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In post-Roe era, digital privacy has a new urgency

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Concerns about how data could be used to investigate — and possibly punish — people seeking abortions have taken on new importance after the Supreme Court’s decision to overturn Roe v. Wade.

The decision is prompting some to delete period-tracking apps from phones and adopt coded language when posting online about abortions.

Speaking on Connecticut Public Radio’s Where We Live, legal experts Nora Benavidez and Lydia X. Z. Brown believe “digital dragnets” have been “decades in the making” and could have significant impacts on privacy and women’s health.

Brown is with the Center for Democracy and Technology, and Benavidez is senior counsel and director of Digital Justice and Civil Rights, FreePress. They spoke with Connecticut Public Radio’s Lucy Nalpathanchil.

This interview has been edited and condensed.

Nora, you have said this digital safety debacle was “decades in the making.” Break that down for us.

Benavidez: We’re seeing a really troubling rise in what police are doing with data. Increasingly, they are searching the data on our cellphones as part of the arrests that they make.

In the abortion context, what we’ve seen is Dobbs v. Jackson overruled the fundamental right that abortion is constitutionally protected. It’s up to the states to decide whether that is a protected right or not.

Unfortunately, we have seen dozens of states begin to introduce laws to criminalize both abortion seekers and providers. It opens up the space for us to be incredibly concerned about how police may try to build a case against women or providers in the abortion context.

After the reversal of Roe v. Wade, people were focusing on data collected from period-tracking apps, like Flow, which NPR reported has 43 million active users. But again, we just think about one particular app collecting or gathering information. That’s just the tip of the iceberg … 

Benavidez: It is. I’m glad you asked about the period-tracking apps. There’s – I think – some false concern that this is the end-all and be-all when it comes to our privacy rights.

Period-tracking apps are a way that people track their own health. The information is only circumstantial, though. Especially if a police department is trying to build a criminal case.

There are a lot of reasons someone might not be updating their tracker. It could, of course, be that they are pregnant. But frankly, they could have stopped using their app altogether, they could have just forgotten.

There are a number of other more dangerous questions before us about our digital footprint beyond these apps.

Brown: A wide, wide swath of information can be used potentially against people seeking abortions. That can be your search history, your browsing history, your credit card or debit card statements, your actual medical records, your location history or data on your cellphone, and even the content of your communications – your text messages, your emails, your messages through instant messaging apps, and other social media.

All of that data could potentially be used against you if you are seeking an abortion or if you are supporting somebody in seeking an abortion.

Everything you’ve outlined is pretty troubling for people who may be wondering, ‘Well, OK, I’m using a particular app or I’m on my browser, and I’m searching.’ Are there ways to opt out or to protect their privacy?

Brown: If you’re worried about what data your phone or apps might be collecting on you, check your device’s general privacy settings. Make sure that location data is only collected and shared if necessary for an app to function.

If you were going somewhere sensitive, whether or not it’s related to reproductive health care, don’t bring your phone. If it’s at all possible.

Use encrypted chat or messaging, consider using a more secure browser and search service like the Tor Browser or VPN, or using the DuckDuckGo search service, which does not track information about your searches or your results.

You should not turn over your phone to police or let the police look at it unless they have a warrant.

When we think about the people we’re talking about who are most at risk of how this digital evidence or online surveillance has been used, who are we talking about here?

Brown: People who are from marginalized communities, people who are lower income, people in the LGBTQ community, people of color, especially immigrants and refugees, and Black and brown people have always been subjected to heightened scrutiny and surveillance.

That's still true about our digital footprints – about what types of surveillance we might be subjected to, through ordinary usage of cellphones or computers.

Using someone’s search history, someone’s health information or even the content of somebody’s location data – disproportionately puts at risk marginalized people for more surveillance and potential criminalization.

Where We Live host Lucy Nalpathanchil explores issues in the post-Roe era. Hear guests in Connecticut and the nation discuss topics from abortion care and the ruling's impact on OB-GYNs to the future of adoption in this podcast series.

Patrick Skahill is a reporter and digital editor at Connecticut Public. Prior to becoming a reporter, he was the founding producer of Connecticut Public Radio's The Colin McEnroe Show, which began in 2009. Patrick's reporting has appeared on NPR's Morning Edition, Here & Now, and All Things Considered. He has also reported for the Marketplace Morning Report. He can be reached at pskahill@ctpublic.org.

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