BBefore Roe v. Wade gave women constitutional rights to abort in 1973, many abortion procedures were hidden from family and friends. Women would travel to the early hours of the morning and destroy evidence in order to conceal their actions. But with today’s advances in technology, even though it’s never been easier or safer to access abortion at home, keeping it private could turn out to be much harder. The websites and apps that people use every day leave a digital footprint that’s nearly impossible to hide.
The Supreme Court’s reversal of Roe v. Wade on June 24 has directed a spotlight on the question of digital surveillance, as Google searches, location information, period-tracking apps and other personal digital data could be collected and used as evidence of a crime if one seeks to terminate a pregnancy—or helps someone do so—in states where it’s illegal. People can now have abortions in the privacy of their homes. Patients must either order pills online or use telemedicine to receive the prescribed medication.
Although some legislators have been working for this cause for many years, the legislation to enshrine protections against government and company collection of personal information for criminal surveillance or corporate profit has stagnated. In recent weeks, however, the need has increased.
“The answer can’t be just don’t use technology,” Rep. Sara Jacobs, a Democrat from California who introduced a digital privacy bill in June, tells TIME. “These are services that are very helpful to people. The answer is for us in government to do our job and put the protections in place.”
The day of the Supreme Court’s decision, Google search interest for “how to get an abortion” was more than six times higher than the previous day. Internet searches like these could turn up in criminal cases, and it’s hardly out of left field. In 2017, prosecutors used a Mississippi woman’s search history for pregnancy-terminating medication as evidence in a trial over the death of her fetus. To convict the woman of child neglect, and for feticide, prosecutors also used text messages concerning abortion pills that were exchanged among friends in 2015.
“The current privacy protections are fairly weak,” says Hayley Tsukayama, a senior legislative activist at the Electronic Frontier Foundation, which advocates for digital rights. She says that there is not a single federal law that regulates how data are collected, stored, and shared. This leaves the decision of what to do about digital privacy up to businesses. For example, period-tracking apps that millions of women use to track their periods could be sold to third parties.
“You can ask websites and apps to stop collecting your information, and you can even ask them to stop selling it,” Tsukayama says, but without a federal data privacy law in place, “You can’t really force them.”
Here’s a look at recent bills that have been introduced at the federal and state levels aimed at protecting digital privacy.
My Body, My Data Act
My Body, My Data Act, which was introduced to the House June 16, and then in the Senate, would give the Federal Trade Commission (FTC), the task of enforcing privacy standards for all reproductive data collected via apps, search engines, and cell phones. This would make it mandatory that businesses only collect the necessary health information to deliver their services. The law would allow users to request access or deletion of their personal information.
Rep. Jacobs, who introduced the bill, says digital privacy concerns are especially acute in states like Texas and Oklahoma where citizens can access up to $10,000 rewards for reporting those who violate the states’ abortion laws. “It would make it so that a small right-wing nonprofit group in Texas couldn’t just buy up or get access to this data and create a mass surveillance system,” says Jacobs, “to be able to turn people in who are seeking abortion as is incentivized in the Texas bounty law.”
Democratic senators. The bill was introduced in the upper chamber by Ron Wyden, Mazie Hirono and Mazie Hyero, both long-time advocates of digital privacy reform. The bills have been endorsed by Planned Parenthood, NARAL, National Abortion Federation, URGE, National Partnership for Women & Families, Feminist Majority and the Electronic Frontier Foundation.
Jacobs says there’s a “very good chance” that the Democrat-led House votes on the bill soon. “I think that people really recognize the urgency of this moment,” she says. Privacy experts inform TIME that the odds of it passing the sharply divided Senate is less than 50%.
Stop Anti-Abortion Disinformation Act
A group of Democrats, including Sens. Carolyn Maloney and Suzanne Bonamici, introduced another bill, the Stop Anti-Abortion Disinformation Act (SAD), on June 23, by Rep. Carolyn Maloney from New York, and Rep. Suzanne Bonamici, both of Oregon. Bob Menendez from New Jersey, and Elizabeth Warren in Massachusetts.
This group aims to combat misleading advertisements by anti-abortion center, also known as crisis pregnancy centres, who often call themselves reproductive health clinics but don’t make it clear that they are faith-based organisations whose purpose it is to prevent pregnant women having abortions.
Learn More Anti-Abortion Pregnancy Clinics are Collecting Troves Data Which Could Be Used against Women
TIME’s recent investigation revealed that the centers for pregnancy collect huge amounts personal data about women who seek their help. These women often do not understand that they are providing detailed health information—including addresses, marital status, demographic information, sexual and reproductive histories, test results, ultrasound photos, and information shared during consultations—to organizations run by the anti-abortion movement. Privacy lawyers inform TIME that most of the pregnancy centers in America, three times more than abortion clinics, do not have a license and provide services at no cost.
“By promoting deceptive or misleading advertisements about abortion services, crisis pregnancy centers jeopardize women’s health and well-being,” Sen. Menendez said in a statement. SAD Act orders the FTC prohibit these deceptive practices and gives the agency the authority to enforce them and to collect penalties.
Before the Supreme Court decision, some abortion providers had already taken steps to protect patient data. Many now use paper records and phone calls rather than texting or emailing.
Health and Location Data Protection Act
Yet another bill, the Health and Location Data Protection Act, introduced by Sen. Elizabeth Warren, Democrat of Massachusetts, on June 15, would ban data brokers from selling or transferring a person’s medical and sensitive personal information, with a few limited exceptions. The FTC would be granted $1 billion to enforce the rules over a period of 10 years. “Data brokers profit from the location data of millions of people, posing serious risks to Americans everywhere by selling their most private information,” Warren said in a statement the day the legislation was introduced.
Recent reporting from Vice found that for $160, one could buy a week’s worth of data on where people who visited more than 600 Planned Parenthood clinics came from and where they went afterward. Although that data was not tied to people’s names, privacy advocates argue that such details are discoverable if an individual’s travel patterns are unique. According to experts, the industry of selling and buying user data continues to grow.
“Data collection and processing is really at the heart of a lot of business models now,” EFF’s Tsukayama says. “It’s very difficult to convince people to change that unless there are some penalties or some other mechanisms to push that change.”
Learn More America’s High-Tech Surveillance Could Track Abortion-Seekers, Too, Activists Warn
Some states have local legislators who take matters into their own hands.
Mary Jo Daley (a Democrat from Pennsylvania) introduced legislation May 4, which would prohibit pregnancy centers within the state of sharing clients’ data without their permission. She noted a recent decision by the state’s Office of Open Records that said that pregnancy centers in the state were risking client’s privacy rights by sending their data—including names and the services they received, as well as their pregnancy status, sexual history and STD information—to Real Alternatives, the state-funded network of anti-abortion pregnancy centers.
“My bill would regulate what [data] they collect and the authorizations that they would be required to have, providing information to the woman so they would know exactly what they are signing on to,” she told TIME. “On its own this is a dangerous invasion of privacy but considering recent movement to deputize private citizens into vigilantes to regulate reproductive health, the threat is becoming even more imminent.”
However, the states are limited in their ability to do more than they can right now according to Alan Butler, president and executive director of Electronic Privacy Information Center. Women in abortion-prohibiting states are particularly vulnerable because the U.S. does not have a complete set of digital privacy laws.
“The states that are more likely to restrict abortion rights,” he says, “are also the states that don’t have strong privacy laws.”
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