“I don’t need to worry about surveillance; I’ve got nothing to hide.”
We often hear this refrain when sounding the alarm on government surveillance. It’s a misconception for several reasons, and an important one came into sharp focus this month: Lawful, commonly accepted activity that you engage in today could be a crime tomorrow.
That will likely soon be the reality for sexual and reproductive health care services, and in particular those seeking to terminate a pregnancy. If the leaked Supreme Court Dobbs opinion (or a similar ruling) is issued, it will not only overturn the nearly 50-year precedent set in Roe v. Wade, but will trigger laws in over 20 states banning abortion. This means that an activity someone previously lawfully engaged in would become a crime overnight, with tremendous implications for those seeking medical services, doctors, and individuals who provide aid and assistance.
Living under an abortion ban in 2022 will not be similar to 1972, before Roe v. Wade. Due to the massive surveillance powers the government now possesses, the consequences of the ban could be much more draconian. Law enforcement not only has powerful tools to monitor individuals, but can capture a stream of sensitive data we produce in our daily lives, often without us realizing it’s happening. And investigating individuals for prohibited abortions will likely direct the government’s immense surveillance powers at the most intimate medical, familial, and sexual details of people’s lives.
Here are some government surveillance tools and techniques that could be used to track, investigate, and prosecute those who provide or seek abortions — and, where possible, how to avoid the government’s most powerful tools of surveillance.
Law enforcement can use surveillance technologies to monitor and track individuals’ movements, most notably through cellphone location tracking techniques. Through a combination of cell towers, GPS data, Wi-Fi, and Bluetooth, our phones continuously generate records of our locations and movements. Law enforcement can obtain this data, which serves as a map of where we go, who we meet, and what we do. This will likely apply not just to those seeking abortions or providing them, but also anyone who could be suspected of such activity by, for example, visiting their healthcare provider or a pharmacy.
Amplifying this risk is the government’s ability to center digital tracking on a location, rather than just an individual person. If law enforcement identified a location providing prohibited reproductive health care services, it could set up a stingray — a device that mimics cell towers and vacuums up identifying signals from all phones in the area — to identify anyone nearby over a prolonged period of time. Or police could use a geofence warrant, an order to hand over data identifying all phones that were within a given area. These orders can request information going back weeks or months.
Generally, acquiring cellphone location data requires a warrant, a strong and fitting safeguard given how sensitive this information can be. However, law enforcement currently exploits a loophole to circumvent this requirement. Rather than acquire probable cause and get court approval, law enforcement will simply buy location information from third-party data brokers. Until this loophole is closed, individuals could have their location data cataloged by police even without any suspicion of wrongdoing. A bipartisan set of lawmakers have introduced legislation — the Fourth Amendment Is Not For Sale Act — that would fix this problem.
From a practical standpoint, even if individuals turn off location tracking on various apps in their phones, the basic way phones function requires generating location data, and can’t be avoided. If people want to seek reproductive care without leaving a digital trail of their location and movements, they should strongly consider leaving their phone at home while doing so.
Another normal activity that can become a gold mine for surveillance is web browsing. The sites we visit online can reveal a huge amount of information about who we are and what we do, and that includes seeking an abortion. Law enforcement could investigate individuals by targeting their full history of web browsing activities, or collect data on the full set of individuals that visited a website.
This is true not only for going to sites like Just The Pill that directly offer sexual and reproductive health services. Browsing websites about reproductive health, legal questions, and out-of-state options could all paint a picture for law enforcement. We’ve seen for years how companies use “Big Data,” which turns bits of seemingly unrelated or unrevealing information into puzzle pieces that are combined to create an intimate picture of your life to facilitate targeted marketing and advertising. Law enforcement can do that as well, and web browsing data is a key tool.
“The sites we visit online can reveal a huge amount of information about who we are and what we do, and that includes seeking an abortion.”
In terms of legality, the privacy of your web browsing activity is a mixed bag. Generally, a warrant is required to see how individuals browse within a site, but not for checking whether the main site (also called “top-level domain”) was visited. For example, a warrant wouldn’t be required for police to see if a woman visited prochoice.org, but likely would be to check if she specifically went to prochoice.org/patients/find-a-provider.
The ability to collect data is especially frightening given how low the standard is: The government merely needs to show the data is relevant to an ongoing investigation in order to collect it, meaning they do not even need to suspect you of wrongdoing to snoop on your browsing habits.
And even to the extent that these limits provide protections, law enforcement can exploit the same loophole they do for location tracking by buying the information off third-party data brokers rather than having a court issue an order to a web browsing company.
For personal activities, there are a few good and bad options for keeping your web browsing private. First, do not rely on browsers’ incognito modes. They may be a good way to keep your history tab and web cache clear, but they do not reliably protect your browsing from being tracked by the government. The safer path for private web browsing is to use Tor, a browsing tool that routes internet traffic in a manner that masks your browsing. You might also consider purchasing a virtual private network (VPN) — a system that acts as a shield to stop anyone else from seeing your browsing. But if you do, be careful. VPN companies can themselves harvest data, and some are more effective than others, so do research to make sure you pick a reliable one.
Internet Search History
Beyond what websites you visit, what you search for on sites like Google, YouTube, and Facebook can also be highly revealing.
From a legal standpoint, your web searches are considered content, and law enforcement needs a warrant to acquire them. However, several factors could make your search history more vulnerable to police scrutiny.
First is the growing practice of keyword searches. Instead of asking for the search history of an individual suspect, law enforcement will ask websites (such as Google, Bing, or Facebook) for a list of individuals whose searches had a suspicious set of keywords. This means even if police had no prior suspicion, searching something like the address of an abortion clinic or name of a doctor could get someone swept into an investigation in a state with an abortion ban.
Additionally, the issue of the government using data brokers to bypass warrant rules is a major problem regarding online searches as well. Until Congress passes the Fourth Amendment Is Not For Sale Act, the warrant protections Americans are entitled to for our most sensitive data can be sidestepped.
For personal protection, keeping your search history private comes down to the same tools as web browsing. Even if you use a guest account in Google or a privacy-friendly search engine like DuckDuckGo, commonly used web browsers will still record your searches as a component of recording your browsing. The best way to shield your searches is to shield your browser, using tools like Tor and other services that fully protect the privacy of your web browsing.
Communications and Metadata
Communications content (your calls, texts, and emails) can reveal highly sensitive information, but police don’t need to be listening in to learn a lot from your chats. Even without a wiretap — which requires a probable cause warrant — the government gets an intimate look into your life just by using communications metadata, which is the information about who you communicate with and when.
To show how revealing communications metadata could be, Stanford researchers conducted a study that, using only metadata from volunteers, was able to determine health and medical activities of participants, such as having a multiple sclerosis relapse, cardiac problems, and an abortion.
The government previously used an extreme interpretation of the PATRIOT Act to collect all communications metadata from all Americans continuously, an infamous system commonly known as the telephony bulk collection program that was disclosed by Edward Snowden in 2013. After years of work, privacy advocates pushed Congress to outlaw this practice in 2015.
“Just as with web browsing data, the government will obtain communications metadata simply if it is relevant to an investigation.”
However, even though the government can no longer stockpile communications metadata in bulk, it is still disturbingly easy to access on an individual scale. Just as with web browsing data, the government will obtain communications metadata simply if it is relevant to an investigation.
In practical terms, protecting your communications and metadata from surveillance depends on using encrypted services. How well different services live up to their encryption labels and promises of privacy varies, so it’s important to do your research. Organizations like the Electronic Frontier Foundation and Access Now do excellent work assessing how effective apps are, or you can look at the FBI’s own scorecard. Remember to look for systems like Signal that are designed not only to protect your messages, but also the metadata about them that can reveal so much.
Leaving your phone at home might not be enough to keep your movements and places you visit private. Face recognition — which is becoming a common form of police surveillance — can log your identity even if you leave no digital footprint behind. If law enforcement determines an office is performing illegal abortions, they could check video feed to identify who was going into and out of the building using face recognition.
As cameras become more common, the power of this surveillance tool will only grow. Traffic cameras, store CCTV, home surveillance cameras and doorbells like Ring, and “Blue Light” cameras all record video that could be combined with face recognition to identify individuals’ movements and activities. And it’s not just stationary cameras you need to worry about: A car driving by could be taking video the police will later use, in combination with face recognition, to catalog who you meet and what you do.
If you are engaged in sensitive sexual and reproductive health care activities and want to make sure you stay anonymous while moving about in public, consider wearing clothes such as a scarf, mask, dark glasses, and hat that would help obscure your face in photos and videos.
In addition to government powers, the bounty law in Texas (and other states that may follow its example) makes it important to also consider how private individuals might abuse surveillance tools to monitor their community members. Some of the activities described above — such as using stingrays or wiretapping phones — are illegal to engage in outside of an authorized law enforcement context. However, the broad set of data the government can purchase is also available to individuals. And face recognition is already being offered to individuals as well, which can result in vigilante efforts to identify (or misidentify) abortion providers or pregnant individuals seeking abortions. The combination of a law like the one in Texas, which places enforcement of an abortion ban in the hands of private citizens, with powerful surveillance tools is a toxic and dangerous recipe for abuse and the potential for violence.
What Could the Future Hold?
While the risks that loom immediately ahead should be our focus right now, it’s also important to take stock of what might happen further into the future.
First, it’s important to think about the vast amount of data and surveillance powers the federal government can provide, from mass face recognition databases to fusion centers. While the current presidential administration appears unlikely to harness these resources to assist states investigating unlawful abortions, that could certainly change if an administration with different views on abortion takes over. And even as the Biden administration pledges to support reproductive rights, the White House has not yet committed to withholding federal law enforcement and surveillance powers to states that criminalize abortion.
“We need to think about these possible futures, and account for how much power the government has to watch the intimate details of our lives in a world where no one can say I’ve got nothing to hide.”
Additionally, as previously discussed, Big Data can have incredible power. This could include not just reproductive health decisions, but pregnancy itself. Over a decade ago, Target’s modeling data correctly predicted that a teen girl was pregnant; it’s not difficult to imagine the government doing the same. From there, we could see states designating individuals as “likely pregnant” and initiating investigations if they do not carry a pregnancy to term in the following months. It’s a terrifying prospect — one that could pull people in through system errors and force others to relive the trauma of a miscarriage — but still one that seems far too realistic in our current climate. And it’s an important reminder how commercial data privacy can creep into the realm of government surveillance, and why we need comprehensive reform now.
It’s also worth considering how abortion bans and surveillance to enforce them could carry over into states where abortion is still legal. State lawmakers are already considering legislation to prohibit traveling out of state for an abortion, or providing assistance to anyone who does so. And some members of Congress have begun to push for a federal ban.
We need to think about these possible futures, and account for how much power the government has to watch the intimate details of our lives in a world where no one can say “I’ve got nothing to hide.”