Post-Roe digital surveillance: Yahoo News Explains

Following the U.S. Supreme Court’s decision to abolish federal abortion rights by overturning Roe v. Wade, experts have raised concerns about the type of personal health data that’s collected. Corynne McSherry, legal director for the Electronic Frontier Foundation, a nonprofit defending digital privacy, told Yahoo News that there is now a digital surveillance infrastructure that didn’t exist before. McSherry explains why data privacy concerns extend beyond reproductive health apps and what a person can do to help protect themselves.

Video transcript

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CORYNNE MCSHERRY: All of these applications can be problematic. And the reason why is absent search engines and all the internet services that we rely on every day and we just constantly do is that many, many, many, many of these services and apps are surveilling us. The world has changed in many ways since Roe.

But one of the ways that it's changed is we have a digital surveillance infrastructure now that did not exist before. And what that means is all these services that make everything so convenient, and help us find information and connect with each other, and provide services to others, all of these involve relying on service providers. And most of those service providers are collecting information about you every time you use their service in any way. That's the key to the problem.

JOE BIDEN: There's an increasing concern that extremist governors and others will try to get that data off of your phone, which is out there in the ether, to find what you're seeking, where you're going, and what you're doing with regard to your health care.

CORYNNE MCSHERRY: You might consciously do a search looking for medication, abortion information. And if, in the event that you ended up being prosecuted for what they call a pregnancy outcome, the prosecutors might try to get access to your laptop or your device, whatever your device is your phone, and look at your search history-- and then they might use that information against you. Another thing to think about is if you are texting with a friend or with family and talking about what you're planning to do, or if you're a provider, if you're talking about your practice, prosecutors might try to get access to those texts.

The other thing that is potentially even more dangerous is all of the data that's being collected about you from the apps on your phone, by your phone itself, and not just collected, but often shared without your real knowledge. You may have signed a terms of use, but no one reads those. And everyone knows that no one reads those. Usually, the folks that will share it will say, oh, well, it's anonymized. But it's sadly extremely easy to de-anonymize information, the data that's provided.

A big concern that we see already has to do with location data brokers. So what these people are, they are people that collect information about how many people are in a given area at a given time of day. And they will sell that information to anyone who wants it, including law enforcement, for very little money.

A lot of these services are set up just for marketing purposes. But it is also true that it's very easy to, for example, acquire information regarding phones and the data that they've collected around, I don't know, a Planned Parenthood at a given time of day or a given place. And then you start sort of collating, cross-referencing different sorts of data. And then you start building kind of a picture.

The reason that we know about some of these things is that a lot of-- this isn't really new. This practice isn't new. And the law enforcement techniques are not new.

The simple thing is that, let's say, you've been recording your period for seven years or however long, right, faithfully, and suddenly you stop. What's that about? It's a very sort of simple crude tool. There could be any number of reasons, right? But it's the kind of thing where maybe you combine that with, have they managed to get evidence that suggests that you went to a clinic right around that same time or shortly thereafter?

Could this evidence be used in some states? They don't have complete bans on abortion, but they still have bans within six weeks, 15 weeks, whatever. So maybe it could be used to suggest, well, how pregnant were you? I can see prosecutors coming in with circumstantial evidence.

There's a couple different examples where text messages and search history were used against women already. A thing that many people are unaware of is that prosecutions for what we call pregnancy outcomes are not new. What has happened is there will be a pregnancy, and it will-- it will end in maybe a late miscarriage or some other kind of situation. And the hospitals sometimes will report to child protective services or to other government officials that they have a concern. And so that's already happened in two-- a couple of famous instances.

Law enforcement, in those contexts, went and looked at the search history, asked to review their texts on their phone. The search history one, the woman had searched for information about medication abortions. In neither case of these did the women actually have an-- that's not what happened. It was-- but they had sought this information. And then they miscarried, or their pregnancy ended, you know, without-- without a birth-- without a live birth.

In those cases that I'm referring to, ultimately after long court battles, they were set free. But in neither case did they expect that they would be used against their-- that they would be facing this kind of challenge, or you know, this kind of search and this kind of prosecution.

At the federal level, there's the Electronic Communications Privacy Act called ECPA. There's the Stored Communications Act, which governs emails. There are some protections in place, but they are so out of date. They are decades old. They are not what we need for this moment by a long shot. That's why, really, what we need is comprehensive, serious federal privacy legislation.

I don't think we want to push for a world in which no one gets to use an app. And I also don't think that people should have to turn themselves into security experts in order to sort of live their lives just because they happen to be of reproductive age. There are some things, though, that you can do.

One of the key things is to really find out, are they collecting data on you? Where is it going? There are apps that you can find, the data is collected, but it stays on your phone within your control for you, OK? It's not-- that's not perfect. You still face a warrant or whatever. But it's still-- it helps, right? It's not-- once it's-- once your information is in the hands of a third party, you don't control it anymore.

You can use encrypted messaging. WhatsApp has a encrypted messaging feature. You can use Signal. There are several services that will allow you to message in an encrypted way.

Also, really pay attention to location. So for example, if you're using Google Maps, Apple Maps, usually they need to know where you are in order to help you navigate. Fine, turn on location tracking for that moment. Turn it off afterwards.

If you're doing any kind of search where, basically, you don't want a third party to know about it, turn on your private browsing window. It's not perfect security protection, but lots and lots of browsers allow you to do that. I don't think it should be up to users to protect themselves all the time. It should be-- this is what we have representatives for, to-- we need-- we-- really, we all need strong legal protections that we just don't have right now. And there's-- it's just-- it's criminal, to be honest, that we don't have them yet. It's really shocking.

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