Federal government will help states punish abortion — using our phones

On June 24, the Supreme Court officially overturned Roe v. Wade, taking away the formal legal right to an abortion that it had previously declared in 1973. According to the Guttmacher Institute, following the court’s decision in Dobbs v. Jackson Women’s Health Organization, 26 states immediately banned abortion or are likely to do so soon. While there has been much discussion about how investigators in those states will leverage digital data against people suspected of having or performing abortions, one startling fact has gone unnoticed: The federal government is poised to lend those states a hand. 

For years, federal law enforcement has quietly assisted its local counterparts with digital evidence collection. Post-Roe, it will inevitably do so in abortion cases as well, unless the attorney general intercedes.

Thanks to years of regulatory inaction on online privacy, modern criminal investigations have access to copious amounts of digital data that Americans generate — often unwittingly — from a multitude of sources. First and foremost: our phones, which are treasure troves of highly revealing information. Period-tracking and other health apps can indicate a pregnancy. Google search history divulges queries about how to end it. Web browsers log what sites someone visits, while online advertising and analytics technologies track them around the internet. Payment information reveals a purchase of abortion medication online. Call logs show calls placed to doctors’ offices and counseling hotlines. Location data from cell towers and apps disclose a visit to an abortion clinic, and text messages arrange a ride there and back.

All of this information (and more) is typically available to law enforcement with the right legal process, whether from a third party such as an app maker or from the phone itself. The police can seize and search someone’s phone if they have a warrant, but no warrant is necessary if she consents to the search — consent that may have been procured coercively if she’s under pressure from hospital staff, social workers, or police officers.

Once a phone is in police custody, investigators can extract digital evidence from it using powerful technology known as mobile device forensic tools (MDFTs). Some MDFTs are offered by private-sector vendors; federal agencies including the Federal Bureau of Investigation have developed their own MDFTs as well. According to a 2020 report from policy nonprofit Upturn, over 2,000 local law enforcement agencies, spanning all 50 states and the District of Columbia, have purchased MDFTs; the true number is likely even higher. While they tend to highlight cases involving serious and violent crime, these agencies have employed MDFTs for offenses as mundane as shoplifting, graffiti, and public intoxication. That track record leaves no doubt that police and prosecutors will use these tools against abortion suspects, too.

And the federal government will help them do it. 

As Upturn’s report describes, federal grants often pay for MDFT purchases, and local agencies without their own MDFTs can access them through partnerships with larger agencies such as the FBI. Of the FBI’s 17 regional labs for digital evidence analysis (which also provide training to state and local personnel), six are in abortion-ban states: Alabama, Kentucky, Missouri, Texas, and Utah. These longstanding yet little-known partnerships risk turning the FBI into a force multiplier for anti-abortion states — a huge and well-funded machine to help punish people for something that is not a federal crime.

Abortion is legal in America. The end of Roe does not change that. This is not to say there are zero federal restrictions on abortion access: for example, with narrow exceptions, federal funds are barred from paying for abortions. Yet nothing stops their use for digital evidence-gathering that will put abortion seekers and providers in state prison. My federal tax dollars cannot finance someone’s abortion, but they can finance her prosecution and incarceration for having it.

The federal government has no business helping states punish abortion. It must be formally prohibited from doing so right now, before Dobbs unleashes a tidal wave of requests for digital forensics assistance from abortion-hostile states.

Democratic lawmakers, whose bills to protect Americans’ location and health data face an uphill battle in Congress, have suggested a slate of actions for the executive branch to take in defense of Americans’ abortion rights. I’ll add one more: Attorney General Merrick Garland should issue a policy prohibiting every component of the Department of Justice, especially the FBI, from using any federal resources to assist state or local law enforcement agencies in abortion-related investigations and prosecutions. No grant money. No personnel. No technology. No equipment. No training. No testimony in court. Not a minute of any federal agent’s time.

Such a policy could then serve as the model for an executive order by President Biden that would cover even more of the federal government.

Despite Dobbs, abortion is still legal under federal law. Federal law enforcement authorities must act like it.

Riana Pfefferkorn is a research scholar at the Stanford Internet Observatory who studies electronic surveillance by law enforcement.