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Digital stalker
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4. Stalkerware Could Be Used to Incriminate People Violating Abortion Bans
Stalkerware—consisting of up to 200 surveillance apps and services that provide secret access to people’s phones for a monthly fee—“could become a significant legal threat to people seeking abortions, according to a pair of articles published in the wake of the U.S. Supreme Court’s decision to overturn the constitutional right to abortion,” Project Censored reports.
“Abortion medication is safe. But now that Roe is overturned, your data isn't,” Rae Hodge wrote for the tech news site CNET just two days after the Dobbs decision. “Already, the digital trails of abortion seekers can become criminal evidence against them in some states where abortion[s] were previously prosecuted. And the legal dangers may extend to abortion seekers in even more states.”
The next month, writing for Slate, University of Virginia law professor Danielle Keats Citron warned that “surveillance accomplished by individual privacy invaders will be a gold mine for prosecutors targeting both medical workers and pregnant people seeking abortions.” Invaders only need a few minutes to access phones and passwords. “Once installed, cyberstalking apps silently record and upload phones’ activities to their servers,” Citron explained.
“They enable privacy invaders to see our photos, videos, texts, calls, voice mails, searches, social media activities, locations—nothing is out of reach,” she continued. “From anywhere, individuals can activate a phone’s mic to listen to conversations within 15 feet of the phone,” even “conversations that pregnant people have with their health care providers—nurses, doctors, and insurance company employees,” she warned.
As a result, Hodge cautioned, “Those who aid abortion seekers could be charged as accomplices in some cases,” under some state laws.
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It’s not just abortion, she explained, “Your phone's data, your social media accounts, your browsing and geolocation history, and your ISP's detailed records of your internet activity may all be used as evidence if you face state criminal or civil charges for a miscarriage.”
“Often marketed as a tool to monitor children’s online safety or as device trackers, stalkerware is technically illegal to sell for the purpose of monitoring adults,” Project Censored noted, but that’s hardly a deterrent. “Stalkerware and other forms of electronic surveillance have been closely associated with domestic violence and sexual assault, according to the National Network to End Domestic Violence,” Citron noted.
In addition, Hodge explained, “third-party data brokers sell sensitive geolocation data—culled through a vast web of personal tracking tech found in apps, browsers, and devices—to law enforcement without oversight.” And “abortion bounty hunter” provisions adopted by states like Texas and Oklahoma, add a financial incentive. “Given the inexpensive cost of readily available stores of personal data and how easily they can be de-anonymized, savvy informants could use the information to identify abortion seekers and turn a profit,” she noted.
“The law’s response to intimate privacy violations is inadequate, lacking a clear conception of what intimate privacy is, why its violation is wrongful, and how it inflicts serious harm upon individuals, groups, and society,” Citron explained. “Until federal regulations and legislation establish a set of digital privacy laws, abortion seekers are caught in the position of having to create their own patchwork of digital defenses, from often complicated and expensive privacy tools,” Hodge warned.
While the bipartisan American Data Privacy and Protection Act is still “slowly inching through Congress” it “is widely thought toothless,” she wrote.
The Joe Biden administration has proposed a new rule protecting “certain health data from being used to prosecute both clinicians and patients,” STAT reported in May 2023, but the current draft only applies “in states where abortion is legal.”
“Corporate news outlets have paid some attention to the use of digital data in abortion-related prosecutions,” Project Censored reports. While there have been stories about post-Roe digital privacy, “none have focused specifically on how stalkerware could potentially be used in criminal investigations of suspected abortions.”
