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Looming abortion law changes prompt digital privacy worries for clinics


With the Supreme Court poised to overturn Roe v. Wade, the landmark decision that enshrined the constitutional right to abortion nearly 50 years ago, some abortion providers are rushing to take precautions to guard their communications and their patients’ data, fearing that the information could be used in future prosecutions.

Others are already a step ahead of them. Mia Raven, the director of policy at the West Alabama Women’s Center, said her clinic runs almost exclusively on paper. It’s a strategy she said is meant to ensure patient privacy.

“There is literally not a computer in that clinic unless I bring my laptop from home in,” Raven said. 

Other employees at women’s clinics in the U.S. who spoke with NBC News say they are taking a variety of precautions, from using encrypted messaging apps to choosing Zoom meetings and phone calls over emails and texts in an effort to leave less of an electronic paper trail. 

The moves are in part because of uncertainty about the various state laws that could go into effect if Roe v. Wade is overturned, something that could happen this year when the Supreme Court issues its ruling in a pending Mississippi case. A draft opinion that would overturn Roe leaked early last Month, which the court confirmed as authentic. 

For years, so-called trigger laws in 23 states have restricted or criminalized abortion but were not enforced because Roe v. Wade made them unconstitutional. 

Those laws have caused some women’s health professionals to worry if their communications — whether about providing abortions, related medical care, or even telling patients where they could have the procedure out of state — could be used as evidence in a criminal investigation.

Abortion-rights supporters protest outside the Supreme Court on May 3.
Abortion-rights supporters protest outside the Supreme Court on May 3.Valerie Plesch for NBC News

Dalton Johnson, the CEO of the Alabama Women’s Center, said that he’s preparing for the possibility that it may be forced to close or at least severely reduce its operations. Nevertheless, he’s working to move his staff to encrypted emails when communicating and electronically sending patient records. That would minimize the chances that their internal conversations and patients’ medical records are easily accessed by outside parties, he said.

Johnson added that he’s not entirely sure what would be legal in Alabama if Roe were overturned.

“One thing we still don’t know is if we will even be able to help these patients because of the aiding and abetting laws,” Johnson said. “So we have to wait until the decision comes down, which is just insane.”

Gabrielle Goodrick, the owner of Camelback Family Planning in Phoenix, said the uncertainty of what will happen has led to her staff switching from communicating in ways that leave an easily accessible paper trail, like emails and Facebook groups, to phone calls and encrypted chat apps.

“We’re now almost exclusively on Signal except for clinical questions, talking on the phone instead of emailing,” Goodrick said.

“I’m not planning anything illegal,” she said. But it’s difficult to say what will constitute lawful behavior after Roe is repealed, Goodrick said. “It’s confusing to know what’s going to happen,” she said.

Fears that state prosecutors would engage in severe surveillance of pregnant people’s metadata — like tracking their period apps — received substantial media coverage in the wake of the Roe news. But in the handful of cases where state prosecutors have charged people with crimes related to abortion based on digital evidence, prosecutors have relied on more concrete evidence like search histories, text messages and emails, said Cynthia Conti-Cook, a tech fellow at the Ford Foundation and the author of an influential study on abortion-related prosecutions and digital surveillance.

“Yes, there’s a massive amount of digital evidence that could be used to infer circumstantially that an abortion happened, and I think that’s what a lot of people are fearing and paying attention to,” Conti-Cook said.

Image:
Abortion-rights supporters protest outside the Supreme Court on May 3.Valerie Plesch for NBC News

But pregnant people seeking an abortion should be more concerned about explicitly admitting in text that they wanted to terminate a pregnancy — especially in states where laws could equate having an abortion with homicide or feticide — and handing their phones to police who might view such an admission as intent to commit a crime, she said.

“What can they decide from a hospital medical record that you had a miscarriage? They can’t get anywhere with that. But when they have access to what you were thinking the day of, that’s gold for them,” she said.

People who may become pregnant should already consider taking steps to secure their phone and online communications, Conti-Cook said.

“Overnight there is going to be a radical ground shift from what I did yesterday was legal to what I’m doing tomorrow is not, so operationally, what do I change today? It’s a really difficult swing,” she said.

There are a number of online resources for both people seeking abortions and medical providers to bolster their cybersecurity, like the Digital Defense Fund 

and a guide from the Electronic Frontier Foundation, a pre-eminent internet freedom nonprofit.

Raven, of the West Alabama Women’s Center, noted that the clinics can do only so much but still play a crucial role.

“They already have people outside the clinic taking pictures of them, putting them on Facebook, Instagram, Youtube, Twitter, the whole nine yards,” she said. “So they should be able to feel safe once they’re inside the clinic, that the information that they share with us when they’re inside that clinic stays in the clinic, guaranteed to go nowhere.”



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