Period trackers, location data, search histories, text messages: There is a veritable mountain of digital information that privacy advocates are now worried could be used by law enforcement in states that have banned abortion.
But not all those threats are the same. Legal experts are poring over how to interpret a patchwork of state abortion laws, and how digital information could be used to pursue criminal cases in relation to abortions.
Much of what exactly is and is not legal is still murky, but previous criminal cases that have used digital information to persecute crimes offer some indication of how law enforcement could proceed.
The internet is filled with warnings that single points of digital health data, like details from a period tracking app or Google Maps showing that someone visited Planned Parenthood, could be used against someone in a criminal case. But experts who have studied cases in which people have been prosecuted for abortion-related crimes say those fears are largely misplaced.
Digital information and intent
In the few cases in which people have been charged, law enforcement has been mostly concerned with evidence that someone knowingly carried out an abortion-related crime. A period tracker can at best indicate that someone became and then no longer was pregnant, which stops short of proving they had an abortion.
Prosecutors instead often rely on a digital paper trail created by looking through a suspect’s smartphone. That means text messages, emails and search histories that show someone sought an abortion, said Cynthia Conti-Cook, a Ford Foundation fellow who authored an influential paper about digital evidence used in abortion prosecutions.
Searching on the internet for how to have an abortion isn’t illegal. But states have used search histories as evidence of intent in cases against people who were accused of illegally