The Surveillance State Is Primed for Criminalized Abortion

In the three weeks since a draft opinion leaked from the United States Supreme Court promising to roll back the federal constitutional right to abortion in the country, reproductive rights activists and privacy advocates have been working to understand how such a shift will impact Americans. A new report from the Surveillance Technology Oversight Project, published today, lays out ways police, prosecutors, and private litigants will be able to lean on existing data-access mechanisms and tracking tools to enforce state abortion bans.

The research underscores what privacy advocates have been warning about for decades: A surveillance state built to track certain types of behavior can easily, and inevitably, be adapted to other ends.

“None of the tactics we will see used to target pregnant people will be new,” says Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project. “We’ve seen these same surveillance techniques developed in the name of immigration enforcement, national security, combating drugs, and so many other law enforcement priorities. And the truth is that when you develop those techniques, you are at the whim of those in power and whatever they next decide to call a crime.”

Without a federally recognized right to abortion in the United States, massive quantities of data generated and collected about consumers, web users, and anyone who interacts with digital systems can be tapped by investigators seeking information about pregnant people. And tech companies will face law enforcement requests for user data related to abortion investigations. STOP emphasizes that geofence warrants—the investigative technique in which law enforcement requests data from devices used in a set area during a specified time range—are a prime example of a controversial surveillance mechanism that can, and likely will, be easily repurposed to investigate people who may be seeking or may have obtained abortions. Similarly, investigators could use keyword search warrants to identify and track people who use search engines to find information about abortion, providers, or abortifacients.

STOP, which is based in New York, is advocating that the state pass proposed legislation to ban keyword and geofence warrants, a law that would be the first of its kind in the US and could offer a template for other states to follow.

The research also points out that pro-choice states will need to reexamine local, interstate, and federal data-sharing initiatives—including participation in “fusion centers” that allow multiple law enforcement groups to share information. These and other controversial policing initiatives to combat terrorism and track undocumented Americans could quickly be expanded to investigate pregnant people, reproductive health care workers, and others. A recent investigation by Georgetown Law’s Center on Privacy & Technology showed just how far the US Immigration and Customs Enforcement agency has been able to expand its surveillance powers by partnering with local and state agencies and combining numerous data sources into what the researchers dubbed the “American Dragnet.”

STOP also warns that the law enforcement tactic of creating fake social media accounts to trick people into revealing their interests or intentions will easily slot into abortion investigations. 

“In digital security and data privacy, we always say that it’s all about how motivated your adversary is,” says Andrea Downing, founder of the nonprofit Light Collective and a security and privacy researcher focused on patient populations and social media. “And in this case, so much of our data as individuals is already out there. Some kind of combination of your fertility data, your dating app history, your location data, your shopping—you can see how that can paint a picture without you realizing it. And that’s not any one person’s fault.”

The STOP research echoes the idea that while individuals can take steps to protect themselves and their data from prying eyes, structural change and legislation is needed to shield individuals.

“Just because we’ve had years of this seemingly endless government surveillance, it doesn’t mean it’s inevitable. It’s not the technology that makes the choice, it’s the lawmakers,” STOP’s Fox Cahn says. “But for now, what we keep saying to each other in the office is that after Roe, things won’t look like 1973. It’ll look like 1984.”