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Reversing Roe in the digital age

Authoritarian Tech is a weekly newsletter tracking how people in power are abusing technology and what it means for the rest of us. Also in this edition: digital authoritarianism on the rise globally and Europe’s expanding virtual walls

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The United States Supreme Court may be poised to strike down Roe v. Wade, the landmark 1973 ruling legalizing abortion throughout the country. If the decision is overturned, it could jeopardize abortion access for tens of millions across the country. Thirteen states have laws on the books that would immediately ban abortion if Roe is scrapped, and a dozen more are likely to gut abortion access absent federal protections. Louisiana Republicans are advancing a bill that would classify abortion as homicide and implicate both abortion patients and providers.

The reversal would also undo the privacy standard on which the Roe decision hinged. This is a uniquely powerful change in the digital era, raising urgent questions about data security and privacy. The tools so many of us rely on to engage with the modern world are largely trackable, making it easier for authorities (or even private individuals) to go after people seeking abortions, or those who are trying to help them.

People’s search histories, text messages, location data, social media activity, purchasing records, and use of reproductive health phone apps will likely become standard evidence in legal cases against people seeking abortions. 

This is a privacy issue

“This really is and has become a privacy issue,” Nikolas Guggenberger, executive director of the Information Society Project at Yale Law School, told me. “As soon as abortion becomes criminalized, then any sort of digital trace that people leave online at any stage of their journey could be evidence that might be used against them.”

There’s already precedent for this: In 2018, a Mississippi woman who told authorities she delivered a stillborn baby was charged with second-degree murder after prosecutors combed her internet search history and found results related to abortion-inducing pills. The charges were later dropped, but the point stands.

People who assist abortion seekers could also be implicated in investigations. After Texas passed its sweeping anti-abortion “bounty” law last fall, which allows private citizens to sue anyone who helps a person access an abortion, some raised concerns that Uber drivers who unwittingly drive patients to abortion clinics could be subject to prosecution.

Law enforcement and prosecutors can subpoena tech companies to hand over user data or buy it outright from data brokers, which repackage and sell our data with astonishing precision. Because there is no federal privacy law in the United States, the burden of digital protection falls largely on the American user to safeguard their own online footprints. Several groups have published guides to abortion and pregnancy privacy, such as the Digital Defense Fund, the Electronic Frontier Foundation, and the Repro Legal Helpline.

US groups are not pioneers in this arena

Organizations working in countries that had — or have — extremely restrictive abortion laws have long worked to avoid digital surveillance on behalf of themselves and the people they’re helping.

Since 2006, the nonprofit Women on Web, which was founded by a Dutch physician, has sent abortion pills to people in some 200 countries around the world where the procedure is illegal or highly restricted. The way it works is pretty simple: Abortion seekers are directed to an online consultation on the charity’s website. Doctors review each consultation and determine patients’ eligibility for treatment. A licensed physician will then provide a prescription for abortion medication — the drugs misoprostol and mifepristone — which is filled by a network of pharmacies the organization works with, and then shipped to the patient’s home.

According to Executive Director Venny Ala-Siurua, Women on Web fields about 10,000 emails per month through its international help desk, which operates in 16 different languages. Because the group sends pills to some countries where abortion is criminalized, protecting visitors’ health data is paramount. “I always say that safe abortions are private abortions,” she told me. Ala-Siurua explained that the organization has used an encrypted communication system since its inception and created a mobile app that allows people to submit the online consultation without navigating to the group’s website. They also advise using virtual private networks and the TOR browser for anyone visiting their site.

A lot has changed in the digital realm since Women on Web launched fifteen-plus years ago. “I often say that we started off by using technology and the internet to break barriers to abortions but I would say in the recent years it’s become a bit of a double-edged sword for us,” Ala-Siurua told me. 

In addition to the privacy and digital security concerns, she sees technology increasingly acting as a “gatekeeper” that prevents people from accessing information about the group’s services. The organization has dealt with heavy-handed content moderation on social media and accusations of violating community guidelines. “We get censored all the time,” she told me, adding that companies rarely provide transparency about why Women on Web’s content is removed. One post that was removed from the group’s Instagram account simply read: “You can now order abortion pills BEFORE you are pregnant.” According to an automated message from Instagram, this was a violation of the Community Guidelines. It is worth noting that Instagram’s Community Guidelines include no specific references to messages about abortion.

The organization’s experience provides a glimpse into just how messy it could become for social media platforms attempting to moderate abortion-related content, if the court repeals Roe. It also introduces yet another reason why some have been wary of calls by politicians to repeal Section 230 of the Communications Decency Act, the landmark U.S. legislation that protects web platforms from liability for the content that users post on their sites. Without 230 on the books, social media platforms would no longer retain this protection. It is easy to imagine that this would cause companies to more aggressively moderate abortion-related content to avoid lawsuits. 

Of course, so much of this conversation is still just speculation. We don’t know what the final Supreme Court decision on Roe will look like, or when it will come out. But it is certain that boundaries between our physical and digital selves are likely to dissolve even further if — or when — Roe is dealt its final blow.

IN OTHER GLOBAL NEWS:

The son of Ferdinand Marcos will be the next president of the Philippines, thanks in no small part to social media. Our partners at Rappler, the independent media outlet run by Nobel laureate Maria Ressa, tracked the use of social media by major candidates leading up to the election, and found that Ferdinand “Bongbong” Marcos Jr. had “the most well-coordinated network on Facebook among all of the candidates.” “His community operates in a vacuum,” they wrote, “effectively drowning out content from sources other than those supportive of him.” Reporters at BBC also dug into coordinated efforts to manipulate information on social media, with a particular focus on the re-branding of Marcos’ father, who ruled the country from 1965-1986 in a regime known for endemic corruption, excess, and human rights abuses.

In India, a new government directive will force virtual private network companies to store and maintain their customer data, including users’ names, physical addresses, emails, and phone numbers, for five or more years, CNET reports. Failure to comply with the order can result in up to a year behind bars. Responding to the directive, the British Islands-based company PureVPN said it was “astonished at this policy move by the world’s largest democracy which is on the brink of becoming the world’s largest police state.” As we note below, India also holds the dubious honor of being the world’s foremost perpetrator of internet shutdowns.

WHAT WE’RE READING: 

  • This deeply reported investigative series by the Mediterranean Institute for Investigative Reporting about Europe’s expanding surveillance of migrants within EU states and along their borders. “These ‘virtual walls’ come in many shapes and forms,” write reporters Kostas Zafeiropoulos, Janine Louloudi, and Nikos Morfonios. “From advanced surveillance systems that monitor migration flows and track people’s movements at (and sometimes before) the external borders to ‘smart’, interoperable AI databases that aim to identify, record and profile migrants at and within the borders.”
  • An alarming new report by Access Now documents a return to the pre-pandemic era of government-imposed digital blackouts. In 2021, authorities in 34 countries pulled the plug on the internet 182 separate times — a sharp increase from 2020, which saw a decline in internet shutdowns at the height of the pandemic. India was the top offender, hitting the kill switch on the internet 106 separate times. Elsewhere, authorities weaponized digital blackouts to crack down on protests and civil unrest and to limit the spread of information during elections and wars. The report is a sobering reminder of the insidious power that governments from Myanmar to Russia are increasingly wielding over citizens’ digital lives. 
  • Although it is especially popular among supporters of Brazil’s far-right President Jair Bolsonaro, Telegram was banned by the Supreme Court for two days in March after it failed to respond to a court order to remove accounts spreading misinformation. The app then took them down and vowed to roll out measures to combat fake news. A New York Times contributor spent weeks embedded in Brazil’s right-wing Telegram groups and found a hotbed of conspiracy and shadow propaganda.
  • Gizmodo just published a batch of documents from the Facebook Papers, which whistleblower Frances Haugen handed over to Congress last year, pulling back the curtain on Meta’s algorithms that rank its user-generated content.
  • Speaking of algorithms, this piece by Renée DiResta, Laura Edelson, Brendan Nyhan, and Ethan Zuckerman articulates the need for social media companies to share their data about algorithms and platform features with independent researchers.

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