Digital Surveillance Imperils Abortion Seekers, Privacy Experts Warn

ACROSS CALIFORNIA — The latest threat to reproductive rights may sitting in the palm of your hand.

Cellphone data collected by service providers and third-party apps, along with sensitive personal information stored on the device itself, can provide material evidence in the prosecution of those seeking or providing abortions in post-Roe America, privacy experts warn.

“Pretty much everything you do on your phone is tracked by somebody,” Electronic Frontier Foundation Executive Director Cindy Cohn said Thursday on PBS Newshour.

“It’s important to recognize that we’ve built a surveillance business model – a business model about serving ads that incentivizes lots and lots of apps and devices to track everything you do.

“Once that information is collected by the platforms or the companies that use it, it’s available to law enforcement, sometimes with a warrant and sometimes just with a subpoena if it’s in a form law enforcement can get it … if it’s not in encrypted form or otherwise.”

The commonly held perception that trusted brands such as Google afford abortion-seekers protection from law enforcement is unwarranted, Cohn said.

“A lot of times people think ‘I don’t care if Google tracks me, but I’d be uncomfortable if the FBI tracked me.

“You’ve got to understand that two these things are pretty linked at this point, and law enforcement does have a way to get information if it’s in the hands of third parties.”

That misconception has implications for those seeking abortions according to Cynthia Conti-Cook, a Ford Foundation fellow who authored a paper on the emergence of digital evidence in abortion-related prosecutions, NBC News reports.

“A prosecutor is always going to need some evidence of intent,” Conti-Cook told the news outlet.

“As long as we don’t have strong protections for digital self-incrimination, our digital devices will do the work of telling prosecutors what was in our minds at the moment we were accused of conduct related to the termination of a pregnancy.”

And the use of digital surveillance to enforce laws restricting abortion rights is no dystopian future prediction, experts say.

Prosecutors in some states are already using cellphone data to enforce abortion laws.

“We’ve seen a few cases already in places where abortion is severely restricted,” Cohn said.

“What we’ve seen so far is generally a person who is seeking an abortion will get turned in, sometimes by a doctor or a nurse or a friend, by an ex, and then their phone is seized … and that information was used to demonstrate that a woman was searching for an abortion pill when she presented at a hospital as having miscarriage.

“The information was used to demonstrate that the woman didn’t miscarry, but instead was seeking an abortion.”

Think Health Insurance Portability and Accountability Act (HIPAA) offers a robust privacy shield for those seeking abortions online?

Think again.

HIPAA provides privacy protections apply to health care providers, but once a patient steps outside the doctor’s office, they’re on their own.

“If you're telling your friend, I need to find an abortion, that information – just because it's about your health – is not protected by HIPAA. So, HIPAA is a very important law for purposes of limiting when healthcare providers can give information to other people. Sometimes they still can if there's a warrant or other process, it's not completely protected, but it generally means that they can't be required to give information up.”

At least one data company is already cashing in on the rush to prosecute abortion seekers in the aftermath of a Texas law banning abortions that went into effect last year, offering to serve up location data on those who visited Planned Parenthood, Motherboard reports.

SafeGraph last month was banned from Google’s Play Store.

The proliferation of sensitive personal data in a post-Roe America with deep divisions has also raised concerns about the potential for vigilantism, a cybersecurity expert who follows the data marketplace told Motherboard.

“It's bonkers dangerous to have abortion clinics and then let someone buy the census tracks where people are coming from to visit that abortion clinic,” Zach Edwards told the news outlet.

“This is how you dox someone traveling across state lines for abortions—how you dox clinics providing this service.”