About to Google Abortion? Better Not!

Following up on our previous newsletter on abortion speech, Marwa Sayed looks at how dragnet warrants can function to chill speech. Thanks Marwa!
   
Will the police bust down your door if you Google abortion? As the right wing moves to further restrict reproductive freedom, fears grow about the chilling effects on protected speech that unprecedented digital surveillance tools will have on people trying to learn about or access abortion or other reproductive healthcare. 
 
Especially concerning are dragnet warrants, which function as a sort of reverse warrant. While reverse warrants require law enforcement to state a probable cause, they generally do not target a specific account and deploy a large net, arguably in violation of the Fourth Amendment. One such type of reverse warrant is a keyword warrant which allows law enforcement agencies to request data from companies such as Google about the identities of people who search specific words or phrases. Tech companies have been put in an awkward position in complying with these requests. For example, Google has not necessarily denied these requests, instead engaging in significant narrowing of the requests. They, along with companies like Microsoft and Yahoo have also supported New York legislation that would ban the usage of reverse warrants. 
 
Keyword warrants have recently come under greater scrutiny in the case of a deadly Colorado arson where police were only able to identify suspects through utilizing a keyword warrant targeting people who had Googled the address of the house. One of the suspect’s defense attorneys has challenged the legality of the usage of reverse warrants like keyword warrants in a case thought to be the first of its kind before the Colorado Supreme Court. Both the Electronic Privacy Information Center and the Electronic Frontier Foundation have filed amicus briefs in the case, citing both Fourth and First Amendment concerns.
 
As the EFF identifies, the use of keyword warrants threatens expressive activity under the First Amendment along with its associated “rights to distribute and receive information and to freely and privately associate with others.” Their amicus brief goes on to draw a comparison between search engines and bookstores, reading lists, and libraries, saying that:
 

“like bookstores, search engines are “places where a citizen can explore ideas, receive information, and discover myriad perspectives on every topic imaginable.” …  And as with reading lists, disclosure of users’ search queries chills their rights to seek out information and deter participation in the “uninhibited, robust, and wide - open debate and discussion” contemplated by the Constitution.”

 
EPIC even more directly invokes the threat warrants like these pose to abortion access, explaining that in this day and age, attempts to obtain medical care are virtually impossible without using search engines such as Google. Allowing keyword warrants not only chills the speech of people in states where abortion is restricted or banned for fear of prosecution but it also chills the speech of people in states where abortion is legal and supported. As fears and misunderstandings about the abilities of law enforcement with regards to out of state enforcement of abortion restrictions grow, people in legal states may be fearful and reluctant to search for information about abortion.
 
Tools like keyword warrants are troubling because they impact a basic function of a society and an informed citizenry, the ability to gather information to make the best choices about our lives. Chilling speech around abortion jeopardizes access to healthcare and the lives of those who wish not to be pregnant or who are no longer able to be pregnant.
 
Fortunately, some states are paying attention and contemplating bills to ban or regulate the use of reverse warrants such as keyword warrants. In California, AB 793, which passed the Assembly, would ban reverse warrants and provide a notification and redress provision to anyone who is subject to a breach of that ban. In New York, A84A, the Reverse Location Search Prohibition Act, would similarly prohibit the use of geofence and keyword warrants.
 
Abortion and access to reproductive healthcare remains vital rights that require protection against novel ways to restrict them. Whether searching for information about how to get an abortion or what the latest laws around abortion are, people’s First Amendment rights to gather information should not be unlawfully chilled by keyword warrants that cast an undiscerning net and violate civil freedoms.
   
Marwa Sayed is a law student at CUNY Law. She graduated from Boston University with a BA in biological anthropology and African American studies. Prior to law school, she worked as an Americorps Legal Advocate with Greater Boston Legal Services and the Massachusetts Law Reform Institute where she advocated for people experiencing homelessness. Learn more about our fellows at: https://ifrfa.org/fellows