If Roe v. Wade is overturned, can criminal prosecutors or tech companies use smartphone data against someone?
Now that the future of U.S. abortion laws hangs in the balance, many women are questioning the degree of caution needed to keep their cyber activity confidential – especially period and fertility tracking apps, smartphone location data, and social media interactions.
Cybersecurity and legal experts say the answer largely boils down to one major issue: The right to privacy.
“There’s this notion of the expectation of privacy,” said Brad Malin, PhD, professor of biomedical informatics, biostatistics, and computer science at Vanderbilt University in Nashville, Tenn.
Dr. Malin said it’s directly related to bodily privacy that a person expects they have control of as part of their own environment.
According to Dr. Malin, this is “why this whole notion of Roe v. Wade at the present moment is really relevant. The right to privacy is mentioned about a dozen times within the law for the case.
“This is why we don’t know what’s going to happen with Roe v. Wade, but it worries a lot of privacy professionals,” he said. “It leads down this slippery slope of if you don’t even have control over your own body, then with electronic communications … we might as well not even start.”
Legal protections
The Fourth Amendment of the U.S. Constitution protects people against unreasonable searches and seizures.
To acquire cyber data that could be used as evidence in courts in states where abortion is deemed a crime, prosecutors would still have to go through standard criminal procedures, said Anthony Michael Kreis, JD, a constitutional law professor at Georgia State University, Atlanta.
But the data they do get could still be used in court against someone who is suspected of having had an abortion or who “miscarried under circumstances law enforcement officers found suspicious,” Mr. Kreis said.
And there’s another possibility, he noted: States holding women who end their pregnancies criminally or civilly responsible for “leaving their jurisdiction to obtain an abortion out-of-state.”
“That legal mechanism may abridge the constitutional right to travel, but it is not out of the realm of possibilities in a post-Roe America,” said Mr. Kreis.
But while many anti-abortion groups have said that criminalizing abortion or limiting access to contraception is not the end goal, “history is not promising here,” said Ellen Wright Clayton, MD, JD, professor of pediatrics and professor of law at Vanderbilt University.
She referred to a recent proposal from lawmakers in Louisiana to classify abortion as homicide.
The bill didn’t get far in the House of Representatives, but the concern is warranted, said Dr. Clayton.
Period and fertility tracking apps
Health information privacy laws, like the Health Insurance Portability and Accountability Act (HIPAA), do not protect information on period and fertility tracking apps.
Right now, there are no signs that people plan to use period and fertility tracking data to advance a prochoice agenda, according to Adam Levin, JD, a cybersecurity expert and founder of CyberScout, a global identity and data protection company.
Still, a cycle tracking app “created by a company owned by an antiabortion activist” is totally feasible, said Mr. Levin.
If you want to ensure your data is safe from such meddling, you may want to delete your app, he said, noting that using the notepad feature on your smartphone could be a safer alternative, as could using old-fashioned pen and paper.
You don’t have to stop with period and fertility tracking apps, either.
For any apps you share personal information with, set privacy settings “as tightly as possible” – and reconsider using apps if these options are unavailable, Mr. Levin advised.
“Make sure that company is not engaging in social or political activism that does not align with your politics.”
New York State Attorney General Letitia James recently spoke on the topic, noting on May 13 that “people use fertility tracking apps and location services every day, but if they’re not careful their personal information can end up in the wrong hands.
“With abortion rights in jeopardy, it’s more important than ever that everyone take their digital privacy seriously,” she said. “I urge everyone, especially those visiting abortion clinics or seeking abortion care, to follow the tips offered by my office and be more careful of the apps and websites they use.”
The New York State Attorney General’s Office recommends women use encrypted messaging when communicating about personal health information or behaviors, and to be careful about what they share on social media posts. The office also suggests turning off location and personalized advertising options on their smartphones.