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Digital Privacy and Law After Dobbs

by Anthony W. Accurso

This June, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), a ruling that fundamentally changed the landscape of law relating to abortion access in America. This change will play out in multiple areas of the law, though several organizations are expecting that law enforcement and vigilante groups will target our digital information in ways that are novel and invasive.

Before we can understand why our data will be targeted, we must understand just how Dobbs has changed our legal system. The decision in Dobbs explicitly overruled Roe v. Wade, 410 U.S. 113 (1973), a decision that barred legislatures from enacting or enforcing overburdensome restrictions on abortion. Now that Roe and its progeny have been overturned, states are free to pass laws restricting abortion.

Indeed, about a dozen states had unenforced laws or “trigger laws” on the books that automatically took effect upon Roe being overturned and that ban abortion overnight. Other states are going through the legislative process of implementing some kind of ban. All told, it is expected that just over half the states will have abortion bans by the end of the year.

Additionally, even before Dobbs was decided, Texas passed a law imposing fiscal liability for anyone found performing abortions in the state and provided a monetary incentive to individuals who bring such lawsuits. This opened the gate for civil suits over abortion, encouraging vigilante groups to go after providers and women who get abortions, rather than restricting such actions to state prosecutors. Since then, Oklahoma and Idaho have enacted similar laws.

As important as the very fact that these laws have been passed is the way in which they were written. Many of the bans are based on the assertion that human life begins with “conception” (a term that is both medically and legally ambiguous). However, the result of this is that abortion is now equated with first-degree murder in many states, and we can expect law enforcement to take such crimes just as seriously as they do when investigating traditional murders. This means that police will use every tool at their disposal to investigate and prosecute abortion, even tools normally reserved only for violent crimes.

Lawfareblog.com and the Electronic Frontier Foundation (“EFF”) have warned that digital tools previously wielded against child exploitation, drug conspiracy, and terrorism cases will now be applied to abortion suspects.

Consider a fictional person, Jessica, who informs her friend that she experienced a miscarriage after 11 weeks of pregnancy. Her friend doesn’t believe it was a miscarriage and informs police. This is akin to police finding a dead body in Jessica’s backyard. While we are all innocent until proven guilty, police rarely give such constitutional principles much credence. Jessica will be in the position of essentially having to prove her innocence while police use every tool they have at their disposal to find evidence of her guilt.

They will likely start with a warrant to search Jessica’s living space(s), her vehicle, and her cellphone to look for evidence, both physical and digital, of the crime of abortion. They’ll swab her bedroom and bathroom looking for “fetal material” and dig through her trash and laundry for tissues and towels.

Expect police to get a warrant to search her cellphone. They’ll look through her photos, her messaging apps, and her browser history. She may have communicated about the possible abortion to others or made a video diary of the event. While digging through her browser history, they’ll look for keywords like “mifepristone” and “misoprostol,” two drugs used to regulate a period after a miscarriage, but which can also induce an abortion. They will also look through her online purchases, checking to see if she ordered syringes, tubing, or Mason jars, objects that can be used to construct a homemade abortion device known as a “Del-Em.”

If officers believe Jessica had any help in getting or performing the abortion, then any person she spoke to just before or after the procedure will be swept into the dragnet, with their devices and messaging apps searched as well. Though investigators need a warrant to access cell site location information, they don’t need one to obtain device location information tracked by Google, Apple, or other advertisers, and this data is often more accurate and precise than cell phone tower data.

If it looks as though she had help, expect police to use tactics usually reserved for violent crimes and emergency situations, such as facial recognition software to identify others who went in or out of suspected buildings or cell-site simulators to track suspects using their phones — the IDs of which they’ll get using geofence warrants around suspected abortion locations.

Anything not legally obtainable by police may still be up for grabs for vigilante groups that are willing to pay for it. Data brokers collect location data and collate this against internet searches, app usage, and purchases. Some even collect public posts on profiles and in chat rooms. All of this data is for sale to any sufficiently motivated buyer. Any data a company collects from its customers can either be sold to a data broker or can be turned over to police upon request or demand.

The EFF has recently adapted its Surveillance Self-Defense Kit to provide guidance to abortion seekers, providers, and protesters. This informational tool was previously made available for dissidents and journalists to protect themselves against oppressive governments. The advice includes tips on using more secure browsers, virtual private networks, and secure messaging apps. They also advise to separate underground activities from normal, everyday device use. This can be as subtle as getting an anonymous email from Tutanota or ProtonMail or as drastic as obtaining (and maintaining) a burner phone. Though the latter is no easy task, according to security researcher and cryptographer Matt Blaze.

“Mostly as an exercise, I maintain a couple of burner phones in a way that gives me moderately high confidence can’t be linked to me. It’s extremely difficult, expensive, fragile, and inconvenient. And requires using almost everything I know about communication systems and security,” said Blaze.

Sociologist Zeynep Tufekci explained that “it is difficult for most people to live their lives and fully withdraw from the use of digital communications technologies, services, and platforms generating the data that will provide leads and telltale signs (what prosecutors call evidence) about women seeking or obtaining abortions and those providing abortion services,” according to lawfareblog.com.

And lest our dear readers imagine themselves safer because they do not have a functioning uterus, the Dobbs decision calls into question other rights that were previously recognized by the Supreme Court and subsequently thought to be untouchable as abortion once was, such as the right to use contraception and engage in sexual activities with members of the same sex.

In his concurring opinion in Dobbs, Associate Justice Clarence Thomas stated that “we should consider all of this Court’s substantive due process precedents including Griswold, Lawrence, and Obergefell.” Those three cases deal with, respectively, the right to obtain contraception, same sex relations, and gay marriage.  

Sources: eff.org, lawfareblog.com, reason.com

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