Data Privacy Concerns Make the Post-Roe Era Uncharted Territory

It is becoming increasingly clear that the end of deer will be very different from before deer — largely because of the role of data.

Since the Supreme Court ruled that access to abortion is not a constitutional right, several states have already enacted bans on the two dozen states meant to ban or restrict the procedure.

The court ruling prompted a wave of women to delete their menstrual cycle apps for fear of incriminating themselves in the future. On social media, some have encouraged the use of coded language when posting information about abortion access to avoid the attention of law enforcement. And in Congress, some Democratic lawmakers are working on plans to better protect people’s personal data as it relates to reproductive health.

While there are still many unknowns about how or what types of data will be used as evidence, digital privacy advocates are encouraging both abortion seekers and supporters to err on the side of caution.

“The depth of information about us that police can attempt to access for investigations is unprecedented in human history,” said Nathan Wessler, deputy director of the Speech, Privacy and Technology Project at the American Civil Liberties Union.

“We’re likely to see in states that ban abortion really invasive surveys of people seeking medical care,” he added.

Data can be used against anyone seeking reproductive care

It’s not just call logs, text messages and emails that can be used to sue, but also location data, online payment records, Google searches and fertility tracking apps. , predict data experts.

This list may only scratch the surface, because when it comes to personal data, it’s still unclear how much we produce and who can see it.

“We live in a digital age where our activities, movements, transactions and communications leave a digital trail,” Wessler said. “And it’s extremely difficult to weed out any digital leads that might be of interest to law enforcement.”

He also fears that a wide range of people seeking reproductive care will be subject to invasive digital investigations by the police.

“A woman who comes to the emergency room after a miscarriage may suddenly be subject to police sifting through all of her digital communication records to determine whether or not it was a miscarriage,” he said. added.

The Electronic Frontier Foundation, a digital privacy advocate, says period-tracking apps don’t pose the most immediate danger to women seeking abortions in states where they’re banned. Instead, the group cites text messages, browsing histories and emails as being more commonly used in criminal investigations. The group recommends using encryption and knowing your phone’s privacy settings.

Personal data may be in the hands of bounty hunters

In some states, law enforcement won’t be the only ones able to get their hands on people’s personal data.

So far, Texas, Oklahoma and Idaho have passed citizen-enforced abortion bans, meaning anyone can sue civilly if they think an abortion has been wrong. practiced and maybe win at least $10,000.

This bounty system will also allow complainants to request troves of data to build their case, according to Eva Galperin, director of cybersecurity at EFF.

While much remains to be understood about who can be prosecuted or what types of digital investigations can take place, Galperin adds that there is risk in the uncertainty.

“It’s terrifying,” Galperin said. “So if you’re doing abortion support, it’s a lot harder to know who to trust.”

Pregnant women of color may be under high digital surveillance

What leaves some privacy experts on edge is how unclear it is how the growing number of state laws that criminalize abortions will be enforced.

“They’re often written broadly and vaguely, and that was their goal,” Galperin said. “And the reason for that is that they want people seeking abortions and offering abortion support to assume the worst and therefore not act.”

Galperin believes the threat of digital surveillance won’t stop people from seeking or supporting such procedures, but it will pose a great risk to those seeking care and will disproportionately impact pregnant women of color.

“People of color have always been the guinea pigs for policing and cracking down on any type of undesirable behavior in the United States,” Galperin said.

Wessler adds that the degree of mastery of technology, time and effort required to avoid leaving a digital footprint might not be feasible for some, which is why he thinks the federal government needs to do a better job of protecting people. pregnant women in crisis.

“If our data is available for free without protection from corporate abuse and government abuse, we’re in for a bad time,” he says. “That’s why we really need better legal structures to protect ourselves.”

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