Digital privacy issues in post-Roe world

Is your digital privacy protected in post-Roe America?

With the SCOTUS official ruling to overturn the 1973 landmark judgment Roe v Wade and Planned Parenthood v. Casey (1992), Americans are waking up to a much different America. On Friday, in a 6-3 majority in Dobbs vJackson Women’s Health Organization, SCTOUS upheld Mississippi’s ban on abortion after 15 weeks of pregnancy. There are overwhelming fears that law enforcement authorities could use women’s personal data such as internet searches, emails, digital health records, location data, call and text logs and all other digital information to enforce anti-abortion laws. The reasoning in the leaked draft opinion in May also suggested that a possible overturn of Roe could bring about a parade of horribles by dismantling the most venerated principle of US Constitution, the right to privacy which holds the key to a string of important constitutional rights such as right to same-sex marriages as confirmed in Obergefellv. Hodges. Concerns over digital privacy incursions are one such horrible in the making. 

Read the ruling in Dobbs v Jackson Women’s Health Organization here. 

Roe and evolution of Digital privacy

Henry J. Reske  in ABA journal titled 'A Justice Defined by a Ruling: Blackmun's Roe decision inspired women's and privacy rights movements' Vol. 80, No. 6 (JUNE 1994), pp. 20-21 (2 pages) notes that;

 “Roe is also perhaps more than any single ruling has enshrined in the American consciousness the notion of a right to privacy, or as Justice Louis D Bradeis put it in the 1928 dissent to Olmstead v United States, the “right to be let alone”.

 

The impact Roe v Wade had on the American legal landscape for over half-a –century is felt far beyond the realm of abortion rights and reproductive freedoms. Roe is also responsible for bringing the notion of information privacy (online/data privacy) into the American mainstream. It laid the foundation for a novel approach to appreciate the concept of privacy, expanding its scope to protection of personal data and other internet rights. 

Paul M. Schwartz  in 'Property, Privacy, and Personal Data' (Harvard Law Review , May, 2004, Vol. 117, No. 7 (May, 2004), pp. 2056-2128 states that:

“Information privacy can be distinguished from decisional privacy which was at stake in Roe v Wade. The focus of decisional privacy is on freedom from interference when one makes certain fundament al decisions including those concerning reproduction and child-rearing. In contrast information privacy is concerned with the use, transfer, and processing of the personal data generated in daily life. Decisional and information privacy are not unrelated; the use, transfer, or processing of personal data by public and private sector organizations will affect the choices we make.”

To understand the inter-relationship between decisional privacy in Roe and digital privacy,  you can read Jstor Daily article by Alexandra Samuel on What Roe v. Wade Means for Internet Privacy. 

 

Post-Roe challenges to digital privacy

Now when Roe’s federal constitutional guarantee to abortion is lifted, the legal concept of privacy is left in a bit of haze. States will soon start enacting new state legislation to reinforce their existing anti-abortion laws to severely curtail the performance of abortion procedures. This intended passage of restrictive abortion laws and strict enforcement of those laws will have potential implications for the digital privacy of women who seek reproductive health services online. It will also trigger a fundamental change in how women behave and interact in the online world.

We leave large troves of personal data when we make our health care decisions. And generally on the web we aren’t motivated to protect our privacy. We tend to think that we are safer when we do things online. Mostly due to convenience and wanting our actions and intentions to be kept confidential many of us reach out to health care services via smart devices. This is the reality of our technological life.

In this backdrop, when it comes to securing an abortion clinic in an abortion-restrictive environment we are compelled to rely on internet for information and making travel-incognito arrangements for out-of-state procedures, from booking flights to making ton of calls and text messages to providers and other middle men.

For example, Texas SB 8, Oklahoma’s SB 1503 and other similar highly restrictive anti-abortion laws make provision for bounty hunters to sue those who aid and abet abortion seekers. If a woman seeking abortion leaves trace of her communications with her aiders, these communications retrieved by third party tech companies can end up being subpoenaed in courts as evidence. Moreover women also use period-tracking and other pregnancy related apps on their smart devices programmed to show missed periods. They access tele health services for abortion medications- a two-pill regimen of mifepristone and misoprostol. 

After US Food and Drug administration lifted requirement for in-person pick up of abortion medications, women enjoy the opportunity to get them delivered by mail. According to a statement by Elisa Wells, the co-founder of online abortion resource site Plan C, traffic to their site increased from 500 to 25 000 visits per day after Texas SB 8 was signed into law. Anti-abortion laws have driven up demand for online delivery of abortion pills. But since many Red states have laws prohibiting abortion medication, accessing telemedicine is also a risk. However as telemedicine is FDA approved, state legislation trying to prevent abortion medication will contradict federal law.

Women who seek to get an abortion also search for online resources to gather information about self-managed abortion procedures. Records of these online searches, tele communications and online transactions can be used as evidence to establish criminality or civil liability on part of doctors, abortion providers and aiders. 

“Once law enforcement get their hands on a device, any part of a person’s digital footprint becomes a totally fair game” Cynthia Conti-Cook, a civil rights lawyer and a tech fellow at Ford Foundation says. What this means is, until law enforcement get a warrant to search your device you’re safe. But from the time device is in their custody, you’ll be in their crosshairs. They will use every digital forensic tool at their disposal to unpiece bits of information stored on your device. Investigators can also request geofence warrants to order internet companies to list out devices operated within an area at a given time. In this situation, getting help from a burner phone is also out of question.

We are living in a society of surveillance capitalism. Tech companies such as Google, social media platforms and ISPs track both our online and physical behavior for targeted marketing and advertising purposes. This extensive data mining by tech companies have opened doors for massive government surveillance on our digital lives. For years, no body knew that National Security Agency had been indiscriminately  gathering call detail records of all citizens to track down on terrorists. Similarly location-data-firms are selling digital records about details of visitors to abortion clinics and duration of their stay. Thus, surveillance has both government and private actors and has become a lucrative business for data brokers.

Elisabeth Smith, director for State Policy and Advocacy at the Center for Reproductive Rights states:

"We are living in a much more surveilled culture than we were in 1972 and prior, so in a future where abortion rights are limited or there's not a federal right, people will be at risk for exercising their bodily autonomy," 

 

How to minimize your digital footprint

Post-Roe America is no different to living in an autocratic regime. American women who are open to seeking abortions are placed in a similar position as dissidents living under a dictatorship, that they by circumstances are forced to rely on data encryption and privacy tools to keep their most private decisions private and to ward off prosecution for abortion-related offences.

In the mean time Digital Defense Fund and Electronic Frontier Foundation have published detailed guidelines on how women can reduce their exposure to privacy vulnerabilities when they are prompted to do a research online  about getting abortion procedures. The following list contains a few of those generally recommended privacy strategies that will significantly cut down the amount of data that goes into the hands of tech companies.

Access the Digital Defiance Fund guidelines on digital security here. 

You can read the Electronic Frontier Foundation guidelines here.   

• Do not use social networks such as FB groups and Telegram Channel with larger public audience to seek advice on abortion
• Use VPNs to prevent network providers from tracking your browsing habits
• Use more privacy-focused internet browsers like Firefox
• Use auto-deleting function on end-to-end encrypted messaging apps like Signal and WhatsApp
• Use a search engine that does not track user data such as DuckDuckGo
• Use a browser extension to block web trackers
• Shut off GPS location services on your devices to prevent apps from tracking your whereabouts
• Stop using fertility apps 

The need for a federal digital privacy law in post-Roe world

The immediate post-Roe America has not yet felt the seismic effect SCOTUS ruling has on digital privacy. Nevertheless it is not too early to say, dismantling of the scared right to privacy which acts as a foundation to many other rights signals the need to bring in a federal data privacy legislation. Until Dobbs, privacy was something Americans thought that they inherited and were guaranteed unconditionally. But when SCOTUS said it is not right to infer rights not expressly mentioned in the Constitution via another specifically mentioned right, question remains whether these originalist interpretations of SCOTUS will weaken the basis for a comprehensive right to digital privacy. 

Roe’s fall does not merely represent a setback for women who seek to get an abortion. While digital privacy issues arising from Dobbs is largely attached to women, its wider implications paints rather a bleak picture for the digital privacy of entire America.