Roe v Wade: Data in the spotlight as US abortion ruling puts women at risk of prosecution

A woman hugs her daughter during an abortion-rights protest in San Francisco - Copyright Josie Lepe/AP

By Luke Hurst with AP

Published on 29/06/2022 - 18:02

There is already precedent for women’s data being used against them in prosecutions surrounding abortion in the US.

Women in the US are being warned to delete their menstruation trackers and other apps that may gather data that could be used to prosecute those who want an abortion, after a number of states were given the power to make abortions illegal.

The overturning of the landmark 1973 Roe v Wade ruling by the Supreme Court earlier this month removed the constitutional right to an abortion, and conservative states are passing laws to make the procedure illegal.

Women’s rights groups are warning that law enforcement in those states could potentially use data collected by apps and technology companies as evidence for prosecutions.

Companies with menstruation apps have been quick to point to their strict data privacy policies, with some announcing the rollout of anonymous modes where no identifying data is collected.

And Big Tech companies like Meta and Google are already under scrutiny for the role they could potentially play in assisting law enforcement with prosecutions against women who seek abortions.

On the day of the Supreme Court decision, which has led to widespread dismay, disbelief and protest in the US and beyond, digital privacy experts already started to warn about how data could now be used to incriminate people.

“Right now, and I mean this instant, delete every digital trace of any menstrual tracking,” tweeted Professor Gina Neff, the director of Cambridge University’s Minderoo Centre for Technology. To date, that tweet has had more than 50,000 retweets and 203,000 likes.

How can this data incriminate someone?

“With very little notice, the context for the kinds of data people keep about themselves changed dramatically,” Neff told Euronews Next.

“Deleting a period app isn’t going to change the cold and cruel reality many people in the US now find themselves in, but it gives us an opportunity to talk about how these devices might pose a risk”.

There is precedent for prosecutors looking for evidence like this when something has gone wrong with a pregnancy.

“They have used browser searches, Google searches. They have used text data. They have used commercial DNA data from groups like 23andMe and Ancestry.com. These are kinds of data that we don't think about putting us at risk, but they can tell a lot of intimate information about us”.

While people’s medical files at a doctor’s office are protected under US privacy laws, any information that apps or tech companies have on you isn’t - including that data shared with or bought by a third party.

The 2017 prosecution of a woman in Mississippi for second-degree murder was documented by civil rights attorney and Ford Foundation fellow Cynthia Conti-Cook in her 2020 paper titled ‘Surveilling the Digital Abortion Diary’.

Latice Fisher was charged after she sought medical care for a pregnancy loss. Her “statements to nurses, the medical records, and the autopsy records of her foetus were turned over to the local police to investigate whether she intentionally killed her foetus,” Conti-Cook wrote.

The murder charge was later dismissed but evidence used against her in the prosecution included her online search history.

In comparison to the US, reproductive rights in Europe “are pretty strong in most but not all countries…so the idea that we would be prosecuted for something we could do for our health is pretty far-fetched,” Neff added.

In the US, people are facing a different reality now.

“Searching for health information shouldn’t put us at risk, but now it does,” she said.

How have companies responded to these fears?

A number of the popular menstrual cycle tracking apps were quick to try to reassure users.

Clue told Euronews Next that as a European company, it abides by European GDPR data rules, “the world’s strictest data privacy law”.

“We understand that many of our American users are worried that their tracked data could be used against them by US prosecutors. It is important to understand that European law protects our community’s sensitive health data,” it said in a statement.

Flo quickly announced it was launching an anonymous mode which would allow users to remove their personal identity from their account.

Nature Cycles, a birth control app, similarly announced via a message from one of its co-CEOs it would launch an anonymous mode.

While companies like Meta, Google and Apple have confirmed their support for employees who need to travel outside of their state to legally get an abortion, Big Tech has been quiet on data collection and how they would respond to law enforcement requests for co-operation regarding illegal abortions.

Joining the chorus of calls for Big Tech companies to stop collecting data that could put people seeking abortions at risk are a number of politicians in the US.

In an open letter to Google, the politicians, including signatories Elizabeth Warren and Bernie Sanders, urge the company “to stop unnecessarily collecting and retaining customer location data, to prevent that information from being used by right-wing prosecutors to identify people who have obtained abortions”.

One company that immediately started removing posts from its platforms offering abortion pills to people who may no longer be able to legally access them is Meta.

Facebook and Instagram both started removing posts that explained how women could legally obtain abortion pills in the mail, with some offering to mail the pills to women living in states where abortions are now banned.

The Associated Press (AP) obtained a screenshot on June 24 of one Instagram post from a woman who offered to purchase or forward abortion pills through the mail, which was taken down within minutes.

On Monday, an AP reporter tested how the company would respond to a similar post on Facebook, writing: “If you send me your address, I will mail you abortion pills”.

The post was removed within one minute.

The Facebook account was immediately put on a “warning” status for the post, which Facebook said violated its standards on “guns, animals and other regulated goods”.

When the same reporter wrote two more posts, one with “a gun” swapped for “abortion pills,” the other with “weed” in its place, the posts were not removed.

A Meta spokesperson told the AP company policies prohibit the sale of certain items, including guns, alcohol, drugs and pharmaceuticals.

Meta spokesperson Andy Stone confirmed in a tweet on Monday that the company will not allow individuals to gift or sell pharmaceuticals on its platform, but will allow content that shares information on how to access pills.

Stone acknowledged some problems with enforcing that policy across its platforms, which include Facebook and Instagram.

What can people who want information about abortions do to protect themselves?

The Electronic Frontier Foundation, which bills itself as “the leading non-profit organisation defending civil liberties in the digital world,” has published a series of articles with advice on limiting risk while using the internet to seek information on abortions.

That includes using a burner phone number for making calls to clinics, or even a burner mobile phone which can be discarded after being used for calls or Internet browsing.

When browsing, they advise to use browsers with default higher security settings such as Firefox or Brave, and to similarly use email clients with higher levels of security like Protonmail and Tutanota.

Furthermore, with messaging, using an app with end-to-end encryption like Signal is a good idea.

But the Digital Defense Fund, which helps with digital security for the abortion access movement, warns that while digital security can help limit evidence that could be used against someone in the case of a prosecution, “the majority of people who have been criminalised for pregnancy loss or for ending a pregnancy on their own were incriminated by family, friends, or healthcare professionals”.

Neff also has one key recommendation for people in the US: “Go to your local library”.

“Librarians are amazing; they believe in freedom of information and protecting users. Libraries are these wonderful resources where you can use a terminal, search the internet, it will never be traced to you,” she said.

The right to abortion in Europe

Outside of the US, the right to abortion is still a source of contention in some European countries. Poland enforced a near total ban on the procedure in January 2021 following a ruling by its constitutional court.

And Malta remains the only country in the European Union to have an outright ban on abortions in all circumstances.

On June 23, a US tourist who was 16 weeks pregnant had to be medically evacuated to Spain as she was reportedly denied an abortion for her non-viable pregnancy in a Maltese hospital, even though she was at risk of infection or heavy bleeding.

Campaigners there say two to three women face a similar scenario in the country each year.

There hasn’t however been a prosecution in Malta for someone having an abortion in the last five years and there have been no imprisonments for having one in the last 25 years.

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