Abortions have always taken place, even when they have been illegal. But banning abortion in the age of online surveillance is something entirely new. Even though online data is anonymized, by combining a number of different data points, it’s possible for those with access to them to determine who the data belongs to. In the case of women, that can mean determining whether they’re pregnant or have had an abortion. Given that the state is both incapable and unwilling to protect online privacy – it is down to tech companies to act, limit their data collection, and protect the freedom of women, argues Nolen Gertz.

“Forced motherhood results in bringing miserable children into the world, children whose parents cannot feed them, who become victims of public assistance or ‘martyr children.’ It must be pointed out that the same society so determined to defend the rights of the fetus shows no interest in children after they are born; instead of trying to reform this scandalous institution called public assistance, society prosecutes abortionists…”

This quote may seem like it was from a tweet posted last week after the U.S. Supreme Court overturned Roe v. Wade, the 1973 Supreme Court decision that ruled there is a constitutional right to an abortion. But this quote was actually written by Simone de Beauvoir, who died in 1986. Thanks to the Supreme Court, though it has been almost 75 years since de Beauvoir wrote these words in her classic work The Second Sex, it might feel as though nothing has changed, that her argument that “this fervor on the part of some men to reject everything that might liberate women shows how alive antifeminism is” is as true today as when she wrote it in 1949.

Yet while the arguments concerning whether abortion should be policed may not have changed much in the last 75 years, there have been major changes in how abortion can be policed. Shortly after a draft of the Supreme Court decision was leaked, Zeynep Tufecki warned in a New York Times op-ed that “surveillance made possible by minimally-regulated digital technologies could help law enforcement or even vigilantes track down women who might seek abortions and medical providers who perform them in places where it would become criminalized.” In other words, the argument that the Supreme Court decision did not make abortion impossible even in states where abortion has become illegal—since pregnant women can either get abortion pills in the mail, or travel to states where abortion is still legal—ignores the degree to which digital technologies make it possible to not only track the activities of pregnant women, but to determine which women are pregnant, and even how far along they are in their pregnancies.

___

Given the rise of Big Data, artificial intelligence, and facial recognition algorithms, it is becoming easier and easier to conduct surveillance and harder and harder to avoid it.

___

In a story made famous by Charles Duhigg, a father went to his local Target to complain when he found they were sending his teenage daughter coupons for baby products in the mail, only to later find out that Target had not been trying to encourage her to become pregnant as he assumed, but that Target had in fact correctly predicted that his daughter was already pregnant. In 2002, Target hired statistician Andrew Pole to try to figure out when women were pregnant in order to target them with advertisements for their products. Pole found that he could create a “pregnancy prediction” score by simply studying the shopping habits of women known to be pregnant by looking at baby registries and comparing this data to the data they had on all of their customers.

___

It is therefore clearly not enough to protect women by simply telling them to delete their health data from their smartwatches and to remove their period tracking apps from their phones.

___

Through these statistical methods Pole was able to find patterns—such as an increase in the purchase of unscented skin lotion, vitamin supplements, and cotton balls—that could be used not only to predict if a woman was pregnant, but even how many weeks she was into her pregnancy. Though Pole was promoted by Target for his success in predicting pregnancy, Target tried to hide this success from the public in order to avoid revealing the extent of their surveillance of their customers. As Pole explained to Duhigg, “We are very conservative about compliance with all privacy laws. But even if you’re following the law, you can do things where people get queasy.”

Given the rise of Big Data, artificial intelligence, and facial recognition algorithms, it is becoming easier and easier to conduct surveillance and harder and harder to avoid it. As Pole makes clear, while privacy laws may protect individuals from the collection and dissemination of information that identifies them personally, such laws still allow for the collection of impersonal information that, when combined and analyzed, can be used to not just identify individuals, but to learn intimate details about their lives. And given the financial success that companies like Target have had with both their surveillance of the public and their efforts to hide their surveillance from the public, there is no incentive for companies to do anything other than continue to follow privacy laws while discovering just how much invasion of privacy such laws let them get away with.

It is therefore clearly not enough to protect women by simply telling them to delete their health data from their smartwatches and to remove their period tracking apps from their phones. Such efforts would not only be ineffective, but would run the risk of giving women a false sense of security. To protect privacy it is instead necessary to change privacy laws in order to make them less easy to exploit. There are two problems (at least) with the attempt to improve privacy laws however.

First, as Jacques Ellul pointed out in his 1977 work The Technological System, governments cannot regulate tech companies unless tech companies willingly submit to such regulations. Successful regulation would require politicians to have both the means and the knowledge to understand what tech companies are doing, but because such means and knowledge can come only from the very tech companies that politicians would be trying to regulate, these efforts have proven to be laughably ineffective. Legislators have therefore become dependent on tech company whistleblowers in order to regulate tech companies, but this means that regulation must necessarily be reactive rather than proactive.

___

As political power becomes increasingly determined by technological power, politicians will become increasingly reliant on tech companies and not just unable to regulate tech companies but unwilling to do so.

___

Second, as Tufecki points out, tech companies have used their money and influence to get politicians on their side. At the same time politicians are themselves increasingly using data collection methods to target voters and win elections. Hence, while Ellul does admit that it is possible for politicians to force tech companies to obey the law, he also points out that as political power becomes increasingly determined by technological power, politicians will become increasingly reliant on tech companies and not just unable to regulate tech companies but unwilling to do so.

Yet, rather than resign ourselves to nihilism, we should turn once more to Simone de Beauvoir. According to de Beauvoir, freedom is not, as some claim, a zero-sum game, where less freedom for you means more freedom for me. Instead, de Beauvoir argues, we must appreciate that we can only realize our freedom by helping others to realize theirs, for the more possibilities that are created by others, the more possibilities that are created for ourselves in the process. In other words, in the same way that women having the freedom to seek an abortion means women can contribute more than just their ovaries to society, tech companies freely choosing to stop surveilling women means women can contribute more than just their data to society. Otherwise, tech companies will be forced to reckon with the fact, as de Beauvoir makes clear, that to abstain from helping to liberate others is not to be neutral, but to be complicit in their oppression.