new York Privacy advocates in the US are alarmed about possible surveillance risks after the Supreme Court overturned the Roe vs. Wade case. Digital traces could now help law enforcement “track” abortions, for example through location services, digital communications and health trackers.
The 1973 ruling constitutionally guaranteed the right to abortion. With the reversal of this decision, states can now regulate abortion independently. In some US states, abortion has become illegal with only a few exceptions, and more could follow.
Experts therefore now advise caution when it comes to sensitive health data on the smartphone. The Center for Democracy and Technology (CDT) is dismayed by the Supreme Court’s decision. A law allowing private individuals to report a fellow citizen for having or assisting in having an abortion would create incentives for espionage, a statement said.
In the digital age, it may be difficult to have an abortion without leaving a digital footprint, especially if a woman has to travel to another state to do so. Whether a pregnant woman visits acquaintances or friends or enlists the help of an organization – digital communication could be used as evidence for the intention to have an abortion.
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Smartphone location services could record visits to abortion clinics. And credit card details and emails could show orders for abortion pills to remain accessible nationwide.
Privacy advocates warn against period trackers
Be careful with period trackers in particular. With apps like Flo, which has more than 43 million active users, women can document their cycle on their cell phones. This brings together sensitive health data that can also provide information about a pregnancy.
>> Also read here: The fight for abortion in the US: women against women
“We are very concerned about what could happen if private corporations or governments have access to this highly sensitive data,” CDT’s Lydia XZ Brown told National Public Radio.
“In this new environment, tech companies need to step up and play their role in protecting women’s privacy,” said Alexandra Reeve Givens, President of the CDT. The tech companies in Silicon Valley are thus ending up in the middle of a debate in which they are apparently reluctant to participate.
Silence prevails in Silicon Valley
Many of the big tech companies have not yet commented on the implications of the verdict, and employees at Microsoft and Google, for example, also complain on internal platforms, reports the Washington Post. As early as May, Facebook parent company Meta urged its employees not to hold discussions about the abortion debate at work.
It is likely that Google, Meta and Co. will be confronted with many requests from law enforcement officers to pass on user data in the coming months.
Catherine Crump, law professor at the US elite university UC-Berkeley, firmly believes that tech companies will comply with the instructions of the courts. But, as she tells the Washington Post, they should be transparent with such instructions and inform the public and users about the relevant processes.
In fact, big tech companies’ data has long been part of American law enforcement. In the first half of 2020, Apple, Google, Facebook and Microsoft received more than 120,000 inquiries from local and state authorities, according to a report by the AP news agency.
In 85 percent of the cases, at least some data was handed over to the officials. In its own transparency report, Google states that it received around 149,000 requests in the first half of 2021, and around 78 percent of these requests were followed.
The USA post-Roe: How the legal situation in the individual states currently looks
In Alaska, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington abortions remain allowed. In some states, this right extends throughout pregnancy, and most states allow abortions up to 24 weeks. Also, in most of these states, the right to abortion is protected by the state constitution.
The states Arkansas, Idaho, Mississippi, Missouri, North Dakota, Kentucky, Louisiana Oklahoma, South Dakota, Texas, Tennessee Utah and Wyoming have already banned abortion or have passed legislation criminalizing abortion in the coming weeks. Exceptions generally apply when the life of the pregnant woman is in acute danger, in some of these countries also in the case of incest or rape.
As the legal situation in Alabama, Arizona, Georgia, Michigan, North Carolina, Ohio, South Carolina, West Virginia and Wisconsin could look like in the future is uncertain. Alabama, West Virginia and Wisconsin, it is likely that pre-Roe case law in 1973 will be restored. Abortions would then be banned unless the life of the pregnant woman is in danger. In the other states, the courts are still dealing with the new situation. Abortion could be severely restricted or banned here.
One step that tech companies should now take is to severely limit the collection, transfer and sale of personal data, the CDT advises in a blog post. This applies to location services, chat histories and data from health trackers and wearables: “Most of the data also contains data on sexual health, even if it doesn’t seem like it at first glance.”
Nevertheless, Google has already announced that it will delete visits to a women’s clinic from the location data. The NGO Planned Parenthood, which provides sexual health services nationwide, has also announced that it will remove marketing trackers from its abortion-related websites. The move came after a Washington Post report that those marketing trackers could sell sensitive data to providers like Google, Meta and Tiktok.
In Washington, the issue is being followed closely. US President Joe Biden is preparing a letter to the FTC urging the protection of women’s personal information, according to Bloomberg.
Politicians are alarmed, further judgments are likely
According to an insider, the authority should issue rules that prohibit tech companies from selling that data to third parties. The Biden administration is also working on guidelines to help women protect their identities when seeking abortion information online, according to the Bloomberg report.
>> Also read here: Abortions: Democrats request investigation of Apple and Google
Overall, the recent case law in the Roe vs. Wade case is groundbreaking when it comes to American privacy, which is mainly due to the legal line of argument of the Supreme Court judges. In 1973, the Supreme Court referred to the right to personal privacy, which guaranteed the right to an abortion for more than 50 years.
In the 213-page justification for the Supreme Court decision from the end of June, the author, Judge Samuel Alito, addresses this very basis of argument. In the precedents Roe vs. Wade and later Casey vs. Planned Parenthood, it is argued that there is a right to make “intimate and personal choices” that are “central to personal dignity and autonomy.”
However, Alito argues that such a right cannot be absolute. Everyone is free to express their thoughts on the topics of “existence”, “significance” and “the mystery of human life” (citing terms from the precedents) – but that does not mean that one has the freedom to to act on these thoughts.
With the end of Roe vs. Wade, it could also be argued in future cases that privacy is not always protected. This also applies, for example, to the judgments in which same-sex marriage and the right to contraceptives are guaranteed. These landmark decisions could soon become an issue again at the US Supreme Court.
More: Supreme Court overturns liberal abortion law – President Biden scolds US Supreme Court