DATA PRIVACY CONCERNS EMERGE AFTER ROE DECISION
With abortion now or soon to be illegal in over a dozen states and severely restricted in many more, Big Tech companies that collect personal details of their users are facing new calls to limit that tracking and surveillance. One fear is that law enforcement or vigilantes could use those data troves against people seeking ways to end unwanted pregnancies.
History has repeatedly demonstrated that whenever people's personal data is tracked and stored, there's always a risk that it could be misused or abused. With the Supreme Court's Friday overruling of the 1973 Roe v. Wade decision that legalized abortion, collected location data, text messages, search histories, emails and seemingly innocuous period and ovulation-tracking apps could be used to prosecute people who seek an abortion — or medical care for a miscarriage — as well as those who assist them.
“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,” said Alexandra Reeve Givens, the president and CEO of the Center for Democracy and Technology, a Washington-based digital rights nonprofit.
Until this past May, anyone could buy a weekly trove of data on clients at more than 600 Planned Parenthood sites around the country for as little as $160, according to a recent Vice investigation. The files included approximate patient addresses — derived from where their cellphones “sleep” at night — income brackets, time spent at the clinic, and the top places people visited before and afterward.
It's all possible because federal law — specifically, HIPAA, the 1996 Health Insurance Portability and Accountability Act — protects the privacy of medical files at your doctor's office, but not any information that third-party apps or tech companies collect about you. This is also true if an app that collects your data shares it with a third party that might abuse it.
In 2017, a Black woman in Mississippi named Latice Fisher was charged with second-degree murder after she sought medical care for a pregnancy loss.
“While receiving care from medical staff, she was also immediately treated with suspicion of committing a crime,“civil rights attorney and Ford Foundation fellow Cynthia Conti-Cook wrote in her 2020 paper, “Surveilling the Digital Abortion Diary.” Fisher's “statements to nurses, the medical records, and the autopsy records of her fetus were turned over to the local police to investigate whether she intentionally killed her fetus,” she wrote.
Fisher was indicted on a second-degree murder charge in 2018; conviction could have led to life in prison. The murder charge was later dismissed. Evidence against her, though included her online search history, which included queries on how to induce a miscarriage and how to buy abortion pills online.
“Her digital data gave prosecutors a ‘window into (her) soul' to substantiate their general theory that she did not want the fetus to survive,” Conti-Cook wrote.
Technology companies have by and large tried to sidestep the issue of abortion where their users are concerned. They haven't said how they might cooperate with law enforcement or government agencies trying to prosecute people seeking an abortion where it is illegal — or who are helping someone do so.
Last week, four Democratic lawmakers asked federal regulators to investigate Apple and Google for allegedly deceiving millions of mobile phone users by enabling the collection and sale of their personal data to third parties.
Apple and Google did not immediately respond to requests for comment.
Governments and law enforcement can subpoena companies for data on their users. Generally, Big Tech policies suggest the companies will comply with abortionrelated data requests unless they see them as overly broad. Meta, for instance, pointed to its online transparency report, which says “we comply with government requests for user information only where we have a good-faith belief that the law requires us to do so.”
Online rights advocates say that's not enough.
“In this new environment, tech companies must step up and play a crucial role in protecting women's digital privacy and access to online information,” said Givens of the Center for Democracy and Technology. For instance, they could strengthen and expand the use of privacy-protecting encryption; limit the collection, sharing and sale of information that can reveal pregnancy status; and refrain from using artificial intelligence tools that could also infer which users are likely to be pregnant.