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Who Becomes A "Terrorist" in Post-Roe America?
The fusion centers that DHS set up early in the War on Terror can be used to police your uterus. No federal abortion ban necessary.
Edited and with a final section by Sam Thielman
Final section edited by Spencer Ackerman
I WAS HAVING a bit of trouble with the lede and framing of this piece, but then I saw New York ran a Barbara Kruger classic retooled to ask "Who Becomes A 'Murderer' in Post-Roe America?" That clicked things into place for me.
Starting around 2004, state governments began using federal counterterrorism funding to establish clearinghouses for threat information. These “fusion centers” united federal, state and local law enforcement under the auspices of the then-new Department of Homeland Security, They pride themselves on providing "two-way intelligence and information flow" between cop shops up, down and across the hierarchy of federalism. The information products they circulate, known as Suspicious Activity Reports or SARs, are exempt from federal rules requiring law enforcement to possess reasonable articulable suspicion of criminal activity— already a lower standard than probable cause—before storing personally identifiable information.
A Senate survey of 62 fusion centers in 2010 found that more than one-third of them, 25, didn't even "mention terrorism in their mission statements." Instead, they take federal anti-terrorism money and use it to supplement local law-enforcement priorities like fighting drugs, under the pretext that terrorists "would commit precursor crimes before an attack."
For example, in May 2020, a document from the Minnesota fusion center warned police, who were confronting black-liberation protesters, to be on the lookout for people carrying bike locks, Guy Fawkes masks or balloons, "which have been used to throw feces, urine, chemicals and other substances at law enforcement." It went on to list locations of upcoming protests.
State governments, soon to include at least 13 that will immediately ban abortion post-Roe, operate the fusion centers. Last year, FOREVER WARS reported on the Boston fusion center, which is already scared of feminists. In a June 2019 report, the Boston center patted itself on the back for arresting seven pro-choice counterdemonstraters at an anti-abortion rally after “an unknown liquid, possibly urine, was thrown on a pro-life demonstrator.”
Let's pause here to preemptively redress some confusion my headline may have introduced. The editorial mission of FOREVER WARS is to document the continuities, departures and permutations of the War on Terror. I am not saying that people who seek abortions are about to be relabeled as terrorists—although, after the spring/summer of 2020, when the Trump administration applied that label to Black Lives Matter and antifascists, who knows what will happen under the next Republican administration.
What I am saying is that the fusion centers—an information and threat-analysis clearing house uniting federal, state and local law enforcement—provide substantial opportunities for anti-abortion state governments to persecute people seeking abortions. No federal abortion ban will be necessary. Structurally, the fusion centers are a blinking red light indicating the next target for a repurposed War on Terror. And they're not alone.
Remember that the FBI, which has its own partnerships with state and local law enforcement, treats nonexistent pro-choice terrorism as on par with demonstrated anti-abortion terrorism. Sorry to quote myself again, but from a 2020 piece I co-reported: "The FBI pointed The Daily Beast to just one episode of pro-choice-inspired terrorism—one that did not involve an actual act of violence, but rather a threat in an online comments section." Meanwhile, "pro-lifers" murder abortion providers while they attend church.
MIKE GERMAN is a former FBI counterterrorism special agent turned whistleblower. He's also one of the most committed civil libertarians I've ever encountered. I asked Mike, now a fellow at New York University Law School's Brennan Center for Justice, whether fusion centers will be a way to surveil and persecute people who seek or provide abortion services. "Undoubtedly," he replied.
If abortion is criminalized, fusion centers would undoubtedly play a role in tracking any person or organization assisting those seeking abortions. Fusion centers are a significant law enforcement intelligence multiplier, for good and for ill, giving state and local police access to federal government databases as well as commercial data brokers and aggregators. The fusion centers enjoy little oversight or regulation and there is no over-arching authority governing the fusion center network, so any rogue fusion center could collect and produce intelligence materials targeting providers or pro-choice activists that would be disseminated broadly through federal, state, and local law enforcement information sharing systems, much the way they spread false information about busloads of "antifa" soldiers travelling to BLM protests and committing arsons across California, Oregon, and Washington.
Just to be 1000 percent clear, I asked Mike if the absence of a federal abortion ban would inhibit fusion centers from operating this way. "It is normal for federal law enforcement working in fusion centers or even working on federal task forces with state and local police to assist local authorities in investigating and prosecuting state and local laws," he said. "So, no federal law criminalizing abortion would be necessary for federal law enforcement to assist state and local authorities in investigating and prosecuting violations of state laws criminalizing abortion."
Consider that when watching the FBI backdoor its way into bulk data collected by the NSA. Remember as well that we have literally no idea what data the CIA is collecting in bulk or who it shares the data with.
One of the lessons of the Forever War is that you do not have to be a terrorist for the government to treat you like one. You just have to belong to an outgroup. Abolish fusion centers and the rest of the post-9/11 surveillance apparatus before Big Brother watches you menstruate.
FUSION CENTERS ARE HARDLY the only surveillance tool available to police as they enforce patriarchy. Police hoover up the data on your phone—from your texts to your calendar to your period-tracker apps to your location—with mobile device forensic tools. In 2017, according to a chilling law review article by Cynthia Conti-Cook, Mississippi prosecutors obtained a grand-jury warrant for the web search history of Latice Fisher, who had miscarried. Her history included search terms like "buy Misoprostol abortion pill online." They indicted her for second-degree murder. Luckily her prosecution was voided, but her case is a harbinger of an imminent future.
Writes Conti-Cook (who, full disclosure, now works with my wife at the Ford Foundation):
In addition to facilitating prosecutions of pregnant people for intentionally terminating their pregnancies, technology will also enhance the government’s ability to surveille, investigate, and prosecute pregnant people who did not seek to terminate but whom the state seeks control over by virtue of their pregnancy status. For example, pregnant people’s decisions—to self-medicate, to not medicate, to seek substance abuse treatment, to drink alcohol, or smoke cigarettes—are all decisions that could be criminalized and potentially surveilled digitally.
The Electronic Frontier Foundation prepared this guide to digital security post-Roe. "We've spent the last 20 years developing technology specifically to enable ubiquitous surveillance," Mike German observes. "This includes expanded law enforcement and intelligence surveillance capabilities, which pose a direct threat, of course, as well as data surveillance and intelligence collection as a business model, which provides both law enforcement and private entities with masses of stored data to plunder for myriad purposes. It's not that privacy laws have failed to keep up with these technological advances, it's that they have been regularly weakened or unenforced into extinction."
Accordingly, this story is incomplete without a look at "data surveillance and intelligence collection as a business model," AKA surveillance capitalism, which incentivizes the creation and retention of signals that can dry-snitch on your uterus. For more on the post-Roe applications of surveillance capitalism, we turn now to FOREVER WARS editor Sam Thielman, who reported and wrote the final section of this edition.
FEDERAL STATISTICS AGENCIES like the Bureau of Labor Statistics, the Office of Budget Management, and the U.S. Census Bureau use a sort of Dewey decimal system for businesses in the U.S., Canada, and Mexico called the North American Industry Classification System (NAICS). Every business is assigned an NAICS code based on the kind of work performed there, making economic statistics much easier to compile and study. If you run a business, your NAICS code goes on your tax return. Names of businesses, their addresses, and their phone numbers and other identifying information—about businesses, not people—are kept on big proprietary lists by financial information companies like Dun & Bradstreet and Axciom.
Marketers use those lists to serve ads to the companies themselves—need a new set of recessed bookcases, bookstore X? Thinking about upgrading your phone system, IT consultant Y?—but increasingly, they can also use those lists to track consumer behavior and deploy advertisements accordingly. If you, a cell-phone owner, pass a McDonald’s around lunchtime and happen to have an app for Wendy’s installed on your phone, perhaps the Wendy’s app will send you a push notification with a free small Frostee in the hopes of enticing you to go the extra block or two to their restaurant.
Anyone can buy cell phone location data. Similarly, anyone can buy lists of business addresses and NAICS codes. The companies that do this kind of extraordinarily specific advertising are quick to self-justify. They don’t enter your name in their database, heavens no, they send that coupon for free ice cream to every cell phone running the Wendy’s app when it gets sufficiently close to a McDonald’s. They have no idea who you are – and, for liability purposes, don’t want to find out. And if you’re going to get ads, well, wouldn’t you prefer a free ice cream coupon to skin cream ads with graphic pictures of psoriasis?
Of course, Wendy’s might actually hand out ice cream using a third-party digital advertiser. Maybe that advertiser is a data broker that has business information and cell phone data attached. That way, Wendy's can just give the ad agency permission to ping their app with free ice cream whenever appropriate, rather than having a data science laboratory next to the cages where they test out new sauces on lab animals. Joseph Cox at Vice noted in March that the Centers for Disease Control had purchased location data harvested from tens of millions of phones from Safegraph to see whether people had obeyed COVID-19 lockdown restrictions.
The NAICS code for abortion providers is 621410.
A month after his CDC story, Cox bought data from SafeGraph about visits to abortion providers. SafeGraph "anonymizes" its data by reporting the census block where a given phone stops moving overnight, rather than reporting names and addresses. Two hundred phones from 10010 might have visited an abortion clinic in the Bronx, for example; ninety from 11203.
"Sections of the SafeGraph dataset Motherboard purchased handle a very small number of devices per record, theoretically making deanonymization of those people easier," Cox wrote. "Some had just four or five devices visiting that location, with SafeGraph filtering the data by whether the person used an Android or an iOS device as well."
As abortion restrictions worsen—and trigger laws in states like Tennessee guarantee that it will worsen, and very quickly—those locations will become more and more distinctive, because people will visit abortion providers from out of state with increasing frequency. Texas already offers a $10,000 bounty to anyone willing to sue a woman who has an abortion, which is more than enough to cover the cost of this sort of data.
Far-right ideologues have experimented with this sort of social-media-enabled vigilantism already. In July a pair of Catholic lawyers who run a newsletter called The Pillar bought data they were able to deanonymize sufficiently to accuse Monsignor Jefferey Burrill of using Grindr and visiting gay bars. Burrill, a senior leader in the U.S. Conference of Catholic Bishops, resigned.