Digital payments are the default for millions of women of childbearing age. So what do credit and debit card issuers and financial app providers do when prosecutors look for transaction data during an abortion investigation?
This is a fictitious question that is almost certainly an unavoidable question in the wake of the overthrow of the Roe v. Wade case last week. Because abortion is illegal in many states, criminal investigators will soon begin looking for evidence to prosecute those who claim to be in violation of the law.
Medical records are likely to be the most definitive evidence of current crimes, but personnel who cannot obtain them will look elsewhere for evidence. Payment trails may be a high priority.
For banks and other payment companies receiving criminal inquiries, this seems like a fairly new area. Card issuers have become accustomed to requesting user data in the investigation of terrorism, money laundering, and illegal trafficking. None of them have caused the kind of political, legal, and emotional backlash that abortion investigations are likely to occur.
Article 4 of the Constitutional Amendment protects personal privacy from government intrusions. However, when individuals voluntarily share information with third parties, these protections are weakened, legal experts said. That is, law enforcement authorities can usually ask financial institutions to pass customer data in a simple subpoena.
Even sensitive health and medical details can be a fair game. Health insurance interoperability and accountability law. HIPAA ――Which To govern Patient Health Record Privacy — You can publish medical and billing records in response to a warrant or subpoena.
“There are very widespread exceptions to HIPAA protection for law enforcement,” he said. Mercy Wilder, He is a partner of the law firm Hogan Lovells and co-head of global privacy and cybersecurity practices. However, Wilder added that the information shared with law enforcement authorities cannot be overly extensive or irrelevant to the request. “That’s why it’s important how businesses and health insurance interpret this.”
Networks like card issuers and Visa and Mastercard generally do not have a list of all the items to pay when buying prescription or other medicines online or when purchasing services at a healthcare provider. But, for example, evidence sponsored by a pharmacy that sells only abortion drugs could let go of someone.
At the same time, according to lawyers and privacy experts, if investigators collect other data about a person’s travel, it would be useful to charge a much higher amount than standard inspections in out-of-state planned parent-child relationships. It will be evidence, depending on the legislation in force and how they will evolve in the coming months. The same is true for patients who live in states where abortion drugs are illegal and seek out abortion drugs through telemedicine visits with doctors outside the state.
Some financial institutions are preparing to postpone the request for this data.
The New York-based amalgamated bank is one of them.
“The Amalgamated Bank will carefully scrutinize the subpoena for information related to the prosecution of women to make the best possible choices and exercise their right to oppose,” the bank said in a statement. Unless the investigator succeeds in forcing the bank not to disclose the existence of the subpoenas, we will notify the customer of these subpoenas.
Law enforcement officials can also track subpoenas for companies issuing debit cards that are loaded with flexible spending account dollars. Many employers offer such medical expense accounts.
Health Equity, the primary administrator for these accounts, said he was reluctant to abandon transaction data. “We will not respond to requests for medical bill data from law enforcement agencies or other government agencies unless specifically enforced by law,” John Kessler, CEO of the company, said in an email. “We aim to apply the narrowest possible interpretation of what is needed and actively oppose any request for widespread retrieval of member data.”
The New York Times contacted about 20 major financial companies, including several companies that announced plans to reimburse employees for abortion-related costs, and asked how they would work on data privacy regarding abortion.
American Express, Citigroup, Coinbase, Frost Bank, JPMorgan, Mastercard, 1199 SEIU Federal Credit Union, Visa and USAA declined to comment.
“I can’t guess the situation you’re going to explain,” said Bill Day, a spokesman for Frost, one of the 50 largest banking companies in the United States, based in San Antonio. “At this point, these are all fictitious.”
USAA also refused to discuss whether they were instructing bankers to handle conversations with customers. It is based in Texas, and new state law allows residents to file proceedings against those who helped promote abortion.
“It’s too early to understand the full impact at the state level since the decision was late last week,” USAA spokesman Brad Russell said in an email. “However, USAA will always comply with all applicable laws.”
American Airlines Credit Union, Bank of America, Capital One, Discover, Goldman Sachs, Prosperity Bank USA, Navy Federal Credit Union, US Bank, University of Wisconsin Credit Union, Wells Fargo, Western Union have at least two messages asking for comment. Did not return.
American Express, Bank of America, Goldman Sachs, JPMorgan Chase and Wells Fargo have all announced their intention to reimburse employees if they travel to other states for an abortion. So far, we haven’t commented on how to respond to subpoenas seeking transaction records for employees eligible for refunds to employers.
The fact that so many financial services companies are silent is not surprising. Like most people, they scramble to navigate completely transformed landscapes. The American Bankers Association also declined to comment.
Second, there are digital payment services that cross the line between technology and finance. Apple Pay. PayPal and its Venmo products. And Square and its cash app.
No company responded to at least two messages asking for comment.
Alejandra Caraballo, a clinical instructor at Harvard Law School’s Cyberlaw Clinic, read these company’s user contracts with students in a recent course. “We found that essentially all of them were bad,” she said. “They all state that they will comply with legal proceedings and submit documents either through warrants or subpoenas.”
Technology companies have extensive experience considering whether to confront subpoenas for user personal data.
In comparison, financial services companies generally do not face such complexity. This is because new payment methods are less frequent than new forms of communication. Many bring new legal issues and potential consumer anger. others.
Abortion rights and privacy activists are preparing for the fight.
“I think everyone, including these companies, is thinking about what they can do,” said Dana Sussman, Managing Director of the National Advocates for Pregnant Women. “One of the things we want is to put pressure on the people to fight these subpoenas. If so, it’s their community with limited resources and other problems. It will be very difficult for these prosecutors who have a lot of work to do in. “
Ami Este PanovichU.S. Policy Vice President of Future of Privacy Forum, a non-profit organization focused on data privacy and protection, warrants customers that warrants and subpoenas may be accompanied by a gag order and that the company is investigating. He said he couldn’t even do it. “They can choose to fight the use of gag orders in court,” she said. “Sometimes you win, sometimes you don’t.”
In another example, prosecutors may not say exactly what they are investigating when requesting transaction records. In that case, it is up to the financial institution to request more information or try to understand it for themselves.
Paying for an abortion service in cash is one possible way to avoid detection, even if it is not possible for someone ordering pills online. Many abortion funds pay on behalf of those in need of financial assistance.
However, cash and wire transfers are not completely certain.
“Even if you’re paying in cash, the amount of information you have left to reveal your health and pregnancy is pretty important,” he said, referring to potential bread crumbs such as the use of retailer loyalty programs. Then Stepanovich said. Location tracking on mobile phones when purchasing cash.
In some cases, users may inadvertently give up sensitive information through apps that track and share their financial behavior.
“Purchasing a pregnancy test with an app that has a public financial history is probably the biggest danger signal,” said Stepanovich.
Other proponents have mentioned the possibility of using flat-rate prepaid cards, such as the types that people can buy from drugstore shelves. They added that cryptocurrencies usually leave traces that make it difficult to achieve anonymity.
One of the highlights of all experts is the lack of certainty. However, there is an intuition that companies will be in the limelight at least as much as judges.
“Now, these payment companies are at the center of the battle,” Caravaro said.
