How Data Tracking Could Be Used To Prosecute Abortion | Crooked Media
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May 10, 2022
What A Day
How Data Tracking Could Be Used To Prosecute Abortion

In This Episode

  • As the Supreme Court considers overturning or scaling back Roe, online privacy and pro-choice advocates are concerned about how police might use data from someone’s phone or computer to prosecute or charge them for seeking an abortion in states where it could be deemed illegal. Sara Morrison, a senior reporter for Recode, joins us to discuss the need for more data privacy laws in a post-Roe world.
  • Parents nationwide are facing extreme difficulty feeding their newborns amid a widespread shortage of baby formula. Nearly 40 percent of retail stores across the country are out of stock of formula, and over half of U.S. states have out-of-stock rates as high as 50 percent.
  • And in headlines: Protests continue in Sri Lanka following months of food and fuel shortages, the House of Representatives voted to pass a $39.8 billion aid package for Ukraine, and gasoline climbed to its highest national average price ever.


Show Notes:



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Gideon Resnick: It’s Wednesday, May 11th. I’m Gideon Resnick.


Priyanka Aribindi: And I am Priyanka Aribindi and this is What A Day, the podcast that gives you all the news in less time than it takes the Senate to pass a bill giving police protection to the families of Supreme Court justices.


Gideon Resnick: Yes. And to be clear, they do that very fast.


Priyanka Aribindi: You know, just like What A Day, they can be extremely efficient when need be.


Gideon Resnick: On today’s show, there is a nationwide shortage of baby formula. Plus, President Biden says tackling inflation is his number one domestic priority.


Priyanka Aribindi: But first, we want to continue the conversation we have been having about what could happen if Roe v. Wade is overturned in the next month or so by the Supreme Court. We have talked on the show before about how abortion would definitely or likely become illegal in at least 26 states if Roe were overturned, but Gideon, you also wanted to talk about how police could go about enforcing a ban on abortion. So tell us a little more about how that could happen.


Gideon Resnick: Yes. So one thing that we don’t always think about is how data from our phones, computers, tablets, and apps could be used by law enforcement to investigate crimes. That’s in addition to what anything private companies might do with your data on their own. We hear horror stories about that pretty often.


Priyanka Aribindi: Right.


Gideon Resnick: And to your point, as the Supreme Court considers overturning or scaling back Roe, online privacy and pro-choice advocates are concerned about how police might use data from someone’s apps, Google searches, or even their location to prosecute or charge them for seeking an abortion in states where it could be deemed illegal.


Priyanka Aribindi: And police are just allowed to access that data whenever they want. What is the deal here? How does that work?


Gideon Resnick: Yeah, I mean, with some limitations, they basically can. There’s a Recode article by Sarah Morrison that describes how law enforcement already uses data as evidence in all sorts of investigations. For example, in 2017, a woman in Mississippi who had a stillborn child was suspected of having an abortion. Police went through her search history and found that she looked into abortion-inducing drugs, and then they use that as evidence to charge her with second-degree murder. Now, those charges were later dropped, but stories like that are enough to make people worry that police could use those tactics more often if Roe is ultimately overturned.


Priyanka Aribindi: Right. A terrifying prospect. So you actually got to talk to reporter Sarah Morrison about all of this. Tell us a little more about how that conversation went.


Gideon Resnick: Yeah. So I started off by asking her about so-called data brokers that collect and sell people’s online information, usually to private businesses, and what kind of information they have that could be handed over to law enforcement.


Sara Morrison: The problem with there being so much data about us collected by so many things that we use all the time, is that the answer is, you know, kind of everything. Mobile apps, a lot of these things are free because they take a lot of data from you, sometimes through like trackers and things in apps and on websites. Conceivably, there’s a lot of information about you they could get that way. And we do know that law enforcement does buy data from these data brokers. Immigrations and Customs Enforcement has used it to try to find entry points for undocumented immigrants. I think the IRS was using it. The FBI uses it, the military uses it, and they all can because there’s no law telling them that you can’t just buy evidence that you would otherwise maybe have to get a warrant for.


Gideon Resnick: Right. And your article, when you were writing about this, mentioned other sort of sweeping examples of where this could be a problem, like, for example, an Internet search for abortion-inducing drugs. Can you talk about some of those examples and how they are worrisome, potentially in this world we might be looking at in a few months?


Sara Morrison: So that becomes more of an issue if, you know, like we said, let’s say abortions are illegal and then police can, you know, get court orders, subpoenas, warrants, whatever, to find, you know, your data. Like, this isn’t stuff that they can really buy from data brokers. This is the stuff that they have to go through legal channels to do. And then the problem is that that stuff is there for them to get. If you look at–maybe for some people, these are not the most pathetic case–but the January 6th insurrectionists, you know, a lot of the cases against them, they would say Google, give us the devices that were in this location, the Capitol building, at this time. And then from there, they could say, here are the people that we believe were there and then give us more information about them. And so when you look at a case like an abortion, if they suspect you of having had one and then they know that you went to a place, maybe there’s a law that you can’t leave the state to get one, but they know that you left the state to go to someplace where it was legal–that’s all stuff that’s there, so that’s all stuff that they can get. There’s really nothing stopping these companies from collecting it, and there’s not a lot stopping the police from getting it either.


Gideon Resnick: And going back a little bit to some apps that serve more kind of specific purposes, namely, we’ve seen a lot of apps relating to period tracking, for example, that have come up in a lot of these articles and reporting about all of this. So what have those sorts of apps done, if anything, to protect user data?


Sara Morrison: Period apps have come up a lot and actually period apps are kind of an interesting case because there have been a couple of them that have gotten in trouble for not protecting user data the way they said that they would, or not protected as well as they should have. Like I’ve heard, you know, somebody asked me, Okay, well, HIPA’s a medical privacy law. These are medical apps, right? Doesn’t HIPA apply? No, it doesn’t. HIPA does not apply to apps that deal with health just because they have the word health in them.


Gideon Resnick: You said that there really isn’t something, legally speaking, that forces these kinds of requirements on various companies. So what are some of the legislative efforts to provide people protection of their info that are kind of in the works?


Sara Morrison: So I will say like some states do have some laws. Like California actually I believe has the strongest consumer privacy law in the country. So the companies operate in those states or the people live in them have more protections, like you can ask to have your data deleted, you can opt out of stuff like that. The problem is, I don’t live in California. I don’t know where you live, but I’m going to assume that a lot of your audience don’t live there either so those protections don’t apply to you. So when you talk about like a federal level and a federal privacy law, these things have been proposed. You know, there’s a bill, Senator Ron Wyden and I think Rand Paul actually put forward called the “Fourth Amendment is Not For Sale Act”, which basically says you cannot buy data from data brokers to use in your criminal investigations that you would otherwise have to get a warrant for. I don’t think there’s been a federal bill about this. I’m not sure, but I think there’s one in New York that would say you can’t just go to say Google and go, I want a list of all the devices in this area at this time and then I’ll try to narrow them down into who I think did something wrong. That sort of means that a bunch of innocent people’s devices get wrapped in that, too. Or you can’t do what are called like, keyword searches warrants, which is who searched for a particular word, like abortion pills. And then you go to consumer privacy laws, like that would apply to everybody, things that require companies to minimize how much data they actually collect so there aren’t like all this extra stuff out there that they don’t need. Things where they have to get our permission to collect it at all, and then they have to get our permission to sell or share it with somebody else–that kind of stuff that just again, puts the control in our hands over what of our information is given to who, and even gives us the ability to take it back or delete it if we wanted to. If something’s illegal, the police are within their rights to get data that helps their case, but if that data is not there to get in the first place, then it’s not there.


Gideon Resnick: Yeah, I was going to say, are there sort of other individual recommendations that would kind of make sense for people to at least think about in terms of what they are doing here?


Sara Morrison: This is sort of always a hard one because I don’t ever want to tell people that there is this way that you can prevent, you know, all of your data from being collected or any of it. I would tell people to go through their phones and see which apps they actually use, which ones they actually need, and get rid of the ones that they don’t. A lot of apps now or websites now sort of offer these like opt-out of having your data collected or shared. You know, and then like things that have encryption, so like messaging apps, like Signal’s one where, you know, the police go to those companies and say, We have a warrant, give us the data. They actually don’t have that data for the police to get in the first place. If nothing else, I hope it’s just a good reminder to people that all of these things are happening. They’re all collecting data about you. There are ways to reduce it. There are things you can ask your lawmakers to do–aside from all the other things we have to ask our lawmakers to do. But maybe that could be on your list.


Gideon Resnick: And Priyanka, that was my conversation with Sara Morrison, senior reporter for Recode. We are going to link to her article in our show notes.


Priyanka Aribindi: Yeah. And while we’re dealing with blows to abortion access in this country, let’s turn to another story that we’re following. Parents nationwide are facing extreme difficulty feeding the newborns that they already have. So for months, the U.S. has been dealing with shortages of baby formula that have taken many of the leading brands off of the shelves. Nationwide, nearly 40% of retail stores are out of stock of formula, and over half of U.S. states have out-of-stock rates as high as 50%. Normally, those rates are under 10%, so clearly something is not right here.


Gideon Resnick: Yeah, that seems truly unheard of. And it’s obviously an enormous problem for parents who rely on formula to feed their young children. What do we know has actually caused this shortage?


Priyanka Aribindi: Yeah. So this didn’t happen immediately. There have been months of shortages due to supply chain issues, you know, much like a bunch of other things in our economy. But this has been exacerbated by a recall of products by major formula manufacturer Abbott Laboratories. Abbott had to recall a few of its products due to contamination, and was forced to close its largest U.S. formula manufacturing plant back in February. As you said, this is a huge problem. Obviously, infants can be breastfed, but that is easier said than done for many people, not always accessible for everybody or for every family. Many parents use formula to supplement breast milk or in the place of it, and this is really affecting those people. This is especially dangerous as well for some infants who require specialty formulas due to allergies and other conditions. Abbott’s recall, in particular, also affected several brands that were covered by federal assistance, though some substitutions are now being allowed.


Gideon Resnick: Yeah, and HuffPost did some reporting on this earlier this week, and they found that several senators were fully unaware of this very crisis that we’re speaking of. So who is helping here and what is actually being done to address this?


Priyanka Aribindi: Yeah. So it appears that when you are 85-years old, you’re not really buying a bunch of baby formula.


Gideon Resnick: Probably not.


Priyanka Aribindi: So apparently this isn’t on their radars, but it is on the radar of Senate hopeful and former Iowa representative Abby Finkenauer. She has had a plan on this for over a month now. Fortunately, the White House seems a lot more aware that this is an issue as well. Here is a clip of White House Press Secretary Jen Psaki when she was asked about this on Monday. Take a listen.


[clip of Jen Psaki] What the FDA is doing, which while they are independent, they are part of the administration, is taking a number of steps to address. That includes working with major infant formula manufacturers to ensure they’re increasing production, because part of this issue is, of course, making sure their stock on the shelves, right? And working with the industry right now to optimize their supply lines, product sizes, to increase capacity and prioritizing product lines that are of greatest need.


Priyanka Aribindi: She also said that the FDA is working quote, “around the clock” on this issue, though some industry professionals do say it’ll be hard to fix this issue quickly because the FDA does require extensive testing and inspections and labeling of these products. One thing that they do want to make clear, though, is that if you or anyone you know is experiencing this issue, can’t find formula to feed your infant, contact your pediatrician’s office or your local food bank. They really do not want people trying to water down formula to make it last longer or trying some recipe from online. Please call your pediatrician’s office if this is an issue.


Gideon Resnick: Yeah. Online recipes are for rigatoni, you know?


Priyanka Aribindi: Rigatoni, cookies, you know, sheet pan salmon–go for it. Not for baby formula. And that is the latest for now.


Gideon Resnick: Let’s get to some headlines.


[sung] Headlines.


Priyanka Aribindi: Protests continue in Sri Lanka following months of food and fuel shortages. And yesterday, things escalated when the government ordered troops to open fire on anyone, quote, “looting public property or causing harm to life.” This order came after protests turned violent on Monday, leaving seven people dead. These demonstrations have been going on since early April, but people say that they will continue to protest the government for not doing more to help Sri Lanka’s worst economic crisis in its history. Ultimately, demonstrators want the president, Gotabaya Rajapaksa, to step down. And on Monday, his brother, Prime Minister Mahinda Rajapaksa, resigned. Following the prime minister’s resignation, he and his family evacuated from their home in the capital, Colombo, early Tuesday morning. This happened after protesters set fire to the family’s ancestral home in another part of the island.


Gideon Resnick: In the US, the House of Representatives voted to pass a $39.8 billion aid package for Ukraine late last night. Lawmakers brought this supplemental bill forward just days after President Biden warned that the existing aid for Ukraine would soon run dry. Initially, this bill was going to be a dual package for COVID relief and Ukraine aid, but Republicans did not support linking the two together. So instead, this bipartisan deal includes more funding for things like food, weapons and help for Ukrainian refugees. In a letter to her Democratic colleagues, House Speaker Nancy Pelosi called this a, quote, “monumental package of security, economic, and humanitarian aid.” Senate Majority Leader Chuck Schumer said the Senate will quickly pass this nearly $40 billion bill and send it to the President’s desk for signing. This all comes after President Biden signed a new version of the World War II-era Lend-Lease Act on Monday, allowing for the faster movement of arms to Ukraine. And all of this speaks to how much more the U.S. is, in fact, engaged in the war, though The New York Times reports that Biden was apparently furious about leaks showing that U.S. intelligence had helped Ukraine take out Russian generals and the sinking of a cruiser.


Priyanka Aribindi: We are getting some more insights into how North Carolina Congressman Madison Cawthorn became a viral video sensation last week–if you want to call it that. I don’t, but it’s fine. Yesterday, both The Daily Beast and The Washington Post published reports on the forces within the Republican Party that are trying to crush Cawthorn’s chances in his North Carolina primary next Tuesday. Cawthorn rose fast in the Republican Party, and scored Trump’s endorsement in this year’s race last spring. But a string of recent leaks have done damage to his reelection campaign. They include the viral video I mentioned showing Cawthorn naked and humping his friend in a way you could describe as nonsexual but very aggressive, weird. Definitely not approved by the official political party of homophobia, we can tell you that much. Cawthorn’s many controversies began far earlier than that, though. They included bringing guns through TSA, a thing he has done twice.


Gideon Resnick: Twice.


Priyanka Aribindi: Allegations of sexual harassment and calling Ukrainian President Vladimir Zelenskyy a thug. Let me just note that we didn’t even get to the coke and origes this. Didn’t even make the cut, which is wild.


Gideon Resnick: When Cawthorn accused his colleagues of doing coke and orgies and all that other stuff on a podcast.


Priyanka Aribindi: That time. Which didn’t even make the initial list of like three or four things that he did, which is how you really know it’s an extensive list.


Gideon Resnick: It is.


Priyanka Aribindi: Anyways, it is these actions, plus a lack of deference to party elders that have mobilized people like North Carolina Senator Thom Tillis against him. Tillis and several other prominent Republicans in the state have endorsed Cawthorn opponent in next week’s primary, State Senator Chuck Edwards–I’m sure he is still terrible. And allied conservative PACs are spending hundreds of thousands of dollars on anti-Cawthorn ads and mailers. In other midterm news, West Virginia and Nebraska held their primary elections yesterday. One noteworthy detail, the man Trump endorsed in the Nebraska governor’s race, Charles Herbster, has been accused by eight women of inappropriate touching–just I guess par for the course for these people. The results were still coming in when we went to record, but he was on track to lose.


Gideon Resnick: Well.


Priyanka Aribindi: Darn.


Gideon Resnick: Yeah. I’m not going to investigate everybody else in the primary any further. The world’s second most polarizing liquid after coconut LaCroix, that’s right, gasoline climbed to its highest national average price ever yesterday, 4.37 a gallon, which is a price it still seems low for people living in Los Angeles where they would drive over several medians and a fire hydrant for a chance to pay $5.


Priyanka Aribindi: That’s a steal. I’m sorry. That is a steal.


Gideon Resnick: Easily. Gas prices rose by $0.17 in the last week alone. And against this backdrop of pricey gas, President Joe Biden gave a speech yesterday where he described inflation as his top domestic priority. Inflation is at eight and a half percent, and is rising faster than it has in 40 years, and Republicans are trying to pin it on Biden and the Democrats. But in his speech, Biden sought to connect the dreaded I-word back to Republicans, suggesting that his plan to resolve high prices would work, whereas the only comprehensive Republican plan available, authored by Senator Rick Scott of Florida, would make things worse. Here is Biden on that point.


[clip of President Biden] My plan attacks inflation and grows the economy by lowering costs for working families, giving workers well-deserved raises, reducing the deficit by historic levels, and making big corporations and the very wealthiest Americans pay their fair share. The other path is the ultra-MAGA plan put forward by congressional Republicans to raise taxes on working families, lower the income of American workers, threaten sacred programs Americans count on like Social Security, Medicare, and Medicaid, and give break after break to big corporations and billionaires.


Gideon Resnick: Okay. All due respect, you can play that on one and a half speed if you have places to go later today. I will not get mad at you. To me, the right choice between these two plans is pretty clear, and it’s not the one that cuts Social Security. Honestly, though, I do want to go to the grocery store without being scared of the numbers at the cash register. That would be nice.


Priyanka Aribindi: I would like to do literally any activity that requires spending money without being slightly terrified at what that number is going to be. What a concept. Would love to see it sometimes.


Gideon Resnick: Yeah, that would be beautiful. Larger numbers mean more math, and more math means more fear. And those are the headlines. We’ll be back after some ads to celebrate the life of the device that put music in our pockets.


[ad break]


Gideon Resnick: It is Wednesday WAD squad, and today we are doing a segment called WAD Remembers, where we bid a fond farewell to something that is not a person but is still enriched our lives over the years and is still about to be dead. The device that allowed many of us to connect with the other quiet kid on the school bus, the iPod, is officially being discontinued 21 years after it was launched. That is a long time and makes me feel anxious.


Priyanka Aribindi: I’m old. Yeah.


Gideon Resnick: Apple announced yesterday that it has stopped making the iPod Touch, which was last updated in 2019. If you want to put a thousand songs in your pocket now, you’ll have to buy an iPhone or a Samsung Galaxy or one of the other small electronic rectangles which are constant companions and tormentors. Apple also noted that the quote, “spirit of the iPod lives on in devices like the iPad and the Apple Watch.” Some of us may beg to differ, but it’s fine. Reflecting on that spirit and how it’s moved us over the years, Gideon, would you like to share with us your fondest memories of the recently deceased iPod?


Gideon Resnick: I have a few. I want to start off by saying that the sound of the clicking wheel is one of the most sort of–


Priyanka Aribindi: Iconic.


Gideon Resnick: Immediate Pavlov dog-type situation.


Priyanka Aribindi: Loved it.


Gideon Resnick: Where I’m like it brings me back to specific moments in time in a way that are insane.


Priyanka Aribindi: That’s beautiful.


Gideon Resnick: I also remember how big the different evolutions felt, right? So we went from like the big clunky guy in like a large case with like wired headphones to like, you know, my brief stint with the Nano–which, like to be clear, I don’t think is that good because you couldn’t actually like see a screen or anything–all of those evolutions felt like really huge jumps in the way that we don’t quite have now. Now it’s like if you get a new one, maybe there’s like, you know, a couple emojis or whatever a difference. That was just fun.


Priyanka Aribindi: I was sad because I got I mean, I was young when the iPod came out, which is not a flex for anyone listening, but I was so, I didn’t get one until after they got rid of the buttons that were on. Do you remember there were like buttons on the actual iPod that you could press along with the wheel?


Gideon Resnick: Oh! I never had that either.


Priyanka Aribindi: But I always thought those ones looked so cool. I was very sad that I missed out on that era. And then, you know, some are cool, some are misses. But, you know, I loved my iPod. I have one less happy memory of an iPod. It was a family member who thought they were being funny, I guess, decided to swap our iPods. Took my iPod out of its case. Put their iPod in it. And I was like, okay, this isn’t my iPod. Like, excuse me, what? They eventually obviously fessed up and was like, It was a joke, it was a joke. And it was like, Okay, what part of this was funny? I now don’t like you. This is probably 20 years ago at this point. To this day, still don’t like this person. I won’t be using names because my parents do listen to this podcast, but they know who they are and they know I still hate them.


Gideon Resnick: Wow. Well, one day we will sort that out as one extended family.


Priyanka Aribindi: One day.


Gideon Resnick: And have everybody talk about it. But that was WAD Remembers. Thank you always to Apple for putting music in our pocket. That is all for today. If you like the show, make sure you subscribe, spine the click-wheel one last time, and tell your friends to listen.


Priyanka Aribindi: And if you’re into reading, and not just low numbers on the cash register like me, What A Day is also a nightly newsletter. Check it out and subscribe at I’m Priyanka Aribindi.


Gideon Resnick: I’m Gideon Resnick.


[together] And I’ll never forget you iPod!


Gideon Resnick: Having the cord connected to like the family CPU to charge it and also to get the music off of the computer–what a time.


Priyanka Aribindi: What a time.


Gideon Resnick: It was like a six step process to get to your music.


Priyanka Aribindi: It really was.


Gideon Resnick: And kids these days will never understand the effort we had to go through.


Priyanka Aribindi: LimeWire, like the birth of all of that, just to have shit on my iPod. What a time. What a time.


Gideon Resnick: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Jazzy Marine and Raven Yamamoto and our associate producers. Our head writer is Jon Millstein, and our executive producers are Leo Duran and me, Gideon Resnick. Our theme music is by Colin Gilliard and Kashaka.