In overruling Roe v. Wade, the Supreme Court has turned back the clock on women’s rights and, by extension, individual liberties for all of us.
Reproductive privacy is in danger, and our current lack of digital privacy protections makes this problem even worse. A lot of data that companies collect on consumers can be used against people if state governments choose to prosecute individuals seeking or providing abortions.
A loophole allows law enforcement agencies to simply buy data from private data brokers.
Location data can show if a person visited an abortion clinic. Payment data can show if someone paid for a procedure. Messaging data can show if an individual talked to friends about getting an abortion. Even something as innocuous as grocery shopping data can pose a risk. (Companies like Target have found that just analyzing consumer shopping history can help them predict when a shopper is pregnant.)
Now that Roe v. Wade has fallen, states that choose to criminalize abortion can start buying and subpoenaing consumer data (including health and location data from period-tracking apps) to prosecute people who get an abortion, provide an abortion or even aid someone else in obtaining an abortion. In post-Roe America, your cellphone is now a reproductive privacy risk.
Millions of people use health-tracking apps, including those that track periods, fertility and pregnancy. Many people carry mobile devices on their person throughout most of the day, often communicating about topics like reproductive health through messaging apps, social media and more. Our inability to control who gets access to our digital data was already troubling, but now our lack of digital privacy rights might soon lead to terrifying outcomes for people seeking or providing reproductive health care.
Policymakers might not have the power to pass laws to protect abortion rights, but they can still tackle the problem of sensitive health data and who has access to it.
To protect both digital and medical privacy, including as it relates to reproductive health, Congress should move on the American Data Privacy and Protection Act, the bipartisan federal privacy bill introduced in the House in June. Among other things, the act would provide a cohesive national framework for privacy, creating guardrails on the collection and usage of data and holding companies to higher standards of data minimization and data security. While a federal privacy law will not be specific to reproductive rights, many of these privacy principles will serve to better protect consumer data that could otherwise be used for prosecuting those who receive abortions.
Democrats need to do more than recite poems and sing songs for photo ops.
Congress should also consider the Fourth Amendment Is Not for Sale Act, a bipartisan bill introduced by Ron Wyden, D-Ore., and Rand Paul, R-Ky., and others in April 2021. This bill would specifically stop data brokers (companies that buy and sell user data from a variety of sources) from selling Americans’ personal information to law enforcement. While the legal process for law enforcement searches and seizures must go through constitutional Fourth Amendment protections, a loophole allows law enforcement agencies to simply buy data from private data brokers. The Fourth Amendment Is Not for Sale Act would stop that.
And tech companies, especially those in health tech, need to build in protections to protect their customers, including supporting encryption, and instituting data minimization principles and legal processes for responding to government requests for data. For people who live in states where even helping someone get an abortion may soon be a crime, the ability to use encrypted messaging will be essential to protecting sensitive conversations.
Data minimization principles include simply collecting less data as well as storing it for shorter lengths of time. Companies can also use stronger privacy-enhancing technologies and make sure to shore up their cybersecurity so that data does not fall into the hands of the wrong people. Finally, companies need to review their policies and processes for responding to government requests for data, to figure out how to best protect their users. The Electronic Frontier Foundation has released a guide on security and privacy for people seeking or providing abortion care. Paying attention to privacy and security during protests is also important, for anyone who is joining what will likely be enormous crowds taking this issue to the streets. Review the privacy policies of the apps you use and make sure you know what data they’re collecting on you. Help your friends and family use encrypted messaging tools like Signal. Democrats need to do more than recite poems and sing songs for photo ops. This is not a time for slow glad-handing across the aisle. Americans deserve actual representation from our elected officials. We do not have the time to hear Susan Collins, R-Maine, express her disappointment — once again — in the Supreme Court justices she helped shove across the finish line, despite likely sensing their likelihood to contribute to a majority vote harming women’s rights. “Centrist” Democratic holdouts like Joe Manchin, D-W.Va., also need to be held to account (on this, and so many other pressing issues; not only has Manchin obstructed Democrats’ attempts to overturn the filibuster, thus slowing down any hope of progress, but he also as recently as May 2022 voted explicitly against a bill that would legalize abortion.) Congress needs to put a reproductive rights bill on the table and do it soon. Even if there is not enough momentum to get it passed (as happened with the failed Women’s Health Protection Act), get the bill on the table so that representatives have to show their constituents if they’re brave enough to stick to their principles. Americans need to hear, on the record, once again, if their representatives are willing to do their jobs and protect the interests of their people. And if they’re not, let this be the fuel to fire up the midterm elections. The year 2024 is not far away, and democracy is at stake. Even though these are dark days for reproductive justice, remember that you do still have the freedom to speak. Use your voice any way you can. Donate to local abortion funds and campaign for candidates who will not sit idly by while our rights disappear. And vote, even when it seems hopeless. Especially when it seems hopeless. Democracy only survives if we all fight for its survival.
Tiffany C. Li
Tiffany C. Li is a technology lawyer and legal scholar. She is an assistant professor of law at the University of New Hampshire School of Law and a fellow at Yale Law School's Information Society Project. 
