With abortion now or soon to be illegal in more than a dozen US states and severely restricted in many more, Big Tech companies that vacuum up their users’ personal details are facing new calls to limit that tracking and surveillance. One fear is that law enforcement or vigilantes could use those data troves against people seeking ways to end unwanted pregnancies.
History has repeatedly demonstrated that whenever people’s personal data is tracked and stored, there is always a risk that it could be misused or abused.
With the US Supreme Court’s overruling of the 1973 Roe v. Wade decision that legalized abortion, collected location data, text messages, search histories, e-mails and seemingly innocuous period and ovulation-tracking apps could be used to prosecute people who seek an abortion — or medical care for a miscarriage — as well as those who assist them.
“In the digital age, this decision opens the door to law enforcement and private bounty hunters seeking vast amounts of private data from ordinary Americans,” said Alexandra Reeve Givens, the president and CEO of the Center for Democracy and Technology, a Washington-based digital rights nonprofit.
Until last month, anyone could buy a weekly trove of data on clients at more than 600 Planned Parenthood sites around the country for as little as US$160, a vice squad investigation showed. The files included approximate patient addresses — derived from where their cellphones “sleep” at night — income brackets, time spent at the clinic, and the top places people visited before and afterward.
It is all possible because US law — specifically, the 1996 Health Insurance Portability and Accountability Act — protects the privacy of medical files at doctors’ offices, but not any information that third-party apps or tech companies collect about people. This is also true if an app that collects someone’s data shares it with a third party that might abuse it.
In 2017, Latice Fisher, a black woman in Mississippi, was charged with second-degree murder after she sought medical care for a pregnancy loss.
“While receiving care from medical staff, she was also immediately treated with suspicion of committing a crime,” civil rights attorney and Ford Foundation fellow Cynthia Conti-Cook wrote in her 2020 paper titled Surveilling the Digital Abortion Diary.
Fisher’s “statements to nurses, the medical records and the autopsy records of her fetus were turned over to the local police to investigate whether she intentionally killed her fetus,” she wrote.
Fisher was indicted on a second-degree murder charge in 2018. Conviction could have led to life in prison, but the murder charge was later dismissed. Evidence against her included her online search history, which had queries on how to induce a miscarriage and how to buy abortion pills online.
“Her digital data gave prosecutors a ‘window into [her] soul’ to substantiate their general theory that she did not want the fetus to survive,” Conti-Cook wrote.
Fisher is not alone. In 2019, prosecutors presented a young Ohio mother’s browsing history during a trial in which she stood accused of killing and burying her newborn baby. Defense attorneys for Brooke Skylar Richardson, who was ultimately acquitted of murder and manslaughter charges, said the baby was stillborn.
However, prosecutors argued that she had killed her daughter, pointing in part to Richardson’s Internet search history, which included a query for “how to get rid of a baby.” She was later acquitted.
Technology companies have by and large tried to sidestep the issue of abortion where their users are concerned. They have not said how they might cooperate with law enforcement or government agencies trying to prosecute people seeking an abortion where it is illegal — or who are helping someone do so.
Last week, four US lawmakers asked federal regulators to investigate Apple and Google for allegedly deceiving millions of mobile phone users by enabling the collection and sale of their personal data to third parties.
“Individuals seeking abortions and other reproductive healthcare will become particularly vulnerable to privacy harms, including through the collection and sharing of their location data,” the Democratic lawmakers said in the letter.
“Data brokers are already selling, licensing and sharing the location information of people that visit abortion providers to anyone with a credit card,” they said.
Apple and Google did not immediately respond to requests for comment.
Governments and law enforcement can subpoena companies for data on their users. Generally, Big Tech policies suggest that the companies would comply with abortion-related data requests unless they see them as overly broad. For example, Meta pointed to its online transparency report, which says: “We comply with government requests for user information only where we have a good-faith belief that the law requires us to do so.”
Online rights advocates say that Big Tech is not going far enough.
“In this new environment, tech companies must step up and play a crucial role in protecting women’s digital privacy and access to online information,” Givens said.
For example, they could bolster and expand the use of privacy-protecting encryption; limit the collection, sharing and sale of information that can reveal pregnancy status; and refrain from using artificial intelligence tools that could also infer which users are likely to be pregnant.
Since the Supreme Court’s ruling, some period-tracking apps have tried to reassure users that their data is safe, but it helps to read the fine print of the apps’ privacy policies.
Flo Health, the company behind a widely used period tracking app, wrote on Twitter on Friday that it would soon launch an “Anonymous Mode” intended to remove personal identity from user accounts and pledged not to sell personal data of its users.
Clue, which also has a period tracking app, said it keeps users’ health data — particularly related to pregnancies, pregnancy loss or abortion — “private and safe” with data encryption. It also said it uses auditing software for regulatory compliance and removes user identities before their data is analyzed by scientific researchers working with the company.
At the same time, the company acknowledged that it employs “some carefully selected service providers to process data on our behalf.” For those purposes, it said: “We share as little data as possible in the safest way possible.”
However, Clue offered no further details.
Unless all of someone’s data is securely encrypted, there is always a chance that someone, somewhere can access it. So abortion rights advocates suggest that people in states where abortion is outlawed should limit the creation of such data in the first place.
For example, they urge people to turn off phone location services — or just to leave their phone at home — when seeking reproductive healthcare.
To be safe, it is good to read the privacy policies of any health apps in use, they say.
The Electronic Frontier Foundation suggests using more privacy-conscious Web browsers, such as Brave, Firefox and Duck Duck Go — but also recommends double-checking privacy settings.
There are ways to turn off ad identifiers on Apple and Android phones that stop advertisers from being able to track you. This is generally a good idea in any case. Apple asks users whether they want to be tracked each time they download a new app. For apps users already have, the tracking can be turned off manually.
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