In April 2017, Latice Fisher, a woman from Mississippi, arrived at a hospital suffering from a miscarriage. She was later indicted on a charge of second-degree murder. Prosecutors used her search history and her online purchase of the abortifacient drug misoprostol as evidence to allege that she had murdered her fetus.
After Politico released a draft of the US Supreme Court’s majority opinion to strike down Roe v. Wade on Monday, activists, academics, and lawyers who spoke to WIRED say they are worried that cases like Fisher’s may become more common and that tech companies are not ready for the choices they will face in a post-Roe America.
“What we do know is what we’ve already seen [law enforcement] do in criminal court,” says Cynthia Conti Cook, a litigator and tech fellow at the Ford Foundation who has researched the use of surveillance technology to criminalize abortion. “We don’t need to put on the tinfoil hats to speculate.”
Some large tech companies, including Salesforce and Amazon, have responded to increasing abortion restrictions by offering to support employees seeking to relocate, or reimburse workers who travel out of state for medical care. But questions remain about whether they will share user data with law enforcement or continue to allow abortion-related content to remain on their platforms.
“They aren’t remotely prepared for what’s coming,” says Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project.
Most major tech companies, particularly Google, Meta, and Amazon, which rely on advertising revenue, say they do not sell user data. But the fact that they collect and store so much information about their users makes them natural targets for law enforcement officials seeking to build a case.
Earlier this week, Motherboard reported that it was able to buy the location data of people who had visited abortion clinics from a data broker on the open market. This kind of information, says Jolynn Dellinger, a lecturer at Duke Law School who specializes in data ethics, could be used by law enforcement to establish probable cause–enough to serve a company like Google or Meta with a request for a user’s data or search history.
“The easiest way for companies to not to comply with legal requests for data is to not keep and store user data,” says Fox Cahn, who noted that Google has received an increasing number of requests for geofence warrants, which shows all users in a particular place at a particular time. In 2020, 25 percent of the requests that Google received from US authorities were warrants for geofenced data.
Though Cooper Quintin, a researcher at the Electronic Frontier Foundation, says that companies have resisted data subpoenas that they believe are illegitimate, last month a report from Bloomberg found that Apple, Meta, Alphabet, and Twitter were among a number of companies that had responded to fraudulent legal requests for user data that was then used to harass and extort women and underage users.
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But it is not just users’ locations and purchase histories that might be legal hazards for tech giants and their users.
Robin Marty, author of the New Handbook for a Post-Roe America and operations director at the West Alabama Women’s Center, worries that social media platforms will respond to the criminalization of abortion in some states by being more aggressive about removing content related to the procedure.
“Is Facebook going to turn over the posts of who's in the ‘do-your-own-abortion’ group? I don't think so. At least not at that point we’re at right now,” says Marty. “Would they shut it down? Yeah, I think they would do that easily under the idea of ‘we are stopping illegal content.’”
Fox Cahn says social media platforms may use a more heavy-handed approach to moderation to “save themselves the headache” of having to more precisely draw the line between what kind of content might cross into illegality in some US states.
Conti Cook expects that companies may react like they did to the 2018 passage of FOSTA-SESTA. The law, which holds companies liable for third parties engaging in sex trafficking or prostitution on their platforms, prompted companies like Meta and Twitter to institute overly broad content moderation policies, and pushed sex workers underground.
“It’s an example of what happens when something is illegal in some states and not in others,” says Conti Cook. “The companies tend to deal with [these issues] in a blanket, categorical way that doesn’t always protect the people on their platform.”
WIRED reached out to Uber, Lyft, Meta, Google, Amazon, Apple, and Twitter to ask whether the companies plan to cooperate with legal processes that criminalize access to products and services for abortion in certain states, should Roe v. Wade be overturned. None responded.
WIRED also asked Instagram, Facebook, Amazon, and Twitter whether abortion bans and criminalization would influence content moderation practices on their sites. None of the companies responded to these questions.
In an April 29 press release, Lyft said it would ensure all legal fees were covered for “any driver sued under Oklahoma SB 1503 and Texas SB 8 while driving on our platform,” referring to legislation that allows those who assist people in obtaining abortion to be criminally charged or sued. The company also said that it was working with health care partners to create a “safe state” program “to cover costs of transportation to airports and clinics” for women in Texas and Oklahoma seeking abortions in other states. Uber has similarly publicly stated that it would offer legal support for drivers in states that make aiding and abetting an abortion a crime.
But ultimately, says Conti Cook, the issue extends beyond the tech companies themselves.
“There’s not going to be a technical solution to this. Tech companies are not going to save us, and I don’t think we should ask them to save us,” says Conti Cook. “I don’t think tech companies will be the ones protecting pregnant people from the criminalization of their data.”