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Surveilling the Digital Abortion Diary University of Baltimore Law Review Volume 50 Issue 1 Article 2 10-1-2020 Surveilling the Digital Abortion Diary Cynthia Conti-Cook Follow this and additional works at: https://scholarworks.law.ubalt.edu/ublr Part of the Law Commons Recommended Citation Conti-Cook, Cynthia (2020) "Surveilling the Digital Abortion Diary," University of Baltimore Law Review: Vol. 50 : Iss. 1 , Article 2. Available at: https://scholarworks.law.ubalt.edu/ublr/vol50/iss1/2 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. SURVEILLING THE DIGITAL ABORTION DIARY Cynthia Conti-Cook* INTRODUCTION ............................................................................... 3 I. HISTORY OF CRIMINALIZATION OF PREGNANT PEOPLE AND PROVIDERS ................................................ 15 II. CURRENT LANDSCAPE .......................................................... 17 A. Increased Restrictions of Access ....................................... 17 B. Rise of Self-Induced Abortions ......................................... 21 III. THE TECH-ASSISTED FUTURE CRIMINALIZATION OF PREGNANT PEOPLE AND ABORTION PROVIDERS ........................................................................... 22 A. Tech-Assisted Future Criminalization of People ............... 22 1. Most Americans seek medical advice online at increasing rates ............................................................ 22 2. Pregnant people are also seeking medical advice online at increasing rates ............................................. 24 3. Searches of digital devices by state agencies is an increasingly common form of surveillance, especially of Black individuals and other people of color dependent on state resources .............................. 29 4. Legal status of evidence from digital devices .............. 38 i. Post-Carpenter applications to other digital data ........................................................................ 40 ii. Scope of search warrants for digital data .............. 46 iii. Scope of consent to searches of digital data .......... 47 5. Digital data has already been used against women as evidence of self-induced abortions .......................... 48 6. Other types of digital data that could potentially be used to criminalize pregnant people ............................ 51 7. Digital data presents the potential for prosecutors and police to circumvent medical staff to surveil pregnant people ........................................................... 56 B. Tech-Assisted Future Criminalization of Abortion Providers ........................................................................... 58 1. Providers being investigated and prosecuted ............... 58 1 2 UNIVERSITY OF BALTIMORE LAW REVIEW [Vol. 50 2. Additional digital forensics techniques that could target providers ............................................................ 62 IV. “POWER, NOT PARANOIA” .................................................. 66 A. Organizing & Corporate Accountability ........................... 66 B. Legal .................................................................................. 70 C. Policy ................................................................................. 71 CONCLUSION. ................................................................................ 74 2020] Surveilling the Digital Abortion Diary 3 INTRODUCTION1 In 2017, along with her stillborn fetus, Latice Fisher, a Black woman, arrived at the Oktibbeha County General Hospital in Starkville, Mississippi2 in an ambulance.3 While receiving care froM * Cynthia Conti-Cook is a civil rights attorney and researcher based in New York City studying how technology impacts various fights for justice. She is currently on sabbatical from The Legal Aid Society’s Special Litigation Unit, working as a Technology Fellow at the Ford Foundation. She is grateful to the Univ. of Baltimore Law Review and the Applied Feminism and Privacy Conference of 2020, Michele Gilman, and Margaret Johnson, for inviting her to publish this Article. She is also appreciative of the patient and diligent student editors working through challenging circumstances. As always, this Article has evolved through dialogue with many of my colleagues, friends, and family. Cynthia extends her appreciation for reviewing drafts, sharing edits, and extensive brainstorming to Tanya Coke, Brook Kelly-Green (who also initially drafted Parts I and Part IIA), Lynn Paltrow, Logan Koepke, Jerome Greco, Rashida Richardson, Sara Ainsworth, Indra Lusero, and Terri Rosenblatt. The views and opinions expressed herein are solely those of the author and do not reflect and are not attributable in any way to those of the Ford Foundation. 1. In 2005, filmmaker Penny Lane released The Abortion Diaries (2005) to “dispel[] the stigma of abortion” by inviting 12 women to speak candidly about their abortion experiences. Penny Lane, The Abortion Diaries (2005), PENNY LANE, http://pennyla neismyrealname.com/film/the-abortion-diaries-2005/ [https://perma.cc/FXH3-4U3S] (last visited Nov. 3, 2020). In 2013, storyteller Melissa Madera founded The Abortion Diary podcast to “speak out against the shame, stigma, secrecy, and isolation surrounding abortion by generating, sharing, and receiving personal stories.” Mission: The Abortion Diary, ABORTION DIARY, https://www.theabortiondiary .com/mission [https://perma.cc/7DFX-RCMH] (last visited Nov. 3, 2020). Both pieces begin with the same fundamental observation: because abortion is often stigmatized, people who have experienced it tend to prefer it remain private and, if choosing to share that experience, must feel safe and supported in doing so. See id. 2. Nine history scholars from Mississippi University’s Department of History created “A Shaky Truce” a website that “highlights the civil rights struggles that took place in Starkville, Mississippi during the 1960s and 70s, a time when local African Americans demanded equality for all citizens.” The Project, STARKVILLE C.R., https://starkvillecivilrights.msstate.edu/wordpress/the-project/ [https://perma.cc/PX3Y -3K7N] (last visited Nov. 3, 2020). It describes Oktibbeha County as having “a majority African American population in 1840 and continued to have one until 1950.” The Place, STARKSVILLE C.R., https://starkvillecivilrights.msstate.edu/wordpress/the- place/ [https://perma.cc/ZM7D-GW4C] (last visited Nov. 3, 2020). The county’s Black population decreased to 34.6% in 2013 and its residents remain racially segregated. See id. 3. Ryan Phillips, Infant Death Case Heading Back to Grand Jury, STARKVILLE DAILY NEWS (May 8, 2019), https://www.starkvilledailynews.com/infant-death-case-heading -back-to-grand-jury/article_cf99bcb0-71cc-11e9-963a-eb5dc5052c92.html [https://per ma.cc/9H7B-CA8X] (“Fisher then walked out to the ambulance, was placed on a stretcher, and transported to OCH Regional Medical Center in Starkville where she was evaluated and questioned by hospital staff. Prosecutors allege that Fisher 4 UNIVERSITY OF BALTIMORE LAW REVIEW [Vol. 50 medical staff, she was also immediately treated with suspicion of committing a crime.4 Her statements to nurses, the medical records, and the autopsy records of her fetus were turned over to the local police to investigate whether she intentionally killed her fetus.5 To develop these records into evidence supporting an indictment for intentional murder, prosecutors would need some evidence about Ms. Fisher’s intent.6 This is typical; at best, prosecutions of people based on their pregnancy outcomes usually rely on circumstantial medical evidence, what patients report to nurses and doctors, and cooperation from medical staff.7 Without a confession, a diary, or something similar, direct evidence of a person’s Mindset or intentions prior to a termination is usually absent.8 The lack of “intent” evidence might not discourage a prosecutor from attempting to indict someone, but it might dissuade a grand jury from voting for an indictment.9 In Ms. Fisher’s case, the prosecutor sought to fill that gap in the initial presentation to the Grand Jury by arguing that Ms. Fisher’s web search history proved her criminal intent; it included searches for how to induce a miscarriage and evidence that she purchased misoprostol online.10 The first Grand Jury was convinced and indicted Ms. Fisher for second degree murder.11 admitted to a nurse that she learned she was pregnant during an annual gynecological exam a month earlier, but she failed to make any follow-up appointments for an ultrasound or other prenatal care. Fisher was interviewed by investigators about how the events occurred and court documents say she admitted that she didn’t want any more children, that she couldn’t afford any more and that she ‘simply couldn’t deal with being pregnant again.’ Investigators also learned that on April 17, 2017, which was far into Fisher’s third trimester, she researched medication abortion. This information came after investigators downloaded Latice Fisher’s cell phone memory and data, which revealed her internet search history. She also admitted to conducting internet searches, including how to induce a miscarriage, ‘buy abortion pills, mifeprisone online, misoprostol online,’ and ‘buy Misoprostol abortion pill online.’ Fisher then purchased misoprostol following the online
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