Enforcing Criminal Abortion Bans Post-Roe: ‘A Massive Escalation of Surveillance’

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Police arrest an abortion rights activist on Monday, June 6, 2022. (Bill Clark / CQ-Roll Call, Inc via Getty Images)

New York-based privacy group Surveillance Technology Oversight Project (S.T.O.P.) released a chilling report last month detailing the digital surveillance threats facing pregnant women who seek abortion information and services, and how these threats could escalate dramatically if the Supreme Court repeals abortion rights and states criminalize abortion.

“Police, prosecutors and private anti-abortion litigants will weaponize existing American surveillance infrastructure to target pregnant people and use their health data against them in a court of law,” according to the report, titled “Pregnancy Panopticon: Abortion Surveillance After Roe.” “This isn’t speculation—it’s already happening.”

The report explains how anti-abortion governments and private entities are already using cutting-edge digital technologies to surveil women’s search history, location data, messages, online purchases and social media activities by using geofencing, keyword warrants, big data and more.

“Every aspect of pregnant people’s digital lives will be put under the microscope, examined for any hints that they sought (successfully or otherwise) to end their pregnancy,” states the report.

Modern surveillance tools will help states to enforce criminal abortion bans on a scale that was technically impossible before Roe, posing an unprecedented threat to pregnant women and those helping them access care.

“It will be truly dystopian when police can use modern surveillance to enforce these backwards abortion bans,” said Albert Fox Cahn, executive director of S.T.O.P, which litigates and advocates for privacy and fights excessive local and state-level surveillance.

“The Supreme Court may be turning back the clock 50 years on civil rights, but anti-abortion policing will bring us an even darker future,” Cahn continued. “In 1973, police couldn’t use the surveillance tools that have become commonplace today. Suddenly, every phone, laptop, and smart device will become a potential policing tool, with pregnant people’s location data and search histories mined for evidence. Even when abortion bans stop at the state line, the surveillance will be national, giving anti-abortion police a way to track abortion care coast to coast. Even if the laws are the same as pre-Roe, the way they’re enforced will be starkly different.”

The Supreme Court may be turning back the clock 50 years on civil rights, but anti-abortion policing will bring us an even darker future.

Albert Fox Cahn

Geofence warrants, for example, enable police to force reproductive healthcare providers to expand medical surveillance of pregnant women, particularly those suffering miscarriages. To do this, police will use geofence warrants, forcing Google and other companies to identify everyone who comes into a designated area—such as an abortion clinic—during a designated time.

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Geofence warrants received by Google from state and federal law enforcement offices.

S.T.O.P. warns that police can purchase data from commercial data brokers—which they can currently do without any court oversight—and leverage commercial databases that already use big data and machine learning to predictively identify pregnant women. Using these technologies, police can track women who travel out of state for abortion healthcare and prosecute them upon their return.

“As it stands, anti-abortion activists already surveil pregnant people to intimidate them out of exercising their legal reproductive rights. Police and prosecutors already surveil pregnant people digitally to pursue cases against them,” said S.T.O.P.’s research director Eleni Manis. “If the Supreme Court overturns Roe, we expect a massive escalation of surveillance targeting pregnant people, their reproductive healthcare providers, and anyone helping pregnant people access care, including care for miscarriages and ectopic pregnancies.”

The report explains how police can use geofencing and digital keyword warrants to “cast digital dragnets” and identify people seeking abortion information online. They also note that electronic payment records and retail sales data are potent sources for abortion surveillance. Currently only one state—Massachusetts—bans geofencing near abortion clinics. Digital keyword warrants allow police to “cast digital dragnets” in order to identify people seeking abortion information online. Police are already using mass extraction technology to download all data on a user’s phone into a searchable file.

Whereas states operate under some limitations, such as probable cause requirements for warrants, private parties do not have to abide by such requirements, and can pursue claims under civil bounty-hunter laws prohibiting abortion with much less evidence than is needed to enforce criminal abortion bans. Anti-abortion “crisis pregnancy centers” already use sophisticated digital strategies to collect and share information about people visiting their centers or websites. And while current bounty hunter laws in Texas, Idaho and Oklahoma bar any enforcement action by state officials to enforce the measure, soon private bounty hunters and anti-abortion states will be able to work in tandem to target pregnant women as well as anyone who helps them find abortion healthcare.

S.T.O.P. warns that police can also purchase data from commercial data brokers—which they can do without any court oversight—and leverage commercial databases that use big data and machine learning to predictively identify pregnant women. Using these technologies, police can track anyone who travels out of state for abortion healthcare and prosecute them upon their return.

Currently, most state abortion bans explicitly exempt pregnant women from prosecution, but that may soon change. A Louisiana legislator recently introduced a criminal abortion ban that would punish women who have abortions with life in prison (this provision has since been removed from the bill).

Some states are already tracking menstruation, pregnancy and abortion. The Missouri state health department director Dr. Randall Williams testified at a 2019 state hearing that he kept a spreadsheet monitoring the menstrual periods of Planned Parenthood patients. Oklahoma issues an annual “Abortion Surveillance” report with detailed information about abortions in the state. Last January, Oklahoma state senator George Burns introduced Senate Bill 1167, the “Every Mother Matters Act,” which would establish a government database of pregnant women looking to get abortions in Oklahoma.

Many police and prosecutors are already criminally charging pregnant women for miscarriage, abortion and pregnancy loss. In 2018, Mississippi police used a woman’s own search history on how to purchase abortion pills to charge her with second degree murder following a miscarriage.

Our sprawling police state and vast prison industrial complex—which did not exist before Roe v. Wade—will likely soon be mobilized to surveil pregnant women and enforce new criminal abortion bans that will go into effect in over half of states post-Roe, further increasing the national crisis of overcriminalization and mass incarceration.

Recommendations for Protecting Privacy

Our report lays out the steps that states, abortion providers and tech companies must take to improve privacy protections for pregnant people, while also describing the steps pregnant people can take to protect themselves from digital surveillance.

Eleni Manis

In addition to explaining the digital tracking strategies of anti-abortion governments and groups, the report details ways to enhance digital privacy.

“Our report lays out the steps that states, abortion providers and tech companies must take to improve privacy protections for pregnant people, while also describing the steps pregnant people can take to protect themselves from digital surveillance,” said Manis.

Governments

S.T.O.P. recommends that state and federal lawmakers consider steps to protect people’s privacy, such as targeted bans on electronic surveillance and bans on private-sector data brokers from buying or selling information about reproductive health.

Proposed legislation in New York state would ban geofence warrants, keyword warrants and facial recognition technology, as well as ban police from purchasing geolocation data from commercial vendors.

In Congress, Senator Ron Wyden of Oregon has called for greater privacy protections, including the Fourth Amendment Is Not For Sale Act, banning police purchases of data. In the House, Rep. Sara Jacobs (D-Calif.) is introducing the My Body, My Data Act, which would restrict the data that companies such as period-tracking apps can collect or share.

Tech Companies

S.T.O.P. calls on tech giants like Apple, Facebook and Google to dramatically improve encryption and privacy protections, and to stop allowing mass police surveillance.

Abortion Providers and Advocates

S.T.O.P. urges abortion providers and advocates to “harden their digital infrastructure” to ensure the privacy of people seeking their help online by implementing stronger privacy protections into their digital platforms, only collecting data that’s absolutely necessary for their services, retaining it only as long as needed and minimizing third-party sharing. S.T.O.P. recommends that abortion providers and advocates should immediately conduct privacy audits of all electronic communication, including use of third-party social media and messaging services.

Abortion Seekers

Finally, the report details steps people can take to minimize their digital footprint when searching online for abortion information and healthcare, such as using a virtual private network and paying for services in cash. However, the authors note that no steps can fully protect the public from anticipated abortion surveillance.

The Repro Legal Helpline provides free and confidential legal advice that can help people better understand the laws and legal risk they may face in seeking abortion information online and self-managing abortion. Contact them online or call 844-868-2812.

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at [email protected] or follow her on Twitter @CarrieNBaker.