AUSTIN, Texas — Now that abortion is illegal in Texas, some women are worried that their location data will be used against them or their doctor. Some experts say it’s time to get serious about your online privacy.
“I think people need to start being more aware of having their location services on,” said Amber Vazquez, a criminal defense attorney with Vazquez Law Firm. “Because they could be watching and searching you without your knowledge. That’s the spine-tingling, terrifying thing that everyone should get out of this.”
Vazquez is referring to law enforcement and their use of geofence warrants. In a post-Roe Texas, anyone who provides an abortion can now face criminal penalties. And data, like any other form of evidence, can be obtained through a warrant to later be used in court. A geofence warrant can give provide law enforcement with information about a location and who all was there during a certain timeframe. One data security expert breaks it down.
“With a geofence warrant, police reverse the logic of a traditional warrant,” said Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project. “Instead of knowing who they’re looking for, they cast a digital dragnet with geofence words. They will get an order that forces Google or another company to identify every single user within a designated area… It can allow them to get the information of thousands of people through a single court order. And what’s so terrifying about them in the aftermath of the Dobbs decision, is that with one of these orders, you could identify every user at the site of a Planned Parenthood clinic or another health care facility.”
Cahn says someone being monitored likely wouldn’t be convicted based on a geofence warrant alone, but it would put a lot of people on law enforcement’s radar.
“Once you get caught up in this digital dragnet, police will then pour through your search history, through your location data, through your chats and text messages,” he said. “This becomes the first step to really delving into someone’s entire digital history. And this is why it’s also important for people to take steps like, you know, using encrypted devices, using encrypted communication services, using other steps to reduce their digital footprints. But still, none of this digital self-defense is a full protection on par with a constitutional right to lawful abortion.”
This month, Google announced its systems would automatically delete location data if someone visited a medical facility such as an abortion clinic or fertility center. But Cahn says that doesn’t do enough.
“This is too little, too late,” Cahn said. “Google needs to listen to activists, to lawmakers and to millions of Americans and delete this data, not just for a handful of locations, but everywhere.”
One anti-abortion advocate agrees, saying people providing abortions illegally could be caught simply through word of mouth.
“We don’t have to be tracking people’s cellphones to know where the bad actors are,” said Kyleen Wright, the president of Texans for Life.
Google did not respond to a request for comment.
The problem with geofence warrants, Vazquez said, is that it gives law enforcement access to people’s data without notifying them that it’s being used.
“I think it is a very dangerous, slippery slope, to allow the government to start to get more and more data on us that can be used against us in a criminal matter,” Vazquez said. “The juxtaposition is: We’re also loosey-goosey with our phones and with our data. The idea that law enforcement is searching your data without your knowledge is frightening. It’s very frightening. It’s unlike, and it’s so different than, a search warrant for somebody’s home or car because you know, when they show up and are searching it, right, they serve you with it. The difference is they don’t serve you with a search warrant to search your data. That’s the big distinction for me, is that you don’t know when it’s happening. And that’s terrifying for every average American.”
Cahn goes a step further, calling geofence warrants unconstitutional.
“Through geofence warrants, we see a real assault on the founding promises of the Constitution, because they are a warrant in name only,” he said. “In practice, they are something much more dangerous, something much broader, something really incompatible with democracy.”
Charles Hosch, a member of Hosch & Morris, said the issue of data privacy is complex. But if data is obtained lawfully, it could be used in court.
“The power, the ubiquity, the complexity, the range and the cheap, inexpensive nature of this power to collect and process and analyze vast amounts of information makes this area particularly more complicated,” Hosch said. “Well, where is the responsibility to leave people alone? And to let privacy be private? Maybe it’s a moral one, but you can't enforce moral imperatives in court until they become law.”
Even if some people don’t believe data should be collected at all, it’s happening. A Google transparency report reveals that Texas had the second-most requests for geofence warrants between 2018 and 2020, after only California.
“Many things, which you may feel strongly, feel passionately, are not right [and] are, in fact, immoral. But they may be lawful,” Hosch said.
Since most tech companies haven’t announced that they will stop collecting data, some experts suggest using private browsing or encryption tools to protect yourself.