In the three weeks after the release of a draft opinion from the United States Supreme Court promising to overturn the country’s federal constitutional right to abortion, reproductive rights activists and privacy advocates are working to understand how such a change would affect Americans. A new report from the Surveillance Technology Oversight Project, released today, lays out ways that police, prosecutors and private parties will be able to rely on existing data access mechanisms and tracking tools to enforce state abortion bans.
The research underscores what privacy advocates have warned about for decades: A surveillance state designed to track certain types of behavior can easily and inevitably be adapted to other purposes.
“None of the tactics we’ll see used to target pregnant people will be new,” said Albert Fox Kahn, executive director of the Surveillance Technology Oversight Project. “We’ve seen these same surveillance techniques developed in the name of immigration enforcement, national security, counternarcotics, and so many other law enforcement priorities.” And the truth is, when you develop these techniques, you are at the whim of those in power, and whatever they decide after that, they will call a crime.
Without a federally recognized abortion right in the United States, vast amounts of data generated and collected about consumers, web users, and anyone who interacts with digital systems can be tapped by investigators seeking information about pregnant people. And tech companies will face demands from law enforcement for user data related to abortion investigations. STOP highlights that geofencing warrants – the investigative technique where law enforcement requests data from devices used in a specific area over a specific period of time – is a prime example of a controversial surveillance mechanism that can and likely will be easily repurposed to to investigate people who may want or have had abortions. Similarly, investigators could use keyword search warrants to identify and track people who use search engines to find abortion information, providers, or abortion facilities.
STOP, which is based in New York, is advocating for the state to pass proposed legislation to ban keyword warrants and geofencing, a law that would be the first of its kind in the US and could offer a template for other states to follow .
The study also states that pro-choice states would need to review local, interstate and federal data-sharing initiatives — including participating in “fusion centers” that allow multiple law enforcement groups to share information. These and other controversial police initiatives to fight terrorism and track undocumented Americans could quickly be expanded to investigate pregnant people, reproductive health workers and others. A recent investigation by Georgetown Law’s Center on Privacy & Technology showed the extent to which U.S. Immigration and Customs Enforcement has been able to expand its surveillance powers by partnering with local and state agencies and combining multiple sources of data into what the researchers called ” American Dragnet.”
STOP also warns that law enforcement’s tactic of creating fake social media accounts to trick people into revealing their interests or intentions will easily feed into abortion investigations.
“In digital security and data privacy, we always say it’s all about how motivated your adversary is,” says Andrea Downing, founder of the nonprofit Light Collective and a security and privacy researcher focused on patient populations and social media. “And in this case, a lot of our data as individuals is already out there. Some kind of combination of your fertility data, your dating app history, your location data, your shopping — you can see how that can paint a picture without you even realizing it. And it’s not one person’s fault.”
STOP’s research reflects the idea that while people can take steps to protect themselves and their data from prying eyes, structural changes and legislation are needed to protect them.
“Just because we’ve had years of this seemingly endless government surveillance doesn’t mean it’s inevitable.” It’s not the technology that makes the choices, it’s the legislators,” says STOP’s Fox Kahn. “But for now, what we keep telling each other in the office is that after Rowethings won’t look like 1973. They will look like 1984.”
