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With Roe overturned, tech companies will have to weigh big data questions

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People protest in response to the Dobbs v. Jackson Women's Health Organization ruling in front of the U.S. Supreme Court on June 24, 2022.

People protest in front of the U.S. Supreme Court on Friday after the court overturned the landmark Roe v. Wade case, erasing a federal right to an abortion. Brandon Bell/Getty Images

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The U.S. Supreme Court has overturned Roe v. Wade, the 1973 landmark case that guaranteed a constitutional right to have abortion. So now, states will determine whether people have those reproductive rights.

About 26 states will likely ban or nearly ban abortion, given laws on the books or in the works.

When the draft opinion of this Supreme Court decision was leaked in early May, we reported about the privacy concerns around some period-tracking apps and other online activity. Now that the official opinion is out, how will tech firms move forward in a post-Roe world?

Marketplace’s Kimberly Adams posed that question to Rebecca Wexler, a law professor at University of California, Berkeley, and co-director of Berkeley Center for Law & Technology. She said big and small tech companies will need to have a response to the future of users’ data. The following is an edited transcript of their conversation.

Rebecca Wexler: They’ve either got to help protect pregnant people who are seeking medical care, or they’re going to help anti-abortion prosecutions. And the reason is that Big Tech is too big a part of our information ecosystem. They’re too big a part of the law enforcement landscape to opt out. Anything they do or don’t do, it’s going to be a choice with consequences. It also means they’ve got a lot of power at this point. They have power to reclaim some of the privacy from government intrusion that Roe once guaranteed, and that the court has just eviscerated.

Rebecca Wexler (courtesy Berkeley Law)

Kimberly Adams: What about not just Big Tech — what about these companies that do traffic in data that’s normally for sale that monitor movements of people and things like that?

Wexler: There’s intermediary data brokers, there’s the cellphone apps that are tracking your location everywhere you go. And some of those are smaller, some of those are larger. But each one is going to be implicated now in reproductive freedom, because as we move through the digital world, we released digital exhaust: data. That data is a window into everything we’re doing. All of that data can be relevant evidence in criminal prosecutions. It already has been — Fitbit data has been used in criminal prosecutions. In the abortion space, text messages, web search histories, unencrypted emails have already been used to charge one woman who miscarried with murder and another with feticide.

Adams: You’ve given a specific example there, but how much of a risk, do you think, there really is to this being widespread? Several people have said that this is a little bit overly alarmist.

Wexler: Oh, digital data is relevant evidence in a vast proportion of criminal prosecutions today. There’s tens of thousands of requests, if not hundreds of thousands of requests to tech companies from law enforcement every six months — you can look at the data transparency reports that they publish. But no, this concern is not overblown. Data from service providers is a huge part of the evidence in a large percentage of criminal cases today.

Adams: With this news, we may see activists and some policymakers getting more vocal in either supporting this opinion or opposing it. What role do you think tech companies have in the dialogue?

Wexler: I think tech companies are going to be subject to a lot of political pressure to censor information on their platforms. And they should resist that pressure. Right now, access to reproductive choice requires access to information. And all the more so after this opinion has come down. Pregnant people who want to exercise reproductive choice are going to need to know how to find an abortion clinic, perhaps across state lines. They’re going to need information about accessing medication abortion. They’re going to need that information to have effective choice today. And the way they’re going to try to get it is online.

But unfortunately, social media platforms have a history of restricting sex education information, and they could also choose to censor reproductive choice information. So as this political debate heats up, there are going to be more calls to tech companies to shut that information flow down. One of the things that they can do to resist that is to make sure they exercise their own constitutional rights not to censor information online on their platforms. Another thing they can do is provide free services to websites that are distributing information about how to access medication abortion or abortion across state lines. They can provide free security services to protect those websites from being hacked by vigilantes who would kick them offline. On the other hand, they could also stop the flow of that information. They could deny security services and leave small websites vulnerable to vigilantes. They could freeze payments, they could cancel domain registrations, they could clamp down that way so that people who are seeking medical care will be unable to get the information that they need to access it.

Adams: Many states and local governments have been trying to woo tech firms out of Silicon Valley. How do you think this decision will affect the distribution of tech businesses and talent throughout the country, especially in the era of more remote work?

Wexler: It’s a really interesting point that where the workforce is located is going to have some influence on tech companies’ decisions. Because if the majority of the tech company workforce is in pro-choice states, those employees may put pressure on the companies to adopt pro-choice policies around the flow of information or not volunteering to cooperate with law enforcement. The more that the workforce shifts to anti-abortion states, the more pressure that the companies are going to face in the other direction. So Austin has become a big hub for tech companies; as you said, remote work — the employees could be anywhere — that’s going to change the winds of political pressure on those companies.

Adams: What are some of the pressures that tech firms face both internally and externally as they weigh their next move here?

Wexler: Internally, tech companies are going to face pressure from their own employees about their political posture and choices on whether to help anti-abortion prosecutors or help pregnant people seeking medical care. Depending on where those employees are located — could be in anti-abortion states where tech companies have moved their headquarters out of Silicon Valley; it could be remote workforces that are located in anti-abortion states; or it could be the employees that are located in pro-choice states where abortion is going to remain legal — depending on where that critical mass of employees are, they’re going to get different types of pressure to make different choices from their own workforces. At the same time, they’re going to get pressure externally from politicians. Texas just had a law that tried to compel tech companies to censor certain types of political content and that was struck down as unconstitutional. We’re going to see more of that. We’re going to see more calls from politicians, more laws that are trying to be enacted that will compel companies to censor information about accessing reproductive medical care.

Rebecca Wexler co-wrote an op-ed on this topic for The Washington Post along with Aziz Huq, a law professor at the University of Chicago.

Also, Business Insider is keeping a running list of responses to the Supreme Court decision from tech and other companies.

Time magazine has an investigative piece about the data collected by so-called “crisis pregnancy centers” around the country. These facilities, affiliated with anti-abortion groups, often attempt to dissuade pregnant people from having an abortion, while also collecting a great deal of information about those looking for reproductive health services. This is information that abortion-rights supporters are now worried could be used in prosecutions under new anti-abortion laws.

Here is some of our own coverage on this issue: What this could mean for in vitro fertilization, the technologies that support early birth viability and what this decision could mean for user privacy on apps and online. For a detailed list on how to better protect your user data online, take a look at the Electronic Frontier Foundation’s surveillance self-defense tips.

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