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California is trying to thwart abortion prosecutions in other states by making it illegal for Silicon Valley giants and other Golden State companies to hand over the personal information of abortion seekers to out-of-state authorities.
A new law signed Tuesday by Governor Gavin Newsom prohibits California-based companies from submitting geolocation data, search histories and other personal information in response to out-of-state search warrants unless those warrants are accompanied by a statement that the evidence sought is unrelated. with an abortion study.
The ban also prohibits companies in the state from complying with out-of-state law enforcement requests related to abortion, including subpoenas and wiretaps.
It’s the latest example of how California is using its status as a powerful state, with jurisdiction over the world’s most powerful tech companies, to influence policy on a national scale.
“California is setting a national privacy standard,” MP Rebecca Bauer-Kahan, an architect of the bill, said in a statement Tuesday. According to a release from California Attorney General Rob Bonta, the law went into effect immediately after it was signed.
Bauer-Kahan’s law, AB 1242, prohibits California-based companies, including Google, Meta, Uber, and others, from producing data about a person if the companies know “or should know” that the warrant they are responding to is related with an abortion probe. DailyExpertNews has contacted the companies for comment.
The new law primarily prohibits abortion-related search warrants and requires all out-of-state search warrants to demonstrate that they are unrelated to abortion.
But by directly undermining other states’ anti-abortion laws, California’s new law could put companies in the predicament of having to pick a side — and face potential legal penalties, whatever they choose.
Companies that violate AB 1242 can be sued by the California Attorney General. But if they comply with AB 1242, they can also take legal action in states that have restricted abortion for failure to comply with legal process.
“Anti-choice sheriffs and bounty hunters will be highly motivated to do whatever they can to get this data,” said Adam Schwartz, senior staff attorney at the Electronic Frontier Foundation, a digital rights group that supports California law.
In the event of a conflict of state laws, Schwartz said courts first look at whether a state has jurisdiction over a company and then, if it does, fall back on a procedural tool known as “choice of law” to determine which law should be applicable.
A state with only a few employees of a company, or that is home to users of an electronic service, is unlikely to pass the jurisdiction test, Schwartz said. Even if it did, he added, it would likely fail at the choice of law, because California law is tailored to companies that are incorporated in California or have their “headquarters” in California.
Still, he acknowledged that many more lawsuits are likely to follow.
“We’re going to see more of this situation where a company one day faces legal action from a state that doesn’t want it, orders it to disclose abortion-related data, and a blocking statute from a state that chooses to ban it.” releasing that same data,” Schwartz said. “This is an important new area, this battle between legal action against agency and choice blocking statutes, and it is a matter that can go through the courts to the highest court.”
In the meantime, tech companies could find themselves between a rock and a hard spot, according to tech trading group Chamber of Progress.
“Red states and blue states are at war over abortion, and online platforms are caught in the crossfire,” Adam Kovacevich, CEO of the Chamber of Progress, said in a statement to DailyExpertNews. “California’s new law could potentially have a major impact on reproductive privacy protections, but first it will create a challenging conflict of state laws.”
–DailyExpertNews’s Clare Duffy contributed to this report.