Digital data is becoming key evidence in abortion lawsuits

Ellery Roberts Biddle

 

Last week, a man in Texas filed a wrongful death suit against three women who he says helped his ex-wife get access to abortion medication. A key component in the case is a trail of text messages sent between the women, snippets of which you can now find pretty easily if you Google the particulars. It has me thinking once again that the digital applications of post-Roe abortion laws might cause more people in the U.S. to care about their digital privacy than they have in the past. The Texas lawsuit — the first of its kind since the U.S. Supreme Court’s historic Dobbs decision and since Texas officially banned the procedure — may be a case in point, as screenshots of group chats become pivotal, potentially incriminating evidence.

The U.K.’s Online Safety Bill also threatens to blow a hole in people’s digital privacy. That’s because the bill — which has been through a few drafts and has yet to be finalized — would require tech companies offering person-to-person messaging services to adopt “accredited technology” to filter out material containing images of child abuse. The bill sets a host of rules intended to prevent kids from encountering harmful stuff online. But critics and companies alike are arguing that the messaging component could do more to jeopardize people’s safety than to protect it. 

To stay legal in the U.K. under this law, services offering end-to-end encryption, like WhatsApp or Signal, would need to weaken their privacy protections. This week, WhatsApp head Will Cathcart said that WhatsApp would stop offering the service in the U.K. if the bill passes. He followed in the footsteps of Signal president Meredith Whittaker, who pledged to walk in early March. “Let me be blunt,” she wrote in a blog post on the issue, “encryption is either broken for everyone, or it works for everyone. There is no way to create a safe backdoor.” Whittaker also pointed out that the law could inspire “copycat” laws in countries where there are no guarantees of due process. Indeed, a handful of authoritarian countries already have anti-encryption laws on the books. It will be interesting to see if Apple — another major provider of encrypted messaging, through iMessage — follows suit.

Following a March 6 prison riot, authorities in Mauritania shut off mobile internet service nationwide for nearly a week. Two prison guards were killed and four people who had been convicted of terrorism and treason escaped. One had attempted to assassinate Mohamed Ould Abdel Aziz, the former president of the North African nation. Service was restored on March 11, three of the fugitives were killed and the fourth was arrested.

While the intention may have been to disrupt communication between the fugitives or to reduce the spread of disinformation about the manhunt, the move had adverse effects for everyone in the country, leaving people unable to communicate, do their jobs or send money via mobile apps. This “forced return to the 90’s is insidiously disruptive,” wrote Nasser Wedaddy, a Mauritanian-American expert on technology and security, in a Twitter thread covering the turn of events. “In practice it’s a form of invisible house/office arrest as users are being forced to stay near a Wi-Fi outlet.”

And Portugal’s Ministry of Justice says it’s launching a Chat GPT-driven service that will “answer citizens’ questions about the judicial system” and help speed up some of its other services. It’s hard to tell precisely what this will look like in practice, but I worry for Portuguese people who are hoping to get accurate information out of the ministry and wind up with whatever the chatbot decides to offer them. If there’s one big flaw in this program that experts agree on, it’s the fact that the technology regularly spits out information that sounds authoritative but is simply wrong.

TINFOIL HATS IN AMERICA

As reproductive healthcare rights are decimated in nearly half of the states that make up the U.S., it can seem like state borders are hardening. If you live in Texas and you need an abortion, your best option may be to head to New Mexico for medical care. But in our digital lives, it may not be this simple.

The Texas lawsuit that I mentioned above hinges on the defendants’ text messages and group chats. This is one area where end-to-end encryption — the kind that the U.K. wants to outlaw — can really make a difference. It recently came to light that Meta was served with a court order and handed over logs from the Facebook Messenger chats of users who are being prosecuted in Nebraska (where the procedure is also now banned) for aiding an abortion. Unlike WhatsApp, Facebook Messenger doesn’t offer this kind of privacy. The site is also notorious for the third-party trackers that it sticks on your device that gather up loads of your data all day long. 

An investigation by The Markup, done in partnership with Reveal, showed how Meta — through its tracking technologies — is collecting data about people visiting the websites of so-called “crisis pregnancy centers” that typically steer people away from getting abortions. This was happening even when people weren’t logged into Facebook or Instagram. If Meta gets a court order to reveal this kind of data in a state that has banned abortion, what will happen? When I’ve talked with Meta’s policy staff in the past, they’ve always shrugged off responsibility with the line, “We follow the law of the land.” Not encouraging.

Privacy nerds have been doing it for a while, but now we may all need to start thinking about the digital breadcrumbs we leave in our wake. If I lived in Texas, as a mother of two young children, I would have thought twice (or at least turned on my VPN) before researching this newsletter — there’s simply no way to do it without visiting the same sites and running the same searches that a person seeking an abortion might.

One tiny bright spot in all of this is that investors — who, en masse, can have considerable weight when it comes to top-level decision making at big tech companies — are taking note. Last month, shareholders for the parent company of Acxiom, one of the world’s largest data brokers, put forth a resolution that would push the company to bring greater transparency standards to their practices in light of the Dobbs decision. Shareholders will vote on the resolution in May.

WHAT WE’RE READING

  • Much of the tech talk in the U.S. this week revolved around the near-collapse of Silicon Valley Bank, where venture capital firms more or less instructed start-ups to put their money until very recently. Rest of World has a nice piece on how this affected foreign start-ups in countries where bank solvency is hard to depend on. 
  • My friends at Global Voices ran a clever test on OpenAI’s DALL-E image generator platform, in which they gave the program the same prompt in several different languages to see if DALL-E “understands” prompts equally well across languages. Renderings for English and Spanish looked pretty good and relatively similar to one another, but things got dicey with Czech and worse with Kazakh. Have a look — the images say it all.