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           [https://rollcall.com/2022/07/20/data-privacy-abortion-limits-set-to-collide-post-roe/](https://rollcall.com/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           [https://www.nytimes.com/2022/07/13/technology/personaltech/abortion-privacy-roe-surveillance.html](https://www.nytimes.com/2022/07/13/technology/personaltech/abortion-privacy-roe-surveillance.html)       -   #2022-07-08 How to protect your privacy in a post-Roe America           [https://mashable.com/article/how-to-protect-online-privacy-post-roe-abortion](https://mashable.com/article/how-to-protect-online-privacy-post-roe-abortion)       -   #2022-07-08 Protecting digital privacy post-Roe           [https://whyy.org/episodes/protecting-digital-privacy-post-roe/](https://whyy.org/episodes/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           [https://www.npr.org/2022/07/02/1109565803/data-privacy-abortion-roe-apps](https://www.npr.org/2022/07/02/1109565803/data-privacy-abortion-roe-apps)       -   #2022-06-30 Deleting Your Period Tracker Won’t Protect You           [https://www.nytimes.com/2022/06/30/technology/period-tracker-privacy-abortion.html](https://www.nytimes.com/2022/06/30/technology/period-tracker-privacy-abortion.html)       -   #2022-06-29 The future of privacy rights in a post-Roe world           [https://www.axios.com/2022/06/29/privacy-right-roe-v-wade-dobbs-v-jackson-online-data](https://www.axios.com/2022/06/29/privacy-right-roe-v-wade-dobbs-v-jackson-online-data)       -   #2022-06-28 Why some fear that big tech data could become a tool for abortion surveillance           [https://www.pbs.org/newshour/economy/why-some-fear-that-big-tech-data-could-become-a-tool-for-abortion-surveillance](https://www.pbs.org/newshour/economy/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           [https://www.theverge.com/23185081/abortion-data-privacy-roe-v-wade-dobbs-surveillance-period-tracking](https://www.theverge.com/23185081/abortion-data-privacy-roe-v-wade-dobbs-surveillance-period-tracking)       -   #2022-06-24 What police could find out about your illegal abortion           [https://www.vox.com/recode/23059057/privacy-abortion-phone-data-roe](https://www.vox.com/recode/23059057/privacy-abortion-phone-data-roe)  

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