Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: Florida's very conservative Supreme Court upheld the state's fifteen week
Speaker 1: abortion ban, which now allows one of the nation's strictest
Speaker 1: abortion bans to take effect on May first. In the state.
Speaker 1: It makes abortion illegal after six weeks, before most women
Speaker 1: know they're pregnant. But in a sort of split decision,
Speaker 1: the court allowed a referendum that will let the state's
Speaker 1: voters decide in Florida whether they want an amendment to
Speaker 1: the state constitution allowing abortion until viability. With abortion now
Speaker 1: on the ballot in Florida, Democrats are seeing a chance
Speaker 1: to flip the state in the presidential election. The future
Speaker 1: Republican presidential nominee Donald Trump, who often boasts about appointing
Speaker 1: three of the justices who voted to overturn Roe v. Wade,
Speaker 1: didn't want to talk to reporters about the Florida to ruling,
Speaker 1: while President Joe Biden denounced the Florida ruling, calling it
Speaker 1: outrageous and promising to codify Roe v.
Speaker 2: Wade and as mag officials are calling on and not
Speaker 2: for a national ban on the right to choose in
Speaker 2: every state I promise you for the Democratic Congress, Tom
Speaker 2: and I will make Rovy Wade the law of the
Speaker 2: land again.
Speaker 3: I promise.
Speaker 1: Joining me is healthcare attorney Harry Nelson of Nelson Hardiman
Speaker 1: Harry tell us about the Florida Supreme Court's decisions on Monday.
Speaker 4: Then the repeal of Roe v. Wade in the DABS case.
Speaker 4: Florida had had in place a fifteen week ban on
Speaker 4: abortion that Governor Discentis proposed while the Supreme Court decision
Speaker 4: was pending. In twenty twenty three, a much more restrictive
Speaker 4: six week ban was passed by the Florida legislature, but
Speaker 4: the Florida Supreme Court had briefly delayed its going into
Speaker 4: effect while looked at the question of whether there was
Speaker 4: a constitutional right to privacy that included a right to
Speaker 4: abortion in Florida. And so what happened this week is
Speaker 4: that the Florida Supreme Court essentially ruled by a four
Speaker 4: to three vote that a proposed constitutional amendment that would
Speaker 4: guarantee the right to abortion that it could go to
Speaker 4: the ballot. But at the same time, it essentially did
Speaker 4: not find that the existing state constitution included a protection
Speaker 4: of the rights to abortion as part of the privacy right.
Speaker 4: So in other words, the Florida Supreme Court basically allowed
Speaker 4: the new six week band to go into effects, but
Speaker 4: it also decided to allow the voters of Florida to
Speaker 4: decide whether to amend the constitution. So we have these
Speaker 4: kind of parallel decisions that are extremely confusing about how
Speaker 4: Florida is grappling with abortion.
Speaker 1: Yeah, because they didn't have to issue the decisions on
Speaker 1: the same day. Do you think that they were trying
Speaker 1: to placate the supporters of abortion or just that they
Speaker 1: were even handed.
Speaker 4: I mean, I do think they're wrestling with both their
Speaker 4: personal beliefs about, you know, how far the right of
Speaker 4: privacy extends. And we can see that it's a very
Speaker 4: conservative court, you know, that was six to one in
Speaker 4: finding that there was this right to ban abortion, but
Speaker 4: at the same time recognizing that the ultimately, you know,
Speaker 4: the constitutional process of Florida allows for the voters to
Speaker 4: change the constitution. So I think they were trying to
Speaker 4: sort of find a pass through that both expressed their
Speaker 4: personal beliefs about how far abortion rights and privacy rights
Speaker 4: go and also acknowledged, you know that there is a
Speaker 4: process in place for their personal judgments being overridden by
Speaker 4: the voters.
Speaker 1: So the privacy clause in the Florida Constitution states, quote,
Speaker 1: every natural person has the right to be let alone
Speaker 1: and free from governmental intrusion into the person's private life.
Speaker 1: How is that not protective of abortion rights? Right?
Speaker 4: Obviously, we've had a number of state supreme courts that
Speaker 4: have found that part of the right to privacy right,
Speaker 4: which is really something that was not recognized until the
Speaker 4: last sort of one hundred and twenty one hundred and
Speaker 4: forty years, but did the right to privacy includes the
Speaker 4: right to be left alone from the government and to
Speaker 4: have personal autonomy over all kinds of choices, including healthcare choices,
Speaker 4: including the right of a woman to terminate a pregnancy.
Speaker 4: So we definitely have seen many many supreme courts, state
Speaker 4: supreme courts take this issue on and find that implied rights.
Speaker 4: And of course we also have a number of state
Speaker 4: supreme courts that have either explicitly said so California did that,
Speaker 4: Michigan did that, and a handful of restrictive states that
Speaker 4: said our constitution absolutely does not include it. I mean,
Speaker 4: I think this question of the right to privacy has
Speaker 4: been a kind of a question that hasn't been fully
Speaker 4: resolved globally. Right there still are seemed to be tensions
Speaker 4: on both sides about how far how far go than
Speaker 4: about the competing right of the unborn child on one
Speaker 4: side and the rights of a pregnant woman on the
Speaker 4: other side.
Speaker 1: My favorite part of this that is facetious. A majority
Speaker 1: of the justices said the voters didn't understand that the
Speaker 1: privacy clause extended to abortion when they added to the
Speaker 1: state constitution in nineteen eighty.
Speaker 4: Yeah, it's I mean, it's really interesting, right, like privacy.
Speaker 4: I don't know how they come to that decision. Obviously,
Speaker 4: privacy is a much broader set of rights, about the
Speaker 4: right to be you know, not monitored and have your
Speaker 4: life intruded on, about the right to travel, and about
Speaker 4: the right to live in the way that you want.
Speaker 4: So I think it's confusing to understand how they came
Speaker 4: to this, you know, definitive conclusion that abortion wasn't explicitly
Speaker 4: contemplated or somehow was outside of privacy. As I said,
Speaker 4: we already had multiple state supreme courts who have found
Speaker 4: the opposite, And so how they sort of determined what
Speaker 4: was in the mind of Florida voters is a mystery
Speaker 4: to me.
Speaker 1: And also in twenty twelve, Florida voters rejected an amendment
Speaker 1: that would have exempted abortion from constitutional privacy protection. So
Speaker 1: there were all kinds of indications they overturned decades of
Speaker 1: legal precedent with this decision, didn't they? Because back in
Speaker 1: nineteen eighty nine the Florida Supreme Court ruled that it
Speaker 1: did apply to abortion.
Speaker 4: Yeah, so they absolutely reversed that. And this was obviously
Speaker 4: a major shift from the Florida Supreme Court's own previous
Speaker 4: rulings on the state constitutional privacy right. It has not
Speaker 4: escaped noticed that. I believe all but one of the
Speaker 4: justices on the Supreme Court currently are appointees of the
Speaker 4: current governor, who's taken a much more conservative position on this.
Speaker 4: But yeah, clearly this is a major shift from the
Speaker 4: way that the Florida Constitution was understood by its own
Speaker 4: Supreme Court for a long time.
Speaker 1: Does the argument they use that the past abortion cases
Speaker 1: had been wrongly decided based on this overbroad interpretation of
Speaker 1: the privacy clause in a state constitution, Is that similar
Speaker 1: to the argument that the Supreme Court made in overturning
Speaker 1: Row well, it's.
Speaker 4: Look, in the case of the US Supreme Court decision
Speaker 4: and the Federal Constitution, we do not have a explicit
Speaker 4: right to privacy right. So in the US Constitution, over
Speaker 4: a series of cases involving things like contraception and the
Speaker 4: right of an interracial couple to marry, and the decision
Speaker 4: over gay marriage, we had the Supreme Court of the
Speaker 4: United States wrestling with finding a right to privacy. The
Speaker 4: famous language was in the penumbra, meaning like sort of
Speaker 4: hidden away or implied in the Fourth Amendment right of
Speaker 4: the Bill of Rights the Federal Constitution to be free
Speaker 4: from search and seizure and onreasonable government intrusion. So here
Speaker 4: in the case of Florida, we have a much more
Speaker 4: explicit reference to privacy right. Most of the state constitutions
Speaker 4: were written at a much later period where privacy was
Speaker 4: already an explicit concept. So in some ways there was
Speaker 4: more room for conservative justices at the federal level to
Speaker 4: question whether previous Supreme Court justices had gone too far
Speaker 4: and been too aggressive in reading in a privacy right
Speaker 4: and implying it without even the word privacy there. But
Speaker 4: this is a more aggressive decision because privacy is very
Speaker 4: clearly part of this state constitution, and it's hard to
Speaker 4: see how a right to determine the management of a pregnancy,
Speaker 4: including to terminate it, is not an essential part of privacy.
Speaker 4: But obviously these justices appear to have been moved by
Speaker 4: the sort of competing interest of the embryo of the fetus,
Speaker 4: you know, of the privacy rights other than the rights
Speaker 4: of the mother. So I think that's where this decision
Speaker 4: comes down. But it's clearly more aggressive and more conservative
Speaker 4: than the US Supreme Court's decision in my view.
Speaker 1: And Harry, why is the sixth week ban able to
Speaker 1: go into effect now that they've ruled on the fifteen
Speaker 1: week ban?
Speaker 4: I mean, this was a decision of the Florida legislature, right,
Speaker 4: So when Governor Destantis proposed and the Florida Legislature enacted
Speaker 4: the fifteen week ban, it appears that they chose that
Speaker 4: time period because that was the law that was from
Speaker 4: Mississippi that was before the Supreme Court. They tried to
Speaker 4: match that law so that if that law stood, they
Speaker 4: could pass it. And that law went into effect in
Speaker 4: July of twenty twenty two, a few weeks after the
Speaker 4: Supreme Court decision. But it became clear that the trend
Speaker 4: among pro life advocates was for a much more restrictive time. Obviously,
Speaker 4: those weeks between six and fifteen are massive difference. So
Speaker 4: they came back. The Florida legislature came back and passed
Speaker 4: a much more restrictive law. And the only reason it
Speaker 4: hadn't gone into effectings was because of this older Florida
Speaker 4: Supreme Court rulings that there was a right to privacy
Speaker 4: here that prevented it. So it required the Florida Supreme
Speaker 4: Court to come back revisit the issues you know in
Speaker 4: this week, I mean make a different decision really to
Speaker 4: revise their understanding of privacy so that the six week
Speaker 4: ban could take effect and few.
Speaker 1: Women realize that they're pregnant at six weeks.
Speaker 4: Right, The difference between six weeks and fifteen weeks in
Speaker 4: a woman realizing that she's pregnant, let alone making a
Speaker 4: decision about whether to carry the pregnancy or whether to
Speaker 4: terminate it is obviously those are crucial, crucial weeks. As
Speaker 4: you say, you know, the likelihood is that many women
Speaker 4: will not even realize that they're pregnant, let alone comes
Speaker 4: to that kind of a decision in that time period.
Speaker 4: So this is something that is it's practically a ban
Speaker 4: on abortion when you make the time period that short.
Speaker 1: And this decision has an effect outside Florida because it
Speaker 1: was a place where women seeking abortions in other states
Speaker 1: with more restrictive abortion laws came to get an abortion.
Speaker 5: Yeah.
Speaker 4: Absolutely, the whole issue of having Florida as a at
Speaker 4: least still somewhat permissive jurisdiction for women who moved, you know,
Speaker 4: with alacrity, who could move fairly promptly to come and
Speaker 4: travel to the state was a good option for all
Speaker 4: of the adjacents Southeastern states. I do think that this
Speaker 4: decision is yet another driver for that those women that
Speaker 4: will lead towards more use of medication and telemedicine. And
Speaker 4: you know, I think this pressure will take away the
Speaker 4: travel option to Florida at least until this the voters
Speaker 4: of Florida have a chance to decide about whether to
Speaker 4: sort of re it in state a longer option. And
Speaker 4: I think it will move more people, more women to
Speaker 4: utilize telemedicine and utilize medication which can be shipped into
Speaker 4: the state, you know, whether the states approve of it
Speaker 4: or not.
Speaker 1: Coming up next on the Bloomberg Lawn Show. I'll continue
Speaker 1: this conversation with healthcare attorney Harry Nelson, and we'll talk
Speaker 1: about that ballot measure on abortion, which Florida voters will
Speaker 1: decide on in November. I'm June Grasso. When you're listening
Speaker 1: to Bloomberg. Florida Supreme Court issued to rulings on abortion
Speaker 1: on Monday. One will allow the states six week abortion
Speaker 1: band to go into effect, while the other will let
Speaker 1: voters decide on a proposed ballot measure in November that
Speaker 1: will protect access to abortion up until viability, which is
Speaker 1: considered to be around twenty four weeks into pregnancy. Abortion
Speaker 1: on the ballot could have major political implications. In every
Speaker 1: state where abortion rights have appeared on the ballot, the
Speaker 1: side of abortion rights has won, including in conservative states
Speaker 1: like Kentucky, Ohio, and Kansas. I've been talking to healthcare
Speaker 1: attorney Harry Nelson of Nelson Hardiman Harry. The ballot measure says,
Speaker 1: in part that no law shall prohibit penalized delay or
Speaker 1: restrict abortion before viability or when necessary to protect the
Speaker 1: patient's health, as determined by the patient's healthcare provider. It's
Speaker 1: pretty broad, isn't it.
Speaker 4: Yeah, the ballot measure basically has the concept of fetale
Speaker 4: ability built in, which I believe is understood to extend
Speaker 4: to over twenty weeks, so essentially allowing women in the
Speaker 4: first two trimesters more or less to have the option
Speaker 4: of abortion. So it is a fairly broad and liberal ruling.
Speaker 4: It would essentially give definitely a period of at least
Speaker 4: eight plus the maybe nine weeks longer than the fifteen
Speaker 4: week option, which is something that the pro choice advocates
Speaker 4: have been wanting just to give women more time to
Speaker 4: make choices. So yeah, it's a fairly liberal, permissive constitutional
Speaker 4: amendments that will be before Florida voters on the ever ballot,
Speaker 4: and it will be interesting to see how that plays
Speaker 4: out alongside the presidential election and all the other really
Speaker 4: very important decisions that Florida voters have to make this year.
Speaker 1: Well, Republican lawmakers are arguing that it will allow abortions
Speaker 1: late in pregnancy.
Speaker 4: It's absolutely true. I mean, look, when going back to
Speaker 4: the medication abortion option for a minute. You know, the
Speaker 4: the approval for mes apristone, which we were talking about
Speaker 4: only a couple of weeks ago when Spreme Court heard
Speaker 4: argument only is allowed to be used up to eleven weeks.
Speaker 4: So this is definitely certainly a much broader issue, and
Speaker 4: you know, it'll be interesting to see how voters react.
Speaker 4: I think that it does seem that in the vast
Speaker 4: majority of places, a majority of voters support more permissive
Speaker 4: abortion rights. But the question of whether the language here
Speaker 4: is broader than will attract the majority will be interesting
Speaker 4: to see.
Speaker 1: Well. The three female dissentis appointees on the Court dissented
Speaker 1: on the ballot measure due to concerns that the impact
Speaker 1: of the amendment was far greater than what voters will
Speaker 1: be led to believe at the ballot box. They really
Speaker 1: don't give much credence to voters. They act like voters
Speaker 1: don't understand what's right in front of them.
Speaker 4: Yeah, it's an interesting point. Look, I think we've seen
Speaker 4: that voters in states like Kansas have really given a
Speaker 4: rebuke to extremely conservative positions taken by their legislators, by
Speaker 4: same court jurists in those states. Personally, I have more
Speaker 4: faith in the in the voters to make themselves heard,
Speaker 4: and we've seen that when these issues go to the
Speaker 4: ballot box, there's far more support and it's harder for
Speaker 4: either side frankly to engage in legislative gamesmanship or the
Speaker 4: sort of take advantage of headcounting on particular courts to
Speaker 4: get their way. And so from my perspective, I think
Speaker 4: it's a good thing that we're going to the voters,
Speaker 4: but obviously not everybody.
Speaker 1: Feels that way, and I have to get sixty percent
Speaker 1: for it to pass. So now, abortion rights groups in
Speaker 1: several states are trying to put measures on the ballot,
Speaker 1: and anti abortion groups have deployed a wide range of
Speaker 1: tactics to keep proposals off the ballot, including challenging the language.
Speaker 4: Yeah, it's very interesting the way that popular referendu you
Speaker 4: know that voter initiatives have become a threat to the
Speaker 4: pro life movement and to advocacy for more restrictive abortion laws.
Speaker 4: And it just know the extent to which the idea
Speaker 4: of restricting women's choices and women's rights to reproductive healthcare
Speaker 4: access is just fundamentally unpopular and not something that the
Speaker 4: majority of Americans want, and yet something that has succeeded
Speaker 4: by virtue of you know, this whole legal effort in
Speaker 4: the courts and legislatures. And so its ironic in a
Speaker 4: way that the most democratic process we have, which is
Speaker 4: to let voters decide at the ballot box, is now
Speaker 4: the threat to the same people, and it definitely should
Speaker 4: give pause to anybody who really thinks that the issue
Speaker 4: here has political support. You know that in Republican politics nationally,
Speaker 4: we've now seen several cycles in which excessive restriction of
Speaker 4: abortion has been politically unpopular and costly in numerous elections,
Speaker 4: and so it's surprising that we continue to see this
Speaker 4: resistance to acknowledging and honoring the will of the voters
Speaker 4: to have some level of abortion protection and access the
Speaker 4: reproductive healthcare choices available. And it seems like it's a
Speaker 4: decision to try to restrict this beyond what voters want
Speaker 4: is having a political cost that was continuing to see
Speaker 4: play out for.
Speaker 1: Helping him speaking about the costs of going too far
Speaker 1: in the case that got national attention where a woman
Speaker 1: in Texas was charged with murder, arrested, and spent three
Speaker 1: days in jail in twenty twenty two after health officials
Speaker 1: reported her to authorities for attempting to terminate her pregnancy.
Speaker 1: She's now suing the Star County District Attorney's office for
Speaker 1: more than a million dollars, claiming the fallout from the
Speaker 1: case has changed her life forever.
Speaker 4: Lazelle Gonzalez, she's doing the prosecutors now, saying that they
Speaker 4: knowingly misrepresented the fact in order to arrest her and
Speaker 4: charge her, and that they caused significant harm to her.
Speaker 4: That's quite a fascinating case about sort of how local
Speaker 4: prosecutors may have gone much too far in the way
Speaker 4: that they really made the spectacle of this poor woman
Speaker 4: having her spend time in jail, publishing her mugshot in
Speaker 4: the paper, I mean, putting her private medical information into
Speaker 4: the newspapers. And so, you know, just another chapter in
Speaker 4: this is our case where she is now going after
Speaker 4: them and essentially alleging that they violated her rights in
Speaker 4: the way that they went after her for criminal liability
Speaker 4: for her decision to take medication abortion. So it's just
Speaker 4: yet another example of this like crazy back and forth,
Speaker 4: chaotic situation wherein where literally, you know, a private healthcare
Speaker 4: choice that this woman made led to such an extreme reaction,
Speaker 4: and the.
Speaker 1: District attorney was investigated by the state bar of Texas
Speaker 1: over his handling of the case, and they reached a
Speaker 1: settlement so that his office could continue prosecuting cases. The
Speaker 1: settlement conditions included a twelve hundred and fifty dollars fine
Speaker 1: and a year year long probation of his legal license.
Speaker 1: He told the Associated Press, I made a mistake in
Speaker 1: that case. We'll see if that translates into money damages
Speaker 1: for Gonzalez. Thanks so much, Harry. As always, that's Harry
Speaker 1: Nelson of Nelson Hardiman. Let's turn out to some surprising
Speaker 1: admissions today in Fifth Circuit oral arguments over the Texas
Speaker 1: law known as SB four that authorizes state officials to arrest, detain,
Speaker 1: and deport non citizens who enter the country illegally. Joining
Speaker 1: me is Bloomberg, Texas legal reporter Madelein Meckelberg. Was the
Speaker 1: State of Texas on the defensive in these arguments.
Speaker 5: They definitely were. They knew coming into the arguments today
Speaker 5: that they were facing an uphill battle. This same three
Speaker 5: judge panel of the Fifth Circuit just last week had
Speaker 5: ruled to block this law while they consider the full appeal.
Speaker 5: So I think what we saw from Texas today was
Speaker 5: a more nuanced position on what they'd be willing to
Speaker 5: accept from the court. At one point, remarkably, we heard
Speaker 5: the Texas Solicitor General suggests that perhaps Texas had gone
Speaker 5: too far in trying to pass this statute right, and
Speaker 5: that they'd be willing to if the court decided that
Speaker 5: they wanted to block the law from going into effects,
Speaker 5: they asked that they still let some provisions of the
Speaker 5: measure go into effect, specifically one that would let the
Speaker 5: state order the removal of people who they've identified as
Speaker 5: being here illegally.
Speaker 1: What part of the law did they think went too far?
Speaker 5: Well. The way that he framed that idea was that
Speaker 5: Texas crafted this statute as a whole with the intention
Speaker 5: of going right up to the line of what Supreme
Speaker 5: Court precedent has allowed up to this point, which, as
Speaker 5: I'm sure you and your listeners know, is basically one
Speaker 5: hundred and fifty years of the federal government being the
Speaker 5: one responsible for immigration enforcement and the border. And so
Speaker 5: Texas was trying to take as much authority as possible
Speaker 5: with this statute while not running afoul of that precedent,
Speaker 5: because they knew that this law would get challenged in
Speaker 5: the courts and that they'd end up here right now.
Speaker 5: But it seemed that Texas was willing to allow the
Speaker 5: court to temporarily put on hold. So that's important to
Speaker 5: note too, Like the conversation that's happening right now is
Speaker 5: all over a preliminary injunction. This is not the last
Speaker 5: word on the matter. But they seemed okay for now
Speaker 5: for most of the statute to be blocked by the
Speaker 5: court if they could keep on the books that provision
Speaker 5: that would let them remove people.
Speaker 1: How did the judges on the Fifth Circuit on the
Speaker 1: panel react to that?
Speaker 5: It was a little bit like deja vous since it
Speaker 5: was the same three judges that had heard this case
Speaker 5: a few weeks ago. We had Judge Andrew Oldham, who
Speaker 5: was the one that was clearly in support of this
Speaker 5: law and thought it should go into effects. He had
Speaker 5: a lot of questions and concerns for the DOJ attorney
Speaker 5: that was there, asking about whether the court had the
Speaker 5: authority to block this law in totality before it's been
Speaker 5: allowed to go into effect. But the other judges were
Speaker 5: a little more quiet. Judge Erma Ramirez hardly spoke at
Speaker 5: all during the hearing, but we know that she previously
Speaker 5: wanted to block the law. And I think the swing
Speaker 5: vote here that everyone's paying attention to is Chief Judge
Speaker 5: Priscilla Richmond, she has been on the fence in the past.
Speaker 5: She did rule in favor of blocking the law previously.
Speaker 5: In this case, she raised some of the same concerns
Speaker 5: today that she did in that opinion, which is basically
Speaker 5: this idea that President up to this point has been
Speaker 5: that immigration is the responsibility of the federal government.
Speaker 1: And just explain what happened last week when this same
Speaker 1: three judge panel made a decision.
Speaker 5: So this case has been bouncing back and forth between
Speaker 5: the courts, and in doing so, the courts of let
Speaker 5: the law go into effect, block the law, let it
Speaker 5: go into effect. Last week, this same three judge panel
Speaker 5: of the Fifth Circuit, they basically said that they were
Speaker 5: going to allow a district court order blocking the law
Speaker 5: to remain in effect while they paid the full appeal
Speaker 5: of that order. So what we heard today were arguments
Speaker 5: on the merits of the case, the appeal of the
Speaker 5: district judge ruling. Previously, all they were doing was deciding
Speaker 5: whether or not the law should go into effect while
Speaker 5: they weigh this case.
Speaker 1: And this case already went to the Supreme Court. Tell
Speaker 1: us what happened there.
Speaker 5: When the case got to them. They said it was
Speaker 5: too early for them to get involved. Because the Fifth
Speaker 5: Circuit had not issued a stay pending appeal, They issued
Speaker 5: an administrative stay to hang the decision while they decided
Speaker 5: on a stay pending appeal while they decided the appealed.
Speaker 1: Congratulations, I'm keeping all that straight. I see that the
Speaker 1: Chief Judge, who most people do say is the swing
Speaker 1: vote here, towards the end of the argument, emphasized that
Speaker 1: states aren't permitted to remove non citizens, and the Supreme
Speaker 1: Court decided that striking down an immigration law in Arizona
Speaker 1: in twenty twelve. Quote it's on the books. So did
Speaker 1: she appear to be leaning against this law?
Speaker 5: I would say so, and that language is coming basically
Speaker 5: directly from the order they issued last week on this
Speaker 5: and the Arizona decision is key here, and it's what
Speaker 5: the US government has been turning to frequently in arguing
Speaker 5: against letting this law go into effect. But I think
Speaker 5: that per point also raises a bigger question here that
Speaker 5: I think a lot of people have, which is, how
Speaker 5: is Texas actually going to enforce this law? This is
Speaker 5: something they talked about today, and that removal proceedings specifically
Speaker 5: because people who come to the country have certain rights
Speaker 5: of asylum. There's processes in place from the federal government,
Speaker 5: and it's not clear at this point how this Texas
Speaker 5: law might impact federal immigration enforcement activities that are ongoing,
Speaker 5: and that's something that I think Judge Richmond appeared concerned
Speaker 5: about today too.
Speaker 1: It appears that the writing is on the wall, but
Speaker 1: we'll see. Thanks Madeline. That's Madeline Meckelberg, Bloomberg, Texas Legal
Speaker 1: reporter coming up next. Why Google is deleting billions of
Speaker 1: data records. This is Bloomberg. Google has agreed to delete
Speaker 1: billions of records containing personal information collected from more than
Speaker 1: one hundred thirty six million people in the US who
Speaker 1: surfed the Internet through its Chrome web browser. It's part
Speaker 1: of a settlement in a class action lawsuit accusing the
Speaker 1: search giant of illegal surveillance. The lawsuit accused Google of
Speaker 1: tracking Chrome user's Internet activity even when they had switched
Speaker 1: the browser to the incognito setting that's supposed to shield
Speaker 1: them from being shadowed by Google. The details of the
Speaker 1: deal emerged in a court filing on Monday, more than
Speaker 1: three months after Google and the attorney's handling the class
Speaker 1: action case disclosed they had resolved the June twenty twenty
Speaker 1: lawsuit targeting Chrome's privacy controls. Consumers represented in the class
Speaker 1: action lawsuit will not receive any damages or any other
Speaker 1: payments in the settlement. Joining me is data privacy expert
Speaker 1: Austin Chambers, a partner at Dorsey and Whitney. For those
Speaker 1: who are not familiar, tell us about the incognito browsing
Speaker 1: mode on Google.
Speaker 3: Google. It has the Chrome browser, and through the Chrome Browser,
Speaker 3: it has several settings and pug up into the corner
Speaker 3: there's the incognito mode. It's a very popular thing. I
Speaker 3: think many people use it thinking that they're protecting their privacy.
Speaker 3: It basically what it does is it's a tool that
Speaker 3: Chrome makes available, and many other browsers have similar sorts
Speaker 3: of functions. It doesn't store cookies in your browser, it
Speaker 3: doesn't store your browsing history. So many people use this
Speaker 3: if they just want to again sort of hide their
Speaker 3: browsing history on a device that's maybe shared among the
Speaker 3: family or something along those lines.
Speaker 1: So the suit that was filed in twenty twenty, what
Speaker 1: did it accuse Google of?
Speaker 3: So the original suit claimed that this incognito mode was
Speaker 3: essentially deceptive. So when users begin to use they start
Speaker 3: a session in incognito, they would see this character. They
Speaker 3: called him a spy. It looked like he was hidden
Speaker 3: behind sunglasses with a little hat. They've made these disclosures
Speaker 3: that stated that you're not being tracked, that your session
Speaker 3: will be private, and that Google wouldn't collect any information
Speaker 3: about you. The problem is that as people go about
Speaker 3: the Internet, really all incognito does is prevent your browser,
Speaker 3: that instance that you have installed on your computer of Chrome,
Speaker 3: from collecting data about your browsing history. And it made
Speaker 3: delete some of the cookies. But what it wasn't doing
Speaker 3: was blocking other of Google's technologies like Google Analytics or
Speaker 3: their ad services, all the things where they make their money,
Speaker 3: as well as other things. So of course different parties
Speaker 3: can also see your web traffic. Your ISP could always
Speaker 3: see your traffic, your employer might be able to see
Speaker 3: your traffic, and again different advertising vendors could probably see
Speaker 3: your traffic. All these parties are of course able to
Speaker 3: do with it what they want. And importantly, Google was
Speaker 3: taking information about incognito browsers and they were continuing to
Speaker 3: perform analytics and essentially track incognito users across the web
Speaker 3: and even though the Chrome browser said that Google wasn't
Speaker 3: collecting this information, really only that Chrome browser wasn't Google
Speaker 3: itself was fundamentally still collecting data about all users as
Speaker 3: they browsed the Internet using the incognitive browser.
Speaker 1: Google vigorously fought the lawsuit until the district judge rejected
Speaker 1: a request to dismiss the case last August, which would
Speaker 1: set up a potential trial. Is it just that Google
Speaker 1: fights every lawsuit or was there anything in particular about
Speaker 1: this lawsuit that it feared.
Speaker 3: I think this is one of the Google I think
Speaker 3: vigorously fights a lot of cases, especially these privacy cases.
Speaker 3: I think they tend to create negative case law. There's
Speaker 3: not been it's been sort of slow to develop in
Speaker 3: the US the sort of common law or various case
Speaker 3: law around privacy claims, especially in the advertising space. And
Speaker 3: I think that's sort of the risk in this case
Speaker 3: is that it's sort of exposed to an extent what
Speaker 3: Google was doing through its other products and the ability
Speaker 3: and capabilities they had to track users through Google Analytics,
Speaker 3: through ads, and sort of how pervasive the web tracking was.
Speaker 3: And it's not as simple as people think. It's not
Speaker 3: so simple to stay private on the Internet as opening
Speaker 3: up in browser, and I think that this is one
Speaker 3: of those things. It's very negative, you know, for I
Speaker 3: think their reputation and presented a risk. And obviously in
Speaker 3: this particular claim, they were leging I think five billion
Speaker 3: in damages. We never got to exactly whether or not
Speaker 3: that number would hold up, but in any event, it
Speaker 3: was a very large number.
Speaker 1: Yeah, So now tell us. As part of the settlement,
Speaker 1: Google has to delete billions of data records.
Speaker 3: So Google agreed basically to four key things. The first
Speaker 3: thing is that they had to change this this disclosure
Speaker 3: as I mentioned, the spy guy or it's saying in
Speaker 3: this idea that you know your session is private, So
Speaker 3: they basically said that other people can track you, including Google,
Speaker 3: across the internet. They basically clarified these disclosures to say
Speaker 3: just as much that it's just your browsing history. Essentially,
Speaker 3: it's not being stored here. They also had to disable
Speaker 3: what are called third party cookies, which are basically advertising
Speaker 3: tools they can track you across the internet, so those
Speaker 3: are disabled by default. And then, as you suggested, they
Speaker 3: have to delete the ex data that was collected from
Speaker 3: incognito users over the years, and what's somewhat interesting is
Speaker 3: that Google was able to identify all of the records
Speaker 3: that were related to incognito users, which really isn't supposed
Speaker 3: to be the case, but they were able to do it.
Speaker 3: And this results in i think they said, hundreds of
Speaker 3: billions of records and again a ton of work in
Speaker 3: identifying that data and ultimately deleting it from their records.
Speaker 1: So it's going to cost Google a certain amount to
Speaker 1: delete that.
Speaker 3: Absolutely.
Speaker 1: Is this a trend, This is a settlement, but our
Speaker 1: courts also where data collection is found to be illegal,
Speaker 1: our courts forcing companies to delete data.
Speaker 3: Yes, this is a trend. We've been watching for a
Speaker 3: few years now. In particular, the FTC has been particularly active.
Speaker 3: So the FTC is probably the most robust enforcer of
Speaker 3: privacy laws under the general consumer protection frameworks. So over
Speaker 3: the last few years, as they've explored different companies sort
Speaker 3: of unfair or deceptive practices that have resulted in unlawful
Speaker 3: data collection, the remedies that they've been seeking are fundamentally
Speaker 3: and not just fines, but really coming in requiring them
Speaker 3: to delete source data and beyond that, any data derived
Speaker 3: from the source data that was collected lawfully and any
Speaker 3: models or algorithms that were built using that data, so
Speaker 3: relatively robust remedies. And then you know, kind of looking
Speaker 3: forward as we look at sort of how AI is
Speaker 3: blowing up across the industry, this is a real potential
Speaker 3: risk for companies that are sort of building these models
Speaker 3: and collecting data.
Speaker 1: You know, as you mentioned, Google for the next five
Speaker 1: years will allow private browsing users to block third party cookies.
Speaker 1: So that's just for five years. It seems like something
Speaker 1: you should always be able to block.
Speaker 3: And there are there are tools that have been available
Speaker 3: on the market for probably fifteen or more years at
Speaker 3: this point. I'm sure many people are familiar with ad
Speaker 3: blocker plus or you know, the similar Ghostry I think
Speaker 3: is another popular when there's a several of these out
Speaker 3: on the marketplace that are basically they're ad blockers, and
Speaker 3: these are basically tools that you can install in your browser.
Speaker 3: They run off of lists have lists of all basically
Speaker 3: all known third party trackers, at least the common ones,
Speaker 3: and they simply strip the code out of the website.
Speaker 3: So if you've ever been browsing with an ad blocker,
Speaker 3: you've probably seen the pop ups that come up and say,
Speaker 3: you know you're blocking our ads. We can't make money.
Speaker 3: You know obviously it's impacting revenue. Please turn your ad
Speaker 3: blocker off. So we see these sorts of things. These
Speaker 3: the tools are relatively powerful. Another interesting piece really is
Speaker 3: the Google itself is moving away from third party cookies
Speaker 3: as a tracking tool, and they're moving to different different
Speaker 3: methods of sort of tracking and delivering ads to users. So,
Speaker 3: in one sense, even though it's only for five years,
Speaker 3: the trend has been away from third party cookies into
Speaker 3: alternative tracking methods.
Speaker 1: A Google spokesperson said, the company is pleased to settle
Speaker 1: this lawsuit, which we always believe was merit list. We
Speaker 1: never associate data with users when they use incognito mode.
Speaker 1: Is that true?
Speaker 3: Certainly, the claims alleged that there was an ability to
Speaker 3: identify or make its users identifiable. Interesting to understand what
Speaker 3: they meant by i'd never identify users. This is something
Speaker 3: that oftentimes in the advertising space, you don't necessarily identify
Speaker 3: someone by name, but what you can do is track
Speaker 3: their device or track their browser or a similar session
Speaker 3: something like that. So it's not to say that they
Speaker 3: know who you are and link that to a profile.
Speaker 3: Necessarily tied to your name, but they can certainly sort
Speaker 3: of impact your experience, and they do know how your
Speaker 3: devices are used on the web.
Speaker 1: Yeah, he said, we are happy to delete old technical
Speaker 1: data that was never associated with an individual and was
Speaker 1: never used for any form of personalization. So Google tried
Speaker 1: to sort of downplay this whole thing, said that, you know,
Speaker 1: the plaintiffs originally wanted five billion dollars in this class
Speaker 1: action and they're not getting any money. But the attorneys
Speaker 1: who represented the Google users said that this was a
Speaker 1: major victory for personal privacy. Do you agree? Is this
Speaker 1: a major victory?
Speaker 3: I wouldn't characterize it as a major vigo. I do
Speaker 3: think it's an important milestone. I think it really does
Speaker 3: make I would say two key points. First is that
Speaker 3: this is a case where Google was forced to change
Speaker 3: their disclosures about how data is collected. People have to
Speaker 3: become more transparent about their data collection practices, and I
Speaker 3: think pushing the industry in that direction and setting that
Speaker 3: milestone is important. And then, second, as I mentioned, requiring
Speaker 3: data deletion, even though this didn't necessarily reach the models
Speaker 3: or the algorithms that Google may have built using this data,
Speaker 3: it does force companies to really think about how they
Speaker 3: collect data and the rights that they'll have in it
Speaker 3: long term. You know, forcing them to delete data is
Speaker 3: still an impactful remedy.
Speaker 1: The Planeff's lawyers valued the settlement at four point seventy
Speaker 1: five billion dollars to seven point eight billion, and they
Speaker 1: calculated that on the potential ad sales that the personal
Speaker 1: information collected through Chrome could have generated in the past
Speaker 1: and future without the new restrictions. Is that a difficult
Speaker 1: I mean, is that calculation difficult to make? Is that
Speaker 1: sort of.
Speaker 5: Not?
Speaker 3: Yeah, it does. It does seem like an interesting number. Obviously,
Speaker 3: they you know, sort of dispute that number in different ways.
Speaker 3: There's sort of valuing the settlement at that amount. Of course,
Speaker 3: the users were I think the original claimant said that,
Speaker 3: you know, the five billion dollar number came from a number.
Speaker 3: I think that Google originally had agreed to pay users
Speaker 3: for their browsing history, so they had, you know, set
Speaker 3: it at some number of dollars per user, per per
Speaker 3: time period or something like that. So interesting how they
Speaker 3: come up with these numbers, but I think it always
Speaker 3: involves a degree of creative accounting.
Speaker 1: Fair enough, Thanks so much, Austin that's Austin Chambers of
Speaker 1: Dorsey and Whitney. Google may have settled this lawsuit, but
Speaker 1: it's still facing legal threats on the regulatory frontier that
Speaker 1: could have a far bigger impact on its business depending
Speaker 1: on the outcomes. During a trial last fall, the Justice
Speaker 1: Department outlined its allegations that Google is abusing the dominance
Speaker 1: of its search engine to thwart competition and innovation, and
Speaker 1: a federal judge schedule to hear closing arguments in the
Speaker 1: case on May first before issuing a ruling. Google is
Speaker 1: also facing potential changes to its app store for smartphones
Speaker 1: powered by the Android software that could undercut its revenue
Speaker 1: from commissions after a federal jury last year concluded the
Speaker 1: company was running an illegal monopoly. A hearing examining possible
Speaker 1: revisions that Google may have to make to its play
Speaker 1: store is scheduled for late May. And that's it for
Speaker 1: this edition of the Bloomberg Law Podcast. Remember you can
Speaker 1: always get the latest legal news by subscribing and listening
Speaker 1: to the show on Apple Podcasts, Spotify, and at Bloomberg
Speaker 1: dot com Slash podcast Slash Law. I'm June Grosso and
Speaker 1: this is Bloomberg