How your phone could be used in the criminalization of abortion

New York
CNN Business

Update: This story was originally published on May 6. It has been updated to reflect the Supreme Court’s final decision.

Friday’s Supreme Court decision to overturn Roe v. Wade is all but certain to spark a wave of new state laws targeting abortion rights and bolster existing laws that prohibit and, in some cases, criminalize the procedure. Among the potential far-reaching implications of the decision are concerns about the potential use of personal data to punish people who seek information about or access abortion services online.

In some of the most restrictive states, digital rights experts warn that people’s search histories, location data, messages and other digital information could be used by law enforcement investigating or prosecuting cases related to abortion.

On Friday, the Supreme Court struck down Roe v. Wade, the 50-year-old ruling that guaranteed a person’s constitutional right to terminate a pregnancy before viability (usually around 24 weeks). A draft notice leaked in May. The overturning of the historic court decision of 1973 should transforming America’s reproductive health landscape, leaving abortion policy to individual states and potentially paving the way for more than 20 states to pass new laws restricting abortions.

Even before the ruling, concerns about the digital privacy implications of abortion restrictions had begun to arise amid a move from Republican-controlled states including Georgia, Texas, Mississippi and Oklahoma in recent years to pass laws significantly restricting access to the service.

America today is a much different place than it was in the pre-Roe era: Due to the ubiquity of the internet and mobile technology, people today share vast amounts of data about themselves- themselves – whether they are aware of it or not – opening the door to significant surveillance. The possibility of a complex patchwork of state laws following the rollback of Roe v. Wade raises a host of new questions about the everyday technology Americans use to make health decisions and how it could be used to enforce those laws, and could create confusion about what online behavior is allowed or not. .

For example, in states that make it a crime to help an abortion seeker, data from women’s period or pregnancy tracking apps could end up being cited as evidence against the person who helped them. , said Danielle Citron, professor of law at the University. of Virginia and author of the forthcoming book “The Fight for Privacy”. “Let’s say you had your period, stopped it, then got your period again in a short time,” Citron said. “His [potential] proof of your own criminality or the criminality of your doctor.

Groups promoting digital rights and reproductive freedoms are now warning residents of states that criminalize access to abortion to protect their digital footprint when seeking abortion information and resources online and sharing advice on the way to do it.

“We live in a much more policed ​​culture than in 1972 and before, so in a future where abortion rights are limited or there is no federal law, people are at risk of exercising bodily autonomy “said Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights. “The consequences of these decisions are likely to hit black, brown and Indigenous people of color the hardest. »

Much has also changed in the reproductive health care landscape since Roe v. Wade in 1973. Self-managed abortions and online pharmacies that provide abortion medications are increasingly accessible options, especially for people with low incomes or those living in rural areas or states that restrict access to in-person abortion services. In December, the US Food and Drug Administration lifted the requirement for patients seeking abortion medication to pick it up in person, instead allowing the pills to be mailed.

Although a number of states, including Texas, prohibit receiving medical abortions via telehealth, this does not necessarily preclude online pharmacies and services in other countries, such as access to aid based in Europe, to send the drugs to people in those states. Web traffic to online abortion resource site Diet C – which offers information on how to find abortion drugs and how to use them – went from 500 people a day to 25,000 a day immediately after Texas banned most abortions after six weeks in September, before leveling off at around 2,500 a day, according to Elisa Wells, co-founder and co-director of Plan C.

“Most people go straight to our ‘Find Abortion Pills’ directory that we have,” Wells told CNN Business. “Disproportionately, these people come from states that have laws in place that restrict access.”

Various online behaviors could be part of investigations and legal proceedings in states where assisting access to abortion is criminalized, including internet searches, location history, call logs and Text messages, emails and financial records, according to Cynthia Conti-Cook, a civil rights expert. lawyer and technology researcher at the Ford Foundation. Any part of a person’s digital fingerprint is fair game once a device is in the possession of law enforcement, she said.

“As long as abortion and abortion-seeking conduct is criminalized, all of this information can be totally fair game,” Conti-Cook told CNN Business. She added that law enforcement has the forensic tools to see virtually everything a person does on their device, but only once the device is in their possession. Unless surrendered voluntarily, a phone and all of its data is generally not accessible without a search warrant.

Various state-by-state laws governing abortion care raise new questions about the role an abortion seeker’s use of the Internet might play. “In a state like Texas, Oklahoma, Mississippi, if someone is ordering pills online, they’re doing it outside the laws of that state,” Smith said. “Because they’ve banned telemedicine and more states are passing laws prohibiting the possession of abortion drugs, there’s a risk of criminalization when people don’t follow their state’s laws.”

Some lawmakers have even advanced proposals that would effectively ban citizens from getting abortions outside of the state. Missouri State Representative Elizabeth Coleman pushes a arrangement that would allow citizens to sue anyone who “aids or abets” a Missouri resident to have an abortion, including out-of-state doctors, friends who help arrange transportation or even accommodations for a website that “encourages or facilitates the efforts” of Missouri residents to obtain elective abortions. And other states could follow suit.

Law enforcement could also use so-called geofencing warrants, which ask internet companies for a list of devices within a certain limit at a certain time. These warrants are growing in popularity as a law enforcement tool for various alleged crimes – the number of geofencing warrants submitted to Google by US police departments has increased from 982 in 2018 to 11,554 in 2020, according to the ‘company. latest transparency report. (For its part, Google indicates that in some cases it asks to provide less information or refuses to provide this information.)

In at least one case, search history data has already been used to sue people seeking information about abortion services. In 2018, Latice Fisher was charged by a Mississippi grand jury for second-degree murder after a home pregnancy loss. While the criminal charges against Fisher were eventually dropped, law enforcement pointed to alleged internet search results such as “buy abortion pills, mifeprisone online, misoprostol online” to plead their case. . (Mifepristone and misoprostol are the two pills frequently taken together by women performing self-directed abortions.)

In anticipation of more restrictive laws, advocacy groups are promoting education about digital privacy and sharing information about how to safely seek reproductive health services online.

The Digital Defense Fund has created a guide for women on how to protect digital fingerprints when seeking information about abortions. It includes tips such as opting out of personalized ads on Google and social media sites to minimize tracking, opting out of location sharing, and using privacy-focused browsers like DuckDuckGo or Firefox Focus that don’t log not research data, collect personal information or authorize third parties. trackers.

When researching abortion information, the guide also recommends using end-to-end encrypted messaging apps like Signal or WhatsApp to keep calls and messages private (these apps also offer auto-delete features). timed for messages). Unlike a telephone company with access to SMS text messages, developers of such apps cannot access the content of encrypted messages and therefore could not be compelled by a court to share them.

Other privacy measures that people seeking abortion information can take to protect their Internet browsing include using the anonymous browsing service Tor or virtual private networks (VPNs) and using search windows. incognito, according to the Digital Defense Fund. While hiding digital history completely is nearly impossible, experts say such methods can help minimize risk and make it difficult for law enforcement to capture data.

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