The decision to voluntarily hand her cell phone over to police in the spring of 2017 might not have seemed consequential to Latice Fisher at the time.
Fisher, a Black mother of three and former police dispatcher, had just lost her stillborn baby after laboring alone for hours in her bathroom. So the contents of her phone, likely wasn’t top of mind.
What Fisher never could have predicted was that a year later, she would be charged with second-degree murder. And that searches on her phone for Mifepristone and Misoprostol, drugs that can cause abortions, would be some of the primary pieces of evidence against her.
Prosecutors alleged that Fisher’s searches proved that she had wanted to have an abortion. Despite her claims that she never took the drugs and the lack of any physical evidence that she’d taken the medication, she was indicted in 2018.
It wasn’t until 202o that Fisher was fully exonerated.
Things have changed since Fisher was indicted, but not necessarily for the better. In June, the Supreme Court overturned Roe v. Wade, opening-up the floodgates for states to ban abortion earlier in pregnancy.
And recently, a Nebraska teen’s Facebook messages were used by prosecutors to allege she’d had an illegal abortion.
Now more than ever, experts say the information stored on our phones could be putting us at risk, especially if you’re a member of an already overly policed and surveilled community, like Black Americans.
“To the extent that we have more criminal laws that involves private behavior,” says Florencia Marotta-Wurgler, a New York University of Law and Digital Privacy Professor, “information privacy will matter a lot.”
Technology companies in the United States have very few restrictions on what they can do with your digital data, says Marotta-Wurgler.
“We’re at a critical time in this area in the US, in particular, because there are no real strong federal laws on information privacy,” she says. “There’s just very sector-specific laws. So there’s a big gap that’s been left out. And firms can do all sorts of things with your information.”
That means there’s often very little standing between the private information on your phone and law enforcement, if they think you’ve had an illegal abortion, says Dana Sussman, Acting Executive Director at The National Advocates for Pregnant Women.
“The reality is if law enforcement gets information about someone who self-manages an abortion outside of the parameters of the laws in their state,” said Sussman. “Law enforcement will use… search warrants or subpoenas to the tech platforms for someone’s digital information, their searches, [and] their communications over different platforms.”
So what can you do to protect yourself? Well you can start by changing how you share information, especially if you’re discussing things like pregnancy or abortion care.
“There are ways that we can protect ourselves from making that information available to law enforcement very easily,” says Sussman. “You can use encrypted messaging apps like Signal, you can download search engines that do not save searches. For example, DuckDuckGo is a well-known one.”
Free end-to-end encryption services like Signal make it so that only you and the person you’re messaging can see your messages. So if the police ask Signal for a copy of your messages, the company won’t have anything to give them.
Sussman also recommends using a VPN (a.k.a virtual private network), like Nord VPN or Private Internet Access. These services encrypt your internet searches and protect your online identity and data from third parties.
Looking at the apps on your phone is another good place to start, says Jen Caltrider, lead researcher at the Mozilla Foundation, a global non-profit organization focused on internet accessibility and privacy.
Earlier this month, Caltrider’s team released a consumer report on twenty of the most popular reproductive health care apps.
Eighteen of the twenty apps surveyed received a warning label from Mozilla, says Caltrider.
“If you’re okay with potentially facebook, other advertisers, law enforcement, random guys on the internet knowing this information… which is again super sensitive sexual activity and pregnancy due dates,” says Caltrider. “Then yes, use these apps.”
Otherwise, Caltrider says you might be better off with old-fashioned methods of keeping track of your personal information or going even more high-tech and using apps like Euki.
Euki, a comprehensive reproductive health tracking and information app, has numerous data privacy features.
For one, all of your data is stored on your phone. Plus the app has an optional automated data deletion feature, an optional pin code, and even a feature that allows users to enter a pin to make it look like the app is malfunctioning if someone asks to see it.
When it comes to data privacy concerns with Euki, “you’re the weakest link,” says Caltrider.
Technological solutions aside, Sussman, whose organization helped defend Fisher, says the biggest risk factor for getting arrested for having an abortion or losing a pregnancy isn’t your phone, it’s the people around you.
“We’ve had cases that have started with a report by a neighbor or an ex-partner or, unfortunately, health care providers,” says Sussman. “You have to be very intentional and cautious about who you share information with.”