Court cases targeting abortion highlight digital privacy concerns

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• John Yang:

  Earlier this summer, a Nebraska teenager and her mother were convicted after the teen used abortion pills to terminate her pregnancy. Among the prosecution's key evidence was exchanges between the two on Facebook Messenger.

  When the Supreme Court struck down Roe v. Wade, privacy and abortion rights advocates both mourned about this very thing. Authorities prosecuting abortion related criminal cases relying on personal digital data, geolocation, web searches, text messages and the like.

  Caitlin Seeley George is the Director of Campaigns and Operations at Fight for the Future, a nonprofit digital rights advocacy group. Caitlin, in addition to that case in Nebraska, in Texas, there's a man who's suing his ex-girlfriend's friends for helping the ex-girlfriend get an abortion, and he's using text messages as his evidence. From your perspective, what's the significance of these two cases?

  Caitlin Seeley George, Fight for the Future: These are really critical cases that highlight a lot of the concerns that privacy advocates had in the wake of the reversal of Roe. That there's so much information and data out there these days about people that is not being protected, that is accessible by law enforcement and companies, and that we absolutely believed would be used to target people for exercising their reproductive rights. And both of these cases show that's exactly what's happening.

• John Yang:

  And we've heard of criminal cases where they use emails and text messages to prosecute other crimes. But should health information be treated differently?

• Caitlin Seeley George:

  We actually think lots of information should be treated differently. One of the problems is that there are so many sources or places that people might be sharing their health information that isn't being protected.

  So a lot of people often think that HIPAA protects any health related information, but that's just not true. People use online apps, share information about therapy or period tracking and things like that. And in most cases, that information isn't protected.

• John Yang:

  And the tech companies are not fighting subpoenas much anymore.

• Caitlin Seeley George:

  Yeah, a lot of the tech companies, in the wake of the Roe reversal, came out and said that they would do what they can to protect people's right to abortion. But when it comes down to it, in the Facebook case, they were given a subpoena that didn't have information about what the case that was being investigated was.

  So Meta, Facebook's parent company couldn't argue the case or argue the subpoena based on the fact that it was related to an abortion. Most of the company's privacy policies say that they will comply with law enforcement when they're requested to give up information. And so we really can't trust that companies right now will work to defend our rights.

• John Yang:

  Is there anything the FTC or other regulatory agencies can do about this?

• Caitlin Seeley George:

  Yes, and the FTC has been investigating cases where companies are collecting information and sharing it in ways that were not clear to users when they shared that information. So there have been a handful of cases recently where the FTC has been able to show that companies use data or shared data or collected data in ways that went against their policies, and they're able to penalize those companies.

  But in a lot of cases, especially for big companies like Google or Facebook, those are slaps on the wrist. And so we really need broader legislation to stop this from happening in the first place in order to protect people's rights.

• John Yang:

  Describe that legislation at the federal level. And I also understand that some states have already acted, is that right?

• Caitlin Seeley George:

  Yeah, that's right. So what we think we need is comprehensive federal data privacy legislation that will address the collection, retention, and sharing of our personal information. A number of states have passed their own laws, which is great, and we support that, but that doesn't necessarily help people in other states. And as you might expect, a lot of the states that don't have good data privacy legislation are also the states that are criminalizing abortions.

• John Yang:

  Earlier, you mentioned that your group wants to see other data information protected differently than what it is now. Give us an idea of the range of what your group would like to see.

• Caitlin Seeley George:

  Sure. I think one good example is something people might not realize, is how much location data is being tracked. Since we all walk around with phones in our pockets, basically everywhere we go is being tracked either by the phone itself by our cell phone operating companies or by the companies that run apps like Google.

  And so that's something that we think is highly problematic because people should be able to walk through society without their every move being tracked. And obviously, when we think about sensitive locations like healthcare facilities, religious institutions, and also people attending protests or exercising their first amendment right, we think all of that location data should be protected and should not be collected by companies that could then share that information with law enforcement.

• John Yang:

  What more can these tech companies be doing to protect this information?

• Caitlin Seeley George:

  We think these companies need to take user safety and security a lot more seriously. In the Nebraska case, the reason that Meta was able to hand over the messages between the teenager and her mom to law enforcement was because they could access them.

  But if the company implemented default end to end encryption of all of the messages, that wouldn't have been possible because with end to end encryption, only the sender and intended recipient can access those messages.

  So that's something that we think all platforms that have messaging tools need to do in order to ensure that people have safe places to communicate online.

• John Yang:

  Are there platforms that do that now? The end to end encryption?

• Caitlin Seeley George:

  Yes. So the one that we suggest people download is called signal, and it is default end to end encrypted, and they do everything they can to collect as little information on users as possible. Meta is planning to roll out default end to end encryption for Messenger sometime this year. But again, with this case in Nebraska, we see that every day that isn't in place, people are in danger.

• John Yang:

  Caitlin Seeley George from Fight for the Future. Thank you very much.

• Caitlin Seeley George:

  Thanks so much, John.