A wave of new abortion-rights legislation is sweeping the country, raising concerns about the potential use of personal data to punish people who seek information about or access to abortion services online.
In some of the most restrictive states, digital rights experts warn that law enforcement agencies investigating or prosecuting abortion-related cases may use people’s search histories, location data, messages, and other digital information.
Concerns about the digital privacy implications of abortion restrictions arise in the context of a recent push by Republican-controlled states, including Georgia, Texas, Mississippi, and Oklahoma, to pass laws severely restricting access to the service. And they take on added significance in light of the Monday leak of the Supreme Court draft opinion that would overturn Roe v. Wade, which guarantees a person’s constitutional right to terminate a pregnancy before viability (usually around 24 weeks). Overturning the landmark 1973 court decision would change the landscape of reproductive health in America, leaving abortion policy up to individual states and potentially paving the way for more than 20 states to pass new abortion restrictions.
America is a very different place today than it was before Roe: Because of the pervasiveness of the Internet and mobile technology, people today share vast troves of data about themselves — whether they realize it or not — opening the door to significant surveillance. If the Supreme Court draft opinion is made final, the possibility of a complex patchwork of state laws raises a slew of new questions about the everyday technology Americans use to make health decisions and how it might be used to enforce those laws, as well as the potential for confusion about what online behavior is permissible or not.
Law enforcement could also use so-called geofence warrants, which ask internet service providers for a list of devices within a specific boundary at a specific time. According to Google’s latest transparency report, the number of geofence warrants submitted by US police departments increased from 982 in 2018 to 11,554 in 2020.
Search history data has already been used to prosecute people who seek information about abortion services in at least one case. After an at-home pregnancy loss, Latice Fisher was indicted for second degree murder by a Mississippi Grand Jury in 2018. While the criminal charges against Fisher were eventually dropped, law enforcement argued their case by citing alleged internet search results such as “buy abortion pills, mifeprisone online, misoprostol online.”
In anticipation of the passage of more stringent laws, advocacy groups are promoting digital privacy education and sharing information on how to safely seek reproductive health services online.
The Digital Defense Fund developed a guide for women seeking abortion information on how to protect their digital footprints. It includes recommendations such as opting out of personalized ads on Google and social media sites to reduce tracking, disabling location sharing, and using privacy-focused browsers such as DuckDuckGo or Firefox Focus, which do not save search data, collect personal information, or allow third-party trackers.
The guide also suggests using end-to-end encrypted messaging apps like Signal or WhatsApp when looking for abortion information to keep calls and messages private (these apps also offer timed auto-delete features for messages). Unlike a phone company, which has access to SMS text messages, developers of such apps do not have access to the content of encrypted messages and thus cannot be ordered by a court to share them.
According to the Digital Defense Fund, other privacy measures individuals seeking abortion information can take to protect their internet browsing include using the anonymous browsing service Tor or Virtual Private Networks (VPNs) and using incognito search windows. While it is nearly impossible to completely conceal digital history, experts say such techniques can help to reduce risk and make it more difficult for law enforcement to seize data.
