February 24, 2024

California’s unprecedented new law to bolster protections for abortion-related personal information held by tech companies marks a new phase in the deepening legal fight between red and blue states over digital regulations.

Why it matters: With Congress deadlocked over national laws to govern online privacy and free speech, states are stepping into conflicts over abortion rights and censorship and setting their own, sometimes contradictory rules.

Driving the news: California Gov. Gavin Newsom signed into law Tuesday an abortion rights bill with a provision that protects reproductive digital information housed by companies headquartered or incorporated in the state.

  • The law allows those firms to resist efforts by other states to serve them with warrants in the course of enforcing anti-abortion laws.

The big picture: California’s move follows conflicts in Texas and Florida over laws intended to prevent tech platforms from discrimination against “points of view.”

Between the lines: As the partisan divide between Democratic-led and Republican-dominated states grows, states are increasing passing laws governing the digital realm that put them at direct odds with one another.

What they’re saying: The new California law, AB1242, “gives [tech companies] a way to protect the privacy of their customers… We have given a tool to our tech companies to be our partner in protecting health privacy,” California assembly member Rebecca Bauer-Kahan told Axios.

  • “It’s a really strong step forward if the goal is to make California sort of this sanctuary state for abortion information,” Hayley Tsukayama, a legislative activist with the Electronic Frontier Foundation, told Axios.
  • “We’re seeing legislative strategies in states that are outlawing abortion, so we’re trying to respond in kind, where abortion is legal.”

What’s next: Bauer-Kahan said she and California attorney general Rob Bonta are working with the White House to tell other states about the bill and urge them to pass similar laws: “The more states that would like to do this, the better.”

Yes, but: “For the tech companies, it’s a tight spot to be in,” Aaron Cooper, a partner at DC law firm Jenner & Block and former Senate counsel, told Axios.

  • Following California’s law and other states’ anti-abortion laws will “be irreconcilable obligations — there is no way to satisfy both,” he said.
  • He added that some sort of mechanism to reconcile conflicts between two states may be needed, such as one in the CLOUD Actwhich governs how foreign countries get access to electronic data stored by US companies.

How it works: AB1242 blocks out-of-state law enforcement officers from using California law to execute search warrants on California corporations to investigate abortions that are legal in the state.

  • If another state wants Google to provide search history from an IP address, it could not serve a warrant to Google in California without specifically attesting the evidence sought is not related to abortion services.
  • “California law enforcement and courts will not be used to help other states prosecute individuals for conduct that’s perfectly legal in California,” California Attorney General Rob Bonta told Axios.

The Intrigue: Bonta said his office and the law’s sponsors worked with tech companies for input and feedback, declining to name specific companies.

  • “I wouldn’t be surprised if you see additional follow-on legislation to improve or strengthen this law, or address different scenarios that weren’t originally contemplated,” he said.
  • Meta, Google, YouTube, Pinterest, Snapchat and Twitter did not provide comment when asked about the new law; a TikTok spokesperson said the company was “working through the implications of the law.”

Our thought bubbles: Companies may find themselves in a bind if they try to protect user data in California and the states seeking the data take legal action against their in-state operations.

The bottom line: “This is how democracy works… States are laboratories of innovation that provide approaches no one thought of that are new, different, cutting-edge,” Bonta told Axios. “We’re putting on the table what we believe is a significant contribution to protecting women who are under attack.”

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