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Big Tech Can’t Comply With Other States’ Abortion Warrants

Gov. Gavin Newsom signed a law on Sept. 27 that forbids California-based companies from giving out geolocation data, search histories and other personal information for out-of-state warrants, including those pertaining to abortions.

(TNS) — California is attempting to stymie abortion prosecutions in other states by making it illegal for Silicon Valley giants and other businesses based in the Golden State to hand over the personal information of abortion-seekers to out-of-state authorities.

A new law signed Tuesday by Gov. Gavin Newsom forbids California-based businesses from giving up geolocation data, search histories and other personal information in response to out-of-state search warrants, unless those warrants are accompanied by a statement that the evidence sought isn’t connected to an abortion investigation.

The prohibition also bars companies in the state from complying with out-of-state law enforcement requests related to abortion, including subpoenas and wiretaps.

It’s the latest example of how California is using its status as a powerful state, with jurisdiction over the world’s most powerful tech companies, to influence policy at a national scale.

“California is setting a national privacy standard,” said Assemblymember Rebecca Bauer-Kahan, an architect of the bill, in a statement Tuesday. According to a release by California Attorney General Rob Bonta, the law went into effect immediately upon signing.

Bauer-Kahan’s law, AB 1242, bars California-based companies, including Google, Meta, Uber and others, from producing records about a person if the companies know “or should know” that the warrant they’re responding to is related to an abortion probe. CNN has reached out to the companies for comment.

The new law prohibits abortion-related search warrants in the first place, and requires all out-of-state search warrants to attest that they are not abortion-related.

But in directly undercutting the anti-abortion laws of other states, California’s new law could put businesses in the difficult position of having to pick sides — and face potential legal penalties no matter what they choose.

Companies that violate AB 1242 could face prosecution by the California attorney general. But if they comply with AB 1242, they could also face legal action in states that have restricted abortion for failing to comply with legal process.

“Anti-choice sheriffs and bounty hunters are going to be highly motivated to do anything they can to get this data,” said Adam Schwartz, a senior staff attorney at the Electronic Frontier Foundation, a digital rights group that supports the California law.

In the event of a conflict between state laws, Schwartz said courts first look to whether a state has jurisdiction over a company and then, if it does, they fall back on a procedural tool known as “choice of law” to determine which law should apply.

A state with only some employees of a company, or that is home to users of an electronic service, isn’t likely to satisfy the jurisdictional test, Schwartz said. Even if it did, he added, it would likely fail in the choice of law because the California law is tailored to govern businesses that are incorporated in California or that have their “principal executive offices” in California.

Still, he acknowledged there will likely be many court battles ahead.

“We are going to see more of this situation where a business is facing, at one time, legal process from an anti-choice state commanding it to disclose abortion-related data, and a blocking statute from a pro-choice state forbidding it from disclosing that same data,” Schwartz said. “This is an important new area, this contest between anti-choice legal process and pro-choice blocking statutes, and it is a matter that could work its way up the courts to the highest court.”

In the meantime, tech companies could find themselves between a rock and a hard place, according to tech trade group Chamber of Progress.

“Red states and blue states are at war over abortion, and online platforms are caught in the crossfire,” Chamber of Progress CEO Adam Kovacevich said in a statement to CNN. “California’s new law could potentially have a big impact on protecting reproductive privacy — but first it will create a challenging conflict between state laws.”

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