Reproductive Justice and Digital Rights: 2022 in Review

Reproductive justice and safe access to abortion, like so many other aspects of managing our healthcare, is fundamentally tied to our digital lives. And since it is part of our healthcare, we should have the ability to keep it private and access information about it, even when it’s on a digital device. Actually, especially then: our devices contain a vast amount of highly sensitive personal information. And we all now turn to our phones in order to find information and share our experiences. Ever since it was even rumored that the Supreme Court would be overturning Roe v. Wade, EFF has sprung into action to make sure lawmakers and those seeking abortions know exactly what information resides in the digital world and how it could be shared, or censored, without permission.

That meant that when Dobbs v. Jackson overturned the protections that Roe promised to people seeking abortions and other reproductive healthcare, we were prepared. We were prepared to answer questions about what exactly your phone knows, Google knows, and Facebook knows. And how that information could be obtained. The sudden disappearance of federal protections, combined with a growing number of “bounty laws” targeting support for such care, raises a host of concerns regarding data privacy and online expression. And this expanded threat to digital rights is especially dangerous for BIPOC, lower-income, immigrant, LGBTQ+ people, and other traditionally marginalized communities, and the healthcare providers serving these communities.

The repeal of Roe created a lot of new dangers for people seeking healthcare. This past year, EFF has worked to protect your rights in two main areas: 1) your data privacy and security and 2) your right to free speech.

Data Privacy and Security

With law enforcement looking to punish those who seek abortions, your digital paper trail is now potentially incriminating evidence. Google maps data can tell police if you searched for the address of a clinic. Chat logs can show if you talked about abortion with someone. A digital dragnet can give police names of anyone in the vicinity of a place suspected to offer abortion services. These are just a few examples of things law enforcement already does in other criminal contexts and can now do with regard to reproductive health. The good news is that EFF has a lot of experience in fighting these fights. And so our initial efforts focused on protecting the data privacy and security of people seeking, providing, and facilitating abortion access.

First, we assembled data privacy guides for anyone potentially affected: patients seeking reproductive healthcare, clinics and health professionals, and those involved in the abortion access advocacy movements. We also posted a short video on good security practices for those who might be targeted by anti-abortion laws.

We then provided a principled guide for tech companies to respect user privacy and rights to bodily autonomy. And we called on nonprofit organizations to remove trackers from their websites—highlighting the dangers they could create for people seeking information on abortions.

EFF has also been working with legislators on common-sense privacy legislation to protect not only health-related data but the full range of consumer data that could be weaponized against abortion seekers.

At the state level, we’ve supported data sanctuary legislation to prevent data in pro-choice states from being used for abortion ban enforcement in other states. For example, we worked with California lawmakers to pass A.B. 2091 and A.B. 1242—marking a crucial step forward in making California a digital sanctuary state for people seeking reproductive healthcare.

In Congress, EFF supported Rep. Sara Jacobs’ “My Body, My Data” bill, which would limit how businesses collect, retain, use, and share reproductive health data.

We’ve also pushed for legislation that limits law enforcement access to privately held data, in particular geofence and keyword warrants, and purchasing data from brokers. We explained what policymakers can do to reduce the risk that automated license plate reader data and location data is used to track abortion seekers and providers. And we called on the Administration to prevent federal aid from being used by state and local law enforcement to investigate and prosecute reproductive health choices

First Amendment

The criminalization of abortion threatens not only our right to privacy but also our right to speak freely online.

It also makes things very confusing for regular internet users. Almost every platform has rules against “promoting” “illegal” activities. If abortion is legal in some states but not others, how does that affect what can be said and seen across the country? And many states have gone further than simply banning abortion to also policing what people can say and see online.

To mitigate this threat, EFF has warned against anti-choice states’ efforts to restrict the exchange of abortion-related information online. We explained how Texas’s anti-abortion law violates the First Amendment rights to advocate for reproductive choice, to provide basic educational information, and to counsel those considering reproductive decisions. We joined others in successfully opposing a South Carolina bill that would have made it a crime to discuss abortions online. And we emphasized the importance of pressuring platforms to resist government pressure to remove speech that could be interpreted to aid or abet access to abortion care.

Reproductive health has become an increasingly important attack vector for digital rights, and therefore an increasingly important priority for EFF. There’s a lot more to do, and we know this will be a vital part of EFF’s work for years to come.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2022.