Tech companies in the United States are now preparing for the possibility of being roped in by State governments to help surveil abortion. This comes after the Supreme Court’s recent verdict on June 24th, lapsing abortion as a constitutional right across the U.S.
As Reuters reported, some industry representatives are concerned that the data they collect on an individual’s searches, movements, and health could be requested by the many state governments now looking to prosecute those seeking abortions within their jurisdictions.
‘We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is explicitly protected by any constitutional provision,’ read the majority Judgment, authored by Justice Samuel Alito (a draft of which was leaked in May). It is now estimated that 26 of America’s 50 States will either ban abortion outright—or severely restrict it, except in cases that threaten a woman’s life.
Many Big Tech companies have issued internal statements in support of their employees seeking abortions in States that ban them. Although steps in the right direction, such moves could do little for the abortion rights of American women at large—after all, it is these companies’ vast troves of personal data that may be tapped by agencies investigating abortion ‘crimes’ across the country.
Why it matters: American law enforcement agencies and private entities already use technology in different ways to surveil women considering (or having) abortions. Tech companies could now be requested to share specific data on such women with State governments—potentially enhancing this form of surveillance.
Yes delete your period app. But also don’t arrange rides for people to get abortions on Facebook. Don’t google “where to get an abortion” if you live in Texas. Don’t go to a protest unmasked. The privacy violations that are coming go so much deeper than period apps.
— Doree Shafrir (@doree) June 24, 2022
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How Does the Judgment Impact Women in the United States?
In Roe v Wade (1973), the United States Supreme Court ruled that abortion was a constitutionally protected right under the right to privacy.
- This case has been a bone of contention in America’s political landscape ever since—particularly earning the ire of the Republican party. Of the 60% of Republican supporters that believe all forms of abortion should be illegal, 78% identify as ‘conservative’ while 39% identify as ‘highly religious’.
- However, with last week’s Judgment, abortion is no longer a constitutionally protected right. So, State governments can now take abortion laws into their own hands. The Judgment also upholds the constitutionality of a Mississippi law that bans abortions after 15 weeks.
- The Judgment comes against the backdrop of increasing public support for legal abortions in the U.S. and an increasing number of abortions in the country between 2017 and 2020. In short, it now makes access to safe abortions more difficult for a wider pool of women.
- This could impact the mental health and financial stability of those seeking abortions—regardless of whether they can obtain one. This changing landscape is also likely to disproportionately affect women of colour, while pushing more women into unsafe abortions.
- Women may also now need to travel longer distances to States where abortion is legal. For example, a near outright ban on abortion is already in place in Missouri—with its lone clinic offering abortions directing patients to nearby Illinois for treatment. To that end, some lawmakers are also looking to ban women from travelling for abortions.
- Clearly, where women travel and the kinds of clinics they visit are all crucial data points for prosecutors searching for evidence of abortions—data that tech companies have ready access to.
Where Do Tech Companies Fit Into the Enforcement of Anti-Abortion Laws?
To strictly enforce near-total abortion bans, law enforcement agencies and prosecutors need data on the people trying to seek them.
- The kind of information that helps, for example: search history (which pinpoints which users are searching for information on an ‘illegal’ activity) and geolocation tracking (which tracks the kind of medical facilities or states they’ve been to).
- This is data that large companies have consistently collected over the years—particularly to surveil and understand the behaviours of their customers.
- Technology trade representatives informed Reuters that this same data could be requested by police agencies (through a warrant) or prosecutors (through a subpoena) to penalise women seeking abortions.
- For 3 years up until June 2020, Reuters adds that Amazon at least partially complied with 75% of government requests for customer data in the U.S.
Can Technology Really Be Used to Penalise Abortions?
‘National security‘ concerns and manipulated election campaigns are well-known instances of when the State and private entities used technology to infringe on privacy in the U.S. A less-talked-about form of surveillance co-exists with these examples: the ongoing monitoring of abortion and women’s bodies in the United States. Now, with the June 24th Judgment, searching for abortion-related information can be elevated in partnership with data-driven tech companies.
- License-plate tracking of those visiting abortion clinics in America has reportedly been practised for decades by anti-abortion activists. Data brokers already sell information on people visiting clinics providing abortions—including on how long they stayed on the premises, and where they travelled to afterwards.
- For taking abortion drugs, Purvi Patel was convicted of foeticide, among other charges, in Georgia in 2015. Evidence used against her included text messages to a friend on buying the abortion pills, emails confirming her online purchase of the pills, and other research she conducted online. Initially sentenced to 20 years of imprisonment, an appeals court eventually dismissed the foeticide charge, leading to her release from prison.
- From 2015 onwards, ‘geofencing’ technology was used by digital advertisers in Massachusetts to target women entering abortion clinics. Once they entered a specific radius of the clinic, digital advertisers would display advertisements suggesting alternatives to abortion on their phones. Although the firm was eventually prohibited from doing so in 2017, examples like these indicate how the data women using the Internet can be used to further specific policy planks.
- In 2018, State prosecutors in Mississippi charged Latice Fisher with second-degree murder for delivering a still-born child. Prosecutors searched her phone and found search queries for abortion medication, made during her third trimester. The charges were eventually dropped after public outcry.
clue has just made a statement that their app protects all users. it is a european app meaning it is safe for us to use and our data won’t be given away. please delete flo and download clue or other non american period tracking apps. pic.twitter.com/WegnOniR02
— colleen (@vaIidheart) June 24, 2022
What Kind of Policy Interventions Can Protect Women’s Data?
Currently, policy solutions to regulating surveillance seem to revolve around regulating how companies collect and use women’s personal data.
- On June 2nd, the ‘My Body, My Data Act’ was introduced by Democrat senators. The bill seeks to minimise the ‘personal reproductive health data‘ collected and retained by companies, including period-tracking apps.
- On June 15th, Democrat Senator Elizabeth Warren announced the ‘Health and Location Protection Act’ which bars ‘data brokers from selling or transferring location data and health data.’ If passed, the law may help stringently protect the data of women seeking abortions, and prevent the ‘uterus surveillance’ facilitated by the decision now passed by what it describes as an ‘Extremist Supreme Court’.
- Shortly before last week’s Judgment was delivered, four Democrat lawmakers requested federal regulators to investigate Apple and Google for collecting and selling personal data to third parties. In particular, they noted that ‘individuals seeking abortions and other reproductive healthcare will become particularly vulnerable to privacy harms, including through the collection and sharing of their location data (..) Data brokers are already selling, licensing and sharing the location information of people that visit abortion providers to anyone with a credit card’
- Companies can also consider stopping behavioural and geographical tracking—even if these are the mainstays of their commercial models. Ensuring end-to-end encryption of user data may also protect both those seeking and providing abortions. Other recommendations include companies sharing access to pseudonymised or anonymised data.
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