September 8, 2022
Post-Dobbs Task Force
SCOTUS Overrules Roe v. Wade:
Part IV: The Impact of Dobbs on Data Privacy – FTC v.
Kochava
By: Shoba Pillay, Madeleine V. Findley, Ann M. O'Leary, Anne Cortina Perry, Da wn L. Smalls, Alison I.
Stein, and Philip B. Sailer
The Fed eral Tra de Commission (FTC) re cently filed a complaint ag ainst a data broker alleg ing that the
collection and sa le of precise loca tion data sign ificantly harms consumers, esp ecially if the data
contains infor mation regarding travel to a nd from specific sensitive lo cations, such as r eproductive
healthcare clinics. The outco me of the case could have a substa ntial impact on the F TC’s author ity to
enforce con sumer protection laws and will likely inform how companies handle con sumer data to which
they have acce ss. The FT C’s complaint follows guidance the Biden administration issued to federal
agencies, includin g the FT C, to take action s to protect consumers’ privacy in co nnection with
reprodu ctive healthcar e services after the Supreme Cour t’s decision in Dobbs v. Jackson Wo men’s
Health Organ ization.[1] The out come of the case cou ld have a sub stantial impact on the sale and
collection of consu mer location data and the F TC’s authority to enforce consumer privacy pr otections.
The FTC an d Dobbs
The Dobbs decision and its impact have sign ificantly increased the Biden administration ’s regulator y
focus on and public awareness of th e ways in which precise geolocation d ata may be used t o identify
and track co nsumers in all aspects o f their lives, includ ing patients an d healthcar e providers at
reprodu ctive healthcar e locations. In July, after the Sup reme Court issued its opinion in Dobbs, the
FTC publishe d a post on its website warning that the pot ential intrusions on consumers’ priva cy
because of t his ruling were not merely a figment of a “dysto pian fiction.” Ra ther, accor ding to the FTC,
consumers neede d to under stand the “ unpreced ented intru sion” that cou ld result fro m the collection
and monetization of their data. In its blog post , the FTC id entified the sp ecific harms caused by,
“products that track women’s periods, monitor their fer tility, oversee th eir contrace ptive use, or even
target women considering abortion,” including “discr imination, stigma, and mental angu ish,” and th e
significant impact the intr usion could ha ve on “per sonal repr oductive matters.” The age ncy
underscor ed its commitment to protecting co nsumers’ location, hea lth, and oth er “highly se nsitive data”
from illegal use and sharing.[2]
FTC Complaint Agains t Kocha va
On August 29, 2 022, the F TC filed a complaint[3] aga inst data br oker Kochava Inc. (“Koch ava”) in a
federal distr ict court in Idaho, a lleging that Kochava collected, packa ged, and so ld sensitive consumer
data, including , “geolocation data fro m hundreds of millions of mobile device s that can be used to tr ace
the movements of individuals t o and from sensitive locations” in violatio n of Section 5(a ) of the F TC Act,
which prohibits companies from eng aging in unfa ir or decep tive business pra ctices.[4] The FT C is
seeking an injun ction against Kocha va and a r equirement that it delete consumers’ se nsitive location
data, including information associate d with travel to or fr om reproductive healthcare clinics, and
prohibiting th e collection and sale of similar data in t he future .
Kochava is a data broker th at purchase s large volumes of p recise geolocat ion data der ived from
consumers’ mobile devices. It packages this data into f eeds that pr ovide the info rmation to adver tisers
so these firms can b etter optimize the services th ey provide to their own customers. According to its
