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Computers, Privacy & the Constitution
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Digital Surveillance and Reproductive and Gender-Affirming Care-- By AbbyGraegin - 14 Apr 2024 The past few years in the U.S. have seen massive steps backwards for both reproductive and gender-affirming healthcare. More and more states are banning or restricting access to gender-affirming care for minors. In the wake of Roe v. Wade, continuing access to abortion is uncertain for all people who may become pregnant, even those in states that have not yet taken action to restrict access.How is digital surveillance affecting these restrictions?As access to important healthcare is restricted in a growing number of states, people are looking across state borders to receive the care they need. At this point, more than 20 states have banned or severely limited access to gender-affirming care for minors. Stacy Weiner, States are banning gender-affirming care for minors. What does that mean for patients and providers?, AAMCNEWS (Feb. 20, 2024), https://www.aamc.org/news/states-are-banning-gender-affirming-care-minors-what-does-mean-patients-and-providers. 20 states have completely or almost completely banned abortion. Julia Haines, Where State Abortion Laws Stand Without Roe, U.S. NEWS (April 10, 2024, 2:24 PM), https://www.usnews.com/news/best-states/articles/a-guide-to-abortion-laws-by-state. In these states, the only options that people seeking these types of care have are to go out of state to a state with lighter restrictions, seek care in their own state and risk legal consequences, or forego lifechanging treatment altogether. Digital surveillance makes it extremely challenging to go out of state or seek care in a restricted state undetected. Everything we do is being tracked and can be used against us. For example, a woman interested in ending her pregnancy may search rules in her state and neighboring states, where to get an abortion, how to access mifepristone and misoprostol, etc. She may even use the internet to look for advice on how to terminate her pregnancy without getting in legal trouble. All of this will be in her search history. She likely has texts with friends or family members about her pregnancy, maybe about her plans for ending it. She may be using a period tracker app, which has data that includes the dates of her last period, when she’s had sex recently, whether she was trying to get pregnant, etc. If she calls a clinic that provides abortions or visits their website to ask questions or make an appointment, there is a record of this in her call history or search history. Her phone will track her movement with alarming accuracy, even if she doesn’t use it. She will have to leave it at home to avoid this. If her car is relatively new, there’s a good chance it’s also tracking her location. If she uses a rideshare app, all of the details of her trip will be recorded. Even if she uses public transit, she will have to pay with cash to avoid details of her trip being found on her credit card statement. In fact, she’ll have to pay for the entire thing—travel, medical care, lodging, food, etc.—by cash if she truly wants to avoid leaving a trail. Even using her health insurance to pay for her medical care will leave records behind. And she still may be recording through traffic cameras and other surveillance cameras near public transit, restaurants, stores, and other establishments. If that sounds impossible, that’s because it nearly is. Not only are most people extremely reliant on their phones and the internet to get somewhere and to gather information, we are living in an increasingly cashless society. If she doesn’t have the money to pay for all of this out-of-pocket (and be careful not to suddenly make a large withdrawal from your bank account!) without help from a credit card or insurance, she has no chance of escaping surveillance. Not to mention the need to avoid mentioning anything about her pregnancy at all to anyone at any point. Even if she perfectly evades surveillance, some states are encouraging other citizens to come forward with information about illegal abortions.Is this constitutional?The state of the law surrounding surveillance is unclear. For decades, the Katz test governed these questions. This test is simple, but overly flexible and vague: it asks whether the data owner had a “reasonable expectation of privacy” when their data was collected. Katz v. United States, 389 U.S. 347 (1967). The most recent Supreme Court case on the issue was Carpenter v. United States, 138 S. Ct. 2206 (2018). Carpenter itself did not lay out a clear test, but did hold that law enforcement needed a warrant to access the cell phone tracking data of a suspect over a period of a week. Id. Lower courts have applied the factors laid out in Carpenter as a sort of three-factor test: the revealing nature of the data, the amount of data in question, and whether the data has been voluntarily shared with third parties. In the case of a woman seeking an out-of-state abortion, for example, the analysis would look a little bit different for each piece of information. The most “revealing” under the Carpenter test would likely be the phone tracking data—the same type of information at issue in Carpenter. A court would probably find other pieces of information low on that scale—more targeted credit card charges outside of her home state on a given day, for example. The amount of data to be collected is a lot, but that is made up of small amounts of several different types of data—meaning a court would have a lot of flexibility in arguing either way. The same goes for the third factor. This flexibility makes it nearly impossible to predict how a court would come out. Furthermore, all of this is without a warrant. With a warrant, all of this data collection is fair game. Ultimately, the state of the law today leaves people seeking these types of care exposed to digital surveillance, with little to no constitutional protection, and unable to predict how they may be treated by a court if prosecuted.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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