The Washington PostDemocracy Dies in Darkness

Opinion After the abortion ruling, digital privacy is more important than ever

In this photo illustration taken June 9, 2020, the Google Maps app is displayed on a smartphone in Arlington. (Olivier Douliery/AFP/Getty Images)
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In the 21st century, our phones might know we are pregnant before the people closest to us do — a reality that, with the overturning of Roe v. Wade, has become more dangerous than ever.

Digital-privacy advocates have long warned about the amount of our personal information that companies hoover up each day. Reproductive health data has never been an exception, but while this data has always been valuable to advertisers, now it will also be valuable to law enforcement in states where abortion is criminalized. Naturally, niche apps such as period trackers hold troves of knowledge about when people are or could be expecting, but so do services as widely used as Google, Apple and Facebook: Search histories, for instance, can reveal queries about nearby clinics; location tracking can show whether someone has actually taken the trip.

The vast majority of proposed laws in states likely to impose heightened abortion restrictions focus on punishing providers rather than patients. But patients’ data could be used to prosecute providers, and of course providers use the internet, too. Some laws also do explicitly punish women for ending their pregnancies, or leave open the possibility that a zealous prosecutor could seek to do so. This isn’t a hypothetical guess of a grim future; it has happened already, even with constitutional protections in place. One advocacy organization counts 1,800 cases from 1973 to 2020 of women seeking to terminate their pregnancies who were prosecuted or targeted for interventions.

Digital footprints can be a boon in such cases. Look at the Black mother of three in Mississippi who was charged with second-degree murder after a stillbirth when investigators scraped her phone and found search terms for the abortion pills mifepristone and misoprostol. She was held for weeks on a $100,000 bond; eventually a grand jury was called in and refused to indict her.

Technology companies can help by refusing to comply with requests for data that they believe are unlawful. More important, they can collect less of this sort of information in the first place. Congress can help even more by setting rules that require precisely that step. Some members have already introduced legislation devoted to protecting reproductive health data. Though passing them might be impossible given the lack of Republican support, lawmakers should seek to include a provision specifically protecting this information in the larger bipartisan, bicameral privacy bill moving through Capitol Hill. The White House, meanwhile, is reportedly preparing a letter to send to the Federal Trade Commission urging the agency to bar unfair and deceptive practices in this area.

Women across the country are already deleting reproductive health apps from their devices. They’re preparing to hide their identities as they search the web for resources, and to ensure any sensitive communications are encrypted. The burden shouldn’t be on them to protect themselves now that their right to choose is imperiled.

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