Location Tracking Tools Endanger Abortion Access. Lawmakers Must Act Now.

EFF wrote recently about Locate X, a deeply troubling location tracking tool that allows users to see the precise whereabouts of individuals based on the locations of their smartphone devices. Developed and sold by the data surveillance company Babel Street, Locate X collects smartphone location data from a variety of sources and collates that data into an easy-to-use tool to track devices. The tool features a navigable map with red dots, each representing an individual device. Users can then follow the location of specific devices as they move about the map.

Locate X–and other similar services–are able to do this by taking advantage of our largely unregulated location data market.

Unfettered location tracking puts us all at risk. Law enforcement agencies can purchase their way around warrant requirements and bad actors can pay for services that make it easier to engage in stalking and harassment. Location tracking tools particularly threaten groups especially vulnerable to targeting, such as immigrants, the LGBTQ+ community, and even U.S. intelligence personnel abroad. Crucially, in a post-Dobbs United States, location surveillance also poses a serious danger to abortion-seekers across the country.

EFF has warned before about how the location data market threatens reproductive rights. The recent reports on Locate X illustrate even more starkly how the collection and sale of location data endangers patients in states with abortion bans and restrictions.

In late October, 404 Media reported that privacy advocates from Atlas Privacy, a data removal company, were able to get their hands on Locate X and use it to track an individual device’s location data as it traveled across state lines to visit an abortion clinic. Although the tool was designed for law enforcement, the advocates gained access by simply asserting that they planned to work with law enforcement in the future. They were then able to use the tool to track an individual device as it traveled from an apparent residence in Alabama, where there is a complete abortion ban, to a reproductive health clinic in Florida, where abortion is banned after 6 weeks of pregnancy. 

Following this report, we published a guide to help people shield themselves from tracking tools like Locate X. While we urge everyone to take appropriate technical precautions for their situation, it’s far past time to address the issue at its source. The onus shouldn’t be on individuals to protect themselves from such invasive surveillance. Tools like Locate X only exist because U.S. lawmakers have failed to enact legislation that would protect our location data from being bought and sold to the highest bidder. 

Thankfully, there’s still time to reshape the system, and there are a number of laws legislators could pass today to help protect us from mass location surveillance. Remember: when our location information is for sale, so is our safety. 

Blame Data Brokers and the Online Advertising Industry

If you share your location with the many apps available on your smartphone, your location data is at risk of being harvested and sold to shadowy companies known as data brokers. Apps request access to device location to provide various features, but once access has been granted, apps can mishandle that information and are free to share and sell your whereabouts to third parties, including data brokers. These companies collect data showing the precise movements of hundreds of millions of people without their knowledge or meaningful consent. They then make this data available to anyone willing to pay, whether that’s a private company like Babel Street (and anyone they in turn sell to) or government agencies, such as law enforcement, the military, or ICE.

This puts everyone at risk. Our location data reveals far more than most people realize, including where we live and work, who we spend time with, where we worship, whether we’ve attended protests or political gatherings, and when and where we seek medical care—including reproductive healthcare.

Without massive troves of commercially available location data, invasive tools like Locate X would not exist.

For years, EFF has warned about the risk of law enforcement or bad actors using commercially available location data to track and punish abortion seekers. Multiple data brokers have specifically targeted and sold location information tied to reproductive healthcare clinics. The data broker SafeGraph, for example, classified Planned Parenthood as a “brand” that could be tracked, allowing investigators at Motherboard to purchase data for over 600 Planned Parenthood facilities across the U.S.

Meanwhile, the data broker Near sold the location data of abortion-seekers to anti-abortion groups, enabling them to send targeted anti-abortion ads to people who visited clinics. And location data firm Placer.ai even once offered heat maps showing where visitors to Planned Parenthood clinics approximately lived. Sale to private actors is disturbing given that several states have introduced and passed abortion “bounty hunter” laws, which allow private citizens to enforce abortion restrictions by suing abortion-seekers for cash.

Government officials in abortion-restrictive states are also targeting location information (and other personal data) about people who visit abortion clinics. In Idaho, for example, law enforcement used cell phone data to charge a mother and son with kidnapping for aiding an abortion-seeker who traveled across state lines to receive care. While police can obtain this data by gathering evidence and requesting a warrant based on probable cause, the data broker industry allows them to bypass legal requirements and buy this information en masse, regardless of whether there’s evidence of a crime.

Lawmakers Can Fix This

So far, Congress and many states have failed to enact legislation that would meaningfully rein in the data broker industry and protect our location information. Locate X is simply the end result of such an unregulated data ecosystem. But it doesn’t have to be this way. There are a number of laws that Congress and state legislators could pass right now that would help protect us from location tracking tools.

1. Limit What Corporations Can Do With Our Data

A key place to start? Stronger consumer privacy protections. EFF has consistently pushed for legislation that would limit the ability of companies to harvest and monetize our data. If we enforce strict rules on how location data is collected, shared, and sold, we can stop it from ending up in the hands of private surveillance companies and law enforcement without our consent.

We urge legislators to consider comprehensive, across-the-board data privacy laws. Companies should be required to minimize the collection and processing of location data to only what is strictly necessary to offer the service the user requested (see, for example, the recently-passed Maryland Online Data Privacy Act). Companies should also be prohibited from processing a person’s data, except with their informed, voluntary, specific, opt-in consent.

We also support reproductive health-specific data privacy laws, like Rep. Sara Jacobs’ proposed “My Body My Data” Act. Laws like this would create important protections for a variety of reproductive health data, even beyond location data. Abortion-specific data privacy laws can provide some protection against the specific problem posed by Locate X. But to fully protect against location tracking tools, we must legally limit processing of all location data and not just data at sensitive locations, such as reproductive healthcare clinics.

While a limited law might provide some help, it would not offer foolproof protection. Imagine this scenario: someone travels from Alabama to New York for abortion care. With a data privacy law that protects only sensitive, reproductive health locations, Alabama police could still track that person’s device on the journey to New York. Upon reaching the clinic in New York, their device would disappear into a sensitive location blackout bubble for a couple of hours, then reappear outside of the bubble where police could resume tracking as the person heads home. In this situation, it would be easy to infer where the person was during those missing two hours, giving Alabama police the lead they need.

The best solution is to minimize all location data, no exceptions.

2. Limit How Law Enforcement Can Get Our Data

Congress and state legislatures should also pass laws limiting law enforcement’s ability to access our location data without proper legal safeguards.

Much of our mobile data, like our location data, is information law enforcement would typically need a court order to access. But thanks to the data broker industry, law enforcement can skip the courts entirely and simply head to the commercial market. The U.S. government has turned this loophole into a way to gather personal data on individuals without a search warrant. 

Lawmakers must close this loophole—especially if they’re serious about protecting abortion-seekers from hostile law enforcement in abortion-restrictive states. A key way to do this is for Congress to pass the Fourth Amendment is Not For Sale Act, which was originally introduced by Senator Ron Wyden in 2021 and made the important and historic step of passing the U.S. House of Representatives earlier this year. 

Another crucial step is to ban law enforcement from sending “geofence warrants” to corporate holders of location data. Unlike traditional warrants, a geofence warrant doesn’t start with a particular suspect or even a device or account; instead police request data on every device in a given geographic area during a designated time period, regardless of whether the device owner has any connection to the crime under investigation.This could include, of course, an abortion clinic. 

Notably, geofence warrants are very popular with law enforcement. Between 2018 and 2020, Google alone received more than 5,700 demands of this type from states that now have anti-abortion and anti-LGBTQ legislation on the books.

Several federal and state courts have already found individual geofence warrants to be unconstitutional and some have even ruled they are “categorically prohibited by the Fourth Amendment.” But instead of waiting for remaining courts to catch up, lawmakers should take action now, pass legislation banning geofence warrants, and protect all of us–abortion-seekers included–from this form of dragnet surveillance.

3. Make Your State a Data Sanctuary

In the wake of the Dobbs decision, many states stepped up to serve as health care sanctuaries for people seeking abortion care that they could not access in their home states. To truly be a safe refuge, these states must also be data sanctuaries. A state that has data about people who sought abortion care must protect that data, and not disclose it to adversaries who would use it to punish them for seeking that healthcare. California has already passed laws to this effect, and more states should follow suit.

What You Can Do Right Now

Even before lawmakers act, there are steps you can take to better shield your location data from tools like Locate X.  As noted above, we published a Locate X-specific guide several weeks ago. There are also additional tips on EFF’s Surveillance Self-Defense site, as well as many other resources available to provide more guidance in protecting your digital privacy. Many general privacy practices also offer strong protection against location tracking. 

But don’t stop there: we urge you to make your voice heard and contact your representatives. While these precautions offer immediate protection, only stronger laws will ensure comprehensive location privacy in the long run.