Elizabeth Warren Proposes Ban on Health-Related Data Sales

The Health and Location Protection Act would provide the Federal Trade Commission with $1 billion to publicize and enforce the ban over a 10-year span. The bill would prohibit companies from “selling or transferring location data and health data”—a sweeping ban that would rock the entire multibillion-dollar data broker industry. It’s currently supported by a handful of Democratic senators, including Sen. Bernie Sanders (I-VT) and Sen. Patty Murray (D-WA).

The proposed ban coincides with the Supreme Court’s likely impending overturn of Roe v. Wade. As half the US population prepares to lose bodily autonomy as soon as this month, concerns regarding the privacy of one’s medical decisions are rising. Many are worried that health-based apps, especially period trackers, will be used as evidence in the prosecution of people seeking reproductive care. (A legitimate concern, given Motherboard’s report on data brokers selling information on who has visited Planned Parenthood.) While a ban on health-related data sales would likely provide a slew of other benefits, Warren is mainly concerned about its relevance in the face of what could be the Supreme Court’s most contested decision in decades.

“Data brokers profit from the location data of millions of people, posing serious risks to Americans everywhere by selling their most private information,” said Warren upon the bill’s introduction. “With this extremist Supreme Court poised to overturn Roe v. Wade and states seeking to criminalize essential health care, it is more crucial than ever for Congress to protect consumers’ sensitive data. The Health and Location Data Protection Act will ban brokers from selling Americans’ location and health data, rein in giant data brokers, and set some long overdue rules of the road for this $200 billion industry.”

Warren’s proposed legislation is similar to the Fourth Amendment Is Not For Sale Act (FANFSA), which a bipartisan group of senators introduced in April 2021. Centering on the part of the Constitution that protects the right to be free from unreasonable searches and seizures, the FANFSA legislation “closes the legal loophole that allows data brokers to sell Americans’ personal information to law enforcement and intelligence agencies without any court oversight.” While the FANFSA focuses on government entities as the customers of such data sales, the Health and Location Protection Act prevents anyone from being able to buy or sell sensitive data. The only exceptions would be activity protected by HIPAA or the First Amendment. (It’s worth mentioning, however, that Warren is a co-sponsor of the FANFSA, which currently appears to be stuck in the legislative pipeline.)

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