How a Digital Abortion Footprint Could Lead to Criminal Charges—And What Congress Can Do About It

May 10, 2022
In The News

Getting away with breaking the law in the digital age is tricky. Almost everything one does—whether it’s making a Google search for “how to clean up a crime scene,” purchasing suspicious items on Amazon, or merely having been in the proximity of a crime scene with a cell phone that had its location services turned on—can be discovered via court-issued warrant and lead to charges and convictions.

If Roe v. Wade is overturned—as a draft of a Supreme Court opinion signaled it might be— soon having or helping procure an abortion could become a crime in some states. And that means individuals’ personal internet data could be collected and used against them if they seek or facilitate a pregnancy termination.

“Your geolocation data, apps for contraception, web searches, phone records—all of it is open season for generating data to weaponize the personal information of women across the country,” Senator Ron Wyden, an Oregon Democrat and longtime proponent of digital privacy reform, tells TIME.

In states that not only outlaw but criminalize abortion—a move that Louisiana is considering adopting after a final decision from the Supreme Court—a pregnant woman’s digital search of abortion-inducing medication, online purchase of pregnancy tests, or email request for financial support to a pro-abortion resource group could be deployed against her in criminal proceedings. In states that criminalize assisting in abortions, data revealing frequent trips to a reproductive health clinic could also be used. “Everything we do is traceable,” says Bennett Capers, a visiting criminal law professor at Yale University and full professor at Fordham’s law school. “Once getting an abortion is illegal, then attempting to get an abortion is also illegal.”

In recent years, several Democratic lawmakers have introduced legislation to bring America’s digital privacy laws into the 21st century and enshrine safeguards against the unfettered collection of individuals’ personal data by governments and companies for criminal surveillance and corporate profit. Now, Wyden and his colleagues are pushing with renewed urgency to get those bills passed, hoping the leak of the draft opinion spurs Congress to action with the Supreme Court’s final decision anticipated to come down in the next two months.

“A lot of privacy rules are from the Dark Ages,” Wyden says. “The SCOTUS prospects certainly drive home the real world consequences of the law not keeping up with the time.”

Abortions are easier to obtain in the digital age—and easier to track

In some ways, if the Supreme Court overturns Roe it would bring society back to a reproductive rights landscape reminiscent of pre-1973 America. Thirteen states have trigger laws in place designed to immediately overturn a woman’s right to obtain an abortion in most or all circumstances after the court’s final decision is announced, and at least 10 more states would likely impose severe restrictions on the procedure.

But getting an abortion in 2022 is also very different than obtaining one in 1973. Online pharmacies have made abortion-inducing pills Mifepristone and Misoprostol available via mail-order, abortion fund groups have established websites linking pregnant people with the financial aid and other assistance they need to travel to more abortion-friendly states, and social media has enabled pro-abortion activists to spread the word about these resources and more.

But if Roe falls, using these internet resources in states that criminalize aspects of abortion could expose people to prosecution. Court-ordered search warrants yielding a pregnant woman’s Google search results for Mifepristone, her Amazon purchases of pregnancy tests, or her cell phone app tracking her menstruation could be used in court to justify a homicide conviction in Louisiana if its abortion-homicide bill is enacted. Private Venmo or PayPal payments obtained by a warrant and thought by prosecutors to be intended to help a friend afford an abortion could be used as evidence in a state that criminalizes aiding an abortion.

Individualized warrants like these take time for prosecutors to pursue, but the vast amounts of data that cellphones and computers collect and the lack of digital privacy laws to govern that collection has also created opportunities for law enforcement to obtain data in bulk. Geofence warrants, for example, allow law enforcement to request from internet companies a list of cell phones that were in certain geographic locations—say, abortion clinics—at a certain time, based on location tracking data stored in cell phones. The information can be summoned from a company like Google en masse, giving investigators a list of hundreds or thousands of people who were in a specified vicinity. U.S. law enforcement agencies have dramatically increased their reliance on this tool in recent years: the number of geofence warrants submitted to Google surged from 982 in 2018 to more than 11,000 in 2020, according to Google.

Digital footprints could put pregnant people at risk even without warrants or subpoenas. Data brokerage companies compile location data and can put it up for sale to any buyer, including members of law enforcement, vigilantes, or bored people on the internet. Based on location tracking, the datasets can reveal how busy an abortion clinic was at a certain time, where its visitors were before arriving at the clinic, and what places they ventured to next. Though the data is anonymized and not supposed to reveal identifying information, experts warn it isn’t so simple. “Nearly every pregnant person in America right now is being tracked by private data brokers. They’re being targeted with ads,” says Albert Fox Cahn, the executive director of the issue advocacy group Surveillance Technology Oversight Project. “And even where police can’t get a warrant for that information, they can often buy it on the open market.”

What Congress is doing

Alarmed by this prospect, Wyden and Democratic lawmakers in the House are doubling down on digital privacy concerns, and the Oregon Senator is generating new energy behind his old privacy bills.

Wyden’s Mind Your Own Business Act from 2019 would create new cyber security and privacy policies that digital platforms must abide by, and provide means for customers to see both the data that has been collected on them and with which parties it has been shared. In 2021, Wyden also introduced a bill alongside Republican Senator Rand Paul of Kentucky, the Fourth Amendment Is Not For Sale Act, which would close the legal loophole that allows data brokers to sell individuals’ personal information to law enforcement and intelligence agencies without court oversight. “I want to limit the ability of either prosecutors or data brokers to go out and hoover up all this private data to control women’s private decisions,” Wyden says.

The introduction of both of these bills predates news that the Supreme Court seems likely to overturn abortion rights, but the draft opinion heightens the urgency for legislative reform, three Democratic lawmakers and nearly half a dozen congressional staffers tell TIME. Wyden’s Fourth Amendment Is Not For Sale Act has both Republican and Democratic co-sponsors; his other bill has zero sponsors from either party.

On the House side, lawmakers have proposed even more sweeping reform in the digital privacy landscape. Democratic Congresswomen Anna Eshoo and Zoe Lofgren, both of whom represent regions of California’s Silicon Valley, reintroduced their Online Privacy Act in November 2021. The legislation would give individuals the right to access, fix, or delete their data. It would also let Americans stipulate how long companies can retain their data and minimize what data companies can collect. The thinking behind this legislation, says one Democratic staffer, is that if personal online data “is not collected, then it can’t be abused.”

Eshoo’s Banning Surveillance Advertising Act could also help protect digital privacy, she argues, because it would restrict advertisers from targeting individuals based on data collected about them, which in practice would make it less profitable for companies to collect so much data on individuals in the first place. “This business model is harmful,” Eshoo says.

Lofgren worries that the fact that abortion is spurring lawmakers and activists to call for improved digital privacy could reduce the odds of any of these bills passing by linking them to one of the most contentious issues in American politics. “I’ve had bipartisan support for some of my privacy initiatives from the libertarians in the Congress,” Lofgren says. “Oddly enough, many of those so-called libertarians are quite comfortable with seizing control of a woman’s body and having the government make decisions for her and her family.”

Wyden, however, is hopeful that the Supreme Court’s impending decision will inspire more leaders to pay attention to the problem. He says several members of Congress have approached him about digital privacy concerns since the draft Supreme Court memo was published. “For a lot of [them],” he says, “this is the first time they’ve ever really thought about it.”