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The Battle for Data Privacy in the Wake of Dobbs

On Friday 24th June 2022, after almost 50 years, the United States Supreme Court voted 5-4 in Dobbs v. Jackson Women's Health Organization to overturn Roe v. Wade, ending the constitutional right to abortion. Following this ruling, a women’s right to abortion is now determined by the laws of each state and their Republican or Democratic governments. This ban came into effect just days after its ruling in many Republican states; Kentucky, Louisiana, and South Dakota created immediate ‘trigger bans’ and ten other states followed shortly after.


In response to the ban on abortion, Democrats scrambled to find ways of making abortions and related information more accessible, while Republicans sought legal methods of enforcing prosecution. The state legislature surrounding abortion rights became increasingly polarized thereafter, and data privacy and the internet became a battleground for providing protection or prosecution. In South Carolina, for example, a bill was drafted that criminalized any website providing information on how to get an abortion. Meanwhile, Democratic senators Klobuchar and Warren wrote to Meta expressing their concerns over this matter.


Journalist Matt Perault argues that there is a digital civil war between red states and blue states with contradictory laws on data privacy and freedom of speech in the digital age. After the overturn of Roe v Wade, many states have moved to ban or put new restrictions on abortions. Thirteen states enforced trigger laws which restrict abortions until legislation can be put into place; eleven states have six-week bans on abortions, with various others creating 15-week and 20-week bans. Nine states, however, have created further state legislation in order to protect abortion rights. For example, California, a Democratic state, passed a law preventing companies from disclosing information to abortion related investigations. With this increasing polarity in state legislation, the laws applying to tech companies that span across multiple states have become contradictory.


Unlike global technology before Roe v. Wade, law enforcement can now use information shared on different digital platforms to prosecute women. In July, President Joe Biden signed an executive order intending to safeguard women’s reproductive data. However, ‘women’s reproductive data’ is too broad a term, making it difficult to regulate companies and enforce this protection. Democratic congresswoman Raja Krishnamoorthi of Illinois argues that much of the available women’s data is not protected by this order. Krishnamoorthi serves on an oversight committee looking into the data privacy on the 23 most popular women’s health apps, and her study concluded that 61% of the apps relied on geolocators while only 52% asked for consent and 87% shared data with third parties. Regardless of whether these third parties are directly related to law enforcement, in the wake of the overturn of Roe v. Wade, the spread of women’s health information is dangerous for these female users.


Decisions of data privacy and the morality of allowing or condemning certain posts and users lies in the hands of tech companies, whose platforms fall across multiple state lines and so are subject to contradictory state legislation. For example, Google stores the historical location information of hundreds of millions of users, which it routinely shares with the US government. Several Democrats, including senators from California, have appealed to Google to change its policies after Roe v. Wade was overturned. These senators were concerned that law enforcement officials would use Google’s data to track down people seeking reproductive care. Facebook has created some changes in requiring specific information from government authorities before sharing data in some cases, however, much more is arguably needed to make it difficult for authorities to access information.


With the ban on abortion in place, many women are likely to turn to other means of self protection to prevent state prosecution. Tactics usually associated with authoritarian regimes, such as using Whatsapp and Signal to ensure messages are encrypted, or seeking abortion pills via the dark web, may become more commonplace. Many groups such as “Women on the Web” and “Auntie Networks” on Facebook, in which people offer to send abortion pills in the guise of a birthday card or spare rooms for patients to stay, have become increasingly popular. Although these communities demonstrate the unifying power of technology the public nature of this data puts women at risk of exposure.


Although data privacy does not provide safe abortions, it is an extremely powerful tool that can greatly enhance the protection, information acquisition, and prosecution of women. The ability of the federal government to regulate digital platforms and their enforcement of data privacy in the wake of the Dobbs ruling will directly affect the welfare of women in America.


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