AG Ferguson & Partners Propose Health Data Protection Legislation for Washington

Olympia – Attorney General Bob Ferguson announced Friday that he is teaming up with Rep. Vandana Slater, D-Bellevue, and D-Redmond Senator Manka Dingra, to propose legislation at the 2023 legislative session to increase data privacy protections in the wake of Dobbs The Supreme Court ruling gives Washington residents more control over their health data.

Under current law, Washington’s health data is left vulnerable to be used by advertisers or shared with anti-choice groups. For example:

  • Period tracking apps can sell sensitive information about a missed period or a woman miscarriage to data brokers. Data brokers can associate this information with their data file, which is basically for sale on the open market. Law enforcement from countries with strict anti-abortion laws or anti-choice advocacy groups can purchase this data file and use this information to prosecute women who have had an abortion or abortion in another country.
  • Sometimes pregnant women call or visit crisis pregnancy centers in search of reproductive health care services, only to discover that they cannot obtain an abortion at that facility. But while they’re there, the Crisis Center for Pregnancy can collect women’s sensitive data and share it with anti-abortion groups who can then target the woman with pro-life messages and political ads.
  • Digital advertising companies can create a geofence around healthcare facilities making a trip when someone brings their cell phone or mobile device through the barrier. The individual can be bombarded with text messages and advertisements urging him not to seek reproductive care or gender confirmation.

This legislation From Dhingra, Slatter, and Ferguson:

  • Bans organizations from selling health data to Washington.
  • Apps and websites — such as health tracking apps, search engines, and advertisers — are prohibited from collecting and sharing health data of Washington citizens without their consent.
  • The use of “geofence” in reproductive health care and gender-affirmation facilities is prohibited. A geofence is a virtual perimeter around a physical location that can be used to send messages to a person entering a particular location.
  • Require companies that collect personal health data of Washington citizens to maintain and publish their consumer health data privacy policy

The bill may be known as the EMPOWHERD (Washington Post, Electronic Health Rights and Data Protection Enforcement Measures Act). Violations of the law are a violation of consumer protection law.

“This law will give Washingtonians more control over how their health data is used,” Ferguson said. “This is an essential part of protecting Washington’s citizens’ access to safe, private reproductive care — and it’s more urgent now than ever.”

“I believe this bill represents an important opportunity to protect our health data — particularly during an unprecedented period when our constitutional rights to reproductive health and bodily autonomy are under attack across the country,” Rep. Slater said. “As a clinical pharmacist, I have had the honor to testify about the importance of Plan B and comprehensive reproductive care. As a legislator, I am honored to sponsor this bill in the House of Representatives for Health Data Protection and Privacy in Washington State.”

“It is inconceivable that people’s personal data in connection with access to reproductive health care could be used in criminal prosecution,” Senator Dengra said. “With ideological attacks on reproductive care and gender emphasis nationwide, it is critical that the state of Washington establish best practices and a national model for protecting the right to privacy that we all deserve and need. I look forward to working with Attorney General Ferguson, Governor Inslee, the tech industry, and advocates, and my colleagues to continue to develop policies that protect access to care, provide a safe haven for individuals seeking care in our state, and ensure that health-related data is protected from government interference and intimidation.”

“I would like to thank Senator Dengra, Representative Slater, and Attorney General Ferguson for leading efforts to strengthen patient and provider data protection,” Governor Jay Inslee said. “It is unwarranted that private and protected patient and health care provider data be shared for purposes outside of required care. We will not allow this in Washington.”

Washington residents expect that their health data is protected by laws such as the Health Information Transfer and Accountability Act (HIPAA). However, HIPAA only covers health data collected by specific healthcare entities, including most healthcare providers. Health data collected by other entities – including apps and websites – is not afforded the same protection.

This bill bridges the gap in health data privacy protection.

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