The US Supreme Court overturned on Friday the 1973 landmark decision Roe v. Wade, triggering near-immediate abortion bans and restrictions across at least 16 …
The US Supreme Court overturned on Friday the 1973 landmark decision Roe v. Wade, triggering near-immediate abortion bans and restrictions across at least 16 states. Already, the digital trails of abortion seekers can become criminal evidence against them in some states where abortion were previously prosecuted. And the legal dangers may extend to abortion seekers in even more states. Third-party data brokers sell sensitive geolocation data — culled through a vast web of personal tracking tech found in apps, browsers and devices — to law enforcement without oversight. Democrats’ last-ditch effort to pass an abortion-protection act in May failed in the Senate, with all Republicans and one Democrat voting against it. The bipartisan data privacy legislation now slowly inching through Congress is widely thought toothless. Meanwhile, the Federal Trade Commission’s enforcement failures have historically allowed privacy-offending corporations to skirt penalties, and the White House hasn’t yet offered an executive order on either privacy or abortion. And it’s getting worse. Oklahoma and Texas, which have so-called bounty hunter laws in place, are relying on civilian enforcement of abortion restrictions by promising $10,000 or more to would-be informants who successfully sue abortion providers and those who help abortion seekers. Given the inexpensive cost of readily available stores of personal data and how easily they can be de-anonymized, savvy informants could use the information to identify abortion seekers and turn a profit. As some states have curtailed abortion access in the past few years, these data sets have become richer, with more precise, sensitive and personally identifiable information. Telemedicine abortions have been on the rise, along with the amount of abortion-related web browsing data surveilled by both commercial and law enforcement entities. The result: Your phone’s data, your social media accounts, your browsing and geolocation history, and your ISP’s detailed records of your internet activity may all be used as evidence if you face state criminal or civil charges for a miscarriage. This risk has grown now that the Supreme Court has overturned Roe v. Wade, breaking with five decades of legal precedent giving women the right to an abortion. Though the right to an abortion is no longer constitutionally protected, abortion remains legal in several states. However, a number of Republican-led states have introduced or enacted legislation severely curtailing access to an abortion. And some have enacted near-total bans on abortion — notably Texas, whose law the Supreme Court previously allowed to stand. Some states had already moved to protect abortion rights in the event federal protections were overturned, but 26 states previously passed anti-abortion «trigger laws» that now go into effect immediately to restrict patients’ rights. It’s still a legal gray area in some cases, but most of those state laws include language that could be interpreted to include self-managed abortion. More than two dozen laws would allow police to arrest you for seeking an abortion — or for simply failing to satisfy police investigations into your miscarriage. It’s not just abortion patients who are at risk of surveillance and arrest. Those who aid abortion seekers could be charged as accomplices in some cases. Abortion medication is safe. But now that Roe is overturned, your data isn’t. The risks aren’t just hypothetical. Latice Fischer spent two years in jail because she had a miscarriage in 2018 after Googling abortion pills, and Mississippi authorities used her search as evidence when they charged her with second-degree murder. Indiana resident Purvi Patel’s text messages to her friend and her online abortion pill purchase were both used as evidence against her when she was jailed in 2015 for alleged feticide. She spent three years in prison before her conviction was overturned. Meanwhile, Georgia police attempted to use federal DNA criminal databases in 2018 to track down the origin of a 20-week-old fetus. Government surveillance of period and pregnancy data came to light again in 2019, when the director of Missouri’s health department was discovered tracking menstrual cycles of Planned Parenthood patients. In Oklahoma, three new laws aren’t explicitly aimed at abortion seekers or providers but nonetheless stand to sharply increase police access to geolocation data. One law requires wireless carriers to immediately provide call location data to police on request, and to work with the Oklahoma Bureau of Investigation. Another raises questions around mandatory reporting requirements as it formalizes 911 operators into «first responders.» A third gives county officers, including sheriffs, the green light to hire more data processing and IT staff. These kinds of laws, which allow police to access more data, are already cause for concern, and criminal defense lawyers had previously sounded the alarm about potential mass incarceration if Roe was overturned. Women are already the fastest growing demographic in US prisons, with Latina and Hispanic women 20% more likely to face incarceration than white women. The trend is driven overwhelmingly by state and local imprisonment rates, with the sharpest decade-over-decade increases found in Oklahoma.
