Data Privacy Concerns Make The Post-Roe Era Uncharted Territory

It's becoming increasingly clear that the end of Roe will look vastly different than before Roe — in large part because of the role of data.

Since the Supreme Court ruled that abortion access wasn't a constitutional right, several states states have already enacted bans out of the two dozen states that are expected to ban or restrict the procedure.

The court ruling has prompted a wave of women to delete their menstrual cycle apps out of worry about potentially incriminating themselves in the future. On social media, some have encouraged using coded language when posting about abortion access as a way to avert law enforcement's attention. And in Congress, some Democratic lawmakers are working on plans to better protect people's personal data as it relates to reproductive health.

Although there's still a lot that's still unknown about how or what kinds of data will be used as evidence, digital privacy advocates are encouraging both abortion seekers and supporters to err on the side of caution.

"The depth of information about us that the police can try to access in investigations is unprecedented in human history," said Nathan Wessler, the deputy project director of the Speech, Privacy and Technology Project at the American Civil Liberties Union.

"We are likely to see in states that are banning abortion, really invasive investigations into people who are seeking medical care," he added.

Data may be used against anyone seeking reproductive care

It's not just call histories, text messages and emails that may be used to prosecute, but also location data, online payment records, Google searches and fertility tracking apps, data experts predict.

That list may only begin to scratch the surface because when it comes to personal data, it's still unclear how much we produce and who can see it.

"We live in a digital age when our activities, our movements, our transactions and our communications leave a digital trail," Wessler said. "And it is extraordinarily hard to eliminate all of the digital trails that might be of interest to law enforcement."

He also worries that a wide spectrum of people seeking reproductive care will be subject to invasive, digital investigations by the police.

"A woman who shows up in an emergency room after a miscarriage may suddenly be subject to police digging through her every digital communication record to figure out whether it's a miscarriage or not," he added.

The Electronic Frontier Foundation, a digital privacy advocate, says that period tracking apps don't pose the most immediate danger for women seeking abortions in states where they are banned. Rather, the group mentions text messages, browser histories and emails as being more commonly used in criminal investigations. The group recommends using encryption and being aware of your phone's privacy settings.

Personal data may be in the hands of bounty hunters

In some states, it won't just be law enforcement who can get their hands on people's personal data.

So far, Texas, Oklahoma and Idaho have passed citizen-enforced abortion bans, meaning anyone can file a civil lawsuit if they believe an abortion was performed and possibly win at least $10,000.

This bounty system will also allow plaintiffs to request troves of data in order to build their case, according to Eva Galperin, director of cybersecurity at EFF.

Although there's still a lot to understand about who may be sued or what kinds of digital investigations may take place, Galperin adds that there's a risk in the uncertainty.

"It's terrifying," said Galperin. "Suddenly, if you're doing abortion support, it's much harder to know who to trust."

Pregnant people of color may be under great digital surveillance

What's left some privacy experts on edge is how much is unknown about how the growing number of state laws that criminalize abortions will be enforced.

"They are often broad and vaguely written, and this was their purpose," said Galperin. "And the reason for that is because they want people who are seeking abortions and providing abortion support to assume the worst and therefore, not act."

Galperin believes the threat of digital surveillance won't stop people from seeking or supporting such procedures but it will pose great risk for those seeking care and disproportionately impact pregnant women of color.

"People of color have always been the guinea pigs for surveillance and for cracking down on any kind of unwanted behavior in the United States," Galperin said.

Wessler adds that the degree of tech savviness, time and effort required to avoid leaving a digital footprint might not be achievable to some, which is why he believes the federal government needs to do a better job in protecting pregnant people in crisis.

"If our data is out there free for the taking without protections against corporate misuse and government misuse, we're in a bad place," he says. "That's why we really need better legal structures to protect us."