In the immediate aftermath of the Supreme Court’s leaked decision in Dobbs v. Jackson Women’s Health Organization, a wave of dystopian warnings flooded the internet. Women were urged to erase their digital footprints, delete period tracking apps, and communicate in code. A year later, myriad of digital communications have been used to fuel abortion-related prosecutions and lawsuits—from mother-daughter exchanges on Facebook to private text messages among friends.
The Center for Democracy & Technology (CDT) released a set of best practices last week for companies to adopt in order to better protect the privacy and safety of people seeking, providing or otherwise supporting abortion care.
The impact of this work is deep. In addition to states further restricting abortion, many have said they would prosecute abortion providers, insurers and even patients themselves. Some states also allow private civil actions. This law has enabled an ex-husband to sue his wife’s friends for allegedly helping her to obtain abortion medication. In our post-Dobbs society, it seems increasingly likely that law enforcement and civil litigants would turn to companies to access data that could help prove a person sought, received, aided or provided an abortion.
Data reveals sensitive information about a person’s health and healthcare choices. A person’s online searches, purchases, browsing history, texts and emails, and the location data captured by their phone might all reveal whether a person was pregnant and is now no longer pregnant. The companies that collect this type of information are not health companies, yet they hold extremely sensitive information about our health. They must be responsible for carefully assessing and limiting the personal information they collect, store and share.
It seems increasingly likely that law enforcement and civil litigants would turn to companies to access data that could help prove a person sought, received, aided or provided an abortion.
CDT’s best practices report offers guidance to a range of players in the private sector. It urges all companies to consider and closely review the types of individual user data they have access to, and minimize the collection of revealing information. If companies must collect personal data, they should retain it only for as long as necessary to perform the task it was collected for, then delete it. They should consider ways to protect the information by encrypting it and should prevent the sharing or selling of any such sensitive personal data.
Companies should also be ready if they receive law enforcement requests seeking their customers’ private data. CDT recommends that they should have strict processes for handling such requests, and should demand that investigators have a warrant for any content or other highly sensitive personal information, such as geolocation data. They should tell a customer when their data has been sought by law enforcement. Several abortion “safe states” have now passed shield laws that prohibit companies from sharing private information to support out-of-state abortion investigations, so companies should know their laws as well.
As consumers, we can protect ourselves by being smart about the companies we entrust with our data and demanding that our rights are protected.
Companies should be transparent about the data they collect, and how they protect it. They should tell customers how they handle law enforcement requests for information. They should have options that let you reduce the amount of information you share, like offering anonymous profiles, ephemeral messaging and encrypted storage that only you can access. Organizations like the Digital Defense Fund have online resources to help you protect your privacy.
As consumers, we can protect ourselves by being smart about the companies we entrust with our data and demanding more from companies to help protect our rights.
You can also advocate for companies to do more, through campaigns such as MakeDMsSafe.com.
Consumers have made it clear they’re uncomfortable with digital surveillance and the threat of criminal action for benign conduct like searching information about reproductive healthcare, said Shelley Alpern of Rhia Ventures—part of the nationwide “Don’t Ban Equality” coalition. “Many companies have also stressed they do not want to play a role in the enforcement of abortion restrictive laws.”
When companies take steps to reduce the personal data they amass—and commit not to selling or sharing that data—they rightly earn their customers’ trust.
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