With the Supreme Court seemingly poised to overturn Roe v. Wade and 26 states standing by to ban all or most abortions, digital eyes are on hand to help them enforce the bans. Unlike records of private conversations, which generally require a warrant to access, information that is regarded as public or is conveyed to a third party – such as a person’s location or what they search for on the internet – is often available to police without a warrant. There is little question that these mostly unregulated tools routinely invade our privacy. Yet this abstract harm becomes all too real when the potential targets are women exercising their right to decide whether to terminate a pregnancy, which has been recognized by the Supreme Court for half a century.
Two factors potentially limit the potential use of location information and other bulk data to enforce abortion bans. First, with the exception of older laws on the books in South Carolina, and Oklahoma, most state bans do not punish women for obtaining abortions, focusing instead on providers. It is difficult to predict whether this will change. On the one hand, if Roe is overturned, clinics that remain in states with bans will likely close, and there will be few other targets to pursue. At the same time, with a large majority of Americans supporting women’s right to choose, state legislatures may be wary of a backlash if they take such an extreme step. Second, it is unclear if or how a state law barring abortion would cover procedures undertaken outside the state. If it does, women will likely again be the targets because it will be difficult to crack down on doctors or providers who are located in other states.
An expansive range of surveillance tools are available to identify women seeking abortions (e.g., location data) and where authorities suspect that a woman has had an abortion (e.g., internet searches and communications). The ease with which law enforcement can access information reminds us once again that civil liberties are essential to protecting civil rights.
In 2018, the Supreme Court issued a landmark decision detailing the privacy risks of location information derived from cell phones and requiring police to get a warrant before tracking an individual’s location for an extended period of time. Law enforcement and intelligence agencies have essentially circumvented this prohibition by buying location records from data brokers. According to the Wall Street Journal, government lawyers have given their blessing because the data purchased is anonymized. But de-anonymizing cell phone location information is not very difficult, especially if the dataset is geofenced (i.e., limited to a certain area) or includes information on the movements of the phone that can be used to infer the identity of its owner (e.g., home address and work place). For example, last week Motherboard reported that for $160, it bought a week’s worth of cell phone location information from a company called SafeGraph, reflecting visits to Planned Parenthood and other clinics providing abortions, which is available for over 600 Planned Parenthood locations. The company also sold information about where these cell phones came from and where they went, offering a path to identifying their owners.
Nor are cell phones the only way to track Americans’ locations. Automatic license plate readers – which scan and save a record of the license plate of every car that passes them – have mushroomed across the country. According to a 2013 analysis, in large cities, 93 percent of police use license plate readers, as do 75 percent of police in small cities. Police can also access private information, such as the database of five billion plus license plate scans owned by Vigilant Solutions. Often these readers are installed at locations where there is a perceived a safety threat, a category that surely encompasses abortion clinics.
It is all too easy to imagine how these reams of data could be used to identify women seeking abortions. For example, police could track women visiting facilities in other states by using data similar to that sold by SafeGraph. They could pinpoint license plates on cars from their states using data from automatic license plate readers. With this information available at the click of a button, the detective work wouldn’t even require them to leave their home states.
Other digital trails can also be used to prosecute women for ending their pregnancies. States have prosecuted women who went to hospital after having miscarriages, using text messages, e-mails, and internet search results to demonstrate that the loss was deliberately induced. In 2015, Purvi Patel went to a South Bend, Indiana, emergency room bleeding after a claimed miscarriage. Police investigators obtained obtained a warrant for her cell phone and found online searches for abortion pills, an email confirming an order of the pills, and text messages telling a friend that she had ordered and taken pills to induce an abortion. She was convicted and sentenced to 20 years for feticide (overturned on appeal) and felony child neglect. When Latice Fisher, a mother of three from Mississippi, gave birth to a stillborn baby at home, her husband called emergency services. Fisher gave her phone to police who found internet search results for inducing a miscarriage and buying abortion pills. These were used as evidence in her prosecution for second degree murder.
One can expect an increase in the aggressive investigations of miscarriages in abortion ban states, especially given the availability of pills that can be used to induce abortions. Women of color, like Patel and Fisher, are likely to be targets. Police can get a warrant to access communications by demonstrating to a state court that they have probable cause to suspect that a woman has violated an abortion ban (e.g., a suspicious miscarriage). Several courts have allowed law enforcement to obtain search or web browsing history from the servers of Internet service providers (ISPs) without a warrant, although some states (e.g, Arizona and Utah) provide additional protections for this information. Nor should women assume that information provided to their doctor or nurse is protected. Health Insurance Portability and Accountability Act (commonly known as HIPAA), the 1996 law that is meant to protect sensitive health information, contains a carve out for law enforcement purposes, such as identifying a suspect or material witness, as well as a host of other exceptions.
The myriad of ways that largely unregulated surveillance tools can be used to target reproductive freedom shows how urgently Americans need protection from the tsunami of data that can be used against them. Passing the Fourth Amendment is Not for Sale Act, introduced by Senator Ron Wyden in April of last year and supported by a bi-partisan group of 20 senators including Senators Rand Paul and Mike Lee, would be an excellent first step in limiting law enforcement’s ability to purchase personal information. Even better would be a comprehensive data privacy law that stopped companies from hoarding this information in the first place.