Big Tech can help women in a post-Roe world. Is that okay?

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If, as expected, the Supreme Court overturns roe deer v. Wade, How the outcome of reproductive choice affects American life will not only affect state lawmakers and activists, but Big Tech as well.

In certain 26 states, some or all abortion procedures will become illegal. Some of these states will likely be criminalize seeking an abortion (in addition to its provision). Other states will also follow Texas’ lead by offering bounties to people who identify those who have helped women get abortions, creating a private market for information. But the power of an anti-abortion state to penetrate the privacy of sexual and reproductive choice depends on how tech companies — from social media to companies that collect data from internet-connected gadgets to internet service providers – react.

Big Tech could either choose to cooperate with anti-abortion states by cutting off the flow of useful information and handing over incriminating data. Or it could protect the flow of health information and create new privacy protections to prevent outsiders from inferring early pregnancy or abortion. Companies headquartered in pro-abortion states — which typically have younger, left-wing workforces — have strong internal incentives to champion reproductive choice, but it would be foolish to doubt that ‘They will also come under heavy pressure from anti-abortion politicians and activists.

Effective reproductive choice requires access to information for ordinary people – which today means unfettered online access. However, many platforms have long been placing restrictions on sex education material, mistaking them for sexual exploitation material. Moreover, when abortion clinics are closed under threat of lawsuits, provision online abortion drugs becomes much more important, and this service is also vulnerable to Big Tech’s content moderation choices. (An anti-abortion company might become more aggressive in downplaying content. Or it might to cut the usual protection offered against hackers, cancel domain registrations for pro-abortion sites, or freeze payments to clinicians.)

Republicans won’t just unseat Roe

Law enforcement also needs information to do their job. In the era of medical abortion and distance medicine, the ability of states to restrict access to abortion depends in part on their ability to identify who seeking such care. Web searches, unencrypted emails and text messages have already was used to charge a woman who had a miscarriage with murder and another with feticide. Digital traces, created using handheld tools, phone apps, or online transactions, are about to become routine sources for criminal investigations into pregnancy outcomes.

Abortion rights advocates have been particularly focused Warning on period-tracking apps, such as Flo and Clue. But many other kinds of data could help anti-abortion prosecutors. Fitbit products, for example, collect data on weight, activity, heart rate, and sleep, which can also provide telltale clues about pregnancy. The company promises to only share it “for legal reasons or to avoid harm.” But Fitbit data has already been used as evidence in cases ranging from rape to murder, and there’s nothing stopping prosecutors from subpoenaing similar data to support abortion lawsuits.

Location data generated by cell phones can also be used to infer out-of-state travel to seek care. A recent Supreme Court decision argues that the state must obtain a warrant before asking a cellphone company for location data — but again, it seems likely that warrants will be easily obtained in anti-abortion states. Either way, police are already circumventing the warrant requirement by buying location data from commercial vendors who harvest it from cellphone apps and sell it wholesale.

How can tech companies make life easier for pregnant women and other pregnant people, and harder for law enforcement officials who are cracking down on abortion? First, companies must ensure that abortion information remains available on their platforms, despite political pressure. They should reject states’ calls for censorship — which are constitutionally dubious — and instead provide free services to help abortion information remain widely available online. One model is Cloudflare’s project Galileowhich protects vulnerable groups on the web, from journalists to activists, against cyberattacks such as distributed denial of service.

Another step is to strengthen confidentiality. A generation ago, feminists fought the scourge of domestic violence by resisting the idea that constitutional privacy blocked the view of the home. But now it will be necessary to build digital walls to create new safe digital spaces for reproductive choice.

Whenever possible, companies should provide end-to-end encryption by default in all of their communication systems, which would provide people seeking abortions with a layer of protection both from states that monitor pregnant women and from potential bounty hunters. Apple’s iMessage, Signal and WhatsApp, for example, already offer end-to-end encryption by default, while Twitter and Gmail do not.

Companies should also educate users about which services are more or less private, empowering abortion seekers to select secure communications. They would have to purge their users’ pregnancy and abortion data frequently instead of storing it, making them vulnerable to the efforts of anti-abortion law enforcement or hackers. And companies should publicly refrain from using machine learning-based predictive tools to identify user pregnancies or pregnancy outcomes; ten years ago, retailers were using these tools to deduct a pregnancy from a consumer’s purchases, and predictive algorithms have only grown in power.

Ginsburg once defined the court’s vision of women’s equality. Now Barrett does.

Businesses can follow the law without making it too easy for the police. Rather than offering special offers online portals so that the police To download data in a hyper-efficient way, as Facebook and others do for some investigations, companies should slow down the process by notifying people whose data has been targeted when possible, demanding warrants and hard the legality of warrants to court when an individual cannot be notified. Care must be taken that this does not prevent prosecution for crimes such as domestic violence, rape and homicide. But tech companies’ business models are built around targeting nuanced data patterns, and they should be able to uniquely identify and purge or protect abortion-related data.

The prominence of Big Tech in the abortion wars will no doubt embarrass progressives who see the industry as a problematic concentration of private power. Yet when, as today, the power of the state is regressively and cruelly bent, it makes sense to look to civil society – including business – as a countervailing force. The decision of Apple, Amazon and IBM to leave the facial recognition tools market maybe didn’t stop the police to use these instruments, for example. But that probably slowed the spread and blunted the effectiveness of these tools. It is in the power of tech companies to reclaim some privacy from government intrusion that roe deer once guaranteed. They should jump at the chance to protect vulnerable pregnant women and other pregnant people, and insulate their reproductive choices from the harmful gaze of the state.

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