How data generated by everyday apps can incriminate abortion seekers
Jun 26, 2024

How data generated by everyday apps can incriminate abortion seekers

While some period tracking apps have evolved to protect user information, programs like web search or digital maps can build cases and lead to prosecution, says Albert Fox Cahn, founder of the Surveillance Technology Oversight Project.

This week, we’ve been taking stock of how tech has both helped and harmed Americans trying to get abortions in the two years since the U.S. Supreme Court overturned Roe v. Wade. After the Dobbs decision, some experts warned consumers that menstrual tracking apps would provide a means of surveilling abortion seekers. There was even a social media campaign on what was then Twitter advising people to delete their period trackers.

But as it’s turned out, the threat to privacy isn’t limited to those apps. Other digital data can actually be more likely to reveal an illegal abortion. That’s according to Albert Fox Cahn, founder of the Surveillance Technology Oversight Project. He told Marketplace’s Lily Jamali that everyday consumer apps generate sensitive data that can be used for abortion surveillance.

The following is an edited transcript of their conversation.

Albert Fox Cahn: There are other apps on our phone — general-purpose tracking apps, location data, ad tech data — that [have] been far more innately intertwined with abortion and policing. And while I think that we’ve seen a really powerful response from a number of the leading apps in the sector to really show customers that their data will be safe when they’re using period tracking apps and other health apps, there’s so many other sources of data that we know are being used to police abortions and to put people in jail.

Lily Jamali: And people might remember that right after Dobbs, there were some period tracking apps that made a big show of how they were going to protect users’ privacy. Those saw a lot of downloads after the decision came down.

Fox Cahn: Yeah, this was a clear win-win, where a lot of these apps could get a leg up in the market by putting user privacy first, where they could make sure that information was being saved only to a user’s device, not to the cloud. They can make sure that information was being encrypted, that nothing was being saved in the clear. They could add really interesting features like a fake data page, where if you didn’t log in with the right username or you used a dummy password, you could access a set of data that was completely false and was just there to avoid anything that could be incriminating. So all of those features were both a way to help protect users, but also were a way for a lot of the more innovative apps to gain some market share.

Jamali: So, in the two years since Dobbs, is it your sense that the real threat comes less from the apps themselves, the people running them, and more from other parties that have access to information from those apps?

Fox Cahn: Definitely. And what we’ve seen for years is that people have been arrested, have been prosecuted, because of things that seem pretty distant from abortion. It’s been search engine results, it’s been text messages, it’s been location data. It hasn’t been information from specific period tracking apps.

Jamali: What can consumers do to protect their sensitive information? What advice do you have there?

Fox Cahn: Well, one thing that we all need to do is go through threat modeling. Think about who could potentially misuse that information against us and then look at the ways that we can start to every day, bit by bit, chip away at the amount of information that is vulnerable. For anyone who thinks that they might need an abortion, it’s really something that they need to think about before they’re actually seeking an abortion because by the time they’re in that position of seeking medical care, oftentimes it’s much harder to go through that threat modeling exercise — to remove apps that are collecting too much information to really make sure that they’re opting out of every form of data collection they can. And we also know that, quite frankly, with a lot of these platforms, they’re simply designed in a way where it’s impossible. That’s why I think it’s so important for us to have collective action to push companies like Google, like Facebook, to actually take steps to protect everyone. So one thing that I’m particularly proud of is that a coalition that my organization helped organize actually fought for years to get Google to reduce the location data it collects. And just last year, they announced that they would move location data from their servers to users’ devices to make it impossible for them to comply with a court order called a geofence warrant, which would potentially force them to identify every single Google user in a sensitive site such as an abortion clinic.

Jamali: Where would you say this space is headed for people that are interested in doing that threat modeling that you talked about? I mean, how quickly are things changing? How hard is it to keep up if you’re trying to protect your privacy?

Fox Cahn: Well, one thing I want to emphasize is that oftentimes right now the most dangerous option for someone who has an unwanted pregnancy is to not get the abortion care that they need. And so while these dangers are real, and these risks need to be taken seriously, none of this should be a deterrent for abortion seekers to gain care. What we know is that there’s an arms race right now across the United States to really weaponize these different apps as a policing tool, including for abortion prosecutions. And I’m really fearful that as we continue to see more and more political pressure brought to bear on local prosecutors in states that pass increasingly stringent abortion laws, that we’re going to see increasingly Orwellian efforts to not just seize data by force using the court order, but to purchase it on the open market. And right now, there are almost no protections against police purchasing data about the public, even when it’s data that they wouldn’t be able to obtain with a warrant, because the courts often say that if you’re using public dollars instead of public legal process, the Fourth Amendment — our constitutional right against search and seizure — simply doesn’t apply.

More on this

For a look at the very real consequences that tech surveillance can have on people seeking abortions, here’s the story of Jessica Burgess, a mom in Nebraska who helped her teenage daughter access abortion pills. Police used warrants to obtain the pair’s private Facebook messages where they discussed plans to end the daughter’s pregnancy.

Facebook parent Meta said in a statement at the time that it received “valid legal warrants from local law enforcement,” which came to them before the Supreme Court’s Dobbs decision. It said, “The warrants did not mention abortion at all.”

NPR noted that as a matter of policy, most big tech companies comply with warrants that are legal and valid in the jurisdictions they come from. One legal expert told Time magazine that many people assume direct messages on big social media platforms like Facebook, Instagram and Twitter will stay private, but they shouldn’t make that assumption. The expert added that law enforcement can usually obtain messages as long as authorities can show probable cause.

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