The Cybertraps of Choice: Pregnancy & Privacy in a Post-Roe World Episode 132

– News Item — On June 24, 2022, the U.S. Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization. – The Court expressly overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) – Each state is now able to adopt its own laws regarding the practice of abortion – Overview – An important reminder: Roe was a privacy case – The Court was trying to balance three separate constitutional principles – A woman’s right to privacy – The State’s interest in protecting the health of a pregnant person – The State’s interest in protecting the life of a viable fetus – Roe was an extension of two earlier privacy cases: Griswold v. Connecticut (1965), which established a federal “right to privacy” with respect to a married woman’s ability to obtain contraceptives from her doctor, and Eisenstadt v. Baird (1972), which extended that same right to unmarried women. – How Might Cybertraps Arise? – Suspicious Circumstances – It is often difficult to tell the different between a spontaneous miscarriage and a self-medicated abortion – Approximately 30% of all pregnancies end in a spontaneous miscarriage – Criminal Investigations – Abortion is now banned in six states – Alabama – Arkansas – Mississippi – Missouri – Oklahoma – South Dakota – It is a crime to perform abortions and in most states, to “aid and abet” someone having an abortion – The Health Insurance Portability and Accountability Act (HIPAA) does not prevent a doctor or medical organization reporting personal health data if they think a crime has been committed – Family Educational Rights & Privacy Act (FERPA) is very similar in this regard. – If someone reports that an abortion has occurred, local law enforcement or a local prosecutor could initiate a criminal investigation – Law enforcement can: – subpoena data from online account – conduct forensic exams of digital equipment – Civil litigation – A handful of states, led by Texas, have created systems that deputize enforcement to private citizens – Under that scheme, an individual located anywhere in the country can file a lawsuit alleging that another person performed an illegal abortion or aided and abetted a person in obtaining one – If the lawsuit is successful (by “a preponderance of the evidence”), the defendant can be ordered to pay a minimum of $10,000 as well as costs and attorneys fees – All of the usual civil litigation rules apply, including discovery of relevant evidence (apps, browser history, social media, cell phone records, etc.) – Risks for Educators – Social media posts that are contrary to state law – Requests for advice from students – What Data Is Collected? – Cybertraps for Expecting Moms & Dads – Erratic protection of personal data across the country – Communications – Email – Messaging – Health Care Data – Health Care Providers – Employers – Financial Records – Bank accounts – Credit cards – Online payment apps (Paypal, Stripe, etc.) – Browsers and Search Engines – Social Media – Selfie-incrimination – Tagging – Apps – Fertility – Health, General – Smartwatches – Can pinpoint the start of pregnancy from biometric information – Geolocation – Cellphone tower pings – Apps – Location tracking (Foursquare) – Geo-announcements (Twitter) – Location tracking by Google Maps, Waze, or iMaps – Governmental Tracking Tools – License plate readers – Biometrics – Other Looming Constitutional Issues – The Right to Travel – Some states are considering laws that would prohibit their citizens from traveling out-of-state for abortions – Criminal enforcement would be difficult (although surveillance tools are growing increasingly powerful) – Civil enforcement presents many fewer constitutional questions – Free Speech/Freedom of the Press – Some state legislators have also expressed interest in trying to prohibit web sites from publishing certain information about abortion (self-medication, availability of out-of-state services, etc.) within their states – As a practical matter, it’s challenging to block such content (VPNs, TOR browers, etc.) – Such efforts would call into question the fundamental structure of the internet – Resources – #2022-07-20 Data privacy, abortion limits set to collide post-Roe []( – #2022-07-13 In a Post-Roe World, the Future of Digital Privacy Looks Even Grimmer []( – #2022-07-08 How to protect your privacy in a post-Roe America []( – #2022-07-08 Protecting digital privacy post-Roe []( – #2022-07-06 How online searches and texts can put you at risk in a post-Roe world, and how to protect yourself – #2022-07-02 Data privacy concerns make the post-Roe era uncharted territory []( – #2022-06-30 Deleting Your Period Tracker Won’t Protect You []( – #2022-06-29 The future of privacy rights in a post-Roe world []( – #2022-06-28 Why some fear that big tech data could become a tool for abortion surveillance []( – #2022-06-27 The Biggest Privacy Risks in Post-Roe America []( – #2022-06-24 What police could find out about your illegal abortion [](

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