Data privacy concerns linger two years after end of Roe v. Wade

RICHMOND - Since the U.S. Supreme Court overturned the landmark Roe v. Wade ruling that granted a constitutional right to an abortion, pro-choice activists have worried law enforcement could use women's data, technology use and even online searches to pursue prosecutions.

But while prosecutions and legal actions are often brought using more low-tech means, states are increasingly looking for new ways to crack down on abortion.

That has led to concerns that people's extensive online footprints could be used to enforce bans in the more than a dozen states that have imposed new restrictions post-Roe.

"The concern, I think, is in large part because our use of data is so pervasive in our everyday lives. And it's something we should definitely be concerned about – what is the (data) we're creating? Who owns it? What can they tell about us?" asked Farah Diaz-Tello with If/When/How, an abortion rights legal group.

In the run-up to the 2022 ruling, concerns were also raised that fertility and period-tracking apps could be used in a similar way, but those have not come to pass, advocates said, as states take other steps to shore up data privacy protections surrounding reproductive healthcare.

"If (people) are concerned about this, they don't have to delete their period tracker, but they do need to understand what are the things that put them at risk," Diaz-Tello said.

 Though prosecutions are rare, If/When/How documented 61 cases between 2000 and 2020 of people who were criminally investigated or arrested for allegedly ending their own pregnancy or helping someone else do so.

Most people being criminalised right now are having contents of communications and online searches examined, so law enforcement authorities do not necessarily need to engage in more intricate "fishing expeditions", said Eva Galperin, director of cybersecurity at the Electronic Frontier Foundation.

But that could change.

"As it becomes more difficult to find sources of data, they will come. And when they do, I want to make sure that the companies don't have the data in the first place," she said.

My body, my data

In response to such concerns, a handful of states have passed laws intended to protect the data privacy of those using reproductive health services.

Washington state's "My Health, My Data Act,", which requires companies to take additional steps to secure health data, took effect this year.

The act, as well as new laws in California and Connecticut, also prohibits "geofencing" – or data targeting based on someone's location – near health clinics.

"I think that this is definitely an area where some sort of legislation could help," Galperin said. "(Our) data privacy laws are laughably weak."

In one case last year, police used a girl's cell phone data to track her down after her mother had taken her out of the state of Idaho to get an abortion.

But it is frequently much more rudimentary means that ensnare people in current abortion-related litigation and law enforcement action, advocates said.

"It's not necessarily seeking information about people's Google searches – it's literally tricking them into opening their phone and looking on their phone at what they searched," Diaz-Tello said.

In one case where a Texas man last year opened a wrongful death lawsuit over his then-wife's alleged use of abortion pills, Diaz-Tello pointed out that attachments in the lawsuit were simply photos of her phone's screen.

"You can see his thumb on there – he has taken her phone from her, opened it without her permission, and then taken pictures of her text messages. This is low tech," she said.

"What it comes down to is breaches of trust by human beings."

Period and fertility trackers

Before Roe v. Wade was overturned in 2022, advocates had raised concerns that even period or fertility tracker apps could end up being used against women in law enforcement settings, but those fears have not been realised.

"I would tell people to chill the hell out about period trackers," Galperin said.

Still, in a recent Duke University study, on the question of how women got information post-Roe, slightly more were concerned about period trackers than their online search histories. 

"I think that's a huge risk, especially now that we have these AI-enabled chatbots and people can ask questions, for example, how to get (an) abortion, where to get (an) abortion – all this information that they're sharing online," said Pardis Emami-Naeini, an assistant professor of computer science who led the research.

"But they don't associate any risk to doing this compared to using period tracking," she said.

The study also found most of the women surveyed were not aware of their state laws on data privacy protection.

"We kind of expected people to be more concerned about privacy after the overturn (of Roe v. Wade), but that was really not the case," Emami-Naeini said.

In 2021, the Federal Trade Commission reached a settlement with Flo Health Inc. to obtain consent from the users of the company's fertility-tracking app before sharing personal health information with others. Flo is the most popular period tracking app worldwide.

The FTC had accused Flo of sharing users' sensitive health data with marketing and analytics firms, including Facebook and Google.

Flo said the agreement was not an admission of wrongdoing, and that an independent privacy audit did not identify any material gaps or weaknesses in the company's privacy policies.

After Roe v. Wade was overturned, Flo updated its features to provide for more anonymity, and a company official said it was not aware of any criminal case or prosecution resulting from Flo data.

"Flo continued to maintain its focus and dedication to protecting the rights and freedoms of its users," said Sue Khan, the company's vice president of privacy and data protection officer.

In her time tracking cases, Diaz-Tello said she had not seen any in which a period tracker was an issue.

"Surveillance by the state and by corporations is a legitimate concern," she said.

"It also happens to be the case that when we're looking at situations in which people have been criminally prosecuted for an abortion, for an end-of-pregnancy outcome, that's really not how these prosecutions happen."

This article was updated on Friday June 21, 2024 at 18:33 GMT to clarify that Flo updated its features rather than its policies after the overturning of Roe v Wade.

(Reporting by David Sherfinski; Editing by Jonathan Hemming)