States That Ban Abortion Can Weaponize Your Own Data Against You

By quashing Roe v. Wade, the Supreme Court has rolled back women’s rights and, by extension, individual liberties for all of us.

Reproductive privacy is at risk, and our current lack of digital privacy protections makes this problem even worse. Much of the data companies collect about consumers can be used against people if state governments choose to prosecute people who request or offer abortions.

A loophole allows law enforcement to simply purchase data from private data brokers.

Location data can indicate whether a person has visited an abortion clinic. Payment data can indicate whether someone has paid for a procedure. Messaging data can show whether a person has told friends about having an abortion. Even something as innocuous as grocery store data can pose a risk. (Companies like Target have found that simply analyzing consumers’ purchase history can help them predict when a client is pregnant.)

Now that Roe v. Wade fell, states that choose to criminalize abortion can start buying and subpoenaing consumer data (including health and location data from period-tracking apps) to prosecute people who abort, abort or even help someone else to get an abortion. In post-Roe America, your cell phone is now a reproductive privacy risk.

Millions of people use health tracking apps, including those tracking menstruation, fertility and pregnancy. Many people carry mobile devices with them most of the day, often communicating on topics such as reproductive health through messaging apps, social media, and more. Our inability to control who has access to our digital data was already troubling, but now our lack of digital privacy rights could soon lead to terrifying results for people seeking or providing reproductive health care.

Policymakers may not have the power to pass laws to protect abortion rights, but they can still tackle the issue of sensitive health data and who has access to it.

To protect both digital and medical privacy, including with respect to reproductive health, Congress should move to US privacy and data protection law, the bipartisan federal privacy bill introduced in the House in June. Among other things, the law would provide a cohesive national framework for privacy, creating safeguards on data collection and use, and requiring companies to adhere to higher standards of data minimization and data security. Although a federal privacy law is not specific to reproductive rights, many of these privacy principles will serve to better protect consumer data that could otherwise be used to sue those who have abortions.

Democrats need to do more than recite poems and sing songs for photo ops.

Congress should also consider the Fourth Amendment Act is not for sale, a bipartisan bill introduced by Ron Wyden, D-Ore., and Rand Paul, R-Ky., and others in April 2021. This bill would specifically prevent data brokers (companies that buy and sell data user data from various sources) to sell Americans’ personal information to law enforcement. While the legal process for law enforcement searches and seizures must go through Fourth Amendment constitutional protections, a loophole allows law enforcement to simply purchase data from private data brokers. The Fourth Amendment is not for sale would end that.

And technology companies, especially those in health technology, must build in protections to protect their customers, including supporting encryption and instituting data minimization principles and legal processes to respond to data requests from the government. For people who live in states where even helping someone have an abortion could soon be a crime, the ability to use encrypted messaging will be key to protecting sensitive conversations.

The principles of data minimization are simply to collect less data and store it for shorter periods of time. Businesses can also use stronger privacy technologies and make sure to beef up their cybersecurity so that data doesn’t fall into the wrong hands. Finally, companies should review their policies and processes for responding to government data requests, to determine how best to protect their users.

The Electronic Frontier Foundation has published a security and privacy guide for people seeking or providing abortion care. Pay attention to privacy and security during protests is also important, for anyone joining what will likely be huge crowds taking this issue to the streets. Review the privacy policies of the apps you use and make sure you know what data they collect about you. Help your friends and family use encrypted messaging tools like Signal.

Democrats need to do more than recite poems and sing songs for photo shoots. Now is not the time to rejoice slowly across the aisle. Americans deserve real representation from our elected officials. We don’t have time to hear Susan Collins, R-Maine, express her disappointment – once again – in the Supreme Court justices she helped cross the finish line, although they probably felt that they would contribute to a majority vote that undermined women’s rights. “Centrist” Democratic resisters like Joe Manchin, DW.Va., must also be held accountable (on this, and on so many other pressing issues; not only did Manchin obstruct Democrats’ attempts to overthrow the filibuster, thus slowing any hope of progress, but it also as recently as May 2022 explicitly voted against a bill that would legalize abortion.)

Congress needs to put a reproductive rights bill on the table and do it quickly. Even if there isn’t enough momentum to push it through (as happened with the failed Women’s Health Protection Act), put the bill on the table so that representatives have to show their constituents if they are brave enough to stick to their principles. Americans need to hear, publicly, once again, whether their representatives are prepared to do their job and protect the interests of their people. And if they aren’t, let it be the fuel to trigger the midterm elections. The year 2024 is not far away and democracy is at stake.

Even though these are dark days for reproductive justice, remember that you still have the freedom to speak. Use your voice as you can. Make a local donation abortion fund and campaign for candidates who will not stand idly by while our rights disappear. And vote, even when it seems hopeless. Especially when it seems hopeless. Democracy only survives if we all fight for its survival.