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United States: Payments and Privacy in the Dobbs Era

Categories : Cash covers a broad range of transactions, Cash is available to all users, Cash protects privacy and anonymity
July 18, 2022
Tags : Access to cash, Digital payments, Mobile Payments, Privacy and anonymity, US
After the U.S. Supreme Court removed the constitutional right to abortion, state prosecutors could subpoena banks' and fintechs' payments data to use it as criminal evidence.
Manuel A. Bautista-González

Ph.D. in U.S. History, Columbia University in the City of New York

Post-Doctoral Researcher in Global Correspondent Banking, 1870-2000 – Mexico and South America, University of Oxford

This post is also available in: Spanish

 As I was reading through some casework, one of my younger colleagues—Katie, recently appointed, thirty-six, and three months pregnant via sperm bank—came into my office. “We need to leave,” she said.

I stared at her. “What do you mean?” I said.

“We need to get out of the country. There’s something happening.”

“Well, of course—the state of emergency—”

“No, more than that. My bank card’s been cancelled. My credit cards—both of them. I was trying to get a plane ticket, that’s how I know. Is your car here?”

“What?” I said. “Why? They can’t simply cut off your money!”

“It seems they can,” said Katie. “If you’re a woman. That’s what the airline said. The provisional government has just passed new laws: women’s money now belongs to the male next of kin.”

“It’s worse than you think,” said Anita, a somewhat older colleague. She’d come into my office too. “Way worse.”

“I don’t have a male next of kin,” I said. I felt stunned. “This is completely unconstitutional!”

“Forget the Constitution,” said Anita. “They’ve just abolished it. I heard about that in the bank, when I tried to….” She began crying.

– Margaret Atwood, The Testaments, 67.

Cash and Financial Privacy

Kenneth Rogoff, a Harvard professor, and former chief economist of the International Monetary Fund, wrote in The Curse of Cash that eliminating cash would reduce crime by ensuring tax cheats, drug lords, criminal gangs, and terrorists cannot easily fund their activities.

Larry Summers, an economist, former U.S. Treasury Secretary, and Harvard president emeritus, also argued for eliminating the $100 bill and €500 note from circulation. A few months after his recommendation, the European Central Bank decided to stop issuing large bills by the end of 2018 to reduce corruption and terrorism.

But what about those who rely on cash to protect their privacy for legitimate reasons?

Payments Data and the Right to Privacy

Do we want federal agents to freeze the bank accounts of women of child-bearing age who visit suspicious websites, to stop them while driving on suspicion of transporting illegal pills, or to seize their assets when they are found to be carrying sizeable amounts of cash? – Charles Silver, “The War on Abortion Could Turn the U.S. Into a Police State,” Health Affairs Forefront, June 27, 2022.

On June 23rd, the Supreme Court of the United States (SCOTUS) overturned Roe v. Wade, the 1973 case that guaranteed the constitutional right to abortion. Now, states will determine whether abortion is legal, restricted, or banned. In the most extreme cases, state prosecutors could subpoena credit and debit card statements and financial apps’ records to prosecute women seeking abortions.

Although the Fourth Amendment protects individuals’ right to privacy against governmental intrusion, constitutional protection weakens when individuals voluntarily share information with third parties. State law enforcement authorities can request records from financial and health entities with a warrant or subpoena.

New York Times reporters contacted large financial entities to inquire about their customers’ data privacy after the SCOTUS’ ruling. According to Ron Lieber and Tara Siegel Bernard,

American Express, Citigroup, Coinbase, Frost Bank, JPMorgan, Mastercard, 1199 SEIU Federal Credit Union, Visa and USAA declined to comment. […] 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 and Western Union did not return at least two messages seeking comment. […] The American Bankers Association also declined to comment.

Fintech Complies, Too.

The situation was similar for fintech companies, including payment apps and digital wallets: “Apple Pay; PayPal and its Venmo offering; and Square and its Cash app. None of the companies responded to at least two messages seeking comment,” reported Lieber and Siegel Bernard.

Tech companies are more experienced in objecting to subpoenas for users’ private data, but their user agreements do not offer many protections. “Essentially, all of them are bad. They’ve all said they will comply with the legal process and will turn over documents either through warrants or a subpoena,” said Alejandra Caraballo, a clinical instructor at Harvard Law School’s Cyberlaw Clinic.

The Digital Payments Trail and Reproductive Freedom

Authorities in other countries regularly use digital payment data to prosecute women seeking an abortion. For example, abortion pills have been a controlled substance in Brazil since 1998. Women seeking these drugs must buy them on the black market.

In 2012, A., a sociologist in Rio de Janeiro, sought help from her gynecologist to interrupt her pregnancy. Her doctor said, “This medication exists, but I can’t give it to you: You’ll have to buy it from the black market.” A. purchased drugs via a website, but the package never arrived. She found a local contact and bought a second batch.

A year later, the police summoned A. At the station, she saw the police had been monitoring the website and had her credit card information. The police charged her with the unlawful purchase of a controlled substance. After several years of hearings, she performed 60 hours of community service. A. still must report her location to the police and cannot leave her state.

Other countries have recognized the importance of protecting users’ payment data from potential misuse by criminals, corporations, and prying authorities. Article 9 of the European Union’s General Data Protection Regulation protects personal data “concerning a natural person’s sex life or sexual orientation.”

A card-based payment transaction identifies at least the payer, the receiving merchant, the amount of the payment, and the good or service paid for. […]. The name and, if available, category of the merchant may give insights into the consumers’ activities: €2 spent at the Central Station Coffee Shop, €20 spent at the lake-side boat rental service, €100 spent in an abortion clinic, €300 spent in a nightclub followed by a hotel reservation in the consumers’ hometown. Under specific circumstances, transactions allow to infer consumers’ racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, and sexual life and orientation, and are therefore subject to elevated data protection requirements (see Art. 9 GDPR). – Stefano Leucci, Robert Riemann, Thomas Zerdick, “Card-Based Payments,” TechDispatch 2, European Data Protection Supervisor (EDPS), 2021, 2-3.

Crypto to the Rescue?

Some think crypto assets and a decentralized autonomous organization (DAO) could help raise funds for vulnerable child-bearing people in states banning abortion. Crypto could offer women an “Underground Railroad for abortion,” said Reshma Saujani, the founder of Girls Who Code and a host of the “De-Broing Crypto” podcast.

We offer nonprofits the ability to protect donor privacy by allowing anonymous donations. This has become popular for human rights organizations where donors might not otherwise give for fear of retaliation or targeting based on a cause they support. – Alex Wilson, founder of Giving Block, a crypto donations platform.

However, abortion nonprofits and healthcare providers do not accept cryptocurrency in payments, along with most U.S. customers and retailers. The very nature of blockchain technology risks revealing the identity of crypto donors and recipients.

This post is also available in: Spanish