The fall of Roe v. Wade will let states limit or ban abortion — and one big unanswered question is what role technology will play in how those new rules are enforced.
Social media has been awash in warnings that apps created to help people track menstrual periods can also reveal if someone is pregnant, or a pregnancy has ended. But experts told Grid the potential risk is much broader and deleting a single app won’t help much. Police and prosecutors commonly seek search histories, location data and even text messages while investigating suspected crimes.
The risk now is that noncriminal behavior — such as searching for information on abortion services or simply enduring a miscarriage — will be criminalized using a technological apparatus that did not exist in 1973 when the Supreme Court handed down its Roe verdict. The human costs of widespread data sharing and the weaponization of data are likely to become clearer as states begin to enforce their new laws.
This era of crumbling privacy has already started. In 2018, a woman spent two years in jail because she had a miscarriage after Googling abortion pills. And anti-abortion activists are already using digital techniques to target people at clinics with anti-abortion ads on their phones.
“This ruling is devastating for the privacy rights of people seeking reproductive care,” said Alexandra Reeve Givens, president and CEO of the Center for Democracy and Technology, in a statement. “In the digital age, this decision opens the door to law enforcement and private bounty hunters seeking vast amounts of private data from ordinary Americans.”
The data we leave behind
In most cases, each interaction people have with a digital device leaves a record. In the wake of the Supreme Court’s new abortion ruling, understanding the ways that data is used and can be used against people seeking to terminate a pregnancy is key.
As Eva Galperin, director of cybersecurity at the Electronic Frontier Foundation, tweeted, “The difference between now and the last time that abortion was illegal in the U.S. is that we live in an era of unprecedented digital surveillance.”
While the data collected by fertility apps is an obvious concern, ones like Google Maps and Waze, which require you to give them your location to work, are even bigger, more ubiquitous ones, said India McKinney of the Electronic Frontier Foundation. Even innocuous phone games collect location data and sell it to data brokers to make money.
“Candy Crush doesn’t need my location, but they do it anyway,” said McKinney.
Even data that seems relatively anonymous, such as location data, could be used to pinpoint a specific person through reverse-searching, said Jennifer Granick, the surveillance and cybersecurity counsel at the American Civil Liberties Union.
“Can law enforcement go to entities with location data such as cellphone providers or Google and say, ‘Tell us everybody who was near this abortion clinic at a particular point in time’?” said Granick. “In a post-Roe world, that’s the most recent and impactful example of how dangerous those reverse search tools are.”
Reverse searching could in theory also be used to comb through online search data and seek information on users who sought information on abortion or abortion medication, Granick said. “Can the fact that somebody searched for that information be turned over to law enforcement [as part of a request] that says ‘Tell us everybody you know who was in a particular state that searched for these terms’?” she asked.
Beyond those sorts of detailed search tools, Granick also said even low-level technological surveillance such as street cameras and automated license plate readers could yield relevant information. It illustrates how omnipresent data collection has become in the last 50 years.
How apps can be weaponized
The rise of “tattletale laws,” which allow private citizens to bring enforcement actions against anyone who has aided a person in receiving an abortion, also have data implications.
Under recently enacted statutes in Texas and Oklahoma, Uber drivers could be prosecuted for “assisting” in an abortion, or on the flip side, look to prosecute people who ask them to be taken to a clinic, said Jesse Lehrich, a co-founder of the nonprofit group Accountable Tech.
“It’s breathtaking the breadth of data that’s out there that could be weaponized,” said Lehrich. “It’s overwhelming to think about how scary it is that anyone can access this data so easily, and a lot of these laws are written in a way where they’re deputizing the enforcement to bounty hunters.”
Meanwhile, going untracked simply isn’t an option for most people. If you buy something online, your address is collected for shipping. If you buy something at a store, the credit card transaction logs that location. Instead of deleting the data soon afterward, firms are keeping it to sell to data brokers who retain it for years.
The criminalization of abortion removes whatever layer of protection came from privacy agreements clicked through to download an app, McKinney said. Subpoenas run right past those because firms must turn over your data in a criminal investigation. That’s another reason for firms to stop saving data they no longer need, she warned. “If they don’t have it, they can’t be prosecuted for not turning it over,” said McKinney.
Outlawing abortion also blows away expectations of the privacy of your medical information, said Sonia Suter, a bioethics and reproductive law expert at the George Washington University Law School. “[The federal law restricting release of medical information] doesn’t protect data sought in a criminal investigation,” Suter said.
The Roe verdict in 1973 was premised on a right to privacy, but as President Joe Biden noted in his speech on the Supreme Court’s decision overturning that longstanding precedent, that right may be under threat.
“I’ve warned about how this decision risks the broader right to privacy for everyone,” said Biden. “That’s because Roe recognized the fundamental right to privacy that has served as a basis for so many more rights that we’ve come to take for granted that are ingrained in the fabric of this country. The right to make the best decisions for your health. The right to use birth control as a married couple in the privacy of their bedroom for God’s sake. The right to marry the person you love.”
In states that criminalize abortion, even those performed in another state, it’s easy to imagine prosecutors demanding medical information from doctors and hospitals. “We are going to see states emboldened to go after pregnant people,” said Suter. “It might be politically inadvisable, but there is nothing to stop them.”
With medication abortion becoming more prominent and harder for law enforcement to detect because it is conducted at home, states might start demanding physicians turn over any medical data that points to one. That threatens the doctor-patient relationship and raises concerns that tests conducted for medical reasons might be turned into criminal case evidence. “There are real risks here for anyone who is pregnant and has a miscarriage,” said Suter.
An earlier version of this article included a misspelling of India McKinney's name and misstated the name of the Electronic Frontier Foundation. This version has been corrected.
Thanks to Alicia Benjamin for copy editing this article.