Imagine a pregnant woman from Texas traveling to New York for an abortion. When she’s about to fly back, a friend phones to warn her there’s an arrest warrant waiting for her, because police in her home state used a “keyword warrant” to monitor everyone in their area who’d searched a particular term online — say, “abortion clinics in New York” — and then obtained a “geofence warrant” to track her to a Planned Parenthood facility in Manhattan. The woman becomes part of a population the U.S. hasn’t seen in recent history: an internally-displaced person, unable to travel home under threat of arrest and prosecution.
Or imagine a woman in the Deep South, who in her last weeks of pregnancy, delivers a stillborn fetus at home, and, when she’s taken to the hospital, encounters a nurse who suspects she’d tried to end the pregnancy herself and calls the police. When prosecutors take on the case, they obtain not just her medical records — evidence of the outcome — but her online search history as well: what they cast as evidence of “intent.” Thanks to information handed over by internet providers — that the woman once searched for information about abortion medication and miscarriages — she is charged with second-degree murder, and faces 20 years to life in prison if convicted.
The second scenario is possible. already happenedThis was many years ago in Mississippi. According to Albert Fox Cahn, a civil rights attorney, the former is not only a threat, but a real possibility if the Supreme Court rules in favor of the latter. Roe v. Wade in the coming weeks, as forecast in Justice Samuel Alito’s leaked draft majority opinion earlier this month.
On Tuesday morning, Cahn’s organization, the nonprofit privacy organization Surveillance Technology Oversight Project (S.T.O.P.), released a new report, “The Handmaid’s Trail: Abortion Surveillance After Roe,” laying out in blunt terms how digital and other surveillance technologies could be employed if the coming SCOTUS ruling in Dobbs v. Jackson Women’s HealthIn many states, abortion is immediately illegal.
“[R]epealing a half century of reproductive rights won’t transport Americans back to 1973,” Cahn and his co-author on the report, Eleni Manis, write. Rather, “it will take us to a far darker future, one where antiquated abortion laws are enforced with cutting edge technology.” What they envision is that the computers and smartphones of anyone who’s pregnant and seeking an abortion — or who suffers a miscarriage, ectopic pregnancy or stillbirth — could be turned into repositories of evidence for police, prosecutors and even individual bounty-hunters hoping to collect a cash reward for proving someone has had an illegal abortion.
Pregnant patients have been subject to a wide range of surveillance, both routinely and through novel means, by government, corporate, or private entities, for years. Pregnant patients at hospitals face “suspicionless” drug testing when they go for prenatal checkups while patients of clinics that offer abortion services may encounter anti-abortion activists who photograph them and license plates. These days, they also face the prospect of anti-abortion geofencing: when activists pair cell phone location data with commercial advertising databanks to text them anti-abortion messages while they’re sitting in abortion clinic waiting rooms. They may find or stumble upon anti-abortion pseudo-clinics, also known as crisis pregnant centers, online or in person. There are high chances that anything they say could be added into the database. massive databasesSome CPC networks still exist.
Outside of such medical (or “medical”) settings, commercial retailers and big tech companies have already fine-tuned their predictive capabilities so well that they can figure out an internet user is pregnant before they’ve even told their family. And while the goal of that sophisticated technology is financial — to target expectant parents just when they’re about to start spending a lot of money — Cahn and Manis warn that “such commercial lists now will become evidence for those individuals whose pregnancies don’t come to term.”
There’s already precedent for that. Cynthia ContiCook, civil rights attorney, wrote about this in a 2020 article. University of Baltimore Law Review, “Digital evidence fills a gap for prosecutors keen on prosecuting women for their pregnancy outcomes. When medical theories fail to explain why some outcomes happen, prosecutors can now sift through an accused person’s most personal thoughts, feelings, movements and medically-related purchases during their pregnancy, even if there is little evidence supporting the conclusion that their conduct caused the pregnancy to end.”
Cahn and Manis say that the recriminalization will make abortion even more criminal. This will allow for greater use of digital technology to prosecute both those who seek abortion and those who assist them.
Some of the technology is familiar: obtaining people’s search histories, shopping records, emails, chats or texts to prove they were discussing or seeking information about abortion, or even just that they were pregnant. “When purchasers pay with a credit card, an online account, or with an in-store loyalty card,” the report notes, “everyday purchases — medication, pregnancy tests, prenatal vitamins, menstrual products — can become circumstantial evidence.”
Others are less well known. Law enforcement can use “keyword warrants” that would “cast digital dragnets, identifying large numbers of potential abortion seekers” by requiring technology companies to turn over information about anyone in a geographic area who has searched online for particular terms. They can also obtain “geofence warrants” that require those same companies to give information about all people who were in a particular place at a particular time. Both types of warrants are used in other contexts.
“Geofence warrants were first introduced in 2018 and since then have expanded so dramatically that they are now the majority of all warrants that Google receives in the U.S.,” said Cahn. A 2021 advocacy campaign led by S.T.O.P. and a coalition of civil right groups compelled Google release information that shows this type of inquiry was responsible for more than 10,000 warrants Google responded to in 2020.
Although keyword warrants are not as common as they once were, Cahn claims that they were used in a case where police requested that Google identify all those who searched for a particular address.
These warrants and technology such as facial recognition software have been justified in order to address terrorist threats. However, their use has not been neutral. “We’ve found that facial recognition was used more to target Black Lives Matter protesters than to target those responsible for the insurrection on Jan. 6,” said Cahn. “There’s profound discrimination in how these tools are deployed.”
What’s more, Cahn said, geofence warrants simply aren’t effective for most police work — they’re good at casting “broad digital dragnets” but bad at identifying whether someone actually is a likely suspect. However, he said, they could easily prove to be a “terrifying tool” that enable “authoritarian efforts to target health care, to target protest, to target houses of worship. It’s very easy to see the potential for abuse.”
In light of that threat, S.T.O.P.’s report calls for a number of measures to address these issues, primarily in “rights-protective” states unlikely to outlaw abortion. Some states have limited protections. Massachusetts, for example, prohibits geofencing close to abortion clinics. However, it is the only state to have done so. Illinois bans sharing some biometric data but does not include data related to abortion.
The report says that more is required. First, companies like Google and Apple, which may support abortion rights, but could still be key to undermining them through their information collection practices and warehousing practices.
“If a company doesn’t have individualized locations in a database that can be searched by a geofence, one can get all the warrants they want and you’re not going to give over any data,” said Cahn. “It’s a design choice whether Google wants to put their users at risk of this type of search.”
He said the same thing. “This is already happening. Already, electronic surveillance is being used to target pregnant women. The only question is how quickly anti-abortion policing ramps up to these search tactics.”
New York is currently considering two bills that would provide significantly more protection through first-in-the nation. OneIt would ban keyword warrants and geofence, as well as prohibit law enforcement from buying geolocation data commercially. A secondPolice would be prohibited from creating fake social media accounts to pretend to be friends or medical providers to trick people seeking abortions into incriminating or identifying themselves.
Cahn stated that law enforcement agencies should reevaluate their participation to inter-agency information sharing arrangements. The current data sharing agreements require the local police to share information in order to track and prosecute abortion seekers from other states.
Such agreements have always caused tension, Cahn said, “because it’s meant that so-called immigration sanctuary jurisdictions are actually giving information to ICE in some cases. But now, if you’re part of an inter-agency information sharing agreement, and you are honestly a pro-choice jurisdiction, you can’t in good faith remain when you know the people receiving that data are going to use it to arrest pregnant people.”
Cahn stated that civil right groups have opposed the use surveillance technologies such as geofence warrants over the years, arguing certain types of information should not be accessible to police officers. For just as long, he said, many lawmakers have been “comfortable enabling these types of abuses when different communities were being targeted.”
“Now we know the targets will include pregnant people,” he said, and “we’ll see people who once felt very far removed from the threat of mass surveillance being intimately targeted.”
“It is very much that incremental expansion of government authority,” he said. “We ignore it and we ignore it. And then suddenly, we and our families and those dearest to us are in the crosshairs.”
