The Washington PostDemocracy Dies in Darkness

Digital surveillance presents new threats to reproductive freedoms

Prosecutors already rely on searches, text messages and emails about abortion care as evidence

Balloons with the slogan “Bans off our bodies” during a protest outside the Supreme Court on Dec. 1, the day of the arguments in the Mississippi abortion rights case Dobbs v. Jackson Women's Health. (Evelyn Hockstein/Reuters)

In 2017, a grand jury in Mississippi indicted a Black woman for the murder of her stillborn fetus.

One piece of evidence they used to build their case was gathered from her Google search history — during the investigation, prosecutors scoured her phone and extracted a search for “buy misoprostol abortion pill online.” She faced up to 40 years in prison.

Her defense team, including National Advocates for Pregnant Women, and advocacy by the Mississippi Reproductive Freedom Fund and Color of Change, successfully pressured prosecutors to drop the charges. Despite that, the use of digital forensic tools to investigate pregnancy outcomes has continued. It’s a situation that presents an insidious threat to our fundamental freedoms, and one that combines corrosively with the widespread criminalization of pregnant women and other pregnant people across the country.

The widespread and unregulated use of digital forensic tools by law enforcement to conduct fishing expeditions on people’s communications, search histories, location histories, photographs and social networks, among other things, significantly broadens the state’s power to intrude into our head space. These tools give police unprecedented and unchecked access to people’s thoughts, questions, movements and affiliations.

For most pregnant people managing a time-sensitive health crisis, there are no alternatives to using their smartphone to seek information, help, abortion medication and other support. In the face of mounting threats to abortion access and limited options, pregnant people will increasingly be vulnerable to having their digital footsteps cemented as evidence that police, prosecutors and litigious private parties may use against them. Such investigations can expose pregnant people — including those who have merely researched abortion — to grave legal peril.

The next normal: The future of medication abortion is at home

During earlier phases of the coronavirus pandemic, advocates successfully pushed the Food and Drug Administration to allow pregnant people easier access to abortion medication by temporarily lifting the requirement for patients to receive the pill in person. Providers can now meet with their patients via video and patients can receive medication in the mail or at their local pharmacy. But these new FDA rules are powerless in states where separate laws require a physician to be present with their patient. As a result, patients in at least 19 states who find in-clinic options inaccessible will continue to rely on the Internet to find abortion medications.

Searching the Internet at home may feel like a private act, but as we saw in Mississippi, prosecutors already rely on pregnant people’s Google searches, text messages and emails about abortion care as evidence.

Last year, Upturn, a technology policy organization, released a report detailing the widespread and unregulated nature of digital forensic analytical tools across the United States, which found that smartphones are frequently handed over to authorities voluntarily. As that report reveals, once law enforcement has a device in hand, police departments can use forensic tools to transfer the data on it into documents that can be searched by keyword or image, communications, location data and more. That information can, in turn, be organized into chronological digests, or mapped onto geographic or social network charts.

In previous cases, we have seen law enforcement take a person’s text messages with their trusted contacts and combine them with email receipts for online medication to imply intent to terminate a pregnancy. In other words, handing one’s smartphone to an officer amounts to digital self-incrimination — without a Miranda warning.

Outside of Michigan, where voters passed a constitutional amendment requiring law enforcement to secure a warrant to search digital devices, no laws limit these tools. They can be used to extract any type of information from digital devices, regardless of when it’s used or how long it’s stored. In Wisconsin, for example, the state’s Supreme Court allowed the use of digital evidence in a case even though it was extracted by a different sheriff’s department months earlier to investigate a different crime. Nothing prevents law enforcement from similarly targeting any pregnant person whose digital information is already in its possession.

Texas abortion providers ‘won’ in court Friday. The future is bleaker than ever.

Fortunately, organizations are taking on the digital threats to pregnant people. The Digital Defense Fund hosts trainings about digital surveillance, provides digital security support and distributes information on strategies to protect pregnancy privacy. A coalition of civil society organizations has been instrumental in limiting the use of surveillance and forensic technologies. Individually and collectively, these groups have not only advocated for the Michigan law that requires a warrant for digital devices, they have also fought back against facial recognition, cell site simulators and other surveillance technologies commonly used by law enforcement.

Addressing these digital threats is obviously only one component of how activists and organizations are fighting threats to pregnant people in the face of S.B. 4 and S.B. 8 in Texas and other challenges to Roe v. Wade. Organizations such as If/When/How, a reproductive justice nonprofit, work to stop the criminalization of people who end their pregnancies. One way they do this is by piloting the Repro Legal Defense Fund to cover bail and fund strong defenses for people who are investigated, arrested or prosecuted for self-managed abortions. If/When/How also operates the Repro Legal Helpline to provide free, confidential legal information and advice about self-managed abortion. Reproaction hosts trainings to teach about self-managed abortion. We Testify shares stories from those who have had abortions, including under circumstances now criminalized by the new Texas law S.B. 4, which punishes the distribution of abortion medications to people outside of a clinical setting with up to two years in prison. Sharing the stories of real people affected by such laws — and otherwise destigmatizing abortion — is critical to resisting the criminalization of pregnancy outcomes.

As lawmakers address the harms of new technologies, regulatory exceptions made for law enforcement will inevitably expose everyone, especially pregnant people — and those who support them — to digital self-incrimination. In a country that is criminalizing abortion and deploying surveillance tools to investigate miscarriages, stillbirths and other pregnancy outcomes, justice will only be possible by defending rights to both digital and bodily autonomy.

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