Privacy experts are raising concerns that smartphone data from apps and social media could be used to target and arrest people who are pregnant and seeking to get an abortion. After news of the landmark 1973 Supreme Court decision Roe v. Wade possibly being overturned, they are encouraging people to step up their efforts to keep their reproductive choices private.
“There is a very real concern for people involved in the abortion access movement,” said Daly Barnett, a staff technologist at the Electronic Frontier Foundation who recently published a guide for keeping abortion information private. “This is a great example of why consumer privacy is paramount for lots of communities.”
Social media platforms, period-tracking apps, and other kinds of tech companies collect a vast array of data from people that can reveal detailed information about their reproductive health, such as their text messages, location history, purchasing habits and menstrual cycles. The U.S. does not have a comprehensive federal privacy law, leaving people with few ways to prevent their data from being bought, sold, or accessed by law enforcement.
“We need to pass a consumer privacy law to restrict how Americans’ private data is collected, used and shared. Reducing the amount of sensitive data that companies hold would also make it harder for radical right-wing prosecutors to sift through private records hunting for women seeking abortions or birth control,” Sen. Ron Wyden, D-Ore., said in a statement Wednesday. “And companies need to decide if targeting advertisements for a bigger profit is worth putting someone’s life at risk.”
Even fitness trackers can produce sensitive health information that may be used to incriminate pregnant people. Claire, a woman in Brooklyn who gave birth to a child in February, said her Fitbit device recently invited her to participate in a “Pregnancy & New Parent Study,” even though she never recalled telling it that she was pregnant.
“It did occur to me that they may have identified me because my sleep pattern has changed and is now broken up into chunks every night,” said Claire, who asked to use her first name because she is not authorized to speak to the press by her employer.
In 2016, Fitbit highlighted on its official blog how its devices can detect physical changes that occur when someone becomes pregnant, such as increased heart rate. Alphabet, which owns Fitbit, did not respond to a request for comment.
Cynthia Conti-Cook, a technology fellow at the Ford Foundation who has researched digital surveillance and abortion, said that while data collected from something like a wearable device might sound frightening and futuristic, the most common way that pregnant people are surveilled is through their cellphones.
“The tools that we have seen used against pregnant people are smartphones, and I think the boringness of that answer is something to contend with,” she said. “It is an extremely powerful tool that generates a large amount of data on what we’re thinking, where we’re going, who we are paying attention to, and what we’re curious about.”
Conti-Cook previously wrote about a woman named Latice Fisher who was indicted for murder in 2017 after experiencing a pregnancy loss in Mississippi. Medical staff suspected she had committed a crime and turned her records over to local police. Prosecutors later convinced a grand jury to indict Fisher with second degree murder by using her internet search history, which showed she had searched for terms like how to “buy abortion pills,” according to court filings.
The murder charge against Fisher was later dropped. But as Conti-Cook wrote in a 2020 article in the University of Baltimore Law Review, authorities likely would not have been able to prosecute her “without the information in her phone.” In other instances, law enforcement has used evidence such as text messages and email receipts to indict women for crimes like alleged feticide.
Farah Diaz-Tello, legal director and senior counsel at If/When/How, a reproductive rights policy and advocacy organization, said she has seen several cases in which internet search data was used to prosecute pregnant people. “Having searched for information about how to prompt a miscarriage gets used to prove that a person had an abortion, irrespective of whether there is any other indication,” she said.
Since 2006, more than 1,300 people have been arrested, detained, or punished for allegedly committing crimes related to their pregnancies, according to National Advocates for Pregnant Women, a civil rights group. Over the last few decades, a number of states have passed so-called “fetal assault” laws targeting pregnant people for activities seen as harmful, according to the Guttmacher Institute, which supports abortion rights, and Amnesty International.
Barnett said people can take simple steps to better protect their online privacy. When messaging with friends and family, she suggests using coded language that doesn’t refer to abortion or pregnancy directly.
People also can decide ahead of time what they are willing to share online and promote a culture of consent with their contacts. For example, Barnett said, they can ask their friends if they are comfortable discussing their health care choices through messaging apps, or would prefer speaking face-to-face or by phone.
Barnett also recommends turning off location-sharing features whenever possible. Last week, the tech site Motherboard reported that data brokers were selling information about where people who visited abortion clinics had come from and the places they went to afterward. (Some companies later removed the capability from their websites.)
To minimize web tracking when pregnant people are discussing abortion or searching for information about it, Conti-Cook said they should use encrypted messaging apps like Signal and internet browsers with enhanced privacy capabilities, such as Brave and Opera. These measures can help prevent authorities from monitoring conversations as well as the websites people view.
“The most important thing for people to keep in mind is that the trends we are seeing in law enforcement use of people’s data are not unique to abortion, nor are they so sophisticated that people who are concerned can’t take steps to mitigate them,” said Diaz-Tello.
But experts said that Americans should not be solely responsible for safeguarding their data if Roe is overturned.
Barnett said Congress needs to finally pass privacy protections for all Americans, not just those seeking an abortion. Some lawmakers have tried to introduce legislation in recent years that would regulate how tech companies can collect and share consumer data, but those efforts have largely stalled.
“There needs to be a comprehensive privacy law put in place, and the responsibility to uphold that law should be put on the platforms and internet companies,” Barnett said.
Sen. Wyden said he would make a renewed push to get the Fourth Amendment is Not For Sale Act passed, which he introduced last year along with a bipartisan group of more than a dozen other senators. It would prevent data brokers from selling Americans’ personal information to law enforcement and intelligence agencies without a warrant.
“It would make it harder for Republican states to buy up big databases of information without warrants and then hunt down women seeking an abortion,” Wyden said. (NBC News has seen no evidence to suggest such an effort is currently underway.)
Americans currently can’t even expect the information they share with health care providers to be kept private, said Dana Sussman, the deputy executive director of National Advocates for Pregnant Women. Passed in 1996, the Health Insurance Portability and Accountability Act, or HIPAA, is supposed to prevent hospitals and other health care facilities from sharing patient records under most circumstances.
But there’s an exception for when a provider believes in “good faith” that a crime has occurred. Sussman noted that in cases like Fisher’s it is often a health care worker who first alerts authorities that a law may have been broken.
“If we’re criminalizing a pregnant person and creating a valid possibility that a crime is being committed, then your HIPAA privacy protections go out the window,” she said.