Reema Moussa  0:01  
From the Internet Law & Policy Foundry, this is the Tech Policy Grind podcast. 

Every two weeks, we'll discuss recent developments and exciting topics in the technology and Internet law and policy space. I'm Reema Moussa, and I'm a member of the fourth cohort of Foundry Fellows. 

The Foundry is a collaborative organization for Internet law and policy professionals, who are passionate about disruptive innovation. 

Just a few weeks ago, the landmark Roe v. Wade decision that established constitutional protection for reproductive rights and bodily autonomy for those who can become pregnant was overturned in the Dobbs V. Jackson Women's Health Organization decision. This opinion was anxiously anticipated after it was first leaked in early May. 

For today's episode, I chatted with Eva Galperin, the director of cybersecurity for the Electronic Frontier Foundation on the implications of the current privacy and surveillance landscape on the enforcement of state laws emerging from the overturning of Roe, as well as the response of the privacy and security community in its wake, and useful resources and ways to mobilize and the efforts to protect privacy, digital liberties, and reproductive rights. 

Eva's work is primarily focused on providing privacy and security for vulnerable populations around the world. More recently, she's worked on addressing the digital privacy and security needs of survivors of domestic abuse. She is also the co-founder of the Coalition Against Stalkerware and has been an outspoken voice on digital privacy and security issues surrounding reproductive rights. 

Thank you so much, Eva, for taking the time to chat today. I think just to get started, I'll ask you, what is going on? What are some of the issues that we've seen already coming out in the wake of the overturning of Roe, as it relates to privacy, digital liberties, and surveillance?

Eva Galperin  2:20  
All right. So last week, we saw the Supreme Court overturn Roe v. Wade in the Dobs. case —  and this is not unexpected. 

A full copy of of the decision was leaked approximately a month ago. And we expected to see this decision in June, which gave us a lot of time in which to prepare. And indeed, most of the people working in reproductive rights and privacy have been expecting this since approximately 2016. And it has been the explicit goal of sort of the ultra conservative branch of the Republican Party since 1973. 

So it's not like we didn't know this was coming. And we've had a lot of time in which to think about our tactics and a lot of time in which to prepare. But what we're seeing right now is, well, let's start with what we were seeing before the overturn of Roe. 

Around the time that it became clear that the overturn of Roe was imminent, states like Texas and Oklahoma passed laws that made it possible for individuals to file civil suits against people that they thought were aiding people with abortion access. And that is not you know, a violation of a Roe, that's sort of like getting around it. But it was sort of the first step and it included sort of, you know, deputizing people and turning them into an army of snitches because they could get $10,000 for suing someone that they thought had assisted with an abortion. 

This law was almost immediately used to prosecute a woman for her pregnancy outcome. This case was dropped in the state of Texas, and the judge specifically said, "hey, this is not what the law is for." But that was cold comfort to the woman who who had to go through this entire process at a particularly difficult period in her life. And of course, if you look at the people who are being targeted with prosecution over their pregnancy outcomes, it is almost entirely women of color and women who are living below the poverty line. 

So when when we talk about how the overturn of Roe is going to hurt people, and is specifically going to hurt people seeking abortions, and also people who have miscarriages, and we come up with all of these scenarios, the first thing that we need to do is we need to acknowledge that even before the overturn of Roe, we were seeing consequences. Just we, we were seeing consequences for people whose identities are largely marginalized. 

And so when they have consequences, it's not seen that these are not real consequences. These are just, you know, poor women of color. But I think that what's — and hopefully sarcasm gets across in this particular in situation — but yeah, the the consequences are already here. If you are, you know, an undocumented migrant, if you are a person of color, if you are living below the poverty line, or some combination of all of these marginalized identities, and all that we're going to see in the future is we're going to see, this present expanded out to more and more groups of people. 

One of the first sort of push backs that I got immediately after the overturning of Roe is like, "wait a minute, abortion is not illegal." You know, Roe did not suddenly make abortion illegal. And that is a  disingenuous argument. There were many states that had trigger laws that were essentially just waiting for the overturn of Roe in order to make abortions illegal, or essentially inaccessible. 

And those laws often did not have, you know, exceptions for rape, or incest, or to save the life of  the mother, or any of the of the things that who people frequently object to and that they that they find abortion necessary for I am of the opinion that every every person who gets pregnant can decide for themselves whether or not they need an abortion, and they don't need some sort of, you know, "get out of abortion free card," — that it's, it's entirely up to them. And that it does not matter whether the circumstances under which they are getting their abortion, or the reason that they're getting their abortion. It really comes down to abortion access is fundamental health care. 

And if you don't have autonomy over your own body, then you don't have any other rights. All other rights start there. And you would think that we had essentially worked this out when we got into a civil war over whether or not enslaved people were, you know, people. But no, apparently, we get to do this all over again.

Reema Moussa  8:13  
You bring up a couple of really important points, I think of the intersectionality issues that arise in who's affected from this decision and the sort of ensuing laws at the state level that are going to follow. And then the prevalence of trigger laws and the laws that were already sort of in place, such as in Texas and Oklahoma, just waiting for this overturning to happen. And a lot of stories coming out of those laws, just like the one you mentioned, of women who are already being affected by these restrictions on their their bodily autonomy. 

So then, taking a big picture, look at the sort of tech aspect of this. How do you think the current surveillance and other technological capabilities of the private sector, of the government, other stakeholder groups that might be relevant, affect the post-Roe world sort of in the wake of this decision as it relates to privacy concerns, and especially where these more aggressive laws are in place, such as in Texas, where  there might be sort of active investigations going on to examine people seeking an abortion or having undergone one?

Eva Galperin  10:03  
Well, this is really a question in two parts. What we should usually start with are kind of the risks that people who become pregnant are taking now, the danger that they are in now, what is happening to people who are being prosecuted for their pregnancy outcomes, or made to carry pregnancies to term and forced to give birth to children they do not want? What kinds of evidence is being used against them right now? And what are the appropriate mitigations that one might take in order to cover one's tracks in order to safely get an abortion in a place where abortion has been prohibited? 

And the answer to that is, so a lot of people have been giving a lot of security advice, and often that security advice comes down to become Jason Bourne [laughter]. Become completely untraceable and then have your, you know, untraceable abortion. And that's not realistic. 

I have spent the last dozen years of my career traveling all over the world working with activists and journalists and people who are in vulnerable populations on the ground in largely authoritarian states. And let me tell you that requiring every single one of them to essentially become a spy is is not going to work. 

So I tried to start with the simplest advice, which comes, which is very grounded in the kinds of things that people who are being prosecuted for their pregnancy outcomes are seeing right now. People who are being prosecuted for their pregnancy outcomes are not being brought in a dragnet looking for, you know, everybody who has searched for abortion in this state, or anyone who has walked into this Planned Parenthood in California, or anything like that. That is not what is happening right now. 

What is happening right now is that people are being turned in by their doctors, by their nurses, and by people that they trust. And the evidence that's being used against them is usually emails, messages — including end-to-end encrypted messages, because obviously, they're coming from the person that you are messaging. And so that's the other end of the encryption and encryption is not saving you their eye, and Google searches — searches and just search engines, not just Google, but usually Google. 

And so the appropriate mitigations for these are, be careful who you trust, including your doctor or your nurse. Use end-to-end encrypted messaging with disappearing messages turned on. When you are talking about your pregnancy, or your pregnancy outcome, or abortion — even with somebody that you trust — this will not prevent the person from say taking a screenshot of your conversation. But it does limit the amount of time in which they can do so. And it doesn't prevent them from testifying about what you wrote. But if the message automatically deletes itself, then it is it is a much weaker testimony. And then once they have been turned in in this way, we also see people's phones being searched. And so we have some suggestions around locking down your phone. 

But to take a quick step backwards, also for your search engine searches, I recommend downloading a separate browser that you will use for your sensitive searches where you're not logging in to any of your other services so that it does not touch them. And that allows you to compartmentalize. And what I recommend downloading is the Tor Browser, because the Tor Browser is specifically designed to keep the sites that you are going to from logging your IP address. 

And if this sounds familiar, this is also what a VPN does. But there are many different kinds of VPNs of varying levels of sketchiness. And when you use a VPN, the VPN company usually does have a record of who you are and where you have been going and they can be subpoenaed. So this is why I recommend Tor browser over a VPN but if you find Tor Browser to be too difficult, Yael Grauer over at Consumer Reports has a really nice breakdown of what VPNs are more privacy protecting than than others. 

But really, Tor Browser is the way to go because it is the most foolproof, it is specifically designed for this purpose. So I recommend that people do that. 

What else am I recommending? I think that's about it, you know, just be careful who you trust, turn on and end-to-end encrypted messaging, turn on disappearing messages, use a separate browser for your sensitive searches — I delete Tor Browser. 

The second half of this is about looking to the future — about what kinds of threats we are likely to see, stuff that is coming up in the next few months, stuff that's coming up in the next year or two, stuff that we will be seeing in the coming years. And again, this is less immediate than the threats that we are seeing right now. But also, it is my job to look into the future [laughter] and to see how governments and to use my experience with the ways in which governments have have tracked, you know, journalists and activists and dissidents in authoritarian regimes, and apply that to people who are seeking abortions. 

And in that case, not only do people who are seeking abortions really need to up their operational security, but we really need for companies to step up. And to simply not gather the data in the first place, and to commit to protecting what data they do gather so that they do not become part of a dragnet. 

EFF, for example, has just filed an amicus in a dragnet search case — not having to do with abortion — in which the government simply asked for everybody who knew the identities of everybody who made a particular search, when in a particular area. And that is a very scary future because one of the big differences between now in 1973 is that we have this sort of surveillance state, we are living in an era of unprecedented digital surveillance, we walk around with a tracking devices in our pockets, and they can give away an awful lot of very sensitive information about who we are, and what we are doing at any given time. 

And if we don't want this data to be used against us in the near future, then we need to start thinking about how we are going to protect it now. And that's something that the entire tech industry, and that all of tech policy needs to be thinking about now, before the threats show up.

Reema Moussa  17:59  
So we have data all about where we are, and what we do, and what we search among many other types of data. And that's being collected, both actively and passively sort of without our knowledge or it being salient to us. And so the issues around location data and search data seem to be particularly salient. 

But what other vulnerabilities or vectors do you think are relevant to keep track of now and, you know, as you speak of in the future, particularly, for example, health tracking apps that seem pretty innocuous or not so dangerous in their original mission, but now can can pose a threat. 

So what are those threats and sort of how do they work? And what is the government's capability to subpoena that sort of data?

Eva Galperin  19:27  
Well, there are a variety of health apps out there and they are very commonly used by people who may become pregnant in order to affect their pregnancy outcomes or in order to avoid becoming pregnant. And I think that's one of the reasons why the discussion of period tracking apps really caught on in the public imagination. 

When Roe was overturned, one of the you know, sort of big pieces of advice that everybody kept giving was, you should delete your pregnancy tracking app. Should you? The answer is probably no. This is not an an immediate threat. Not all pregnancy tracking apps are created equal. Some of them are more privacy protecting than others. 

There are apps like Yuki that makes sure that they keep all of your information on your device where you can control it. Which is potentially better than having it do in the in the hands of the company where it is potentially subpoena-able by governments and law enforcement. But for the most part, like this is not the kind of attack we're seeing right now. And it's probably not the kind of attack that we're going to see anytime soon. But that doesn't mean it will not come in the future. 

So, if people are deleting their pregnancy apps or their pregnancy tracking apps, and then going or the period tracking apps, and they're like, "oh, well, I'm done! I have protected myself," then they're actually doing more harm than good. And I am very concerned about that. That is not what people should be doing right now. The threat of data being subpoenaed from period tracking apps and health tracking apps exists. It's just... it's not the biggest threat. And it's not the most immediate threat.

Reema Moussa  21:29  
We saw the concurrence written by Justice Thomas call out decisions protecting the right to obtain contraception, same sex marriage, homosexuality, these really sort of basic rights. So how do these rights get affected by this sort of landscape of tech and privacy, if we are to see a future in which those rights come under direct threat of restriction or overturning, as we saw with Roe.

Eva Galperin  22:19  
Well, I in many ways, Roe was targeted by arch conservatives in the Republican Party, because it is a linchpin, it is the the foundation on which many other you know, rights and civil liberties rest. And a lot of the foundational cases, the cases that allow people to have free access to contraception, that allow people of of the same gender to get married, that allows for interracial marriage, which incidentally, Justice Thomas is not interested in overturning for some reason. 

These these are all laws that rest on the foundation of Roe and now that they have overturned Roe, the Supreme Court can now go about undoing the work of many decades of civil liberties jurisprudence, which Justice Thomas seems to be very enthusiastic about. 

Other Justices have come out and said that this is going to be problematic and that they should stop at Roe. But these are the same Justices who when they were being questioned the during the hearings in which they were about to be named to the Supreme Court also said that Roe was a settled issue. So I don't trust a damn word that comes out of their mouths about what they will and will not overturn. So yes, I think that all of these other rights are potentially in danger, and they are in imminent danger.

And again, all of the same tools that are used to surveil us, that can give away information about whether or not somebody is pregnant, can also be used to give away information about whether or not someone is seeking contraception, about whether or not someone is homosexual, about how all kinds of other things which are currently protected under the civil rights laws and are rest on the foundation of these cases. And we could definitely see dragnets in the case of sort of outlying homosexuality. 

Dragnets of, you know, gay men in bars were incredibly common for a very long time. It was not unusual to see gay bars just outright raided and everyone inside arrested. So that is your your future over in a world in which we have sodomy laws again. So imagine if you will that instead of waiting for everybody to walk into a bar you just subpoena Grindr.

Reema Moussa  25:28  
That is a horrifying thought. And I think especially we just had pride month, these issues should be, you know, top of mind for everyone no matter what community you identify with or belong to, you know, we're one global community. And these issues, really, in the digital world, I think are going to affect everyone. Thank you for digging into that. 

So I want to scale back a bit and take a look at what the response has been to the overturning of Roe and like you mentioned, near the beginning of our chat, there was some time to prepare and to sort of conceptualize what this future might look like, considering that the Dobbs opinion was leaked. 

So, what has the response been that we've been seeing so far from the private sector, from civil society? And what do you think the impact of Dobbs might be on the wider data privacy and surveillance law landscape as we move forward?

Eva Galperin  26:53  
Well, the (again) bad news about this not being 1973 is that we are living in a world of unprecedented data surveillance. The good news about the fact that we are not living in 1973 is that abortion is does not look like it did in 1973. Many abortions — a significant portion of abortions are self-administered through  medicine, you don't have to go and get a, you know, a procedure in a clinic anymore for a significant number of abortions. And this means that next we're going to see a battle over access to medications. All the medications that could potentially cause an abortion. 

And in fact, we are already seeing people in states where abortion has essentially been outlawed, being denied access to medications that are potentially pregnancy ending, even if they have been prescribed in completely different contexts, such as when a person has lupus. And that is very disturbing. 

We have also seen platforms taking down posts about abortion information about where you can get an abortion safely and securely about where you can get a medication mailed to you. And we are going to have to have a knock down, drag out fight with the platforms in order to protect this information because safe, accurate, and secure information about how to get a self managed abortion is really what is going to save lives here.

Reema Moussa  29:10  
That's a fascinating point of just even having the access to information of where you can even find resources or medications. Do you have a concern that that access to information might be impeded, either by governments, state agencies and sort of laws that restrict what sort of information is allowed to be spread? So sort of a content moderation aspect?

Eva Galperin  29:47  
Yeah. There were there are two aspects of this to be concerned about. 

The first is a proposed legislation banning this kind of content and the second is platforms choosing to ban this kind of content voluntarily because it is banned in some states, or simply because they think that it might be banned in some states, you know, platforms ban all kinds of content that is not illegal anyway. And it is it is entirely within their right to do so. But it is not great. And it is [sighs], I am not looking forward to a future in which the platform's essentially shoot themselves in the foot by complying in advance, 

Reema Moussa  30:36  
Right. So, what can we do about this? Where can we go from here? What can listeners to this show do to protect themselves? Protect people they care about? I know, you mentioned some really proactive security tips that can be taken in the short run. But even as far as activating and mobilizing to combat some of these concerns that are on the horizon, any recommendations there?

Eva Galperin  31:15  
Well, the primary recommendation that I have is that if you are a person who may need an abortion in the future, that now is a good time to take a good hard look at your operational security. To learn how to use the tools that will allow you to segment your data, so that when you are in a panic, when you are having a very hard day, because you have gotten some very bad news, you already know how to use these tools, and you don't have tolearn on the fly. So that is my primary recommendation. 

My secondary recommendation is that right now, people are making a lot of social media posts about how like, "so if you want to go camping and come over my house, that will take care of you." And this is very cute. And in order to indicate that they will help people to get abortions. This is actually not helpful at all. Police are not dumb. They know exactly what you mean. And furthermore, the sort of Auntie networks of people who are just showing up and saying, like, "hey, I will help you with your abortion" are not very safe. And they have often been infiltrated by trolls. And so what I recommend doing is to find the existing networks, and to plug into those networks and to provide your support that way. 

There are vast, robust networks largely run by people of color in the United States that have been at this for some time. And rather than creating your own thing, and building a whole new thing, plug into the stuff that already exists. It is so much more useful. And sort of trying to create your own thing on the fly is potentially dangerous to the people that you're trying to help. And it's definitely counterproductive.

Reema Moussa  33:16  
Absolutely. Because I can imagine that in those more established networks, there may be processes in place to weed out trolls, or people who could actually pose a danger.

Eva Galperin  33:32  
They've been at this for some time and their operational security is much better. They have spent a lot of time thinking about these problems because these kinds of restrictions are simply not new for communities of color. They've been at this for years.

Reema Moussa  33:52  
Yeah, such as the unfortunate reality. But I suppose fortunate that there's this infrastructure in place that people can lean on in their times of vulnerability. 

So Eva, any final thoughts on this subject? I know that we could probably chat about it for hours, there's so much going on. But anything you want to leave the listeners with?

Eva Galperin  34:24  
Well, for the sort of people who are interested in Internet law and policy, sometimes these are people who work at tech companies. And so if you work at a tech company, now is the time to look at the kind of information that your company is collecting on its users, and to think about how that could be used in a context in which abortion is made illegal or in which governments and law enforcement are engaged in sort of dragnet surveillance for people who are either seeking abortions or who are providing abortion support, and try to make sure either you don't have that information in the first place, or that it is end-to-end encrypted and you don't have the keys.

Reema Moussa  35:08  
That's a great takeaway!

Well, thank you so much for taking the time to join us and chat about these issues. And here's hoping for a safer future — a future where digital liberties and liberties in the real world and the the tangible world are protected, and that we have some light at the end of this dark tunnel we're in.

Eva Galperin  35:40  
No one is coming to save us, and so it's up to us to save each other.

Reema Moussa  35:47  
Thanks for tuning into this episode of the Tech Policy Grind. If you or someone you care for can become pregnant now or in the future, be sure to check out the resources and tips mentioned throughout the show. You can find them linked in the show notes. 

If you would like to support the show, please reach out to us at foundrypodcasts@ilpfoundry.us. You can find our email in the show notes as well. The Tech Policy Grind podcast comes out every other Thursday. See you next time!

The Tech Policy Grind podcast was created by the Fellows at the Internet Law & Policy Foundry. It's produced and edited by me, Reema Moussa, with the support of the incredible Foundry Fellows. Special thanks to Meri Baghdasaryan for her collaboration and support in bringing this episode to air.

Transcribed by https://otter.ai