Can police use health data to investigate an illegal abortion? Here’s what experts say

Experts warn health data not as protected as some may think

With Roe v. Wade back in the hands of individual states, your health and cell phone data could find itself in the hands of law enforcement should they decide to prosecute under illegal abortion statutes.

ORLANDO, Fla. – With Roe v. Wade back in the hands of individual states, your health and cell phone data could find itself in the hands of law enforcement should they decide to prosecute under illegal abortion statutes.

“This is how crimes are prosecuted in the modern age,” News 6 legal expert Steven Kramer said. “How many cases do we see where people are searching about how to commit a crime or how to cover up a crime, and that search comes into evidence?”

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Kramer says, depending on individual state law, prosecution could also extend to anyone who helps someone get an abortion, and he contends that texts, location data, Google searches, social media posts and phone calls are all digital paper trails law enforcement could access if they get your phone or computer.

“If they get to it quickly enough, sometimes they can even get to deleted data,” said Paul Debogorski, a digital forensic expert who is called in by investigators when they need phone data dissected.

According to Debogorski, health data collected by apps like fertility trackers could also fair game when it comes to gathering evidence.

“A lot of people assume that, ‘Oh, it’s medical data, you know, it is covered under H.I.P.A.A.,’ and it is not,” Debogorski told News 6.

H.I.P.A.A, otherwise known as the Health Insurance Portability and Accountability Act, is a federal law that requires doctors to protect a patient’s health information. However, experts argue that an app is not your doctor.

“There are ways that this information can be weaponized against you,” said Deven McGraw, a health privacy expert with more than 15 years of experience who previously served as the head of the Health and Human Service’s H.I.P.A.A. department.

Point blank: McGraw says H.I.P.A.A. protections do not historically extend to apps and websites.

“The overturning of Roe v. Wade has really brought it into sharper focus, that this kind of data does not have sufficient protections,” McGraw said.

“And it is not just limited to abortion data. It is really any kind of sensitive data that you’re trying to preserve for your private life or to keep from being prosecuted and thrown in jail.”

Fertility tracking apps, like BellaBeat, have announced privacy encryption features that will provide “protection of their users’ data so the company will never be hacked or forced to turn over readable versions of their consumers’ cycle and fertility data,” a company spokesperson told News 6 in a statement.

However, incognito or anonymous mode still does not completely protect your identity, according to McGraw.

“It definitely helps, but being anonymous on the internet is a really hard concept,” he said. “While they might not be revealing your name, they probably have the device ID on the phone that you are using, and all the data is usually linked to that ID.”

So how can you make your data more secure? Debogorski said to turn off your location services, and only use it when you have to.

“If you leave it on at all times, then basically it keeps track of everywhere you go, and everywhere you have been,” Debogorski said.

He says to be careful what you post online, since that digital paper trail could later be used against you.

When it comes to prosecution of individuals or accomplices who help someone get an illegal abortion, Kramer advises folks to proceed with caution since every case has its own nuances, and to know the laws of whatever state they are currently in when an incident happens.

“What you do in Florida is going to be enforceable under Florida and federal law,” Kramer said. “What you do in Texas, is going to be enforceable under Texas and federal law.”


About the Author:

Award-winning investigative reporter Merris Badcock joined the News 6 team in October 2020. Merris is the recipient of a Regional Edward R. Murrow Award, a Suncoast Regional Emmy Award, four Suncoast Emmy Regional nominations, and two first-place Florida Association of Broadcast Journalists’ Awards.