Police surveillance state poised for growth in a post-Roe world

Justyna Wydrzyńska, a pro-choice organizer and women’s rights defender from the Polish group Aborcyjny Dream Team, is facing prison time for “providing abortion assistance” under a 1997 Polish law banning abortion. In 2020, Wydrzyńska was contacted by a desperate woman who was in an abusive relationship and urgently needed to obtain abortion pills.

Wydrzyńska usually only provided instructions on buying pills in order to skirt Poland’s strict laws. But this case was personal—Wydrzyńska is a survivor of abuse herself. Wydrzyńska sent the woman a package of pills, but the woman’s abusive partner subsequently reported Wydrzyńska to the police, and she was arrested.

Wydrzyńska is now standing trial. Her arrest and prosecution follow a string of ultra-fascist amendments and legislation banning abortion in cases of fetal abnormality and creating a registry of pregnancies in order to surveil, track, and punish women whose pregnancies end.

This erosion of privacy and security and imposition of carceral surveillance onto millions of Polish women is hardly limited to Polish borders—the country could well become a model for the United States.

Dobbs v. Jackson Women’s Health Organization, the Supreme Court case that effectively destroyed the constitutional right to an abortion and overturned 50 years of precedent from Roe v. Wade, has opened the way for abortion bans to be implemented in states across the country. Some 33 million people are expected to lose access to abortion, and multiple states have already banned abortions, including South Dakota, Wisconsin, West Virginia, Missouri, Oklahoma, Texas, Arkansas, and Alabama.

Poland, a country with a far right government and which has edged closer and closer to fascism since the overthrow of socialism in 1989, offers a grim perspective into how abortion bans can lead to the expansion of the surveillance state, the erosion of privacy rights, and the empowerment of police and federal authorities.

In an era of increasing digital surveillance, the reversal of Roe will have widespread effects, not only for women seeking abortion access, but also by heightening state surveillance through period tracking apps, medication purchases, and location monitoring data that can be used as evidence for arrest.

Everything from apps tracking menstrual cycles and pregnancies to internet searches for information on safe home abortions can and has been used to criminalize individuals in states that have banned abortion. The state has long deployed a number of tools and instruments to suppress and surveil working class communities.

From previous attacks on the reproductive rights of Black and brown working class women to the use of digital tracking and mass data gathering for ICE deportations, the state has used technology as an important tool to uphold policies of racism and sexism.

Digital tracing

In states where abortion is illegal, governments will likely enforce reactionary laws through the police and justice system—specifically through subpoenas, or court orders, to ensure that anyone associated with providing or receiving abortion care is criminalized. Health care providers could use the Health Insurance Portability Accountability Act, or HIPAA, as a defense, but subpoenas and warrants would be used to collect evidence. HIPAA does not prevent law enforcement from subpoenaing medical records from health care providers, and information sold to third party data trackers can also be used for prosecution.

But this use of surveillance is not new. In fact, this technology has already been implemented to criminalize reproductive health for working class Black and brown women for years. According to the National Advocates for Pregnant Women, “The past 15 years have seen a shocking spike in arrests and prosecutions for crimes related to stillbirths, miscarriages, and alleged drug and alcohol use during pregnancy. Of the 1,600 people prosecuted for these offenses since the Roe decision in 1973, 1,200 were charged after 2006, and those targeted were disproportionately Black and Indigenous women.”

Abortion bans will likely extend the use of surveillance against women and pregnant people and put even more individuals at risk of criminalization.

Current surveillance not only applies to women using period apps, but also encompasses the monitoring of internet search history as a tool for criminalization. As a result of previous legislation making it more difficult to access clinics providing abortion services, many women have turned to abortifacients, or substances ingested to induce abortions, as an alternative to clinical care.

However, as the internet can be manipulated as an arm of the surveillance state, it will become increasingly risky and dangerous to search for these products. Law enforcement can subpoena internet providers to investigate your search history and prove what items you bought and where you bought them from. As the ACLU says: “Medication, pregnancy tests, prenatal vitamins, menstrual products—can become circumstantial evidence. Information bought and sold by the largely unregulated data-broker industry is increasingly not only targeting pregnant people with ads, but a tool for targeting them for arrest.”

The grips of the state will attack individual women in addition to any party that assists in reproductive care. Under the abortion “trigger laws,” individual health providers and individuals that help “abet” abortions could be subject to punishment. Simply helping an individual that needs reproductive care, as Wydrzyńska did in Poland, can be interpreted as abetting an illegal procedure punishable by jail time.

Each state’s trigger laws specify different guidelines as to the severity of punishment for an offender. For example, according to one study:

“In Texas, anyone who performs, induces or attempts an abortion where ‘an unborn child dies as a result of the offense’ is guilty of a first-degree felony—punishable by up to life in prison and up to a $10,000 fine—under the state’s trigger ban. In Alabama, anyone who performs an abortion, provides abortion pills, or ‘aids, abets, or prescribes for the same,’ faces up to 12 months in county jail or hard labor and a fine of up to $1,000 under the state’s pre-Roe ban. And in South Carolina, a person who ends their pregnancy [after six weeks], either with a pill or by other means faces up to two years in prison and a fine of up to $1,000 under state law.”

How private and public agencies partner to access your data

Currently, a number of data marketplaces allow anyone to purchase private information, accessing data on users that visit specific apps and locations. A third party, such as a far-right anti-abortion group or a police agency, can sign a contract with these data marketplaces and receive sensitive information. In the context of reproductive control, these agencies can track when a person goes to a Planned Parenthood, when they buy birth control, or when they bought an abortifacient from a pharmacy.

This information can then be used in tandem with a subpoena issued by the police and brought as evidence for prosecution.

Third party access of private information is legal and can be done without the use of a warrant in most cases, since it is allowed under “special circumstances” in the bylaws of certain app’s terms and conditions. Last year, the most popular period-tracking app Flo was sued by the Federal Trade Commission after sharing the private health information of its users with third parties like Facebook and Google.

One of these third party data companies that sells app information is called Narrative, which “lets anyone sign up and purchase information related to the users of specific apps near-instantly.” It has been reportedly been “offering data from users who it says downloaded period tracking apps, including some of the most popular period tracking apps such as Clue.”

The data marketplace carries a list of specific phone IDs that have recently used certain period apps, such as Flo and Clue, or recently visited abortion service locations such as those operated by Planned Parenthood.

Being able to buy this information creates an environment of surveillance and gives the police unlimited power to use this information as a weapon to uphold reactionary laws. Narrative also offers “identifier mapping,” which the website says is “mapping between two identifiers that indicates that both belong to the same user.” It means they can accurately match different sets of data to pinpoint a user’s identity.

The weaponization of data

The history of data technology to attack marginalized people did not begin with the reversal of Roe. Long before this, the archetype of the capitalist state’s use of surveillance technology for punishment existed in the form of the Immigration and Customs Agency and the Department of Homeland Security during the so-called “War on Drugs.”

Every day, ICE targets hundreds of millions of Americans through extensive deals with third party private data companies. It happens via accessing individuals’ private information from sources such as past Department of Motor Vehicle records and utility bills.

As one report shows, ICE has used facial recognition technology to analyze the driver’s license photographs of almost one in three adults in the U.S. They have access to the driver’s license data of almost 75% of adults and track the movements of cars in cities that are home to nearly 75% of adults as well. When nearly three-quarters of the country connect the gas, electricity, telephone, or internet in a new home, ICE automatically learns of their new address without the need for a warrant or any notice.

Between 2008 and 2021, ICE spent $2.8 billion on surveillance and data tracking. In 2021, the legal research and data firm LexisNexis, signed a $16.8 million contract with ICE. These contracts offer new avenues of profit for data mining companies and fresh possibilities of surveillance for governmental agencies.

Roe reversal means new surveillance opportunities

The overturning of Roe introduces new opportunities for the police state to inflict harm within our communities. Weaponizing the legal system, self appointed “bounty hunters,” or litigants, in several states will be free to sue anyone who facilitates an abortion.

As reported by American Dragnet: “The fall of Roe and Casey will also expand the threat of private abortion bounty-hunter laws, which allow private litigants to sue anyone who facilitates an abortion. Currently, Texas’s statute (SB8) bars any action by state officials to enforce the measure, but soon police and private bounty hunters will work in tandem to target everyone who facilitates abortion care.”

There will not only be a further surveillance of individuals seeking abortions through subpoenas, but also through the increased contracts between police forces in both those states with and without these trigger laws. Because the police exist as an extension of the capitalist state, whose interests are intertwined with the protection of property, the police will be the enforcers of these reactionary laws to target individuals who need care.

States will also use anti-abortion enforcement duties to justify increased police budgets and increase surveillance in Black and brown working class area. The further increase in state violence in the form of surveillance through period apps and the dismantling of abortion rights in this country takes on a bio-political nature. That is to say, the gutting of abortion rights through hyper-surveillance is a way the state will be able to exercise unhinged control over not only the bodies of women, but the population generally.

Undocumented Black and brown women at particular risk

In the post-Roe world, one population will be at particular risk: undocumented Black and brown women. This group is particularly vulnerable to the gutting of reproductive rights because there’s a history of stripping rights overall for these women. Not only does this threat come from the medical state, from which undocumented women fear arrest and deportation, but through medical services that are often denied for these women.

Currently, 42% of undocumented immigrants are without health insurance, compared to 8% of the general population. Undocumented women will continue to be doubly exploited by the state as a result of being undocumented and being women. The capitalist system relies on this vulnerable population as a source of labor, not only in the agricultural sector, where undocumented individuals make up 26% of the total farming workforce, but in the hospitality sector as well.

This country hyper-exploits the labor of this population but refuses to provide an infrastructure to ensure their health needs are met. Because these women often live below the poverty line, they constitute a phantom class of people that undergird this economy but are simultaneously locked out of participating in much of it.

Historically, the capitalist state has used every tool at the system’s disposal to control the reproductive rights of these women. In the past, the medical system was used as a tool of the state to sterilize Indigenous and Black women, as well as to allow Black women to die during childbirth at a rate three times higher than other populations. These reactionary laws attacking reproductive rights will be upheld by the police and bring the same surveillance technology that has been used by ICE to deport undocumented people into the reproductive enforcement sphere.

Christian fascism and surveillance 

Throughout much of U.S. history, the state has exploited religion as one means of social control. In particular, the Christian far right has served as a tool to give the blessing to gutting social welfare programs and ensuring marginalized women targeted by reactionary laws have no access to healthcare or social assistance to feed their children.

While the Christian far right wants to force these women to endure trauma and potentially life-threatening pregnancies to give birth, their political representatives simultaneously want to destroy any semblance of protective measures such as access to healthcare and education for the children themselves.

There’s a relationship between the ideology of Christian fundamentalism and surveillance. Because the ultimate aim is to uphold a patriarchal framework to control women’s reproductive autonomy, these organizations will continue to use surveillance to preserve and expand this sexist control. A number of Christian fundamentalist groups have already paid data management companies to monitor when women enter Planned Parenthood clinics.

One evangelical adoption agency, Bethany Christian Services, paid Copley Advertising to “send advertisements to women’s smartphones while they are sitting in Planned Parenthood clinics, using a technology known as mobile geo-fencing.” This example and many others show that hyper-surveillance by far-right fascist groups constitutes an overall erasure of marginalized women’s autonomy and privacy.

How can we fight back?

As word gets out about the state’s increased use of surveillance to uphold these reactionary laws, many women may decide not to use technology or apps at all to find the help they need. It will be necessary to create a stronger infrastructure of digital safety for women, where abortion providers and reproductive health apps cannot be used as a weapon of surveillance.

As one report emphasized:

“The coming wave of abortion surveillance may be driven by dark ages ideology, but it will inspire many pregnant people to ‘go dark’ in the modern sense of the term, hiding their electronic records through encryption and other safeguards. Technical safeguards can powerfully protect pregnant people and those who support them. Abortion providers and others seeking to protect pregnant people must make privacy a priority. A recent review found that Planned Parenthood, a leading reproductive health provider, had nearly 70 ad trackers and third-party cookies on its website, revealing the identities of visitors to an array of ad brokers.”

In instances of subpoenas and other court orders, abortion clinics and providers must refuse to hand over private information for prosecution cases. Both clinics and apps must implement safety measures to protect vulnerable clients. These services must be held accountable if they break this seal of trust and allow information to be sold to third parties.

As data companies exist to work in tandem with the state to make profit, we cannot rely on them or the apps themselves to protect users’ privacy. Under current conditions, there must be different avenues to fight against these reactionary attacks. We must organize and fight for abortion access to be codified into federal law and continue to fight against state laws that police reproductive rights.

Equally, we must do everything we can to assist women who want to gain access to safe reproductive care. It is essential to expand our networks of care and assist individuals from red states in traveling to safe haven states. Even at the risk of arrest and punishment, it is essential to ensure that women who need reproductive care receive it. This fight within the streets must be met with an equally strong fight within our networks of care and through uncompromising resistance.

As with all news analytical and op-ed articles published by People’s World, this article reflects the opinions of its authors.