Tech platforms, data, and the aftermath of Roe v. Wade

Last Friday, the US Supreme Court handed down a decision overturning Roe v. Wade, the 1973 court case that had enshrined legal access to abortions in the United States. The decision was widely expected, thanks to a story that Politico published in May, based on a draft opinion that was leaked anonymously. In multiple states, abortion became illegal as soon as the official Supreme Court decision was released due to “trigger laws,” some of which were only recently passed, with other bans expected to take effect. Such laws have raised the potential for legal action against women who are seeking to terminate a pregnancy, as well as a fear that content shared via social-media platforms, web searches, and apps—including those designed to help women track the progress of their menstrual cycle and their potential fertility—could be used to incriminate them.

This isn’t an idle fear: In 2017, Latice Fisher, a Black woman, went to a hospital in Mississippi after losing a pregnancy at home in the thirty-sixth week. Because she admitted during a gynecological exam that she was pregnant but never returned for a followup visit, medical staff gave police her medical records, and they started an investigation. Since Fisher had also voluntarily given police her phone, Wired noted that prosecutors were able to access her search history on the device, including a web search she conducted for misoprostol, a medication that can be used to trigger an abortion. Although there was no evidence that Fisher had ever used the medication, the district attorney’s office nevertheless used the search as evidence that she had killed her fetus, and she was charged with second-degree murder. (The case was eventually dropped.)

“Those seeking, offering, or facilitating abortion access must now assume that any data they provide online or offline could be sought by law enforcement,” the Electronic Frontier Foundation wrote in a statement following the court’s ruling nullifying Roe. The Washington Post noted that “a Google search for a reproductive health clinic, online order for abortion pills, location ping at a doctor’s office and text message about considering ending a pregnancy could all become sources of evidence,” and advised those searching for abortions to use encrypted private messaging apps such as Apple’s iMessage, WhatsApp, and Signal. (The latter was the most secure, the Post said, because Apple has a key that allows it to decrypt iMessages, so law enforcement could force it to do so, and WhatsApp shares data with its parent company, Meta.) The paper also recommended using web browsers in incognito mode, and leaving a phone at home when visiting clinics.

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“Digital evidence has just revolutionized how criminal investigations are conducted in this country,” Catherine Crump, a law professor and director of the Samuelson Law, Technology and Public Policy Clinic at UC-Berkeley’s law school, told the Post. “We live our lives online, we leave digital breadcrumbs of our prior activities, and of course those are going to be caught up in abortion investigations.” Some of that comes from access to mobile devices and the records of activity stored on them: Cynthia Conti-Cook, a civil rights attorney and fellow at the Ford Foundation, told Mother Jones earlier this year that law enforcement “can easily duplicate all data on a user’s phone into one convenient, searchable, thousands-of-pages-long file.” (Conti-Cook’s comment draws on research by the tech justice group UpTurn on “mobile device forensic tools.”) 

It remains to be seen how the major social-media platforms will handle requests for personal data from the courts or law enforcement. Dana Sussman, deputy executive director of the National Advocates for Pregnant Women, told CNBC she expects that subpoenas will be sent to the major tech platforms looking for information on those seeking abortions in states where it is illegal. Corynne McSherry, legal director at the Electronic Frontier Foundation, told CNBC that “if you create huge databases of information, what you’re also creating is sort of a honeypot for law enforcement to come to you… and try to get that information if they think it’s useful for prosecutions.”

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CNN recently asked all of the major social networks and platforms how they planned to handle requests for abortion-related data, but either received no response, a “no comment,” or a simple restatement of company policy from companies such as Amazon, Apple, Google, Meta, and Twitter. A Twitter spokesperson told CNN that it takes “a principled approach to government requests for information, as well as to law enforcement requests, in line with our established policies.” Andy Stone, a spokesman for Facebook, told the Washington Post, “We carefully scrutinize all government requests for user information and often push back, including in court.” Crump said most tech companies will likely comply with state law and hand over information when it is the subject of a court order, but said they should be transparent with their users and the public when they do.

Danielle Citron, a law professor at the University of Virginia, told CNN that she is concerned about brokers who sell location data from mobile devices to the highest bidder. “Location data brokers are in the business of peddling our whereabouts including visits to doctors,” Citron said. “They are already providing access to law enforcement for a fee. No subpoena necessary.” In May, Vice reported that a location data firm was selling information related to visits to clinics that provide abortions including Planned Parenthood facilities, showing where groups of people visiting the locations came from, how long they stayed there, and where they went afterwards. Last month, a report from Bloomberg found that Apple, Meta, Alphabet, and Twitter had also “responded to fraudulent legal requests for user data that was then used to harass and extort women and underage users.”

Here’s more on the platforms:

  • Pill posts: Facebook and Instagram are removing posts that offer abortion pills to women who may not be able to legally obtain them, the Associated Press reported. “On Monday, an AP reporter tested how the company would respond to a similar post on Facebook, writing: ‘If you send me your address, I will mail you abortion pills.’ The post was removed within one minute,” the wire service wrote. “The Facebook account was immediately put on a ‘warning’ status for the post, which Facebook said violated its standards on ‘guns, animals and other regulated goods.’ Yet, when the AP reporter made the same exact post but swapped out the words ‘abortion pills’ for ‘a gun,’ the post remained untouched.” A post with an offer to mail “weed” was also left up and not considered a violation, AP said.
  • Lean right: After the Supreme Court overturned Roe v. Wade along ideological lines, right-leaning Facebook pages started celebrating the decision, Media Matters reported, and earned nearly 7.7 million interactions on about 2,400 posts on June 24, the day the decision was announced. That was more interactions than left-leaning and ideologically nonaligned pages combined, the group said. “We found similar celebrations among users in right-wing groups, who also called for more restrictive laws, claimed there would be riots from the left in response to the decision, and mocked liberals and media figures upset with the decision,” the group reported.
  • Hands off: Free Press, a nonprofit group dedicated to media freedom and platform responsibility, said it has launched a campaign called Hands Off My Data, designed to stop companies from selling location data. “Right now there is nothing stopping private companies from selling location data of people visiting abortion clinics to anti-abortion vigilantes and law enforcement,” the group said in a statement. “Based on their location data, people seeking abortion care could be doxxed, harassed, or even arrested and imprisoned.” The group said it is working with lawmakers to pass data-privacy legislation and engaging in “direct conversations with tech platforms” to keep users’ data safe.

 

Other notable stories:

  • Substack, the newsletter-hosting company, laid off about fourteen percent of its staff on Wednesday, the New York Times reported. Substack’s chief executive, Chris Best, “told employees that the cuts affected staff members responsible for human resources and writer support functions, among others,” the Times wrote. In a message posted to Twitter, Best apologized for the layoffs, which he said were necessary to “make Substack robust even in the toughest market conditions.” Best added that “the macroeconomic outlook has become increasingly uncertain,” and therefore the company felt it needed to “be prepared for a period of challenging conditions that could last years.”
  • Journalists from multiple organizations, including Reuters, have been blocked from covering official ceremonies to mark the 25th anniversary of Hong Kong’s handover from British to Chinese rule, which President Xi Jinping is expected to attend, Reuters reported. “The Hong Kong Journalists Association said late on Tuesday that at least 10 journalists from seven or more local and overseas media were barred from ceremonies on Friday,” the news site said. “The organization named Hong Kong-based South China Morning Post, Hong Kong 01, Now TV and Ming Pao, and Agence France-Presse as among those barred. Six sources with direct knowledge of the matter have told Reuters that journalists with Bloomberg, public broadcaster RTHK, and state-backed Ta Kung Pao were also rejected.”
  • Journalists in Uvalde to cover the aftermath of the mass shooting at Robb Elementary School are being stonewalled, hassled, and threatened with arrest, according to a report in the Washington Post. “A phalanx of uniformed bikers confronted [Houston Chronicle reporter Julian Gill] outside the cemetery gates,” the paper wrote. “They called themselves ‘Guardians of the Children’ and claimed to be working with police officers who stood watch. When he accidentally bumped into a Guardian who claimed to be a paramedic, the bikers accused him of assault and battery.”
  • Over 360 newspapers in the United States have gone out of business since just before the start of the pandemic, according to a new report from Northwestern University’s journalism school that was summarized by the New York Times. The papers closed at a rate of roughly two per week; the Times notes that “the same pace…was occuring before the pandemic,” and added that the closures had surprised some analysts who had expected worse.
  • Maria Ressa, the Philippines-based media founder who won the Nobel Peace Prize, pledged on Wednesday to fight an order by the country’s corporate regulator to shut down her news site, Rappler, which is known for its critical reporting on President Rodrigo Duterte, Reuters reported. “The ruling against Rappler, handed down by the Securities and Exchange Commission on Tuesday, comes at a time when activists and journalists fear there will be no let up in challenges to press freedom under the presidency of Ferdinand Marcos, who begins his term on Thursday,” Reuters wrote. Ressa said, “We will continue to do our jobs. Our reporters will continue to hold the line, will continue to report, and will continue to demand that access is there.”
  • The New York Times wrote about two young French men who have gained large audiences on social media by commenting on news events in a way that appeals to young viewers, many of whom have largely abandoned traditional media. “With 1.6 million subscribers on his main channel on YouTube, 2 million followers on Instagram and 2.4 million on TikTok, HugoDécrypte has become a leading news source for young French people,” the Times reported. “Travers has interviewed Bill Gates, President Emmanuel Macron of France and 10 of the 12 candidates in the country’s presidential election this year.”
  • At the Nieman Journalism Lab, Josh Benton writes about how digital revenue is eclipsing print revenue for many newspapers, and the fact that this transition is happening not because digital advertising revenue is necessarily increasing, but because print revenue continues to decline so dramatically. “The primary industry goal for the past two decades has been a transition to digital — so that, when the time came, papers could shut down the presses but live on,” Benton writes. “It was a reasonable goal. The problem is that it’s 2022 and they’re still counting on print to pay the bills.”

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Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.

TOP IMAGE: Chandler Jones, right, 26, from Baltimore County who will graduate this spring from the University of Baltimore School of Law, participates in a pro-choice rally in Baltimore, Saturday, May 14, 2022. Jones consulted the internet on her cellphone for information and advice before having an abortion during her junior year in college. In a post-Roe world, if the Supreme Court soon reverses the 1973 decision that legalized abortion, as a draft opinion suggests it may, pregnancies could be surveilled and the data shared with police or sold to vigilantes. (AP Photo/Steve Ruark)