‘Uterus surveillance’: The scramble to keep abortion data from prying eyes

Telemedicine abortion groups, fearful of digital surveillance from states curbing access in a potential post-Roe nation, are shoring up privacy defenses and urging people seeking abortions to take steps to protect their data.

If the Supreme Court overturns Roe v. Wade, telehealth would be crucial to people seeking abortion care, particularly those who live in states that would ban the procedure. Many people are expected to drive across state lines for virtual visits from their cars or have abortion pills mailed to a state where they are allowed, experts said — moves that could create legal risks.

“We've seen pregnant people being arrested and prosecuted for years using electronic surveillance. … We can only imagine how much worse it will get in the post-Roe world,” said Albert Fox Cahn, head of the nonprofit organization Surveillance Technology Oversight Project. “We're going to see a huge focus on surveillance of telemedicine and online abortion services because for millions of Americans, that's going to increasingly be their only way to secure safe abortion care.”

Privacy organizations, legal groups and abortion rights advocates fear that state law enforcement could issue broad warrants for information like internet search histories or phone location data to identify people who seek abortion care or to obtain records on patients who use online abortion services.

Some states could try to punish people who travel to another state for a legal abortion and return to their home state, said Mary Ziegler, a professor at the Florida State University College of Law and an expert on the legal battle over abortion.

“This is not going to be a scenario where red and blue states most likely just leave each other alone,” Ziegler said.

Abortion rights groups worry the surveillance — which advocacy groups believe can be unconstitutional — could be used to prosecute people getting abortions, making it even more daunting to have the procedures in a post-Roe world. 

Several telemedicine abortion groups told POLITICO they are reluctant to make security practice details public, but others discussed some ways they are preparing for the looming Supreme Court decision.

Choix, an online reproductive health clinic, doesn’t collect data on the state patients live in — just where they’re seeking care — to protect privacy, CTO Mark Adam said. The company’s legal counsel is looking into ways to defend patients and providers, Adam added.

Online abortion information guide Plan C said it is weighing how to protect against potential vulnerabilities, whether from hackers or governments.

“Strange to be thinking about that in the US of A, but these are surely strange times for privacy and freedom of speech,” said Plan C co-founder Elisa Wells, adding that virtual care providers worry about the court decision’s potential impact on privacy and security. “All of this is very concerning.”

Choix, along with the ACLU and privacy groups, including the Electronic Frontier Foundation, urges people seeking abortion medication to use web browsers like DuckDuckGo or Tor that limit data tracking. Groups also encourage encrypted messaging apps like Signal.

Most efforts by states seeking to curb abortion access have focused on providers, not individual patients, though a recently scrapped Louisiana bill would have allowed prosecutors to charge people who had abortions with a homicide.

Sue Swayze Liebel, state policy director for anti-abortion rights group Susan B. Anthony List, said that to crack down on virtual abortions, states will target the pharmaceutical companies and groups providing the online pills, not individuals.

“From an enforcement standpoint, states are trying to be creative,” Liebel said. “This is going to break on the corporate side of things, not on the women's side of things. … Law enforcement should use the tools available to them to crack down on those committing illegal activity and violating their laws.”

But those assurances aren’t enough for abortion rights and privacy organizations, which have long worried about how digital footprints can be used against people who had abortions. For instance, in 2018, Mississippi prosecutors used online search records tied to buying abortion pills to indict a woman for murdering what her lawyers said was her stillborn baby, though the charges were later dropped.

“There may be a race to the bottom in terms of what kinds of information and investigative techniques to exploit in service of those laws,” said Nate Wessler, deputy director of the ACLU’s speech, privacy and technology project. “It’s clear that we are going to see some aggressive investigations probably pretty quickly.”

Sen. Ron Wyden (D-Ore.) called the potential of online surveillance a “five-alarm crisis” and “uterus surveillance” at an Aspen Institute event last week, slamming data brokers who sell information on people getting abortions. Privacy hawks lament the lack of a federal privacy law to protect consumer data that has long been stalled in Congress.

It’s easy for law enforcement agencies to obtain data that could link people to abortions since many people don’t know how to protect their privacy, Ziegler said. Law enforcement agencies have increasingly used “dragnet” warrants, for example, to identify the location of anyone whose phone was in an area at a certain time, Wessler said.

Many abortion providers use third-party ad trackers on their websites from which law enforcement can purchase data, Cahn said. And advertisements for virtual abortion care on Facebook and Instagram can collect data on which users interact with the ads, he added.

Credit card information can also be singled out, Wessler said, urging companies to retain “as little data as possible.” Choix is collecting data only on what is considered necessary, something it’s still sorting out, Adam said.

“All of that information is one court order away from being a policing tool,” Cahn said.