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Where abortion is banned, someone's phone activity could be used as criminal evidence

JUANA SUMMERS, HOST:

Can using your phone to search from an abortion provider be used against you in a criminal case? According to some privacy experts, that is now a real possibility. NPR's Bobby Allyn looked into how our digital lives could be transformed in a post-Roe world.

BOBBY ALLYN, BYLINE: The Supreme Court overturning Roe v. Wade has privacy experts on edge. While we don't yet know how exactly state prosecutors might enforce abortion bans, it is theoretically possible that some states could start investigating women suspected of having sought abortions. If that happens, the phone activity of women could be the first target, says Elisa Wells. She's the co-founder of the abortion rights group Plan C.

ELISA WELLS: Have you gone to a website and looked up how to get abortion pills online? Have you made an order online? Those sorts of things are records that can be gathered in the course of somebody building a case against you.

ALLYN: And this is not purely hypothetical. There's at least one example from 2018 where a Mississippi woman's Google history searching for abortion pills was part of the evidence prosecutors used against her in a second-degree murder case after having a stillbirth. The case was eventually dropped. The National Advocates for Pregnant Women represented the woman in the case. Dana Sussman with the group says she expects these kinds of cases to now become more common.

DANA SUSSMAN: We only have a couple of cases we can point to right now that provide sort of a guide for what may be to come. But I do think that the digital footprint is going to be everything.

ALLYN: Digital records are routinely part of criminal prosecutions in other types of cases. And when authorities ask for it, big tech companies usually hand over the data they collect about users. But before that, police could try to get a suspect to willingly hand over their phone. Sussman says she will be telling women not to do this.

SUSSMAN: The harder it is to get the information, the more work they have to do, the less likely it is that they will move ahead with prosecutions.

ALLYN: One big question, though, is how tech companies will respond if law enforcement make requests aimed at women seeking abortions. Google, Facebook parent Meta, Apple, Twitter and Amazon did not respond to requests for comment about this.

SHIRIN MORI: It's deeply concerning that they haven't yet decided how they want to stand with their users.

ALLYN: That's Shirin Mori, who works on digital security at the Electronic Frontier Foundation. She says one major thing tech companies can do to protect women right now is to offer an option in which people can, say, search, buy things and use social media without it being tied back to them.

MORI: So it's really important that they make it possible for people to access their services without being signed in, for example, or without being tracked.

ALLYN: Privacy experts are not only worried about how the Googles and Facebooks of the world will respond to requests from authorities but also companies known as data brokers that buy and sell people's data for advertisers. This often includes location data. Also causing some concern are apps that help women track their periods. Some of those apps are now redesigning their services to ensure their data is anonymous. Farah Diaz-Tello is a lawyer with the reproductive rights group If/When/How. She says of course authorities can't monitor what people are doing on their phones at all times. It's only when someone is under investigation.

FARAH DIAZ-TELLO: Once that happens, then their digital footprint - you know, what's on their phone, what's on their computer, these sorts of things - then becomes a part of the criminal investigation.

ALLYN: Still, she says, women living in states where abortion is illegal or highly restricted need to be asking themselves some questions.

DIAZ-TELLO: What data are we creating? Who owns those data? How do we control them or not?

ALLYN: And experts say there are ways to better control your data - using encrypted messaging services like Signal, privacy-focused web browsers, turning off location sharing on apps so your travels don't leave behind digital breadcrumbs. And then there's another option privacy experts suggest. If you're going someplace you want to keep private, turn off your phone, or keep it at home. Bobby Allyn, NPR News.

(SOUNDBITE OF BUN B & STATIK SELEKTAH SONG, "SUPERSTARR") Transcript provided by NPR, Copyright NPR.

Bobby Allyn is a business reporter at NPR based in San Francisco. He covers technology and how Silicon Valley's largest companies are transforming how we live and reshaping society.