While the Supreme Court of the United States has just backtracked on the right to abortion, eyes are also turning to the world of tech; the personal data collected by the applications could indeed be used by the authorities to convict women who have had recourse to voluntary termination of pregnancy (abortion).
Abortion is no longer a federal right in the United States
This Friday, June 24, the American Supreme Court voted to annul Roe V. Wade, in force since 1973 across the Atlantic. This judgment guaranteed the right to abortion throughout the country, its challenge allows states to decide whether they want to make it illegal or not, to different degrees. Several States have directly prohibited abortion on their territory, some even in cases of rape or incest; in total, almost half of the States should prohibit or strongly restrict access to abortion.
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This means that if a woman goes to a state where abortion is legal to have it, or if she has an abortion clandestinely, then the authorities will be able to prosecute her to convict her. For this, an investigation will be launched and this is where the role of digital technology comes into play. Investigators will not hesitate to request access to the personal data of the accused women in order to find evidence.
Americans are deleting their menstrual cycle tracking apps
In this context, many American women have started to delete their menstrual cycle tracking applications, used for reproduction but also to better understand their general health. This software knows when women have their period, when they ovulate, and can therefore allow the authorities to know, for example, how many weeks they have not had their period in order to determine how long they have been pregnant.
As reported The Guardian, almost a third of American women use an app of this type, the most popular being Clue and Flo. If the first is based in Berlin and is subject to the European GDPR, the American authorities could still have access to it: “ The fact that the GDPR applies is not very relevant in this case. When it comes to a legitimate legal request from US authorities, European companies generally comply. In addition, a European company may host data outside the EU, subjecting it to different legal frameworks and cross-border agreements. “, explains Lucie Audibert, lawyer at the NGO Privacy International.
Flo, meanwhile, has shared her users’ data with third-party apps in the past and has even been accused in the past of notifying Facebook when a user is on her period or planning to get pregnant. It has since been taken over by the Federal Trade Commission (FTC), and announced the upcoming launch of an anonymous mode.
More generally, experts advise women to use applications that store data locally and not in a third-party cloud, such as Apple’s Health platform, which is quite secure. Since the Supreme Court decision, several apps of this type have played the privacy card to boost their downloads. TechCrunch reports that Stardust saw its installs increase by 6,000% over the weekend after announcing that it would protect user data with end-to-end encryption. Yet the company has yet to implement these measures and has other privacy shortcomings, such as sharing mobile phone numbers with a third-party analytics company…
” Companies that have made a profit off women’s bodies need to think very seriously about how they are going to protect their users. They have not all been the best in the past when it comes to sharing data. The only way for them to survive in this market, the only way for them to make themselves trustworthy is to improve their privacy policy and give users more control over their data. If any of these apps are used in court against their users, it won’t be good PR for them. “, explains Eva Blum-Dumontet, consultant in technology policy.
US tech giants will have a huge role to play
Menstrual tracking apps aren’t the only platforms that could be used by authorities to try women for abortion. The role that the tech giants will have to play in these cases will be very important. For example, Google and Meta, through their various services, could allow investigators to track the actions of women suspected of having had an abortion illegally.
The two American giants reacted to the Supreme Court’s decision: while Meta promised to bear the costs of its employees having to travel outside their home state for an abortion, Google affirmed that its employees who live in states where abortion is banned can request to be transferred to other places.
For users of these platforms, the situation is different. the MIT Technology Review indeed asked the biggest social networks, i.e. Meta, Twitter, Reddit, TikTok and Google, on how their ” policies prohibiting content promoting illegal activity will apply to messages advocating access to abortion or helping those who now must travel out of state for the procedure “. Most of them were very generic in their responses, including referring to their privacy policies.
However, all these rules have one thing in common and it makes perfect sense: platforms regulate content that does not comply with the law. So if we trust them to the letter, they will take action against abortion in states where it is criminalized. For example, YouTube could restrict access to explanatory content on abortion.
Moreover, several media outlets report that Facebook has deleted posts on ways to resort to abortion while Instagram does not publish search results for ” abortion pills ” and ” mifepristone », the name of a drug often used for medical abortions. A message explains that recent posts under these two hashtags are hidden because some of them may violate the app’s Community Guidelines.
Democrats think about a law
The role of the big platforms will be immense. ” Until tech companies clarify how they will cooperate with data requests in abortion lawsuits, it’s unclear what user data they might offer. However, the responsibility to maintain the confidentiality of their data should not necessarily rest with the users alone. “, concludes the MIT Technology Review.
Moreover, the Democrats are already thinking about thwarting the decision of the Supreme Court through a law protecting the personal data of American women. ” Our Caucus explored avenues to protect the health and liberty of American women. Among them is legislation that protects women’s most intimate and personal data stored in reproductive health apps. Many fear this information could be used against women by a sinister prosecutor in a state that criminalizes abortion “, explains Nancy Pelosi, Democratic Speaker of the United States House of Representatives, in a letter addressed to her party.
For now, the big platforms seem to want to side with the Democrats, but it still seems difficult for them to go against the law in states where abortion will be illegal. If they are protected at a federal level by Section 230, attorneys general in those jurisdictions will likely not hesitate to sue them if they believe they are in violation of the law.