How digital data could be used to enforce draconian abortion bans in a post-Roe America: report

Technologically, a great deal has changed since January 1973, when the U.S. Senate Court handed down its landmark decision in Roe v. Wade and set a national standard for abortion rights. In the early 1970s, most Americans didn’t have computers in their homes; the internet, smartphones, e-mail, text messaging, Apple software and the laptop explosion were many years away. Reporters at the Washington Post, the New York Times and the Philadelphia Inquirer were still working on electric typewriters. Even Apple and Microsoft didn’t exist until later in the decade.

In 2022, tons of data are being stored digitally — and how that data could possibly be used by law enforcement in a post-Roe America is the focus of an article written by journalist Sara Morrison and published by Vox on May 6.

Abortion rights defenders have been fearing that the Republican-dominated U.S. Supreme Court, in the case Dobbs v. Jackson Women's Health Organization, would overturn Roe v. Wade — and sure enough, a leaked majority draft opinion written by Justice Samuel Alito makes an argument for doing exactly that.

“The leaked draft of a Supreme Court decision that could overturn Roe v. Wade has many preparing for what appears to be an all-but-certain future in which abortion is illegal in many parts of the United States,” Morrison reports. “The pervasive and barely regulated data collection industry could have a big role to play in investigating and proving cases against people accused of performing or getting what may soon be illegal abortions.”

Morrison continues, “We don’t know if that will happen, but we do know a lot of data is readily available if law enforcement wants it because there’s very little, legally, restricting its collection. And we also know the police use that data all the time, getting it through court order or by simply buying it. Through your phone and your computer, they can find out where you go, who you interact with, what you say, what you search the internet for, which websites you visit, and what apps you download.”

Morrison goes on say that among abortion rights defenders, a “big concern seems to be whether period tracker apps could be used to find and prosecute people who get abortions.”

“Far worse is the pervasive and barely regulated data collection industry that has been allowed to build and share detailed profiles of all of us for years,” Morrison explains. “The fact is, it’s easy enough to delete a period app from your phone. It’s a lot harder to delete the data it collected about you. And it’s just about impossible to conceal the rest of the online trail that could help prove you broke an anti-abortion law.”

Back in the pre-Roe America of 1971 and 1972 — when abortion’s legality or illegality was still determined on a state-by-state basis — there was no digital trail when illegal underground abortions occurred. In that sense, the post-Roe America could turn out to be even more oppressive than the pre-Roe America.

“There’s the possibility that all of this data could be used to go after people getting illegal abortions in the future because it’s already being used to help in the investigation of many crimes,” Morrison warns. “An internet search for abortion-inducing drugs was used as evidence to charge with murder a woman who gave birth to a stillborn baby; those charges were dropped. Google data obtained by police placed a man’s phone near the site of a murder; the man was arrested but was later released without charge.”

Morrison adds, “Several cases against alleged January 6 insurrectionists have been built on data obtained from companies like Google and Meta. Immigration and Customs Enforcement (ICE) buys location data to try to find entry points used by undocumented immigrants.”

According to Morrison, the likely end of Roe underscores the need for data privacy laws.

“The internet as we know it didn’t exist pre-Roe, when abortion was illegal,” Morrison writes. “It does now. Online privacy laws, on the other hand, largely don’t. But they could…. Unless privacy laws also change, by the time you realize you do have something to hide, it’ll be too late.”