The Fall of Roe Would Put Big Tech in a Bind

In April 2017, Latice Fisher, a woman from Mississippi, arrived at a hospital suffering from a miscarriage. She was later indicted on a charge of second-degree murder. Prosecutors used her search history and her online purchase of the abortifacient drug misoprostol as evidence that she had murdered her fetus.

After Politico released a draft of the US Supreme Court’s majority opinion to strike down Roe v. Wade on Monday, activists, academics, and lawyers who spoke to WIRED say they are worried that cases like Fisher’s may become more common and that tech companies are not ready for the choices they will face in a post-Roe America.

“What we do know is what we’ve already seen [law enforcement] do in criminal court,” says Cynthia Conti Cook, a litigator and tech fellow at the Ford Foundation who has researched the use of surveillance technology to criminalize abortion. “We don’t need to put on the tinfoil hats to speculate.”

Some large tech companies, including Salesforce and Amazon, have responded to increasing abortion restrictions by offering to support employees seeking to relocate, or reimburse workers who travel out of state for medical care. But questions remain about whether they will share user data with law enforcement, or continue to allow abortion-related content to remain on their platforms.

“They aren’t remotely prepared for what’s coming,” says Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project (STOP).

Most major tech companies, particularly Google, Meta, and Amazon, which rely on advertising revenue, say they do not sell user data. But the fact that they collect and store so much information about their users makes them natural targets for law enforcement officials seeking to build a case.

Earlier this week, Motherboard reported that it was able to buy the location data of people who had visited abortion clinics from a third party data broker on the open market. This kind of information, says Jolynn Dellinger, a lecturer at Duke Law School who specialises in data ethics, could be used by law enforcement to establish probable cause–enough to serve a company like Google or Meta with a request for a user’s data or search history.

“The easiest way for companies to not to comply with legal requests for data is to not keep and store user data,” says Fox Cahn, who noted that Google has received an increasing number of requests for geofence warrants, which shows the all users in a particular place at a particular time. In 2020, 25 percent of the requests that Google received from US authorities were warrants for geofenced data.

Though Cooper Quintin, a researcher at the Electronic Frontier Foundation, says that companies have resisted data subpoenas that they believe are illegitimate, last month a report from Bloomberg found that Apple, Meta, Alphabet, and Twitter were among a number of companies that had responded to fraudulent legal requests for user data that was then used to harass and extort women and underage users.