The case of a Nebraska woman charged with helping her teenage daughter terminate her pregnancy after investigators obtained Facebook messages between the two has raised new privacy concerns in the post-Roe world.
Since before the U.S. Supreme Court overturned Roe v. Wade in June, Big Tech companies that collect personal information about their users have faced renewed calls to limit that tracking and monitoring, amid fears that law enforcement or vigilantes could use that data against people who seek abortion or those who try to help them.
Meta, which owns Facebook, said Tuesday it received order confirmations requesting notices in the Nebraska case from local law enforcement on June 7, ahead of the Supreme Court decision overruling Roe. The plans, 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 stillborn infant.”
In early June, however, the mother and daughter were charged with only a single felony charge of removing, concealing or abandoning a body, and two misdemeanors: concealing the death of another person and false reporting.
It wasn’t until about a month later, after investigators reviewed the private Facebook messages, that prosecutors added the abortion-related charges against the mother.
History has repeatedly shown that when people’s personal data is tracked and stored, there is always a risk that it could be misused or abused. With the Supreme Court’s overruling of the 1973 Roe v. Wade decision that legalized abortion, collected location data, text messages, search history, emails and seemingly innocuous period and ovulation tracking apps could be used to prosecute people seeking abortions — or medical care. 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 digital rights nonprofit. .
WHY DID FACEBOOK MESSAGES?
Facebook owner Meta said it received a court order from the police on the matter, which did not mention the word “abortion”. The company has said that officials at the social media giant “always scrutinize every government request we receive to ensure it is legally valid” and that Meta fights back against requests it believes are invalid or too broad.
But the company provided information to investigators in about 88% 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 the response would have been different if the arrest warrant had mentioned the word “abortion.”
NOT A NEW PROBLEM
Until last May, anyone could buy a weekly load of data on clients at more than 600 Planned Parenthood sites around the country for as little as $160, according to a recent Vice investigation. The files included patients’ approximate addresses – taken from where their mobile phones ‘sleep’ at night – income groups, time spent at the clinic and the top places people visited before and after.
That’s all possible because federal law — specifically HIPAA, the 1996 Health Insurance Portability and Accountability Act — protects the privacy of medical files in your doctor’s office, but not information that third-party apps or technology companies collect about you. This also applies if an app that collects your data shares it with a third party who could misuse it.
In 2017, a black Mississippi woman named Latice Fisher was charged with second-degree murder after she sought medical treatment for a pregnancy loss.
“While receiving care from medical personnel, she was also immediately treated on suspicion of having committed a crime,” civil rights attorney and Ford Foundation Fellow Cynthia Conti-Cook wrote in her 2020 article, “Surveilling the Digital Abortion Diary.” Fisher’s “statements to nurses, medical records and the autopsy records of her fetus were turned over to local police to investigate whether she intentionally killed the fetus,” she wrote.
Fisher was indicted on a second-degree murder charge in 2018; conviction could have led to life in prison. The murder charge was later dropped. However, evidence against her included her online search history, which included questions about how to induce a miscarriage and how to buy abortion pills online.
“Her digital data provided prosecutors with a ‘window into (her) soul’ to support their general theory that she did not want the fetus to survive,” Conti-Cook wrote.
THE INDUSTRY’S ANSWER
Although many companies have announced policies to protect their own employees by paying for necessary out-of-state travel to obtain abortions, tech companies have said little about how they might cooperate with law enforcement or government agencies trying to prosecute people who seek abortions where is illegal – or who helps someone to do it.
In June, Democratic lawmakers asked federal regulators to investigate Apple and Google for allegedly defrauding millions of cellphone users by enabling the collection and sale of their personal data to third parties.
The following month, Google announced that it would automatically purge information about users who visit abortion clinics or other sites that could trigger legal problems following the Supreme Court ruling.
Authorities and law enforcement can subpoena companies for data about their users. In general, Big Tech guidelines suggest that companies will comply with abortion-related data requests unless they see them as overly broad. For example, Meta pointed to its online transparency report, which states “we comply with government requests for user information only where we have a good faith belief 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 would have been able to read the messages if they had been “end-to-end encrypted” as messages on Meta’s WhatsApp service are protected by default.
“Meta needs to flip the switch and make end-to-end encryption a standard in all private messages, including on Facebook and Instagram. Doing so will literally save pregnant people’s lives,” said Caitlin Seeley George, Campaigns and CEO of the non-profit rights group Fight for the Future.
THE BURDEN ON THE 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 encourage turning off phone location services — or simply leaving your phone at home — when seeking reproductive health care. To be sure, they say, it’s a good idea to read the privacy policies of all health apps you use.
The Electronic Frontier Foundation suggests using more privacy-conscious browsers like Brave, Firefox, and DuckDuckGo—but also recommends double-checking their privacy settings.
There are also ways to turn off ad identifiers on both Apple and Android phones that prevent advertisers from tracking you. This is generally a good idea anyway. Apple will ask you 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.