Abortion pills

abortion decision leaked last May, internet search traffic for medication abortion surged. Dozens of people have posted descriptions online of their experiences getting abortion pills, some in restrictive states. One Reddit user recounted their ordeal on an abortion subgroup in October: “I’m in TX so i ordered through abortion RX. It said it’ll be here soon like 5-6 days. I’m extremely nervous I’m doing this by myself, but I’ve looked and don’t have a lot of time to make a decision. This is the fastest way.”

A New Legal Era

Just two states — Nevada and South Carolina — explicitly outlaw self-managed abortion. But that hasn’t stopped prosecutors in other states from charging people for taking abortion drugs.

Prosecutors have cited online orders of abortion pills as evidence in cases charging people with illegal abortions in several states, including Georgia, Idaho and Indiana. And in at least 61 cases from 2000 through 2020 spread across more than half the states in the country, prosecutors investigated people or ordered their arrest for allegedly self-managing abortions or helping someone else to do so, according to a report by If/ When/How, a reproductive justice advocacy organization. In most of these cases, people had used medication for their abortions.

Those prosecutors interested in criminalizing abortion are aided by state and private surveillance.

“This is an entirely new era,” said Ari Waldman, a professor of law and computer science at Northeastern University. “We’re moving to a modern surveillance state where every website we visit is tracked. We have yet to conceptualize the entire body of laws that could be used to criminalize people getting abortions.”

Law enforcement can use people’s behavior when visiting websites that sell abortion pills as evidence to build cases against those suspected of having abortions. Investigations and charges in these cases overwhelmingly stem from reports to law enforcement by health care providers, trusted contacts or the discovery of fetal remains, legal experts say. Once authorities launch an investigation, they can use online searches for abortion pills as part of the evidence.

“This information can tell a district attorney that you went to an abortion website and you bought something,” Waldman said. “That might be enough to get a judge to get a warrant to take someone’s computer to search for any evidence related to whatever abortion-related crime they’re being charged with.”

This was true even under the more limited abortion restrictions under Roe. For example, in 2017, prosecutors in Mississippi charged Latice Fisher with second-degree murder after she lost her pregnancy at 36 weeks. Prosecutors used her online search history — including a search for how to buy abortion pills online — as evidence. Fisher’s murder charge was eventually dismissed.

“We have a private surveillance apparatus that is wide and is largely unregulated,” said Corynne McSherry, legal director at the Electronic Frontier Foundation, a nonprofit that promotes digital rights. “Now Google knows what you’re searching. This is a real threat. If any third party has your information, it means your data is no longer in your control and it could be sought by law enforcement. This is 100% a worry.”

Opting Out

Many people aren’t aware of how to opt out of sharing their data. Part of the problem is that when users visit online pharmacies that share users’ information with third parties such as Google, their information can then be shared with law enforcement if allowed by the privacy policies of those third parties.

“The mere fact that you’ve used the online pharmacy to buy abortion medication, that info is now collected by Google and it is now subject to the privacy policy of Google such that you have no way of opting out of that, because it’s entirely separate from the website you went to,” Waldman said.

Users can install a web browser, such as Brave or Firefox, that offers privacy protections. They can also install browser extensions to block third-party trackers and adjust the privacy settings on their browsers. But these steps aren’t always foolproof. Tech companies can still subvert them using hidden tools that users cannot see, and they likely retain vast troves of data that are beyond users’ control.

“Individuals are not going to solve this problem; technical solutions aren’t going to solve this problem,” said Chris Kanich, associate professor of computer science at the University of Illinois at Chicago. “These trillion-dollar companies of the economy aren’t going anywhere. So we need policy solutions.”

Congressional lawmakers have spent years discussing a national data privacy standard. The bill that has made the most progress is the American Data Privacy and Protection Act. Introduced last June by a bipartisan group of lawmakers who intended to strengthen consumer data protections, the bill limited companies from using any sensitive data, including precise geolocation information or browsing histories, for targeted advertising or other purposes. Companies would have been required to get consumers’ express consent before sharing sensitive data with third parties. The legislation passed out of its assigned House committee in July.

Another bill, the My Body, My Data Act, also introduced last summer, would limit the reproductive health data that companies are allowed to collect, keep and disclose.

But neither bill has passed.

The My Body, My Data Act had few, if any, Republican supporters. Plus, legislators couldn’t reach an agreement over whether the American Data Privacy and Protection Act should supersede state privacy laws such as the California Consumer Privacy Act of 2018, which provides data privacy protections for consumers in the state.

Privacy experts say the most effective way to protect users’ data is for online pharmacies that sell abortion medication to stop collecting and sharing health-related data.

Companies selling abortion pills should immediately stop sharing data with Google, said Cooper Quintin, senior staff technologist at the Electronic Frontier Foundation.

“Web developers may not have thought they were putting their users at risk by using Google Analytics and other third-party trackers,” Quintin said. “But with the current political climate, all websites, but especially websites with at-risk users, need to consider that helping Google, Facebook and others build up records of user behavior could have a potentially horrific outcome. You can't keep acting like Roe is still the law of the land.”