Delete your period app. Get your daughter a burner phone. These are a couple of the chilling recommendations tech security experts have for women in the new post-Roe United States, where anything you say can be used against you in a court of law. And now, in states with early-abortion bans, that includes your digital data.
“The privacy issues are going to be a really big thing,” says Carmel Shachar, who directs the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
Going forward, in antiabortion states a pregnant person who Googles the abortion pill or ventures to a reproductive health clinic with her phone in her pocket will be putting herself at risk.
This will be true for those suffering a miscarriage, too. According to the American College of Obstetrics and Gynecologists, roughly 15 percent of all clinical pregnancies in this country end in miscarriage. For women over 40, that number is 40 percent. And doctors cannot tell whether first trimester bleeding and pregnancy loss are the result of miscarriage or the abortion pill. So in states where abortion is illegal, police and prosecutors investigating pregnancy loss must try to prove intent, essentially asking: Was this an unhappy accident or an intentional termination?
Lawyers interviewed for this story say proving intent will likely involve interrogating “suspects” and scrutinizing their personal data — an appalling scenario for anyone who has recently lost or terminated a pregnancy, regardless of the circumstances.
“So if there’s text messages on my phone about whether I want to have this child or there’s a Google search about abortion in my history,” Shachar says, tech companies may find themselves compelled to deliver this information to the government. Zealous antiabortion prosecutors can use that data and those messages to make their case that a woman sought an illegal abortion.
Prosecutors may also draw on the data women enter into a period-tracking, fertility, or health app. The information they find there could also be used to claim that a woman brought about her own miscarriage.
“If I have an early-stage miscarriage and I didn’t give up smoking or drinking, or even I just ate a lot of fast food and I didn’t take my prenatal vitamins, does that make me culpable?” asks Shachar. “Does that take my miscarriage and make it into a self-administered abortion?”
Just as pregnant women who use drugs can, today, find themselves charged with child abuse, prosecutors in the future could argue that certain behaviors while pregnant amount to a self-induced abortion.
“The last time abortion was illegal in the US, we didn’t have devices tracking our every move, gathering our ambient data, law enforcement with sophisticated surveillance capabilities,” tweeted Wired science reporter Victoria Elliot when news of Roe’s overturning broke.
This is not the future equity-minded tech experts were envisioning back in 2015 when they finally convinced Apple to let women track their menstrual cycles on their iPhone. The year before, Apple had launched its built-in health feature with a promise to “monitor your whole health picture,” but in practice women found they could track everything about their bodies — from their heart rate to their sleep quality — except their periods. Complaints were aired on Twitter. Op-eds were written.
A year later Apple responded, integrating the menstruation and fertility app Clue, plus a few other reproductive health apps, into its health tracker. Critics of inequitable technology — and millions of iPhone users who have periods — rejoiced. Now they could use that data to time sex around ovulation in order to get pregnant or to skip sex during the fertile window to avoid pregnancy.
But as with so much in consumer technology, features that make life more convenient can become an invasion of privacy under certain political and legal conditions. For example, tech companies never intended metadata — the information that accompanies digital posts such as location, time, and device type — to serve the surveillance state, but it was put to that use with the post-9/11 Patriot Act. In the same way, apps that track women’s health data were not meant to abet the stripping of their rights, yet here we are.
For now, the tech companies that own and collect data from women have enormous power either to protect them or not during abortion-related investigations.
“Do [tech companies] have a proactive responsibility to say, ‘Hey, in our roundup of text messages, we saw this text message and you should know that Jane Smith might be pursuing an abortion — that it’s not miscarriage?’” Shachar asks. “A lot of those tech companies are based in places like California, where they are probably not sympathetic to early-stage bans. But how they would get out of providing that information would be another question.”
There is precedent for the government compelling tech companies to divulge private data about users. As Edward Snowden revealed in 2013, the National Security Agency has used digital information from Americans in its intelligence service operations, forcing tech companies to give over details such as location patterns, interactions, and times of phone calls and text messages. Companies like Google, Apple, Facebook commonly comply with warrants and subpoenas requesting personal information about users.
Now, experts say, such practices could be used to expose someone seeking information online about an abortion in an antiabortion state.
Eva Galperin, the director of privacy advocacy group the Electronic Frontier Foundation, says the best and only way for companies to avoid being compelled to give data to the government is to stop gathering it.
“If tech companies don’t want to have their data turned into a dragnet against people seeking abortions and people providing abortion support, they need to stop collecting that data now,” she tweeted. ”Don’t have it for sale. Don’t have it when a subpoena arrives.”
Privacy-focused Internet services like Mozilla’s Firefox browser and the Duck Duck Go search engine have long eschewed the massive data-gathering practices common to Google and most tech platforms for precisely this reason — because any massive trove of information can and will be exploited.
The Berlin-based fertility app Clue has assured US-based users that Europe’s strict privacy laws protect them. After the draft decision leaked in May, the company tweeted that it is “not allowed to disclose our users’ private data, regardless of where they live.” Whether the US government could compel a European company to produce information it held on US residents is a thorny interjurisdictional question.
Whether or not you find Clue’s language reassuring, consider that most other apps and tech firms have made no such commitment to protecting their users’ data. Democrats in Congress are considering legislation that would protect health app data. The legislation would not, however, extend to search engines and websites.
For now, says Harvard’s Shachar, “My best advice, even if a woman was miscarrying, let alone desperate and trying to figure out how to do a self-administered abortion, is to get very familiar with VPNs and the dark web and incognito searches.”
Catesby Holmes is a journalist whose work has appeared in Wired, Slate, and Bloomberg News. Emily Dreyfuss is a writer and coauthor of the forthcoming book “Meme Wars: The Untold Stories of the Online Battles Upending American Democracy.” Both authors are fellows on the Technology and Social Change team at Harvard University’s Shorenstein Center.