Who Is Tracking You Now?

 

So, you live in a red state with restrictive abortion laws. Your teenaged daughter, after trying to hide her reality from her parents and perhaps herself, finally declares the obvious: she’s pregnant, bewildered and confused, but knows that she is not remotely ready to give birth to a child. She is depressed and miserable… and you lack the resources to take her to a state where abortion procedures are available and fully legal under the pre-Roe v Wade 26-weeks standard… So… “Prosecutors say Jessica Burgess, 41, helped her daughter Celeste Burgess with an abortion earlier this year when medical records indicated she was more than 23 weeks pregnant – beyond the period during which the practice is legal. Celeste was 17 at the time, but is being tried as an adult.

“‘I don’t think I’ve ever had a case like this,’ Madison County Attorney Joseph Smith said Friday [8/5], according to the Lincoln [Nebraska] Journal Star. ‘Usually, abortions are performed in hospitals, and doctors are involved, and it’s not the type of stuff that occurred in this case.’

“Smith's office charged Jessica Burgess with performing or attempting an abortion on a pregnancy at more than 20 weeks (post-fertilization), and performing an abortion without being a licensed doctor. This was the first time in more than three decades in his position that he has charged anyone with those offenses.” Fox News, August 9th. It was Facebook posts that brought them down.

The cases that might be filed in the future may stretch into those working in an abortion-ban state assisting someone, often a family member, to travel to a “right to abortion” state for the procedure. What about folks in abortion-rights states legally mailing “morning after” pills to women in abortion-banned states? Can an abortion-rights state be forced to accord “full faith and credit” to prosecutors in an abortion-ban state against their citizens traveling seeking a legal out-of-state abortion? Or providing abortion information across state lines? The landscape will be littered with prosecutions and appeals that will clog our courts for years to come.

However, perhaps a more disturbing trend that has already developed in the prosecution and conviction of those charged, for example, with hate crimes: Prosecutors using rather easy access to social media as evidence of a crime. When can social media posts be used as evidence in a criminal trial, and, importantly, when can social media platforms be required to disgorge posts and identities of those posting information about abortions, which are legal in some states but not in others?

“Since before the U.S. Supreme Court overturned Roe vs. Wade in June, Big Tech companies that collect personal details of their users have faced new calls to limit that tracking and surveillance amid fears that law enforcement or vigilantes could use those data troves against people seeking abortions or those who try to help them.

“Meta, which owns Facebook, said Tuesday [8/9] it received warrants requesting messages in the Nebraska case from local law enforcement on June 7, before the Supreme Court decision overriding Roe came down. The warrants, the company added, ‘did not mention abortion at all,’ and court documents at the time showed that police were investigating the ‘alleged illegal burning and burial of a stillborn infant.’… But in early June, the mother and daughter were charged with only a single felony for removing, concealing or abandoning a body, and two misdemeanors: concealing the death of another person and false reporting. It wasn’t until about a month later, after investigators reviewed the private Facebook messages, that prosecutors added the felony abortion-related charges against the mother.

“Whenever people’s personal information is tracked and stored, there’s always a risk that it could be misused or abused. With the Supreme Court’s overruling of the 1973 Roe vs. Wade decision that legalized abortion, collected location data, text messages, search histories, emails and seemingly innocuous period and ovulation-tracking apps could be used to prosecute people who seek an abortion, — or medical care for a miscarriage — as well as those who assist them.

“‘In the digital age, this decision opens the door to law enforcement and private bounty hunters seeking vast amounts of private data from ordinary Americans,’ said Alexandra Reeve Givens, chief of the Center for Democracy and Technology, a Washington-based digital rights nonprofit.

“Meta said it received a legal warrant from law enforcement about the case, which did not mention the word ‘abortion.’ The company has said that company officials ‘always scrutinize every government request we receive to make sure it is legally valid’ and that Meta fights back against requests that it thinks are invalid or too broad… But Meta gave investigators information in about 88% of the 59,996 cases in which the government requested data in the second half of last year, according to its transparency report. It declined to say whether its response would have been different had the warrant mentioned abortion.

“Until this May, anyone could buy a weekly trove of data on clients at more than 600 Planned Parenthood sites around the country for as little as $160, according to a recent Vice investigation. The files included approximate patient addresses, income brackets, time spent at the clinic and the top places people visited before and afterward.

“It’s all possible because federal law — specifically, the 1996 Health Insurance Portability and Accountability Act, or HIPAA — protects the privacy of medical files at your doctor’s office, but not any information that third-party apps or tech companies collect about you. This is also true if an app that collects your data shares it with a third party that might abuse it.” Associated Press, August 12th. Indeed, but what is “legally valid.” The willingness of big tech to provide information on individual users seems rather unbridled. Different platforms allow consumers to turn off tracking, but identifiers and a lack of digital sophistication make such actions less likely choices. Not to mention pre-Roe-reversal data. As Congress grapples with consumer “privacy” safeguards amidst a hodgepodge of state statutes, zealous prosecutors are working overtime to make sure that such limitations never apply to them.

I’m Peter Dekom, and I suspect even George Orwell could not envision the degree of possible “big brother” intrusion into the hands of an increasingly autocratic United States of America.