EXPLAINER: Online privacy in a post-Roe world

The case of a Nebraska woman accused of helping her teenage daughter end her pregnancy after investigators obtained Facebook messages between the two has raised new concerns about data privacy in the post- Roe world.

Since before the United States Supreme Court overturned Roe v. Wade in June, Big Tech companies that collect personal data from their users have faced new calls to limit that tracking and surveillance amid fears that law enforcement or watchdogs could use that data against people who they seek abortions. or those who try to help them.

Meta, which owns Facebook, said Tuesday it received orders to subpoena messages in the Nebraska case from local law enforcement on June 7, ahead of the Supreme Court’s decision overturning Roe. The warrants, the company added, “did not mention abortion at all,” and court documents at the time showed police were investigating the “alleged illegal burning and burial of a dead baby.”

However, in early June, the mother and daughter were only charged with one felony count of removing, concealing or abandoning a body, and two misdemeanor counts of concealing the death of another person and making a false report.

It wasn’t until about a month later, after investigators reviewed private Facebook messages, that prosecutors added abortion-related charges against the mother.

History has repeatedly shown that whenever people’s personal data is tracked and stored, there is always a risk of misuse or abuse. With the Supreme Court’s reversal of Roe v. Wade Act of 1973 that legalized abortion, location data, text messages, search histories, emails, and seemingly innocuous period and ovulation tracking apps were collected to process people seeking abortions, or medical services . take care of a miscarriage, as well as those who help them.

“In the digital age, this decision opens the door to law enforcement and private bounty hunters seeking vast amounts of private data from ordinary Americans,” said Alexandra Reeve Givens, president and CEO of the Center for Democracy and Technology, a Washington-based company. non-profit digital rights.

WHY DID FACEBOOK TAKE THE MESSAGES?

Facebook owner Meta said he received a legal order from law enforcement about the case, which did not mention the word “abortion.” The company has said that officials at the social media giant “always review all government requests we receive to ensure they are legally valid” and that Meta fights requests it deems invalid or overly broad.

But the company gave information to investigators in about 88 percent of the 59,996 cases in which the government requested data in the second half of last year, according to its transparency report. Meta declined to say whether his response would have been different if the order had mentioned the word “abortion.”

IT IS NOT NEW

Until last May, anyone could buy a week’s worth of customer data at more than 600 Planned Parenthood sites nationwide for as little as $160, according to a recent Vice investigation. The files included patients’ approximate addresses, derived from where their mobile phones “sleep” at night, income groups, time spent at the clinic and the top places people visited before and after.

It’s all possible because federal law, specifically HIPAA, the Health Insurance Portability and Accountability Act of 1996, protects the privacy of medical files in your doctor’s office, but not information that third-party apps or companies technologies collect about you. This is also true if an app that collects your data shares it with a third party that could abuse it.

In 2017, a black Mississippi woman named Latice Fisher was charged with second-degree murder after seeking medical attention for a pregnancy loss.

“While receiving attention from medical personnel, she was also immediately treated on suspicion of committing a crime,” wrote civil rights attorney and Ford Foundation Fellow Cynthia Conti-Cook in her 2020 article, “Watching the Digital Diary of abortion”. “Fisher’s statements to nurses, medical records and autopsy records of her fetus were turned over to local police to investigate whether she intentionally killed her fetus,” he wrote.

Fisher was indicted on one count of second-degree murder in 2018; the conviction could have led to life in prison. The murder charge was later dismissed. The evidence against her though included her online search history, which included queries on how to induce a miscarriage and how to buy abortion pills online.

“Her digital data gave prosecutors a ‘window into (her) soul’ to corroborate her general theory that she did not want the fetus to survive,” Conti-Cook wrote.

INDUSTRY RESPONSE

While many companies have announced policies to protect their own employees by paying for necessary out-of-state travel to obtain an abortion, tech companies have said little about how they might cooperate with law enforcement or government agencies that they try to prosecute people who seek an abortion when it’s illegal, or who help someone get one.

In June, Democratic lawmakers asked federal regulators to investigate Apple and Google for allegedly cheating millions of cellphone users by allowing their personal data to be collected and sold to third parties.

The following month, Google announced that it will automatically purge information about users who visit abortion clinics or other sites that could lead to legal trouble following the Supreme Court ruling.

Governments and law enforcement can subpoena companies to obtain data about their users. Big Tech’s policies generally suggest that companies will comply with abortion-related data requests unless they deem them too broad. Meta, for example, pointed to its online transparency report, which says that “we comply with government requests for user information only when we believe in good faith that the law requires us to do so.”

Online rights advocates say that’s not enough. In the Nebraska case, for example, neither Meta nor law enforcement could have read the messages if they had been “end-to-end encrypted” the way Meta’s WhatsApp service messages are protected by default.

“Meta needs to flip the switch and make end-to-end encryption the default on all private messages, including Facebook and Instagram. Doing so will literally save pregnant people’s lives,” said Caitlin Seeley George, campaign director and managing director of non-profit rights group Fight for the Future.

CHARGE ON USER

Unless all of your data is securely encrypted, there’s always a chance that someone, somewhere can access it. So abortion rights activists suggest that people in states where abortion is banned should limit the creation of such data in the first place.

For example, they ask to turn off phone tracking services, or simply leave your phone at home, when seeking reproductive health care. To be safe, they say, it’s a good idea to read the privacy policies of any health apps you use.

The Electronic Border Foundation suggests using more privacy-conscious web browsers such as Brave, Firefox, and DuckDuckGo, but also recommends reviewing your privacy settings.

There are ways to do it too disable ad identifiers on both Apple and Android phones that prevent advertisers from tracking you. Generally, this is a good idea in any case. Apple will ask if you want to be tracked every time you download a new app. For apps you already have installed, tracking can be turned off manually.

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