Senator: Overturning Roe Will ‘Weaponize’ Women’s Data

Sen. Ron Wyden told Gizmodo Tuesday that a decision by the Supreme Court to overturn Roe v Wade would trigger a digital privacy crisis, one that could see authorities turn personal data into a tool for hunting down women seeking abortions.

“If the Supreme Court follows through and overturns Roe, every digital record—from web searches, to phone records and app data—will be weaponized in Republican states as a way to control women’s bodies,” Wyden, Democrat of Oregon, told Gizmodo.

The concerns are not without precedent. Four years ago, a Mississippi woman was charged with second degree murder after a prosecutor used her online searches for abortion pills to imply motive following the loss of her pregnancy. The charge against the woman, Lattice Fisher, a Black mother of three, was eventually dropped amid a wave of activist pressure.

[Related: How Not to Get Arrested for Miscarriage or Abortion: A Practical Guide.]

In 2015, an Indiana woman was found guilty of feticide and child neglect and sentenced to decades in prison after an apparent miscarriage. Prosecutors used phone messages to convince a jury that the woman had purchased abortion drugs online, though none were found in her system and police were unable to show she bought the drugs. (An Indiana appeals court overturned the charge of feticide in 2016, finding the state’s law did not apply to self-induced abortion.)

“The simple act of searching for ‘pregnancy test’ could cause a woman to be stalked, harassed and attacked,” Wyden said. “With Texas style bounty laws, and laws being proposed in Missouri to limit people’s ability to travel to obtain abortion care, there could even be a profit motive for this outsourced persecution.”

Similar surveillance continues. On Tuesday, Motherboard reported on a location data firm that was offering clients information related to individuals who’d visited clinics that provide abortions, including Planned Parenthood facilities. The location data originated from the “ordinary apps” installed on users’ phones, the report said. Such information is often collected without users’ knowledge.

Last year, Texas passed a law that effectively banned most abortions in the state. The unique law deputizes anyone to sue anyone involved in aiding in an abortion after six weeks and collect a $10,000 cash judgement if successful. There are no exceptions for pregnancies resulting from rape or incest. Oklahoma’s governor signed a similar law Tuesday.

As mentioned by Wyden, Republicans in Missouri are currently working to pass a law that would ban residents from seeking out-of-state abortions, in addition to gender-affirming care.

Police and prosecutors would have a wide range of tools at their disposal when it comes to gathering digital evidence on women with even a passing interest in abortion. In most states, there are few, if any, laws against purchasing data from private companies once a user naively consents to the collection. Police can scrape search histories from confiscated phones, or use subpoena and warrant powers to demand service providers hand over internet logs.

Facial recognition and other forms of surveillance such as geo-fencing are commonly used by law enforcement to unmask people, and could conceivably be turned on medical facilities offering reproductive care.

“Data brokers are becoming a threat to every pregnant person’s ability to access health care,” Wyden said. “Congress absolutely must crack down on the rampant collection and sale of American’s personal data to protect the lives and essential rights of women across the country.”