Payments Data Caught in Abortion Crosshairs

With the overturning of Roe v. Wade and the illegality of abortion in several states, payments data is now in the crosshairs should prosecutors decide to subpoena those records for evidence, the New York Times reported on Thursday (June 30).

Financial companies collect a lot of payment data from customers who pay digitally for the bulk of their daily transactions, from food and fuel to clothes, healthcare, and entertainment. Criminal investigators looking for evidence to prosecute abortion lawbreakers can start with payment data, which can be an easier get than medical records.

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When people voluntarily agree to share data with third-party aggregators, the Fourth Amendment protection against government intrusion is negated. Law enforcement can simply issue a subpoena to banks or FinTechs for consumers’ financial data. 

Subpoenas by law enforcement are not new for financial institutions; requests for user data have occurred in terrorism, money-laundering and illegal-trafficking investigations. But none have been as politically and legally charged as abortion, which will be new territory for banks and payments firms on the receiving end of criminal inquiries, the NYT reported.

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In the event of a warrant or subpoena, medical and billing records aren’t protected under the Health Insurance Portability and Accountability Act (HIPAA). 

“There is a very broad exception to the HIPAA protections for law enforcement,” said Marcy Wilder, a partner and co-head of the global privacy and cybersecurity practice at Hogan Lovells, a law firm. 

She told the NYT that the information provided to law enforcement had to be directly related to the request. “That is why it matters how companies and health plans are interpreting this.”

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Visa and Mastercard and other card networks largely don’t itemize everything purchased, even when it’s for medications or healthcare visits. But data collection on payments could tell a story about what a person has been doing. 

Some financial institutions are preparing to push back on data requests of this nature. 

“Amalgamated Bank will carefully scrutinize any subpoenas for information related to the prosecution of women for exercising their right to choose and object to the fullest extent possible,” the bank said in a statement to the NYT.

The New York Times reached out to about 24 large financial institutions — including some that have announced plans to reimburse employees for abortion-related expenses. American Express, Citigroup, Coinbase, Frost Bank, JPMorgan Chase, Mastercard, 1199 SEIU Federal Credit Union, Visa and USAA declined to comment.