On Tuesday, the New York-based privacy group — Surveillance Technology Oversight Project (S.T.O.P.) — released a chilling report detailing the digital surveillance threats facing pregnant women and trans people who seek abortion information and services, and how these threats could escalate dramatically if the Supreme Court repeals abortion rights and states criminalize abortion.
“Police, prosecutors, and private anti-abortion litigants will weaponize existing American surveillance infrastructure to target pregnant people and use their health data against them in a court of law,” states “The Handmaid’s Trail: Abortion Surveillance After Roe.” “This isn’t speculation — it’s already happening.”
The report explains how anti-abortion governments and private entities are already using cutting-edge digital technologies to surveil people’s search history, cellphone location data, messages, online purchases and social media activities through geofencing, keyword warrants, big data and more.
“Every aspect of pregnant people’s digital lives will be put under the microscope, examined for any hints that they sought (successfully or otherwise) to end their pregnancy,” states the report.
Modern surveillance tools will help states to enforce criminal abortion bans on a scale that was technically impossible before Roe, posing an unprecedented threat to people seeking abortion care and those helping them.
“The Supreme Court may be turning back the clock 50 years on civil rights, but anti-abortion policing will bring us an even darker future,” says Albert Fox Cahn, S.T.O.P.’s executive director. “In 1973, police couldn’t use the surveillance tools that have become commonplace today. Suddenly, every phone, laptop, and smart device will become a potential policing tool, with pregnant people’s location data and search histories mined for evidence.”
Geofence warrants, for example, enable police to force Google and other companies to identify everyone who comes into a designated area — such as a reproductive health clinic — during a designated time. Currently, Massachusetts is the only state that bans geofencing near abortion clinics, thanks to the efforts of Attorney General Maura Healey. Digital keyword warrants allow police to “cast digital dragnets” in order to identify people seeking abortion information online. Police are already using mass extraction technology to download all data on a user’s phone into a searchable file.
Whereas states operate under some limitations, such as probable cause requirements for warrants, private parties do not have to abide by such requirements, and can pursue claims under civil bounty-hunter laws prohibiting abortion with much less evidence than is needed to enforce criminal abortion bans. Anti-abortion “crisis pregnancy centers” already use sophisticated digital strategies to collect and share information about people visiting their centers or websites. And while current bounty hunter laws in Texas, Idaho and Oklahoma bar any enforcement action by state officials, after Roe private bounty hunters and anti-abortion states will be able to work in tandem to target pregnant women and trans people as well as anyone who helps them find abortion health care.
S.T.O.P. warns that police can also purchase data from commercial data brokers — which they can do without any court oversight — and leverage commercial databases that use big data and machine learning to predictively identify pregnant women. Using these technologies, police can track anyone who travels out of state for abortion health care and prosecute them upon their return.
Currently, most state abortion bans explicitly exempt pregnant women from prosecution, but that may soon change. A Louisiana legislator recently introduced a criminal abortion ban that would punish women who have abortions with life in prison (this provision has since been removed from the bill).
Some states are already tracking menstruation, pregnancy and abortion. The Missouri state health department director Dr. Randall Williams testified at a 2019 state hearing that he kept a spreadsheet monitoring the menstruation of Planned Parenthood patients. Oklahoma issues an annual “Abortion Surveillance” report with detailed information about abortions in the state. Last January, Oklahoma state Sen. George Burns introduced Senate Bill 1167, the “Every Mother Matters Act,” which would establish a government database of pregnant women looking to get abortions in Oklahoma.
Many police and prosecutors are already criminally charging pregnant women for miscarriage, abortion and pregnancy loss. In 2018, Mississippi police used a woman’s cellphone search history on how to purchase abortion pills to charge her with second degree murder following a miscarriage.
Our sprawling police state and vast prison industrial complex — which did not exist before Roe v. Wade — will likely soon be mobilized to surveil pregnant women and trans people, and enforce new criminal abortion bans that will go into effect in over half of states post-Roe, further increasing the national crisis of overcriminalization and mass incarceration.
The S.T.O.P. report offers detailed recommendations for how states, tech companies and abortion providers can improve privacy protections and how people seeking abortion information and services can try to protect themselves. We must act now to stop this dire threat to the human rights and freedom of pregnant women and trans people.
Carrie Baker is a professor in the Program for the Study of Women and Gender at Smith College and a regular contributor to Ms. Magazine.