This is Part One of a three-part series on abortion and Big Tech.
In my senior year of high school, two of my friends stumbled back into the classroom after lunch with twin looks of shock on their faces. Earlier, while they were both competing to caption their Venmo requests with the funniest quip, one of them had made the unfortunate mistake of writing “El Chapo” before sending $20 to pay the other for lunch. Immediately, both friends received notifications via text and email that their Venmo accounts had been closed for review due to suspected criminal activity. Horrified, they sat through the rest of the school day, obsessively checking their phones for updates.
While my friends were ultimately able to explain their way out of the situation, this story is not an uncommon one –– payment apps, like Venmo, present legal risks for anyone who uses them. The lack of end-to-end encryption in these apps, as well as other services that provide channels of communication between two users, is not always evident until similar situations arise, upon which it becomes incredibly clear that these services can look into messages, money transfers, and other tidbits of information passed through their interfaces. Alejandra Caraballo of the Harvard Law School Cyberlaw Clinic, in a Wired op-ed, writes that this third-party doctrine prevents any users from asserting their Fourth Amendment rights to privacy on these apps. The Fourth Amendment, which ensures a citizen’s right to be secure in their persons and effects against unreasonable searches and seizures, is overwritten by this tech policy that allows for the mining of data on a person’s phone and any online services they use.
My friends and I now look back on the “El Chapo Incident” with laughter, but I cannot help but think of what it indicates in our current political climate. Nearly a year has now passed since 2022’s overturning of Roe v. Wade, and the consequent outlawing of abortions at the state level, but tech companies are still grappling with how to update privacy and legal policies to satisfy the demands of both consumers and the government. In the case of Venmo, for example, what happens to users who donate to abortion funds in states where abortions are now illegal? For Facebook, how do their engineers decide which political posts are kept up and which are brought down within hours? What about Snapchat Maps and the potential for location-tracking of users traveling to abortion clinics?
Big Tech is at a pivotal moment amidst a national reckoning over defending reproductive rights in a technologically advanced society. These companies still have time to take a stronger stance and keep users safe via data encryption. Changing their code and internal company policies to protect users and employees does not have to mean blatantly taking a side in the political divide, but it does necessitate adapting to the mutated political landscape, one where Big Tech’s employees are no longer safe to have abortions and where users may be prosecuted based on data that their apps collect.
Caught in the Crosshairs
Big Tech, a catch-all term for the biggest technological companies in America (and across the globe), includes Google, Apple, Facebook, Amazon, and other companies that rely on technology to form their content, such as Disney and Pinterest. Journalists have, perhaps aptly, dubbed those first four as the “Four Horsemen.”
These Big Tech companies have always danced uneasily around politics. Historically, they have never released any public statements in support or in condemnation of government policies and have remained sneakily uncontroversial in the public eye. But in recent years, tech companies have been forced to confront the notion that their decision-making and application-building are still strongly, undoubtedly political. For example, Meta, née Facebook, spent months in the news cycle following the presidential election of 2016 for selling user data to Cambridge Analytica and potentially influencing Donald Trump’s victory. Meanwhile, investigative reporting has revealed that Amazon, Google, and Microsoft maintain close ties with the U.S. Immigration and Customs Enforcement, aiding in the deportation of vulnerable and “undocumented” immigrants.
While the great digital revolution came after the Supreme Court’s ruling in Roe v. Wade in 1973, the recent climax of the fight over abortion rights places Big Tech in another precarious political position. In public-facing consumer privacy policies, a vast majority of Big Tech companies assert that they will provide law enforcement with access to user data in response to all valid orders. Consequently, in the age of massive data collection, this provision could become perilous for all who can get pregnant in America.
Data and Me (and Big Tech)
As people send money and data back and forth online, platforms are able to track and flag sensitive information related to abortions. For example, users who create or donate to crowdfunding requests related to abortions can be prosecuted. Menstruators who use fertility trackers and period apps are at risk of their data being collected and sold to anti-abortion activists and lawmakers. Even location pings around Planned Parenthood clinics could lead to arrest. Yet Vice reports that all of its requests for comment to Big Tech on abortion-related data policies have been ignored. Specifically, Meta, Amazon, Twitter, and Snapchat have refused to explicitly clarify whether they will fulfill or deny law enforcement requests for data regarding investigations into abortion cases. Yet, it seems like Big Tech is doing what it always does — putting its actions where its words aren’t.
Meta, for example, demonstrated its preference by complying with a subpoena to release Facebook Messenger chats between a Nebraska woman and her pregnant teenage daughter in relation to her desired abortion. While claiming to be uninformed on the context of the subpoena and receiving warrants containing no mention of abortion, Meta ultimately made a highly political move by giving up private and personal information that their users entrusted to them.
As of April 2023, more than half of America’s states have criminalized and banned abortions in some form. Big Tech companies like Meta operate in all of them. It is foolhardy to continue skirting the issue.
Big Tech has already — inevitably — been dragged into the affair. Alejandra Caraballo explained in an interview with the HPR that it is not out of the ordinary for state governments to subpoena tech companies in order to mine location and menstruation data. “Generally,” she says, “the state can get those records. There’s not an expectation of privacy in those records under third-party doctrine.” According to Caraballo, inputting personal data like menstrual information into applications is not considered exempt under federal law restricting the release of medical information. Women have been at risk for years, but the stakes are now infinitely higher.
The easiest way for Big Tech to preserve autonomy from the state and preserve user privacy without bucking the word of law enforcement is to design its systems in a way that avoids culpability. While Big Tech may not always be able to make autonomous decisions in reaction to law enforcement’s demands — Apple’s long standoff with the FBI over the San Bernardino terrorist attack ended only when an Australian firm hacked the shooter’s iPhone, for instance — they do have control over the way their apps and platforms are built. Signal, a popular messaging app, is favored by many political activists because of its end-to-end encryption. The company is unable to provide the content of users’ communication in response to legal requests simply because of the way the app is structured.
Other tech companies would do well to follow Signal’s lead and create spaces where users are protected and put first. The Electronic Frontier Foundation, a tech activist group, released a statement to Vice in June of last year arguing that companies should protect users by preventing location and behavioral tracking and reverting to encrypting data by default. Caraballo agrees, stating that all apps should switch to encrypted models where user data is not compromised.
Meta became one of the first to adapt to the political situation following the Nebraska incident. In early August 2022, Meta made the admirable move to adopt Signal’s policy and make all of its messaging platforms end-to-end encrypted. The company’s technical response to the public uproar over the Nebraska case has been encouraging. Its ability to pivot rapidly and immediately work to release wider end-to-end encryption for all users should set an example for all other Big Tech companies.
With Signal’s encryption policy and Meta’s precedent-setting, other companies have clear examples to follow. These firms show that it is indeed possible for companies to take swift action to protect users, which should take precedence over complying with harmful government actions. Ultimately, if Big Tech companies value their own autonomy and their users’ privacy, they must seriously consider the Electronic Frontier Foundation’s recommendations — and help keep their users safe, online and off.
Image by Dole777 licensed under the Unsplash License.
