For years, we’ve seen the massive expansion of the surveillance state, a network of public and private tracking tools that can monitor nearly every aspect of our lives. These tools have been used to terrorize communities of color, rip undocumented families apart, and enable other abuses. But as anti-choice bounty hunters start to enforce Texas’s terrifying new law, these same systems will likely have a new target: abortion.
When Texas officials collaborated with extreme conservative Supreme Court justices to roll back Roe v. Wade, they used a procedural sleight of hand. Lawmakers knew that a ban on abortions after six weeks would be paused as it made its way through the courts, delayed for months, if not years. Instead, they deputized the public to enforce the law, bringing ruinous civil claims instead of criminal charges.
This Machiavellian move was a good way to avoid judicial scrutiny, but it raises a major logistical question: How will random members of the public know who is having an abortion? After the law was passed, Texas abortion providers quickly protected their staff from litigation by refusing the vast majority of pregnant people who came to them for help.
Some of the initial enforcement efforts are so simplistic that they’d seem silly if not for the law’s dire stakes. Private groups set up anonymous web pages to report on those seeking abortions. But activists quickly took to platforms like TikTok, explaining how to submit false reports in bulk.
Such false reports might be a crime if made to police, but this is a purely private effort after all, giving the public apparent latitude to lie with impunity. Without the power of the state to investigate doctors and other health providers, HB 1515 might have been a dead letter a generation ago. But today anti-abortion activists have a more devastating tool at their disposal: the modern surveillance state.
Using public and private surveillance tools, abortion foes can track not just those people providing vital reproductive healthcare services in Texas, but those who help pregnant people in Texas travel to states that still provide abortion access.
Texas was clear that public employees can’t file lawsuits under HB 1515. That’s the legal sleight of hand the Supreme Court used as pretext to let it go into effect. But just because they can’t file the lawsuit, that doesn’t mean they can’t help the private activists who do.
It’s all but certain that police and prosecutors will tap into the full fearsome force of the local surveillance state to find such evidence. Using geofence warrants, courts can compel companies to provide the device history of everyone in a specified map area. Law enforcement could use nearly any pretext to demand that Google and other tech companies provide the name of everyone who visits an abortion provider. Google recently reported that these searches surged exponentially since 2018, now accounting for a quarter of American warrants. Keyword warrants, which track the identity of everyone who searched for a specific search term, could easily reveal everyone who Googled an abortion provider’s address.
The threat goes far beyond police. Texas education officials could weaponize the state’s school surveillance network, identifying any public school students who search for information about abortion. Such tracking has grown rapidly during the pandemic, with more than 200 school districts secretly surveilling students’ email, web history, and social media posts without their knowledge or consent.
Even without the power of the state, private litigants will have the vast array of private sector surveillance capitalism tools to draw on. Litigants can subpoena location data on nearly every Texan from services that track our smartphones, web browsing, and other electronic activity. Lawyers could ask for court orders for pregnant people’s digital medical records, including period trackers and other health apps.
The number of companies and data brokers that already know when Texans get pregnant is alarming. Nearly a decade ago, Target famously showed that it could predict if teen customers were pregnant before their own parents knew. In the intervening years, the number of ad tech companies tracking our spending patterns and making predictions about our health status has grown exponentially. If all else fails, those seeking to restrict abortions in Texas will just do what nearly every other marketer does: pay for data.
This is a wake-up call, not just for the millions directly impacted by Texas’s law, not just the tens of millions who will soon face copycat bills in other states, but anyone who will fall into surveillance crosshairs in the future. Soon, the Uber driver who takes a pregnant person to the airport, the pharmacist who sells a pregnant patient medication, and even the employer who extends pregnant employees sick leave may all find themselves being pulled into court by HB 1515 and the surveillance that enables it.
Albert Fox Cahn (@FoxCahn) is the founder and executive director of the Surveillance Technology Oversight Project (STOP), a New York-based civil rights and privacy group, and a visiting fellow at Yale Law School’s Information Society Project.