What privacy rights exist when it comes to illegal abortions?

Investigators follow the same rules regardless of the crime, experts said.

August 14, 2022, 8:30 AM

As states begin to implement abortion bans and restrictions, criminal cases involving illegal abortions have grabbed headlines, begging the question of what privacy rights women and girls have in these matters.

Experts told ABC News that the rules for investigations into all crimes are the same, even though in many places, abortion was not a crime just a few months ago.

This means that with enough incriminating evidence, investigators can legally search through internet activity, including private messages, according to experts.

"In general, access to communication records is the same for any alleged crime," Peter Swire, a professor of privacy law at the Georgia Institute of Technology, told ABC News in an interview. "Essentially, [investigators] have to prove probable cause of a crime and probable cause that the search for the records will produce evidence of a crime."

A recent case involving a Nebraska mother and her daughter who allegedly had an illegal abortion sparked controversy after a judge forced Facebook's parent company Meta to turn over communications between the two, without their knowledge.

Even though in this case, the alleged abortion occurred before the U.S. Supreme Court overturned the constitutional right to abortion, it was illegal under a 2010 state law banning abortions at 20 weeks. Similar charges could be brought against people seeking, aiding or facilitating abortions in states implementing new bans or restrictions.

PHOTO: A photo of Lizelle Herrera is carried during a protest march denouncing the Supreme Court decision to end abortion rights protections, on July 16, 2022 in Santa Monica, Calif. Herrera was charged with murder for allegedly self-inducing an abortion.
A photo of Lizelle Herrera is carried during a protest march to a Planned Parenthood office, to denounce the US Supreme Court decision to end abortion rights protections, on July 16, 2022 in Santa Monica, Calif. Herrera, 26, was arrested in Texas on April 7 and charged with murder for allegedly self-inducing an abortion.
David Mcnew/Getty Images

Swire said that before a judge signs off on allowing police to gather communication evidence, they assess all the evidence available and decide whether a communications search warrant is legally justified.

"So, unless there is a specific federal rule, preventing access to records for abortion-related crimes, the standard rules apply. That is, the same rules apply for access to records for a robbery or an abortion-related crime," Swire said.

According to Swire, there is a wide range of electronic communications that can be gathered and used as evidence including emails, search inquiries and text messages.

New research from reproductive advocacy group If/When/How looked at how self-managed abortions have been criminalized in the past, from 2000 to 2020, and found 61 instances across 26 states of people facing criminal charges for these abortions.

Despite privacy being a concern, Laura Huss, lead researcher at If/When/How, said the research found the biggest security threat to the privacy of abortion seekers is other people.

Huss told ABC News that "45% of people in our research were reported to police by care professionals, either health care providers or social workers, that people reached out to when they were in need of care during or after their abortions."

She added that 26% of the cases were reported to law enforcement by "acquaintances entrusted with information such as friends, parents, or intimate partners as well."

In the Nebraska case, Celeste Burgess, the teenager who allegedly took abortion pills to end her pregnancy, voluntarily showed police messages between her and her mother on Facebook during questioning, which investigators used, in part, to get a warrant for communications between the two, according to a criminal complaint.

Experts told ABC News that people should be careful who they tell about their abortion or intention to get one, especially in states where it is now illegal.

Swire said it is better to consult a lawyer before opening the door to law enforcement investigators, or providing them with evidence.

PHOTO: Abortion-rights protesters march around the Indiana State house during a demonstration on July 25, 2022 in Indianapolis.
Abortion-rights protesters march around the Indiana State house during a demonstration on July 25, 2022 in Indianapolis.
SOPA Images/LightRocket via Getty Images, FILE

Riana Pfefferkorn, a research scholar at Stanford University's Center for Internet Security, told ABC News that people should not talk to police or show them what is on their phones "just because they asked nicely."

Keeping your information secure

Pfefferkorn recommended people use messaging apps like Signal with end-to-end encryption that store minimal amounts of data about your messages, versus traditional encryption.

"Signal is probably the go-to there because they log very little metadata. Metadata is not encrypted and metadata is often retained by companies, even if they don't have access to the contents of messages," Pfefferkorn said.

Apps under the Meta umbrella, including Facebook, retain larger amounts of metadata about users' messaging conversations, Pfefferkorn said.

Meta did not immediately respond to ABC News' request for comment on their user data retention.

The company recently announced it was testing end-to-end encryption as a default on its Messenger app and on Instagram.

Users could also use apps with "disappearing messages" so that they do not stick around on your phone or the phone receiving the message, Pfefferkorn said. Users should also turn off automatic backups of chat histories, she said.

Even if messages are unavailable to the company which owns the messaging app you are using, with a warrant, law enforcement can obtain access to one of the phones on either end of the conversation and use the messages on there as evidence, Pfefferkorn said.

Other privacy measures that could be taken include using a VPN or using DuckDuckGo, a search engine that does not track your searches, Pfefferkorn said.

Swire also said it is often difficult to delete online communications permanently, and often if someone obtains your computer or device, they can un-delete a file you thought you had deleted.

"If a person is doing criminal behavior, the best strategy is not to admit to that criminal behavior in a permanent communication," Swire said.

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