States Move to Bar Use of Geofencing to Collect Reproductive Health Data

One particular area of concern is the collection of data through geofencing, which enables law enforcement agencies to track a person’s precise physical location, such as visits to a health provider or pharmacy.

Following the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, some states enacted laws limiting individuals’ access to abortion, certain types of birth control and gender-affirming care. In response, the Department of Health and Human Services expanded the Health Insurance Portability and Accountability Act (HIPAA) Standards in 2024 to prohibit covered entities from using or disclosing reproductive health care data for purposes of incriminating or imposing liability on users or providers of reproductive care. The new standards were vacated by a federal court, however, allowing enforcement agencies and third parties to continue collection such data.

Geofencing uses GPS data from cell phones and wearables, as well as Wi-Fi networks, cell towers, and radio frequency to register a person’s entering a perimeter around a location. Although frequently used in anonymized form in connection with a unique advertising identifier, data brokers can purchase the non-anonymized data in bulk and sell or provide it to law enforcement, political groups or other third parties, according to Reuters.

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In 2023 Utah became the first state to pass a law establishing the process by which law enforcement can obtain reverse-location data for devices within a geofence for use in criminal investigations or prosecutions. The law limits the use of the data by law enforcement to felonies and certain Class A misdemeanors where they can identify and imminent threat to public safety.

Since then, per Reuters, Washington, Nevada, Connecticut, New York, California, and Virginia have introduced or passed laws restricting various geofencing data-collection practices related to reproductive and other types of health care.

Law enforcement’s use of geofencing data has also raised questions over unreasonable search-and-seizures. In 2024, the Fourth and Fifth Circuits issued conflicting rulings in Fourth Amendment challenges to geofence warrants.

In United States v. Chatrie, a Fourth Circuit panel found a defendant did not have a reasonable expectation of privacy in his mobile device since he had elected to expose his location data to Google. An en banc court later affirmed that ruling.

In United States v. Smith, the Fifth Circuit found that the defendants did have a reasonable expectation of privacy in geofence location data from their cell phones and that geofence warrants are non-specific general warrants prohibited by the Fourth Amendment.

No case has yet reached the Supreme Court to resolve the circuit split.

Action by Congress or the Trump administration could also raise questions of federal preemption and states’ ability to pass reproductive-health data privacy laws, per Reuters. For now, though, in the absence of enhanced federal protection under HIPAA, reproductive healthcare data will receive the same level of protection at the federal level as other types of health data, while individual states may provide additional guardrails.

Source: Reuters