Texas Mulls Law Forcing ISPs To Block Access To Abortion Websites

A proposed Texas state law would make it a criminal offense for internet service providers (ISPs) to provide access to websites that sell abortion pills or provide information about the procedure.

The bill, introduced by Republican Steve Toth, a member of the state House of Representatives, would require ISPs in Texas to "make every reasonable and technologically feasible effort to block internet access to information or material intended to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug."

Texas is one of about a dozen US states that have banned surgical and medical abortions — in some cases even in cases of rape or incest — following the US Supreme Court decision to overturn Roe v. Wade and removed automatic rights to abortion. 

Since winning that battle last June, anti-abortion groups and lawmakers have pursued several other avenues that attempt to limit access to, and online information about, pregnancy termination. In at least one case, law enforcement has subpoenaed this type of private information to prosecute a woman who ended her pregnancy. And data privacy advocates EFF has warned that "service providers can expect a raft of subpoenas and warrants seeking user data that could be employed to prosecute abortion seekers, providers, and helpers."

In response, some tech companies that collect massive amounts of data have promised to limit or delete information that could be used to prosecute women seeking abortions and doctors providing the services.

Google last year pledged to update its location history system so that visits to medical clinics and similarly sensitive places are automatically deleted. That hasn't stopped the ad giant slinging ads for fake pregnancy centers however.

Just this week data broker Acxiom, which was facing a shareholder vote on the matter, publicly said it does not collect any information that could be used for abortion-related prosecutions.

"Neither IPG nor our subsidiary Acxiom collects personally identifiable information that could be used by law enforcement for abortion-related prosecutions," the company said in a statement.

"In particular, we do not collect personally identifiable information (e.g., geolocation data, internet activity data, commercial transaction history data, or inferential data) related to reproductive health. It's important to note, this was the case before the shareholder proposal."

Texas ISPs would have to block these websites

This latest anti-abortion push in Texas not only violates data privacy norms, it also attacks Americans' constitutionally protected privacy and free speech, according to some privacy and digital rights groups.

"This is a sweeping proposal that calls for network-level filtering of people's access to information online," Emma Llansó, director of the Free Expression Project at the Center for Democracy and Technology, told The Register. "It violates people's rights to access information and to keep their communications private."

This is a recipe for intensive surveillance of people's communications and widespread censorship of information about reproductive healthcare.

Toth's bill specifically names six websites that ISPs must block: aidaccess.org, heyjane.co, plancpills.org, mychoix.co, justthepill.com, and carafem.org. 

Additionally, it would ban service providers from allowing access to any websites or services operated by "an abortion provider or abortion fund," along with those "designed to assist or facilitate" women seeking an abortion. The use of "facilitates" is troubling because it can be interpreted so broadly, Llansó said. 

"This could include a broad range of informational resources, such as the Wikipedia page on medication abortion, and potentially any site or services that allows two users to interact and exchange information," she said.

"A website operator or online service provider is not going to know which of the hundreds, thousands, or millions of communications on their service are related to facilitating access to abortion medication. This is a recipe for intensive surveillance of people's communications and widespread censorship of information about reproductive healthcare."

In case the earlier section wasn't broad enough, the proposal also requires ISPs to ban access to any "Internet website, platform, or other interactive computer service that allows or enables those who provide or aid or abet elective abortions, or those who manufacture, mail, distribute, transport, or provide abortion-inducing drugs, to collect money, digital currency, resources, or any other thing of value."

And finally, it targets any individual that puts up a website to "assist or facilitate" anyone seeking access to abortion pills. Although abortion is still legal in some US states, it notes that the law would apply to "the use of an abortion-inducing drug by a resident of this state, regardless of where the use of the drug occurs."

Is this even legal?

Even if the proposal does get signed into law, Llansó said it's likely to be struck down by the courts. 

"Laws requiring ISPs to filter the content flowing across their networks are generally a violation of the First Amendment," she said. "Filtering is notoriously overbroad and will block people's access to an enormous amount of lawful, constitutionally protected speech. The few prior state efforts to require ISPs to filter users' communications have been struck down as unconstitutional."

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Additionally, federal law preempts individual states' regulations. So Section 230 of the US Communications Decency Act, which limits online intermediaries' liability for user-generated content, would likely block enforcement of the Texas law, Llansó added.

In addition to essentially forcing ISPs to do deep-packet inspection to comply with the Texas proposal, it "could also jeopardize people's ability to use encryption to protect their communications from prying eyes," according to Llansó.

This isn't just encrypted messaging services. Things like telemedicine and online banking also use encryption to ensure communications remain secure and private, and this proposal puts this data privacy feature at risk.

"A law like this could lead ISPs to try to block all encrypted traffic because they can't be sure what might be a connection to a prohibited website," Llansó said. ®