Surveilling the Digital Abortion Diary: A Preview of How Anti-Abortion Prosecutors Will Weaponize Commonly-Used Digital Devices As Criminal Evidence Against Pregnant People and Abortion Providers in a Post-Roe America

76 Pages Posted: 16 Sep 2020 Last revised: 8 Jan 2021

Date Written: October 28, 2020

Abstract

Pregnant people are subjected daily to scrutiny of their decisions regarding where they go, what they do, what they ingest, and how they regard their pregnancy, by co-workers, bosses, relatives, doctors and politicians. For decades, prosecutors have also weighed in; overreaching by interpreting existing laws to prosecute pregnant people for assault, child abuse, drug-related offenses, and other crimes.

Prosecutions of pregnant people for decisions they make during pregnancy, including termination, are likely to increase in the future, as will prosecutions of providers. Recent anti-abortion bills passed at the state level go beyond restricting access, long under attack since Roe v. Wade, to overtly criminalize abortion providers, pregnant people and those that assist them. This new zealousness for legislation that criminalizes abortion indicates that anti-choice advocates now see the Roe decision as vulnerable since Justice Kennedy’s retirement resulted in a new conservative majority on the Supreme Court. If Roe is overturned, and states again criminalize abortion, investigations and prosecutions will also increase.

It is in this potential future that technology can exponentially accelerate the criminal exposure of pregnant people, their providers, and anyone who assists them. In the decades since Roe, smartphone and other surveillance technology has been introduced and is available to individuals, anti-abortion advocates, employers, and the government, making pregnant people vulnerable to surveillance of their whereabouts, their physical health, and their decision-making process regarding their bodies in multiple new ways. Many have no choice but to consult their digital devices. Restriction of access to clinical abortion providers, for example, pushes more people seeking information about abortions online. Unlike clinical providers, the online environment does not provide the confidentiality or privileges of communicating, creating unprotected data trails from which law enforcement can extract evidence. In addition to online search histories, additional voluminous data is generated through engagement with various apps (especially menstrual tracking apps), wearable technology, home devices connected to the internet, purchasing history, government agencies’ routine data collection and social media activity. This data is discover-able to law enforcement through sophisticated digital forensic tools that help prosecutors cultivate digital evidence they then take to support allegations of criminal motives behind various decisions people make during pregnancy.

This paper aspires to help build connective tissue between movements for reproductive justice, digital privacy, anti-surveillance, and decriminalization of all decisions related to bodily-autonomy.

Keywords: surveillance, abortion, digital, evidence, forensics, online privacy, pregnancy, medical data, reproductive justice

Suggested Citation

Conti-Cook, Cynthia, Surveilling the Digital Abortion Diary: A Preview of How Anti-Abortion Prosecutors Will Weaponize Commonly-Used Digital Devices As Criminal Evidence Against Pregnant People and Abortion Providers in a Post-Roe America (October 28, 2020). University of Baltimore Law Review, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3666305 or http://dx.doi.org/10.2139/ssrn.3666305

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