The post-Roe fight for digital privacy

OPINION

Last year, Wired reported that 45 criminal cases against J6 insurgents cited Google data to place them at the scene of the J6 insurrection.

Their phones were there. They were there. The FBI obtained this information from Google through what’s called a “geofence warrant.”

A geofence warrant is different from a normal warrant. Police surmise a time and a location for a crime - a bank robbery, arson, vandalism. They then request information from tech companies about what devices were present at that time and that location.

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If you have opted for location services on a tech company’s product as most of us do, the company will have stored the precise location of devices signed into that product - phones, laptops, tablets, and more. You can see some of the data law enforcement will get from a geofence warrant by looking at your Google timeline.

Thanks to these geofence warrants, the FBI have brought some J6 insurrectionists to justice. They have been used with some success for other crimes as well, including apprehending sexual predators.

We may be comfortable with geofence warrants when they are trained on groups or people we believe deserve it, but when law enforcement has a cannon, you don’t know when it will be pointed at you. The Supreme Court’s decision to overturn Roe illustrates this.

A hypothetical scenario

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Imagine this.

A pro-life group sets up a tip-line in a state where abortion has been severely restricted. Tips are collected on a healthcare provider that’s still providing abortion services. The pro-life group alerts law enforcement, who then confirm that the provider has performed unlawful abortions. That provider gets punished, possibly loses its license and ability to help people with medical issues in the future.

Then there are the women who went to get the abortion from that provider. Law enforcement could request from tech companies all the devices that were near that provider since the signing of the bill.

Many people are now caught up in this “digital dragnet.”

Their privacy has been invaded.

From there, law enforcement can find out the owner of these devices, and argue probable cause for more invasive searches. They can get a more customary warrant and rifle through a person’s email and texts in order to see if the person had an illegal abortion.

A real scenario

I say imagine, but you don’t have to.

A pro-life tipline has already been set up in Texas for months in anticipation of Roe’s repeal. In a state like South Carolina, under the “heartbeat law,” as it has been called by state Attorney General Allen Wilson, abortion providers and women seeking abortion can face severe penalties if found in violation of the law.

South Carolina law requires healthcare providers to use ultrasounds to check for a fetal heartbeat. If a heartbeat is detected, abortions are restricted to cases of rape, incest, or health complications from the mother. The provider of the abortion could receive a fine of up to $10,000 and up to two years in prison. Women who have gotten illegal abortions will face two years in prison and a $1,000 fine.

This is not good.

Only the most unreasonable pro-lifers want healthcare providers and women prosecuted for getting abortions. Even about 40 percent of prolifers supported Roe. I fall in this category. Levying fines or, God forbid, putting women in jail is a moral wrong. Most people agree.

Moreover, there is a groundswell from legal scholars and digital rights activists arguing that geofence warrants are legally wrong.

It takes time

When I teach these issues, I try to draw non-digital analogies. So imagine police coming into a gated subdivision and announcing: “there was a shooting that occurred somewhere near here. We didn’t see where the criminal went, or what they look like, or where they live. But we think they are still in this neighborhood. We are going to look in all of your closets, and maybe under your beds.”

I fully expect geofence warrants to be universally deemed unconstitutional or at the very least severely restricted. There is a history of the public – and this includes judges – being initially unaware of how a particular technology is being used in harmful ways. In Georgia, for instance, it wasn’t until 2017 that people agreed it should be made illegal to take a picture up a woman’s skirt.

Time is needed for society to mitigate the abuse of new technology.

Protect yourself

There are things you can do before the powers that be wise up.

For instance, do you need your location services?

Most of the time, no.

Really, the only thing of note you get from having your GPS turned on is a reminder of how many times last week you purchased wine or how often you went to your “friends” house at 1 am to watch Netflix.”

Maybe you can turn off your GPS off until you need it. At the very least, be aware of what police can do and turn off your GPS when going to places you don’t want others to know about.

Do you need Google?

Google is excellent at producing services that make our online lives easier. But their core business model of giving services at low or no cost, but collecting massive amounts of data is problematic.

Over the past several years, I have been slowly integrating options that do not collect my data. This includes privacy-based web browsers like DuckDuckGo and Brave. It also includes the privacy-focused Gmail and Google Docs alternative ProtonMail.

A final way to protect yourself is to support Digital Rights organizations. Organizations Electronic Frontier Foundation and Fight For The Future are at the forefront of identifying government overreach in the digital environment and securing civil liberties.

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