Privacy Law

Marginalized communities could bear the brunt of post-Dobbs data surveillance

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Woman looking at a pregnancy app on her phone

After the Supreme Court decision overturning Roe vs. Wade, many people have become concerned about protecting their data and covering their digital tracks. But according to some legal experts, people of color and marginalized groups will be most vulnerable to surveillance.

Shortly after Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization was leaked to Politico, civil rights advocates warned women could be criminalized and surveilled if they seek abortion services.

In the past, law enforcement has used data drawn from apps, search engines queries, social media posts and text to bolster charges. And when the Supreme Court confirmed its majority ruling on June 24, there was an increase in people deleting period-tracking apps from their phones because of fears their data could be exposed, according to the Guardian.

In response, the period-tracking app Flo announced a new feature called “anonymous mode,” which will allow women to use its tech without using a name, email address or other identifying information.

“In the event that Flo receives an official request to identify a user by name or email, anonymous mode will prevent Flo from being able to connect data to an individual, meaning Flo would not be able to satisfy the request,” Flo spokeswoman Denae Thibault wrote in an email.

Meanwhile, another app, Clue, announced in May after the Dobbs draft leak, stated it would not sell users’ data to third parties or give up data to “any authority that could use it against you.”

Some civil rights groups have warned women should prepare for a new reality in which officials come after more pregnant women seeking abortions. The Electronic Frontier Foundation said, for example, that everyone “must now assume” that law enforcement might try to get their data.

The group urges people to review their privacy settings, and where appropriate, turn off location services and use encrypted messaging apps like WhatsApp or Signal. It is also calling on Big Tech and other companies to better protect users’ data and for Congress to pass proposed legislation called the “My Body, My Data” Act.

Civil rights attorneys, including American Civil Liberties Union Senior Policy Counsel Chad Marlow, say in the future law enforcement officials could demand data as part of criminal investigations into women who have sought abortions.

“We have gone full into an Orwellian nightmare when it comes to surveillance and people seeking abortion care,” Marlow says.

But Sara Ainsworth, a senior legal and policy director with reproductive justice organization If/When/How, rejects the idea that “everybody’s at risk and somebody’s watching.”

“I worry that focusing on the use of apps distracts from the fact that there are communities who have long been subjected to this surveillance,” Ainsworth says.

She says women are right to be concerned about data surveillance post-Dobbs. But she says people from marginalized communities, including immigrants and people of color, are more likely to end a pregnancy without the help of a doctor or health care worker “and therefore might be more likely to fall into the clutches of law enforcement.”

EFF Legal Director Corynne McSherry agrees people of color and other marginalized communities could be most impacted.

“We have a long history of certain communities being disproportionately prosecuted. And I can’t see any reason to imagine we won’t see that in this new wave of criminal prosecutions we anticipate,” McSherry explains.

Looming Threats

No state has any laws subjecting women to criminal liability for seeking an abortion, according to If/When/How. But that hasn’t stopped prosecutors from bringing charges against women for pregnancy loss or self-managed abortions, and such prosecutions disproportionately target women of color, according to the EFF.

Criminal charges against women usually come after a health care worker, or a family member or spouse or partner turns them into law enforcement, the EFF’s website notes. That can lead officials to examine data and tech—including text messages, emails or browser searches—to establish a woman’s intent to end her pregnancy.

That was the case for Latice Fisher, a Black woman who was charged in 2018 with second-degree murder when her baby was found stillborn in her Mississippi home, 36 weeks into her pregnancy.

In her 2020 paper, “Surveilling the Digital Abortion Diary,” civil rights attorney and 2019 ABA Journal Legal Rebel Cynthia Conti-Cook wrote that hospital staff handed over her medical and autopsy records to local police.

“The prosecutor sought to fill that gap in the initial presentation to the grand jury by arguing that Ms. Fisher’s web search history proved her criminal intent; it included searches for how to induce a miscarriage and evidence that she purchased misoprostol online,” Conti-Cook wrote, adding that was enough to convince a grand jury to indict her.

District Attorney Scott Colom dropped the second-degree murder charge against Fisher and filed a motion to dismiss it. He re-presented the case to a grand jury in light of new evidence; however, the grand jury declined to indict her again.

Ainsworth says that since Roe was decided in 1973, there have been hundreds of criminal cases filed against women over abortions or pregnancy losses.

Such prosecutions can upend the lives of the women they target but frequently end in dismissal, according to Ainsworth. She says prosecutors often use legally questionable tactics or rely on criminal statutes, such as manslaughter or homicide, to bring charges.

In 2013, the Journal of Health Politics, Policy and Law published a study uncovering more than 400 criminal and civil actions against pregnant women.

According to the National Conference of State Legislatures, at least 38 states have fetal homicide laws. These laws are meant to protect pregnant women from violence.

At the time the study was published, the NAPW stated on its website that many states had “passed anti-abortion and feticide measures that, like so-called ‘personhood’ measures, encourage state actors to treat eggs, embryos, and fetuses as if they are legally separate from the pregnant woman.”

“We found that these laws have been used as the basis for a disturbing range of punitive state actions in every region of the country, against women of every race, and disproportionately against women in the South, low-income women and African-American women,” according to the website.

But it remains to be seen whether many anti-abortion activists and lawmakers, still basking in the Dobbs victory, will support policies that criminalize and surveil pregnant women.

“In some segment of the population, there’s an appetite for criminalizing people for their reproductive decisions. But right now, the activists who are fighting for abortion restrictions do not want to see that happen,” Ainsworth says.

Legislation introduced in Louisiana this year would have made an abortion a homicide. But the bill was withdrawn after several anti-abortion groups opposed it, including Louisiana Right to Life and the National Right to Life Committee.

James Bopp, general counsel for the National Right to Life Committee, says the idea of mass surveillance of individuals seeking reproductive health care or abortion pills is a “fantasy.” Bopp says the focus of his group is only on criminal and civil enforcement of abortion bans on clinics, health care providers and doctors.

“We are against penalizing the woman, and we’re not proposing any laws that would penalize a woman,” Bopp says.

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