GIn the digital age, it can be difficult to avoid breaking the law. Almost everything one does—whether it’s making a Google search for “how to clean up a crime scene,” purchasing suspicious items on Amazon, or merely having been in the proximity of a crime scene with a cell phone that had its location services turned on—can be discovered via court-issued warrant and lead to charges and convictions.
If Roe v. Wade is overturned—as a draft of a Supreme Court opinion signaled it might be— soon having or helping procure an abortion could become a crime in some states. And that means individuals’ personal internet data could be collected and used against them if they seek or facilitate a pregnancy termination.
“Your geolocation data, apps for contraception, web searches, phone records—all of it is open season for generating data to weaponize the personal information of women across the country,” Senator Ron Wyden, an Oregon Democrat and longtime proponent of digital privacy reform, tells TIME.
In states that not only outlaw but criminalize abortion—a move that Louisiana is considering adopting after a final decision from the Supreme Court—a pregnant woman’s digital search of abortion-inducing medication, online purchase of pregnancy tests, or email request for financial support to a pro-abortion resource group could be deployed against her in criminal proceedings. If assisting in an abortion is a crime, information revealing the frequency of visits to a reproductive clinic may also be useful. “Everything we do is traceable,” says Bennett Capers, a visiting criminal law professor at Yale University and full professor at Fordham’s law school. “Once getting an abortion is illegal, then attempting to get an abortion is also illegal.”
In recent years, several Democratic lawmakers have introduced legislation to bring America’s digital privacy laws into the 21st century and enshrine safeguards against the unfettered collection of individuals’ personal data by governments and companies for criminal surveillance and corporate profit. Now, Wyden and his colleagues are pushing with renewed urgency to get those bills passed, hoping the leak of the draft opinion spurs Congress to action with the Supreme Court’s final decision anticipated to come down in the next two months.
“A lot of privacy rules are from the Dark Ages,” Wyden says. “The SCOTUS prospects certainly drive home the real world consequences of the law not keeping up with the time.”
Abortions are easier to obtain in the digital age—and easier to track
If the Supreme Court reverses, it could be in some respects. RoeIt would restore society to pre-1973 America’s reproductive rights landscape. Thirteen states have trigger laws in place designed to immediately overturn a woman’s right to obtain an abortion in most or all circumstances after the court’s final decision is announced, and at least 10 more states would likely impose severe restrictions on the procedure.
However, getting an abortion in 2022 will be very different from having one in 1973. The online pharmacy has made the abortion-inducing drugs Mifepristone & Misoprostol easily available by mail order. Abortion fund groups also have websites that link pregnant women with financial assistance and other support to help them travel to abortion-friendly countries. Social media allows pro-abortion activists and others to share information about the resources.
Pro-choice protestors gather outside the State House at a ProChoice Mother’s Day Rally held in Boston, Massachusetts, May 8th 2022.
Photo by JOSEPH PREZIOSO/AFP via Getty Images
However, what if? Roe People could face prosecution if they use these resources online in countries that make abortion illegal. Court-ordered search warrants yielding a pregnant woman’s Google search results for Mifepristone, her Amazon purchases of pregnancy tests, or her cell phone app tracking her menstruation could be used in court to justify a homicide conviction in Louisiana if its abortion-homicide bill is enacted. A warrant could yield private Venmo and PayPal payments that were intended to assist a friend in having an abortion. This evidence can be used by the state that penalizes abortion-related aid.
Although individual warrants such as these can be difficult to prosecute, the large amount of data cellphones and computers store and the absence of any digital privacy laws that govern this collection have created the opportunity for law enforcement agencies to get bulk data. Geofence warrants, for example, allow law enforcement to request from internet companies a list of cell phones that were in certain geographic locations—say, abortion clinics—at a certain time, based on location tracking data stored in cell phones. An internet company, such as Google, can request the information in bulk. Investigators have a list of hundreds to thousands of people that were within a certain area. In recent years, U.S. law enforcement agencies have increased their use of this tool dramatically. According to Google, the number geofence warrants filed to Google jumped from 982 to over 11,000 in 2018, to nearly 11,000 by 2020.
Without warrants or subpoenas, the digital footprints of pregnant women could pose a risk. Location data can be sold to anyone by data brokerage firms, which compile it for law enforcement and vigilantes. These datasets, which are created using location tracking, can show how busy an abortion clinic is at any given time and where visitors have been before they arrive at the clinic. They also reveal what locations they went next. Though the data is anonymized and not supposed to reveal identifying information, experts warn it isn’t so simple. “Nearly every pregnant person in America right now is being tracked by private data brokers. They’re being targeted with ads,” says Albert Fox, the executive director of the issue advocacy group Surveillance Technology Oversight Project. “And even where police can’t get a warrant for that information, they can often buy it on the open market.”
The Congress doing it
Alarmed by the prospect Wyden, along with Democratic lawmakers in Congress, are increasing their focus on digital privacy concerns. The Oregon Senator, however, is creating new energy to support his previous privacy bills.
Wyden’s Mind Your Own Business Act from 2019 would create new cyber security and privacy policies that digital platforms must abide by, and provide means for customers to see both the data that has been collected on them and with which parties it has been shared. In 2021, Wyden also introduced a bill alongside Republican Senator Rand Paul of Kentucky, the Fourth Amendment Is Not For Sale Act, which would close the legal loophole that allows data brokers to sell individuals’ personal information to law enforcement and intelligence agencies without court oversight. “I want to limit the ability of either prosecutors or data brokers to go out and hoover up all this private data to control women’s private decisions,” Wyden says.
Although both these bills were introduced before news about the Supreme Court’s likely decision to uphold abortion rights, the draft opinion increases the urgency of legislative reform. TIME has been told by three Democratic legislators and almost half a dozen congressional staffers that this is the first time they have ever done so. Wyden’s Fourth Amendment Is Not For Sale Act has both Republican and Democratic co-sponsors; his other bill has zero sponsors from either party.
The House has introduced more radical reforms to the digital privacy landscape. Democratic Congresswomen Anna Eshoo and Zoe Lofgren, both of whom represent regions of California’s Silicon Valley, reintroduced their Online Privacy Act in November 2021. Individuals would be able to correct, delete, and access their personal data through the legislation. This legislation will allow Americans to specify how long data can be kept by businesses and limit what companies may collect. The thinking behind this legislation, says one Democratic staffer, is that if personal online data “is not collected, then it can’t be abused.”
Eshoo’s Banning Surveillance Advertising Act could also help protect digital privacy, she argues, because it would restrict advertisers from targeting individuals based on data collected about them, which in practice would make it less profitable for companies to collect so much data on individuals in the first place. “This business model is harmful,” Eshoo says.
Lofgren is concerned that activists and lawmakers calling for better digital privacy may reduce the chances of bills being passed by linking them with one of America’s most controversial issues. “I’ve had bipartisan support for some of my privacy initiatives from the libertarians in the Congress,” Lofgren says. “Oddly enough, many of those so-called libertarians are quite comfortable with seizing control of a woman’s body and having the government make decisions for her and her family.”
Wyden, however, is hopeful that the Supreme Court’s impending decision will inspire more leaders to pay attention to the problem. Wyden says that several Congressmen have contacted him regarding digital privacy concerns ever since the Supreme Court draft memo was released. “For a lot of [them],” he says, “this is the first time they’ve ever really thought about it.”
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