutions, and after cases where details like search history and Facebook messages about the procedure have been used as evidence against women.

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In the absence of a comprehensive federal privacy law, there are limited steps that Democrats in Washington can take to protect reproductive health data. The Biden White House has turned to the Federal Trade Commission to take up the mantle, urging the agency in a July executive order to take steps that would protect people’s privacy when they’re seeking reproductive health services.

However the more than 100-year-old agency has struggled to gain the resources and technological expertise needed to police emerging privacy threats. The FTC historically moves slowly in building and bringing cases against companies. FTC privacy cases can take years to resolve, but Kochava has already announced some changes to its privacy practices around sensitive health data. Kochava said the FTC sent it a proposed complaint “in or about July and August,” roughly three months since the news of the Supreme Court decision first leaked.

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Kochava denies the FTC’s allegations and writes in its suit that they illustrate “a lack of understanding” of its services. On Thursday, the company announced it would create a “privacy block” service that would remove health location data from its marketplace.

“This is a manipulative attempt by the FTC to give the appearance that it is protecting consumer privacy despite being based on completely false pretenses,” Brian Cox, the general manager of the Kochava Collective, the company’s data marketplace, said in a statement to The Washington Post.

Cox also said that the FTC was trying to get the company to agree to a settlement “with the effect of setting precedent across the adtech industry and using that precedent to usurp the established process of Congress creating law.”

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health, which left states free to outlaw abortion, unleashed a wave of privacy concerns that adtech companies or databrokers, which collect and sell personal data, could be used to detect whether a person visited an abortion provider.

These fears are not entirely hypothetical. In 2017, the Massachusetts attorney general reached a settlement with an advertising company hired to direct targeted advertisements using a technique known as “geofencing” to target “abortion-minded women” while they were in waiting rooms at health clinics. The women were shown ads with texts including “You Have Choices” and “You’re Not Alone” that took people to a website with information about alternatives.

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In addition to enforcement actions, the Federal Trade Commission could also attempt to protect reproductive data through crafting new privacy regulations. The agency last week announced it was exploring whether to create new rules to address “commercial surveillance.” The agency’s request for the public to weigh in on the process outlined concerns surrounding health tech and location data, and cited previous action taken against a period tracking app.

“Some of the discussion around the recent Dobbs decision just underscores what many people have been saying for a long time: Consumer privacy is not just an abstract issue,” Sam Levine, director of the FTC Bureau of Consumer Protection, told reporters at a news conference about the agency exploring privacy rules.