(Source: MIRS.news, Published 11/12/2024) Residents could not have their "reproductive health data" processed for information or sold to other businesses without consenting specifically to it, under legislation by Sen. Mallory McMorrow (D-Royal Oak), which received committee testimony Tuesday. 

SB 1082 deals with the digital privacy of Michiganders' reproductive health information. The definition ranges from their use of menstrual cycle and fertility trackers to abortion-related services and counseling. Additionally, the bill outlaws geofencing based on a resident's trip to a sexual health clinic or abortion facility. 

Geofencing uses cellular and WiFi data as well as cell tower connectivity, and is depended upon for location-based marketing strategies. Under SB 1082, geofencing could not be utilized to identify or track individuals seeking "reproductive health services," or to send notifications or ads based on someone being within 1,850 feet from a relevant location. 

"So let's say you use a period tracker app, there would be a very clear, in simple English notification that would pop up for you, that asks you for affirmative consent for the use of your data, and it would spell out how it's used," McMorrow said, explaining how the consumer's experience would change under SB 1082. 

She described that her legislation deals with apps, purchases and geofencing. 

"It's really just making sure that any data that you provide, whether it's to an app, a phone or just where you are in the world, is not being sold to outside companies or government entities without your clear consent that that's OK," she said. "I think this is, at least in my mind, how we can start digging into how we protect Michiganders' data in an issue area that is…highly sensitive, highly personal and highly charged right now, given the political environment." 

McMorrow nodded to former President Donald Trump's recent reelection. Although Trump in April explained that the abortion issue should be determined at the state-level through votes or legislation, Democrats have spent the recent election cycle trying to link Trump to fears of a federal abortion ban or strenuous restrictions. 

Earlier this month, Newsweek reported on the team behind the Clue Period & Cycle Tracker, which is a free app, claiming on social media they "will never disclose any member's private health data to any authority," promising to not comply if ever subpoenaed. 

SB 1082 creates the "reproductive health data privacy act" in Michigan, requiring consent to be obtained virtually through a form separate from a broad terms-of-use agreement. 

The consent will be needed for businesses – like app developers with Michigan users – to collect and process data for reasons that they reveal upfront. Beginning after June 2025, consent will be required for those businesses to sell the data. 

If the act is reportedly violated, the Attorney General could seek out $100 to $750 in court-ordered relief "per incident or actual damages." 

During Tuesday’s Senate Housing and Human Services Committee meeting, Dr. Catherine Gorant GLIWA, an Ann Arbor-based obstetrician and gynecologist, said her patients coming in for menopause symptoms, period irregularities and positive pregnancy tests "use technology in many ways." 

Gliwa illustrated how, a few weeks ago, a woman visited her due to menstrual cycle concerns. Gilwa used data her patient was gathering through a period tracker app to order tests and treatment. What Gilwa's patient shared with her is shielded by the federal privacy statute, the Health Insurance Portability and Accountability Act (HIPAA). 

But her patient "might not have known that HIPAA does not apply to the information that she puts into her app, and she likely did not know that using the app puts her privacy at risk." 

She added that Michigan's abortion providers often see out-of-state patients where abortion access is not a state-constitutional right. Two weeks ago, Gliwa administered abortion services to a Texan woman, who she said likely didn't know her location could be tracked through her phone. 

"Without the protections of our state provided by this bill, she could be targeted next," Gilwa said. 

However, those cautious of SB 1082 argue that the bill's language and definitions are not yet ready for real life. 

For example, Tyler Diers, the Midwest executive director of TechNet – an information technology and ecommerce network group – recommended that the "scope of applicability," as well as data and services dealt with under the bill, be narrowed. 

"The scope of reproductive health data and services may capture many routine over-the-counter purchases and subscription services," Diers said. "Businesses would be forced to mitigate the risks of litigation by increasing consent notifications and outright prohibiting certain offerings in the state." 

Following Tuesday's meeting, McMorrow clarified that SB 1082 was introduced last week and there's still work being done on a "thorough" substitute. 

She hopes that as more states take on tackling the issue of data privacy, the federal government will be forced to take action. 

"Given this is lame duck, and we have a few weeks left, we're trying to run what we can run and get it done," McMorrow said.