The Cybertraps of Choice: Pregnancy & Privacy in a Post-Roe World Episode 132

Cybertraps Podcast

- News Item -- On June 24, 2022, the U.S. Supreme Court handed down its decision in Dobbs v. Jackson Women's Health Organization. - The Court expressly overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) - Each state is now able to adopt its own laws regarding the practice of abortion - Overview - An important reminder: Roe was a privacy case - The Court was trying to balance three separate constitutional principles - A woman's right to privacy - The State's interest in protecting the health of a pregnant person - The State's interest in protecting the life of a viable fetus - Roe was an extension of two earlier privacy cases: Griswold v. Connecticut (1965), which established a federal "right to privacy" with respect to a married woman's ability to obtain contraceptives from her doctor, and Eisenstadt v. Baird (1972), which extended that same right to unmarried women. - How Might Cybertraps Arise? - Suspicious Circumstances - It is often difficult to tell the different between a spontaneous miscarriage and a self-medicated abortion - Approximately 30% of all pregnancies end in a spontaneous miscarriage - Criminal Investigations - Abortion is now banned in six states - Alabama - Arkansas - Mississippi - Missouri - Oklahoma - South Dakota - It is a crime to perform abortions and in most states, to "aid and abet" someone having an abortion - The Health Insurance Portability and Accountability Act (HIPAA) does not prevent a doctor or medical organization reporting personal health data if they think a crime has been committed - Family Educational Rights & Privacy Act (FERPA) is very similar in this regard. - If someone reports that an abortion has occurred, local law enforcement or a local prosecutor could initiate a criminal investigation - Law enforcement can: - subpoena data from online account - conduct forensic exams of digital equipment - Civil litigation - A handful of states, led by Texas, have created systems that deputize enforcement to private citizens - Under that scheme, an individual located anywhere in the country can file a lawsuit alleging that another person performed an illegal abortion or aided and abetted a person in obtaining one - If the lawsuit is successful (by "a preponderance of the evidence"), the defendant can be ordered to pay a minimum of $10,000 as well as costs and attorneys fees - All of the usual civil litigation rules apply, including discovery of relevant evidence (apps, browser history, social media, cell phone records, etc.) - Risks for Educators - Social media posts that are contrary to state law - Requests for advice from students - What Data Is Collected? - Cybertraps for Expecting Moms & Dads - Erratic protection of personal data across the country - Communications - Email - Messaging - Health Care Data - Health Care Providers - Employers - Financial Records - Bank accounts - Credit cards - Online payment apps (Paypal, Stripe, etc.) - Browsers and Search Engines - Social Media - Selfie-incrimination - Tagging - Apps - Fertility - Health, General - Smartwatches - Can pinpoint the start of pregnancy from biometric information - Geolocation - Cellphone tower pings - Apps - Location tracking (Foursquare) - Geo-announcements (Twitter) - Location tracking by Google Maps, Waze, or iMaps - Governmental Tracking Tools - License plate readers - Biometrics - Other Looming Constitutional Issues - The Right to Travel - Some states are considering laws that would prohibit their citizens from traveling out-of-state for abortions - Criminal enforcement would be difficult (although surveillance tools are growing increasingly powerful) - Civil enforcement presents many fewer constitutional questions - Free Speech/Freedom of the Press - Some state legislators have also expressed interest in trying to prohibit web sites from publishing certain information about abortion (self-medication, availability of out-of-state services, etc.) within their states - As a practical matter, it's challenging to block such content (VPNs, TOR browers, etc.) - Such efforts would call into question the fundamental structure of the internet - Resources - #2022-07-20 Data privacy, abortion limits set to collide post-Roe [https://rollcall.com/2022/07/20/data-privacy-abortion-limits-set-to-collide-post-roe/](https://rollcall.com/2022/07/20/data-privacy-abortion-limits-set-to-collide-post-roe/) - #2022-07-13 In a Post-Roe World, the Future of Digital Privacy Looks Even Grimmer [https://www.nytimes.com/2022/07/13/technology/personaltech/abortion-privacy-roe-surveillance.html](https://www.nytimes.com/2022/07/13/technology/personaltech/abortion-privacy-roe-surveillance.html) - #2022-07-08 How to protect your privacy in a post-Roe America [https://mashable.com/article/how-to-protect-online-privacy-post-roe-abortion](https://mashable.com/article/how-to-protect-online-privacy-post-roe-abortion) - #2022-07-08 Protecting digital privacy post-Roe [https://whyy.org/episodes/protecting-digital-privacy-post-roe/](https://whyy.org/episodes/protecting-digital-privacy-post-roe/) - #2022-07-06 How online searches and texts can put you at risk in a post-Roe world, and how to protect yourself - #2022-07-02 Data privacy concerns make the post-Roe era uncharted territory [https://www.npr.org/2022/07/02/1109565803/data-privacy-abortion-roe-apps](https://www.npr.org/2022/07/02/1109565803/data-privacy-abortion-roe-apps) - #2022-06-30 Deleting Your Period Tracker Won’t Protect You [https://www.nytimes.com/2022/06/30/technology/period-tracker-privacy-abortion.html](https://www.nytimes.com/2022/06/30/technology/period-tracker-privacy-abortion.html) - #2022-06-29 The future of privacy rights in a post-Roe world [https://www.axios.com/2022/06/29/privacy-right-roe-v-wade-dobbs-v-jackson-online-data](https://www.axios.com/2022/06/29/privacy-right-roe-v-wade-dobbs-v-jackson-online-data) - #2022-06-28 Why some fear that big tech data could become a tool for abortion surveillance [https://www.pbs.org/newshour/economy/why-some-fear-that-big-tech-data-could-become-a-tool-for-abortion-surveillance](https://www.pbs.org/newshour/economy/why-some-fear-that-big-tech-data-could-become-a-tool-for-abortion-surveillance) - #2022-06-27 The Biggest Privacy Risks in Post-Roe America [https://www.theverge.com/23185081/abortion-data-privacy-roe-v-wade-dobbs-surveillance-period-tracking](https://www.theverge.com/23185081/abortion-data-privacy-roe-v-wade-dobbs-surveillance-period-tracking) - #2022-06-24 What police could find out about your illegal abortion [https://www.vox.com/recode/23059057/privacy-abortion-phone-data-roe](https://www.vox.com/recode/23059057/privacy-abortion-phone-data-roe)