Digital privacy in the post-Roe era

Ali Ebrahim
at Delfina
min read

The framers of the United States Constitution recognized the value of an inherent right to privacy from the government, with the 4th amendment encoding protections against "unreasonable searches." But in the digital age, a "search" isn’t simply performed on the contents of your home—it means so much more. It means finding every single place you have visited from the GPS chip on your phone. It means learning everything you’ve watched on Netflix, every text you've sent your friends and family, and everything you've even thought about buying online. Since Roe v. Wade was overturned, many Americans have been confronted with the worrying possibility that their private health decisions—and the digital paper trail documenting these choices—would no longer be protected. But the government’s disregard for our digital privacy has been established and exploited long before 2022, aided by a shadow data economy.

A prominent example is the bi-partisan 2001 USA PATRIOT Act, which was sold to the public as a mechanism to better fight terrorism. However, government use of data from this law goes well beyond investigating terrorism. Employees with access to this data used it to stalk their former partners. Data misuse was also borne out in official policy, and was often used to target historically vulnerable populations: Instead of terrorism, most of the uses of these powers and data were actually for a drug war that disproportionately targets minorities, and to justify government harassment of people of Muslim origin. As our lives have become more and more online since 2001, privacy protections have only weakened. For example, many police and prosecutors now simply purchase data from third-party data brokers selling private data instead of standing before a judge and explaining why they have probable cause for a warrant. 

Even with this encroachment by the government and data brokers on our privacy, one aspect of our lives appeared to be relatively safe: health. Long-standing precedents had held that the things you told your doctor were privileged and thus safe from prying eyes, just like things you told your lawyer. Laws like the Health Insurance Portability and Accountability Act of 1996 (HIPAA) further enshrined the privacy of health data.

However, the fortress around health data was shattered by the Supreme Court's decision in Dobbs v. Jackson, which opened up private medical decisions between pregnant patients and their doctors to prosecution, removing a medical privacy right that has long been viewed as a critical piece of bodily autonomy. It should not go unnoticed that just like before, this invasion of privacy mostly targets a historically vulnerable population: women. Even prior to this decision, women have been prosecuted for miscarriages, even in liberal California. Many expect that these prosecutions will increase after Dobbs, and the culture of fear created by potential prosecution of women and their healthcare providers has already harmed pregnancy care for common complications.

In this dire situation, what can people who are pregnant do to protect their privacy? Sadly, there are no ironclad protections today, but following good data practices never hurts:

  1. Never use services which sell your identifiable data to third party data brokers. There is no way to control who has access to your data with services that do this. Look in the privacy policy for language promising never to resell user data, like we do in ours.
  2. Ensure you stay in control of your own data by only using services that allow you to delete your personally identifiable data. While some jurisdictions now enforce that all digital services allow users this right, not all of them do. At Delfina, our privacy-obsessed engineering team built this as one of our first features.
  3. Raise your voice about this issue by calling your elected representatives to demand your rights. Specifically, two types of protections are paramount: We need protections against unscrupulous data brokers and regulations ensuring that companies only use user data in ways that the users understand and agree to, and we need laws that enshrine rights to medical privacy and bodily autonomy in order to walk back the intrusions from recent supreme court decisions.

To learn more about this topic, I highly recommend this episode of the ACLU "On Liberty" podcast. If you want to help build a platform that prioritizes data privacy in pregnancy care, join us here.

Delfina on social media
© 2023 Delfina · 2021 Fillmore St, Ste 37 · San Francisco, CA 94115