If, as anticipated, the Supreme Court overturns Roe v. Wade, how the unraveling of reproductive choice ripples through American life will turn not just on state legislators and activists — but also on Big Tech.
Big Tech could either chose to cooperate with antiabortion states by shutting down the flow of useful information and handing over inculpating data. Or it could shield the flow of health information and carve out new privacy protections to prevent outsiders from inferring early pregnancy or abortion. Firms headquartered in pro-abortion rights states — who generally have younger, left-leaning workforces — have strong internal incentives to defend reproductive choice, but it would be foolish to doubt that they will also experience strong pressure from antiabortion politicians and activists.
Effective reproductive choice requires access to information for ordinary people — which, today, means unfettered online access. Yet many platforms have long placed restrictions on sex-education materials, wrongly conflating them with sexually exploitative material. Additionally, when abortion clinics are closed by the threat of prosecution, online provision of medication abortifacients becomes vastly more important, and that service, too, is vulnerable to Big Tech content-moderation choices. (A company hostile to abortion could get more aggressive in downplaying content. Or it could cut off the usual protection offered against vigilante hackers, cancel domain registrations for pro-abortion rights sites, or freeze payments to clinicians.)
Law enforcement also needs information to do its work. In an era of medication abortion and remote medicine, states’ ability to clamp down on abortion access turns partly on their ability to identify who is seeking such care. Web searches, unencrypted emails, and text messages have already been used to charge one woman who miscarried with murder and another with feticide. Digital traces, created through wearable tools, phone-based applications, or online transactions, are poised to become routine sources for criminal investigations of pregnancy outcomes.
Abortion rights advocates have focused particular attention on period tracking apps, such as Flo and Clue. But many other kinds of data could aid antiabortion prosecutors. Fitbit products, for example, collect weight, activity, heartrate, and sleep data — which also can provide telltale clues about pregnancy. The company promises to share it only “for legal reasons, or to prevent harm.” But Fitbit data has already been used as evidence in cases ranging from rape to murder, and nothing is stopping prosecutors from subpoenaing similar data to sustain abortion prosecutions.
Locational data generated by cellphones can likewise be used to infer travel out of state to secure care. A recent Supreme Court decision holds that the state must get a warrant before asking a cellphone company for location data — but again, it seems likely that warrants will be easily obtained in antiabortion states. Anyway, police are already circumventing the warrant requirement by purchasing location data from commercial vendors that harvest it from cellphone apps and trade it wholesale.
How can tech firms make life easier for pregnant women and other pregnant people, and harder on law enforcement officials cracking down on abortion? First, the firms should ensure that abortion information remains available on their platforms, despite political pressure. They should reject states’ calls to censor — which are constitutionally doubtful — and instead provide free services to help abortion information stay broadly accessible online. One model is Cloudflare’s Project Galileo, which protects vulnerable groups on the web, from journalists to activists, against cyberattacks such as distributed denials of service.
Another step involves bolstering privacy. A generation ago, feminists fought the scourge of domestic violence by resisting the idea that constitutional privacy immured the home from view. But now building up some digital walls will be necessary to carve out new, digital safe spaces for reproductive choice.
To the extent possible, companies should provide end-to-end encryption in all of their communications systems by default, which would offer people seeking abortions a layer of protection both against states policing pregnant bodies and against would-be bounty hunters alike. Apple’s iMessage, Signal, and WhatsApp, for example, already offer end-to-end encryption by default, while Twitter and Gmail do not.
Firms should also educate users about which services are more and less private, empowering abortion seekers to select secure communications. They should purge pregnancy and abortion-related data about their users frequently instead of storing it, which makes it vulnerable to antiabortion law-enforcement efforts or vigilante hackers. And companies should publicly forego using machine-learning based predictive tools to identify user pregnancies or pregnancy outcomes; a decade ago, retailers were using these tools to infer a pregnancy from a consumer’s purchases, and the predictive algorithms have only grown more powerful.
Firms can abide by the law while not making things overly easy for the police. Rather than offering special online portals for police to download data hyper-efficiently, as Facebook and others do for some investigations, firms should slow the process by notifying individuals whose data has been targeted where possible, by demanding warrants, and by challenging the legality of warrants in court when an individual can’t be notified. Care must be taken to ensure this does not impede prosecutions for crimes like domestic violence, rape, and homicide. But tech companies’ business models are built around targeting nuanced patterns of data, and they should be able to identify and uniquely purge or protect abortion-related data.
The prominence of Big Tech in the abortion wars will, no doubt, discomfort progressives who see the industry as a problematic concentration of private power. Yet when, as now, state power is flexed in regressive and cruel ways, it is logical to look to civil society — including companies — as a countervailing force. The decision of Apple, Amazon, and IBM to exit the market for facial recognition tools may not have stopped police from using those instruments, for example. But it likely slowed the spread and blunted the efficacy of such tools. It is within the power of tech firms to reclaim some of the privacy from government intrusion that Roe once guaranteed. They should leap at the chance to shield vulnerable pregnant women and other pregnant people, and to insulate their reproductive choices from the state’s baleful gaze.
