America’s High-Tech Surveillance Could Track Abortion-Seekers, Too, Activists Warn

Alejandra Pablos leans into the camera, and her curly black hair frames her face. “We are going to hear about abortions,” she says to viewers watching via Instagram Live. Every Tuesday, Pablos hosts virtual Abortion Speak Outs. Dressed in a cozy gray top, she reminds viewers that they can join via video to share their own experiences. “I’m going to be the first person to share,” says Pablos in a soothing tone as she frames her hands around her face, revealing delicate tattoos. Her nails are a deep maroon with immaculately shaped tips.

Pablos works as an organizer with the Reproductive Justice Coalition in Phoenix, Arizona. Her Instagram account is filled with memes, videos and TikToks affirming the importance of access to safe and legal abortions. She was born in Mexico but moved to the US with her family as a baby. She’s currently undocumented.

“Many of us don’t have choices,” says Pablos matter-of-factly, sharing that the last time she was pregnant, she actually wanted to have the child, “but I also knew that I was facing deportation, and literally a year after having that abortion, I was arrested by ICE.”

Pablos was detained by immigration authorities, known as Immigrations and Customs Enforcement (ICE), and held for 43 days in Eloy Detention Center, a facility much like a prison, in 2018.

Pablos’s situation is, in some ways, unique. As both an undocumented immigrant and a pro-choice advocate in a state poised to implement an exceptionally stringent abortion ban, she uses social media to tell her story. But these aspects of her life also highlight the risks that women in the U.S. stand to face more broadly, if Roe v. Wade is overturned.

When abortion was previously criminalized within the United States prior to 1973, law enforcement didn’t have the technology and surveillance data that police departments and other authorities can now access. For clues about what a present-day wave of enforcement could look like, pro-choice advocates and academics point to the ways that federal, state and local authorities currently monitor many immigrants, Black people and BIPOC communities using data from social media such as Instagram and Facebook, surveillance on streets and roads, and other sources.

The issue is especially urgent for Black and Latinx and low-income women, because they are more likely to seek an abortion according to the Guttmacher Institute.

But in the wake of a leaked draft Supreme Court opinion on May 2, which proposed overturning Roe, these questions suddenly became even more urgent and more broad. If abortion is criminalized, tactics and tools already used by law enforcement and immigration authorities could be adapted to track anyone seeking or even considering an abortion, according to advocates and academics who study the issue. A group of senators has also urged stronger rules on data privacy in order to protect abortion seekers, in a letter to Apple and Google.

Pablos recognizes all of these intertwined surveillance systems and says that, together, they weave a web that can be hard to escape. “The same state that is trying to deport me,” she says, “would also force me to be pregnant even if I didn’t decide to create a family.”

Data collection and sharing

Pablos’s personal life has been deeply affected by two areas of governmental policy: immigration and reproductive rights. Arizona has notoriously harsh anti-immigration laws.

Arizona also has especially restrictive abortion laws. Earlier this year the state passed a 15-week abortion ban with no exceptions for rape or incest. Abortion seekers are also required to receive an ultrasound regardless of whether it is medically necessary. If Roe is overturned, abortion will automatically become illegal in the state.

Both of these aspects fuel her work as an organizer, and they’ve painted a picture of how data can be collected and shared by authorities.

Pablos’s decade-long struggle with ICE originally began when she was stopped by local police in 2011 and then arrested and convicted for driving under the influence and possessing drug paraphernalia. It’s an example of how local and federal authorities collaborate to share data, which may offer a glimpse of what is to come if Roe is overturned.

For example, Pablos acts as an abortion doula who supports pregnant people both emotionally and financially. This includes driving people to clinics to receive an abortion. In Arizona, seemingly mundane activities like driving can carry great risks for undocumented individuals who could be deported after a traffic stop. Despite local laws preventing police from racially profiling drivers or contacting immigration authorities during a routine traffic stop, human rights advocates allege that police are still engaging in these practices.

“I give rides to people daily; what are those rides going to look like now?” says Pablos. “As an undocumented person taking people through [police] checkpoints even though I know that I’m legally allowed to be here right now, that is really scary.”

The data shared between agencies is extensive, advocates say. “The systems that didn’t talk to each other are talking to each other a lot more,” says Patrice Lawrence, executive director of the UndocuBlack Network. Federal authorities like ICE have access to a complex web of databases that glean data from a variety of sources including fingerprint data collected when someone is arrested.

According to ICE‘s website, these data sharing programs enable the agency to work with “law enforcement partners in the shared responsibility for ensuring the safety of our communities” by “using biometrics to identify foreign-born individuals arrested for criminal offenses.”

Read more: Inside the Effort to Promote Abortion Pills For a Post-Roe America

“We now have evidence of a massive militarized and profitable technological surveillance machine that is being relayed against Black and brown communities,” says Paromita Shah, executive director of Just Futures Law, “it’s a threat to migrants, and it’s also a threat to all of our well-being.”

This data collection could affect citizens and non-citizens, alike, organizers say—whether or not people have interacted with police. The Center on Privacy and Technology at Georgetown Law, a Washington, D.C. think tank, released a major report on ICE in May. It claims that ICE can access the driver’s license data of 74% of adults. The agency has already used facial recognition technology to search the driver’s license photographs of 32% of adults in the US, according to the report.

These activities are well-funded—immigration agencies earmark millions of dollars to collect data. For example, Mijente, a Latinx advocacy organization, has found that ICE contracted with a data broker to access license plate databases in order to track the movement of cars. The contract is worth $22.8 million. These lucrative contracts enable ICE to track the movement of cars in cities where nearly 70% of adults live according to the Center on Privacy and Technology.

Advocates also argue that ICE will go to extreme lengths to track undocumented immigrants. The agency has identified and detained immigrants based on data collected when they paid a gas, electricity or internet bill according to a Just Futures Law report. ICE is able to access this information through contracts with private data brokers which enables the agency to access the information of over 218 million utility customers across the country, according to the Center on Privacy and Technology. Just Futures Law estimates these contracts are worth over $43 million.

Criminal justice organizers warn this surveillance data also flows the other direction, too, from federal authorities to state or local law enforcement. “The broader information-sharing environment is vast,” says Hamid Khan, an organizer with STOP LAPD Spying Coalition, who describes this phenomenon as the “datafication of our bodies.” Khan also points to fusion centers as important elements of how data-sharing happens. Fusion centers are hubs designed to facilitate information sharing between federal, state and local agencies, created after 9/11 and quietly operating ever since.

Local surveillance

Although some fear deportation as Roe v. Wade hangs in the balance, others fear attracting the attention of local law enforcement.

On a local level, some police departments rely on technology that analyzes individuals’ social media accounts to allegedly prevent crime. In the past this technology has flagged individuals as gang members based on their Facebook friends list or who’s next to them in a photo. Civil rights groups in Chicago, New York and Minnesota have critiqued these databases as clear examples of racial profiling.

Advocates fear that similar databases may be created in states where abortion is likely to become illegal if Roe v. Wade is overturned. “As long as there’s a police department somewhere who wants to have a registry of pregnant people and abortions, there’s probably going to be an industry willing to do it or get paid to do it,” says Cynthia Conti-Cook, a Ford Foundation tech fellow and civil rights lawyer.

Just Futures Law has documented how ICE has also monitored the social media of immigration activists like Pablos, which concerns advocates like Shah. She says, “People are posting images on social media about being at an abortion protest; maybe being shown at a clinic. All that social media scraping is low-hanging fruit for law enforcement and ICE.”

An ICE spokesperson told TIME: “Like other law enforcement agencies, ICE employs various forms of technology to investigate violations of the law, while appropriately respecting civil liberties and privacy interests.”

Advocates say these ongoing surveillance tactics could be directed against abortion seekers or providers in states that restrict or criminalize abortion. In a new report, the Surveillance Technology Oversight Project predicts that state officials will “turn to the surveillance tools that have become so central to American policing, using technology to peer into the most intimate aspects of our lives.”

A history of digital evidence and pregnancy

Police departments have already gone to great lengths to investigate pregnant women, by looking at their digital footprints.

While the leaked Supreme Court memo indicates the potential overturning of Roe v. Wade, BIPOC advocates in states that have restricted access to abortion argue they already live a post-Roe reality, where technological devices and internet activity are used as evidence in court.

Purvi Patel, for example, was convicted of feticide and neglect of a dependent for taking abortion drugs in Granger, Indiana in 2015. The prosecutor used data from her cell phone and iPad to build a case against her. Evidence presented included text messages to a friend about becoming pregnant and purchasing pills, proof from her email that she purchased the pills online and other online research she conducted. Without this data, the case would have depended solely on the testimony of medical providers and experts. Patel was initially issued a 20-year sentence but after significant public outcry and a long legal battle, an appeal’s court ultimately threw out her feticide conviction and she was released from prison.

“They’re using this evidence to imbue intent about a pregnant person’s state of mind,” said Conti-Cook, “because if you ever once consider your pregnancy a crisis they’re going to not just take that at face value, but start reading into that.”

Conti-Cook has also studied the case of Latice Fisher, who was accused of second-degree murder in Mississippi after giving birth at home to a stillborn baby in 2018. Fisher, who is Black, had her phone searched by law enforcement, which used her internet searches for abortion pills as evidence in her trial. After significant public pressure, the charges against Fisher were dropped, and she was released from prison.

Police are increasingly searching cell phones as part of arrests they make for petty crimes such as graffiti or shoplifting, according to a report looking at police departments across the country by Upturn, a policy think tank focused on technology. The report shows how the technology law enforcement uses to search an individual’s phone during an arrest is so advanced it can map all of the cell phone activity that took place at a specific location ranging from phone calls to app usage to photos.

Police departments emphasize the vital role this technology plays when investigating serious crimes such as homicide and child sexual abuse. There are various instances in which the technology has provided breakthroughs when investigating serial killers. Upturn found that in addition to these instances, the technology is also used for minor crimes such as marijuana possession or vandalism.

An uneven toll

This use of technology is extremely widespread. Upturn estimates that over 2,000 law enforcement agencies across the country have purchased some form of this technology spanning across all 50 states. The toll of this technology is uneven, says Conti-Cook, noting that both Patel and Fisher were women of color. “It’s also very fair to assume that the people who are going to be the most criminalized by this evidence or see this evidence come up are going to be people of color,” Conti-Cook says.

Black immigrants may face even more layers of risk if abortion is criminalized, says Lawrence. She notes that law enforcement disproportionately targets Black individuals; the Stanford Open Policing Project has found that Black drivers across the US are 20% more likely to be stopped than white drivers.

Regardless of the risks, Pablos is committed to continue her work. She has dealt first-hand with the realities of seeking an abortion in a conservative state and navigating criminal charges while fighting her deportation case. These challenges have taught her that immigration and reproductive justice issues are rooted in struggles for self-determination. “If our autonomy is already taken away from us, then we have nothing left to lose,” Pablos told TIME. For her, the only answer is to continue on despite the danger.

Pablos says: “We’re going to keep doing this work no matter how bad it gets because it’s a matter of life and death.”