With its June decision in Dobbs v. Jackson Women’s Health Organization denying the constitutional right to abortion, the Supreme Court introduced a whole host of new and reasonable fears about abortion access and technology. The sheer scale of the data that computers, phones, and other devices collect from users on behalf of tech platforms expands the reach of the law into what was believed to be legally protected territory: if, when, and how to choose to have a child.
But quietly sitting on the books, where it’s been for nearly three decades, is a law that explicitly makes it a crime to discuss abortion online. The Telecommunications Act of 1996 was the first major attempt by Congress to define what would be lawful on the internet. The act includes a provision that criminalizes discussing abortion, with potential punishment of up to five years in jail, $250,000 in fines, or both. No one has ever been charged with violating this provision of the law. When President Bill Clinton signed the act, he said he objected to its ban on abortion-related speech and that the Justice Department advised him that such a ban was unconstitutional; the next day, Attorney General Janet Reno informed Congress that her department would not defend the constitutionality of the provision, nor would it be enforced. To date, the DOJ has not changed its policy on enforcing the ban.
But since the Supreme Court reversed Roe v. Wade, much of the previously established legal terrain on abortion now appears uncertain. U.S. Attorney General Merrick Garland likely has no intention of enforcing a ban on abortion-related speech online, but it is not difficult to imagine that a future anti-abortion presidential administration would seize upon this largely forgotten part of internet law.
Over the last several weeks, abortion rights and digital security activists have had to advise increasing numbers of people seeking abortion information on and over the internet. They have helped them weigh their risks—of their search histories, geolocation data, or group chats becoming evidence to be used against them in court—against the reality of which law enforcement actions are more or less likely. But to date, there has been little public discussion or debate about the one provision in the law directly aimed at outlawing abortion-related speech online.