“Those who seek, offer or facilitate access to abortion must now assume that all data they leave on the Internet or elsewhere can be searched by the authorities. » Le press release from the Electronic Frontier Foundationthe main organization for the defense of digital freedoms in the United States, set out, on Friday June 24, the challenge facing the technology industry since the resounding decision of the Supreme Court on the right to abortion. “The difference between today and the last time abortion was banned in the United States is that we live in an unprecedented era of digital surveillance”, supported Eva Galperina framework of the organization.
Returning to the Roe vs. Wade case, the Supreme Court allows each American state that wishes to prohibit abortion. Nearly half of them could go in this direction, thirteen having already voted upstream of the triggers laws, that is to say texts of law designed to enter into force quickly after the decision of the highest judicial institution. Throughout the country, observers are now worried about the use that can be made by the authorities of personal data collected by digital companies.
From search history to geolocation
In states that could soon ban abortion, many digital traces left by Internet users, but also by anyone providing assistance or services related to this procedure, can theoretically be used by the judicial authorities.
Google query history, for example, can be used by the judiciary to bolster a case or support a charge. If a person searches for clinics in a neighboring state with different legislation, or for pills needed for medical abortion, this data can be obtained by the courts, both by seizure of telephones and computers – as this has already been the case in at least one case in 2018 – only via a request to the relevant search engine.
Geolocation data, which is not only collected by Google and Apple, but also by mobile phone operators, is also very sensitive. If some states seek to ban traveling to a clinic in neighboring territory for an abortion, and to prosecute anyone who undertakes this journey, geolocation data will be crucial.
Finally, menstrual tracking applications, whose data is extremely sensitive, are on the front line. The Flo app recently announced the upcoming launch an “anonymous mode”, which erases all the identifiers of an account. For its part, Clue also issued a press release, promising that all of its users’ data was hosted in Europe, and that the company was therefore not required to respond to the demands of American justice concerning the health data of its customers. Finally, the Natural Cycles application has announced that it is working on a method of total data anonymization.
Silent and pressurized platforms
For now, the main tech players have contented themselves with reaffirming their positions and reassuring their employees that they will continue to facilitate access to abortion for those among them who need it. The management of Yelp, but also Meta and Microsoft, among others, have thus announced that they will set up internal aid for those who need to travel to another State to have an abortion, or pointed out that such a mechanism already exists. “We are in the process of evaluating how best to do this, given the complex legal framework”, said a spokesperson for Meta, Facebook’s parent company. For its part, Uber has promised to cover the legal costs of drivers who would be charged for having transported a customer to an abortion clinic.
But none of the giants of Silicon Valley has expressed itself clearly on the question of the collection of personal data. A thorny subject when we know that many depend on these collections, both from the point of view of their internal functioning and their economic model, and that these companies, like mobile telephone operators, have few means of defending themselves against to requests for information from the courts.
Some elected officials therefore seek to force the platforms to take their responsibilities. In May, shortly after a draft of the judgment prepared by the Supreme Court was leaked to the press, American elected officials wrote a letter to the CEO of Google, Sundar Pichai, warning of the risk posed to citizens the collection of geolocation data by the digital giant.
Then, in early June, Democratic Rep. Sara Jacobs tabled a bill titled “My Body, My Data.” The text aims to further protect the personal data of users in terms of health, but cannot hope to be voted on without the support of the Republicans, as noted by the Washington Post. Along with three Democratic senators, Sara Jacobs also asked the Federal Trade Commission (FTC), the US trade regulator, to investigate how Google and Apple use users’ mobile browsing data, accusing the two companies of “unfair and deceptive practices” allowing ” collecting and selling the personal data of hundreds of millions of users” of smartphones.
In the meantime, messages explaining how to cover one’s tracks online for people wishing to learn about abortion procedures are multiplying. Information notices which could themselves become illegal in the long term, notes the site The Verge, certain groups of anti-abortion activists, like the National Right to Life Committee, campaigning for any assistance given to someone wishing to have an abortion to also be punishable by law. In Texas, a law passed in September 2021 already allows, as the Protocol site notes, to prosecute, for example, a VTC driver who transported someone going to have an abortion or a pro-abortion association collecting donations online.