Locked Up, Pregnant, and Shackled: Governor Schwarzenegger Can Unchain Them

LeaJay Harper

In California’s prisons, pregnant Black women, brown women, and Asian-Pacific Islander women are chained together in a barbaric throwback to another time. But it’s here and now.

Long before Bristol Palin and Teen Mom reality shows made the headlines, I was a teen mother.  Now I am lucky enough to be gainfully employed, contributing to my community, and raising two great kids. My day job gives me the chance to work with women and girls who aren’t having it so easy—many of them are in our jails and prisons.

I have worked with several young women who found out they were pregnant while they were in lock-up, and others who knew when they were arrested. Some were already moms; for others, this was a first pregnancy.

It’s hard to imagine or explain the mix of emotion many of them have felt, from hope to rage to fear and back again.  Plus a new challenge: how to stay healthy while locked up?

As a teen mom I wasn’t busy going to pre-natal yoga and acupuncture, but I was on the outside, getting fresh air and dreaming big dreams. Making goals and plans, and working toward them.  For women inside, being pregnant in lock up gives them a whole set of new things to worry about.

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One of those many things is shackles.  Currently, in California’s jails and prisons, it is common practice to shackle pregnant women.  That means using metal chains on their swollen ankles and bellies, holding their wrists in chains behind their backs, and chaining prisoners to each other.  Under current law, the chains have to be removed during labor and delivery, but that means they may still be on when women are being transported to and from court, doctor’s visits, and even to the hospital to give birth.

These young women have many real worries, from how they are eating and sleeping, to the care of their kids and other family members on the outside, to taking the next step toward their release. California would be wise to make their burden lighter, not heavier, since we are often reminded that being healthy and safe during pregnancy is good for mothers and babies alike.  And good outcomes for these moms and their kids is good for our state in every way: economically, socially, and morally.

Being shackled while pregnant is cruel and unusual punishment. When pregnant women are forced to walk with their arms held behind their backs, they risk falling and injuring themselves or their babies.  When women in early labor are shackled to the bed, they may have trouble receiving adequate monitoring.  The shackles may interfere with needed interventions, which can be life or death.

Fifty-four percent of the women and girls who are incarcerated in California’s prisons are people of color.  Black women, brown women, Asian-Pacific Islander women who are locked up and chained together with swollen ankles and big bellies—it seems barbaric and like it must be happening in some other time and place; but it’s not. It’s here and now.

That’s why the Center for Young Women’s Development, along with our allies and friends, are supporting AB1900—a bill authored by Assembly-member Skinner–that would go a long way toward ensuring that this practice stops dead in its tracks.  Already passed by the California State Assembly and the State Senate, the bill prevents pregnant women from being shackled, and ensures that they will be held and transported in the least restrictive restraints possible. Advocates like me are in support, as is the California Medical Association.  The American College of Gynecologists is even a co-sponsor of the bill. The last step is for the Governor to sign this bill into law.

I am hoping that he signs.  My job, both as a young mother and as an advocate, is already challenging enough. Let’s remove this unnecessary obstacle and get on with the real work ahead.

Analysis Maternity and Birthing

Pregnant Women Are Being Shackled in Massachusetts—Even Though It’s Been Illegal for Years

Victoria Law

According to a new report, not a single jail or prison facility in the state has written policies that are fully compliant with the law against restraining pregnant women behind bars.

Korianne Gamble was six months pregnant in November 2014 when she arrived at the Bristol County Sheriff’s Office Women’s Center, a jail in North Dartmouth, Massachusetts. Six months prior, the state had passed “An Act to Prevent Shackling and Promote Safe Pregnancies for Female Inmates.”

According to the new law, the jail should have been prohibited from using any type of restraint on Gamble during labor, and using of leg and waist restraints on her during and immediately after her pregnancy. It also guaranteed her minimum standards of pregnancy care and required—as with everyone incarcerated while in their second or third trimesters—that she be transported in the jail’s vehicles with seat belts whenever she was taken to court, medical appointments, or anywhere outside the jail.

But that wasn’t the case for Gamble. Instead, she says, when it came time for her to give birth, she was left to labor in a cell for eight hours before finally being handcuffed, placed in the back of a police cruiser without a seatbelt, and driven to a hospital, where she was shackled to the bed with a leg iron after delivering.

According to a new report, Gamble isn’t alone. Advocates have been monitoring pregnancy-related care since the law’s passage. After obtaining and analyzing the policies of the state’s prison and jail system, they found that no facility has policies that are fully compliant with the 2014 law. They issued their findings in a new report, Breaking Promises: Violations of the Massachusetts Pregnancy Standards and Anti-Shackling Lawco-authored by Marianne Bullock of the Prison Birth Project, Lauren Petit of Prisoners’ Legal Services of Massachusetts, and Rachel Roth, a reproductive-justice expert.

In addition to analyzing policies, they spoke with women who were pregnant while in custody and learned that women continue to be handcuffed during labor, restrained to the bed postpartum, and placed in full restraints—including leg irons and waist chains—after giving birth.

“The promise to respect the human rights of pregnant women in prison and jail has been broken,” the report’s authors concluded.

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Medical experts, including the American Congress of Obstetricians and Gynecologists, the American Medical Association and the American College of Nurse-Midwives, have all agreed that shackling during pregnancy is unnecessary, inhumane, and dangerous. Shackling increases the risk of falling and injury to both mother and fetus while also preventing medical staff from assessing and assisting during labor and delivery. In 2014, both the Massachusetts legislature and then-Gov. Deval Patrick (D) agreed, passing the law against it.

“The Massachusetts law is part of a national trend and is one of the most comprehensive in protecting pregnant and postpartum women from the risks of restraints,” said Roth in an interview with Rewire. “However, like most other states, the Massachusetts law doesn’t have any oversight built in. This report clearly shows the need for staff training and enforcement so that women who are incarcerated will be treated the way the legislature intended.”

Gamble learned all of this firsthand. In the month before her arrest, Gamble had undergone a cervical cerclage, in which a doctor temporarily stitches up the cervix to prevent premature labor. She had weekly visits to a gynecologist to monitor the development of her fetus. The cerclage was scheduled to be removed at 37 weeks. But then she was arrested and sent to jail.

Gamble told jail medical staff that hers was a high-risk pregnancy, that she had had a cerclage, and that her first child had been born six weeks prematurely. Still, she says she waited two months before seeing an obstetrician.

As her due date drew closer, the doctor, concerned about the lack of amniotic fluid, scheduled Gamble for an induction on Feb. 19, 2015. But, she says, jail staff cancelled her induction without telling her why.

That same evening, around 5 p.m., Gamble went into labor. Jail staff took her to the medical unit. There, according to Gamble, the jail’s nurses took her blood pressure and did a quick exam, but did not send her to the hospital. “They [the nurses] thought I was ‘acting up’ because my induction was canceled,” she told Rewire.

She was placed in a see-through cell where, as the hours progressed, her labor pains grew worse. “I kept calling to get the [correctional officers] to get the nurse,” Gamble recalled. By the time a nurse came, Gamble was bleeding. “The nurse made me pull down my pants to show her the blood—in front of a male [correctional officer]!” Gamble stated. Still, she says, no one called for an ambulance or made arrangements to drive her to the hospital.

At 1:45 in the morning, over eight hours after she first went into labor, the jail’s captain learned that Gamble was in labor. “[He] must have heard all the commotion, and he called to find out what was going on,” she said. He ordered his staff to call an ambulance and bring her to the hospital.

But instead of calling an ambulance, Gamble says jail staff handcuffed her, placed her in the back of a police cruiser without a seatbelt—in violation of the law—and drove her to Charlton Memorial Hospital. “My body was already starting to push the baby out,” she said. She recalled that the officers driving the car worried that they would have to pull over and she would give birth by the side of the road.

Gamble made it to the hospital, but just barely. Nine minutes after arriving, she gave birth: “I didn’t even make it to Labor and Delivery,” she remembered.

But her ordeal wasn’t over. Gamble’s mother, who had contacted Prisoners’ Legal Services and Prison Birth Project weeks earlier, knew that the law prohibited postpartum restraints. So did Gamble, who had received a packet in jail outlining the law and her rights from Prisoners’ Legal Services. When an officer approached her bed with a leg iron and chain, she told him that, by law, she should not be restrained and asked him to call the jail to confirm. He called, then told her that she was indeed supposed to be shackled. Gamble says she spent the night with her left leg shackled to the bed.

When the female officer working the morning shift arrived, she was outraged. “Why is she shackled to the bed?” Gamble recalled the officer demanding. “Every day in roll call they go over the fact that a pregnant woman is not to be shackled to anything after having a baby.” The officer removed the restraint, allowing Gamble to move around.

According to advocates, it’s not unusual for staff at the same jail to have different understandings of the law. For Gamble, that meant that when the shift changed, so did her ability to move. When the morning shift was over, she says, the next officer once again shackled Gamble’s leg to the bed. “I was so tired, I just went along with it,” Gamble recounted.

Two days after she had given birth, it was time for Gamble to return to the jail. Despite Massachusetts’ prohibition on leg and waist restraints for women postpartum, Gamble says she was fully shackled. That meant handcuffs around her wrists, leg irons around her ankles, a chain around her waist,g and a black box that pulled her handcuffs tightly to the waist chain. That was how she endured the 20-minute drive back to the jail.

Gamble’s jail records do not discuss restraints. According to Petit, who reviewed the records, that’s not unusual. “Because correctional officers don’t see it as out of the ordinary to [shackle], they do not record it,” she explained. “It’s not so much a misapplication of the extraordinary circumstances requirement as failure to apply it at all, whether because they don’t know or they intentionally ignore it.”

While Bristol County Sheriff’s Office Women’s Center’s policies ban shackling during labor, they currently do not prohibit restraints during postpartum recovery in the hospital or on the drive back to the jail. They also do not ban leg and waist restraints during pregnancy. Jonathan Darling, the public information officer for the Bristol County Sheriff’s Office, told Rewire that the jail is currently reviewing and updating policies to reflect the 2014 law. Meanwhile, administrators provide updates and new information about policy and law changes at its daily roll call. For staff not present during roll call, the jail makes these updates, including hospital details, available on its east post. (Roll call announcements are not available to the public.)

“Part of the problem is the difference in interpretation between us and the jurisdictions, particularly in postpartum coverage,” explained Petit to Rewire. Massachusetts has 14 county jails, but only four (and the state prison at Framingham) hold women awaiting trial. As Breaking Promises noted: “Whether or not counties incarcerate women in their jails, every county sheriff is, at minimum, responsible for driving women who were arrested in their county to court and medical appointments. Because of this responsibility, they are all required to have a written policy that spells out how employees should comply with the 2014 law’s restrictions on the use of restraints.”

Four jurisdictions, including the state Department of Correction, have policies that expressly prohibit leg and waist restraints during the postpartum period, but limit that postpartum period to the time before a woman is taken from the hospital back to the jail or prison, rather than the medical standard of six weeks following birth. Jails in 11 other counties, however, have written policies that violate the prohibition on leg and waist shackles during pregnancy, and the postpartum prohibition on restraints when being driven back to the jail or prison.

Even institutions with policies that correctly reflected the law in this regard sometimes failed to follow them: Advocates found that in some counties, women reported being restrained to the bed after giving birth in conflict with the jail’s own policies.

“When the nurse left, the officer stood up and said that since I was not confirmed to be in ‘active labor,’ she would need to restrain me and that she was sorry, but those were the rules,” one woman reported, even though the law prohibits restraining women in any stage of labor.

But shackling pregnant women during and after labor is only one part of the law that falls short. The law requires that pregnant women be provided with regular prenatal and postpartum medical care, including periodic monitoring and evaluation; a diet with the nutrients necessary to maintain a healthy pregnancy; written information about prenatal nutrition; appropriate clothing; and a postpartum screening for depression. Long waits before transporting women in labor to the hospital are another recurring complaint. So are routinely being given meals without fruits and vegetables, not receiving a postpartum obstetrician visit, and waiting long stretches for postpartum care.

That was also the case with Gamble. It was the middle of the night one week after her son’s birth when Gamble felt as if a rock was coming through her brain. That was all she remembered. One hour later, she woke to find herself back at the hospital, this time in the Critical Care Unit, where staff told her she had suffered a seizure. She later learned that her cellmate, a certified nursing assistant, immediately got help when Gamble’s seizure began. (The cell doors at the jail are not locked.)

Hospital staff told her that she had preeclampsia, a pregnancy complication characterized by high blood pressure. Postpartum preeclampsia is rare, but can occur when a woman has high blood pressure and excess protein in her urine soon after childbirth. She was prescribed medications for preeclampsia; she never had another seizure, but continued to suffer multiple headaches each day.

Dr. Carolyn Sufrin is an assistant professor of gynecology and obstetrics at Johns Hopkins Medicine. She has also provided pregnancy-related care for women at the San Francisco County Jail. “Preeclampsia is a leading cause of maternal mortality,” she told Rewire. Delayed preeclampsia, or postpartum preeclampsia, which develops within one to two weeks after labor and delivery, is a very rare condition. The patient suffering seizures as a result of the postpartum preeclampsia is even more rare.

Postpartum preeclampsia not only needs to be treated immediately, Sufrin said, but follow-up care within a week at most is urgent. If no follow-up is provided, the patient risks having uncontrolled high blood pressure, stroke, and heart failure. Another risk, though much rarer, is the development of abnormal kidney functions.

While Sufrin has never had to treat postpartum preeclampsia in a jail setting, she stated that “the protocol if someone needs obstetrical follow-up, is to give them that follow-up. Follow through. Have continuity with the hospital. Follow their instructions.”

But that didn’t happen for Gamble, who was scheduled for a two-week follow-up visit. She says she was not brought to that appointment. It was only two months later that she finally saw a doctor, shortly before she was paroled.

As they gathered stories like Gamble’s and information for their report, advocates with the Prison Birth Project and Prisoners’ Legal Services of Massachusetts met with Rep. Kay Khan (D-Newton), to bring her attention to the lack of compliance by both county jails and the state prison system. In June 2015, Khan introduced An Act to Ensure Compliance With the Anti-Shackling Law for Pregnant Incarcerated Women (Bill H 3679) to address the concerns raised by both organizations.

The act defines the postpartum period in which a woman cannot be restrained as six weeks. It also requires annual staff trainings about the law and that, if restraints are used, that the jail or prison administration report it to the Secretary of Public Safety and Security within 48 hours. To monitor compliance, the act also includes the requirement that an annual report about all use of restraints be made to the legislature; the report will be public record. Like other statutes and bills across the country, the act does not have specific penalties for noncompliance.

In December 2015, Gamble’s son was 9 months old and Gamble had been out of jail for several months. Nonetheless, both Gamble and her mother drove to Boston to testify at a Public Safety Committee hearing, urging them to pass the bill. “I am angered, appalled, and saddened that they shackled her,” Gamble’s mother told legislators. “What my daughter faced is cruel and unusual punishment. It endangered my daughter’s life, as well as her baby.”

Since then, both the Public Safety Committee and Health Care Financing Committee approved the bill. It is now before the House Committee for Bills in the Third Reading, which means it is now at the stage where it can be taken up by the House for a vote.

Though she has left the jail behind, Gamble wants to ensure that the law is followed. “Because of the pain I went through, I don’t ever want anyone to go through what I did,” she explained to Rewire. “Even though you’re in jail and you’re being punished, you still have rights. You’re a human being.”

Investigations Abortion

Anti-Choice Groups Use Smartphone Surveillance to Target ‘Abortion-Minded Women’ During Clinic Visits

Sharona Coutts

Women who have visited almost any abortion clinic in the United States have seen anti-choice protesters outside, wielding placards and chanting abuse. A Boston advertiser's technology, when deployed by anti-choice groups, allows those groups to send propaganda directly to a woman’s phone while she is in a clinic waiting room.

Last year, an enterprising advertising executive based in Boston, Massachusetts, had an idea: Instead of using his sophisticated mobile surveillance techniques to figure out which consumers might be interested in buying shoes, cars, or any of the other products typically advertised online, what if he used the same technology to figure out which women were potentially contemplating abortion, and send them ads on behalf of anti-choice organizations?

The executive—John Flynn, CEO of Copley Advertising—set to work. He put together PowerPoint presentations touting his capabilities, and sent them to groups he thought would be interested in reaching “abortion-minded women,” to use anti-choice parlance.

Before long, he’d been hired by RealOptions, a network of crisis pregnancy centers (CPCs) in Northern California, as well as by the evangelical adoption agency Bethany Christian Services.

Flynn’s endeavors quickly won him attention in the anti-choice world. He was invited to speak at the Family Research Council’s ProLifeCon Digital Action Summit in January this year, and he got a few write-ups in anti-choice press.

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In an interview with Live Action News—the website for Live Action, the group run by anti-choice activist Lila Rose that is responsible for bogus attack videos against Planned Parenthood—Flynn gave some details about his strategy. He sends advertisements for his clients to women’s smartphones while they are sitting in Planned Parenthood clinics, using a technology known as “mobile geo-fencing.” He also planned to ping women at methadone clinics and other abortion facilities. His program for Bethany covered five cities: Columbus, Ohio; Pittsburgh, Pennsylvania; Richmond, Virginia; St. Louis, Missouri; and New York City.

“We are very excited to bring our mobile marketing capabilities to the pro-life community,” Flynn told Live Action News.

Anti-choice groups were tantalized by the ability to home in on the women they think will be most susceptible to their message.

“Marketing for pregnancy help centers has always been a needle in a haystack approach—cast a wide net and hope for the best,” said Bethany Regional Marketing Manager Jennie VanHorn, according to the report. “With geo fencing, we can reach women who we know are looking for or in need of someone to talk to.”

Flynn’s targeting of women seeking abortion presents a serious threat to the privacy and safety of women exercising their right to choose, as well as to abortion providers and their staff, a Rewire investigation has found. But due to weak and patchwork laws governing privacy and data collection in the United States, the conduct appears to be perfectly legal.

Women who have visited almost any abortion clinic in the United States have seen anti-choice protesters outside, wielding placards and chanting abuse. This technology, when deployed by anti-choice groups, allows them to send propaganda directly to a woman’s phone while she is in a clinic waiting room. It also has the capability to hand the names and addresses of women seeking abortion care, and those who provide it, over to anti-choice groups.

“It is incredibly unethical and creepy,” Brian Solis, a digital marketing expert, told Rewire, expressing a view that was unanimous among a dozen experts in digital security, privacy law, and online marketing we interviewed for this story.

Solis said this example was the inevitable application of a technology meant for one purpose—mass advertising campaigns that, while considered by many people to be unseemly and intrusive, do not generally amount to a threat—to a very different, and troubling, objective.

“You can grab an uncomfortable amount of information from someone’s device and the apps they use,” said Solis. “It’s unfortunate, but any woman who plans to visit an affected Planned Parenthood, or anyone who works for Planned Parenthood, should be afraid.”

When Ads Follow You Around

By now, most Americans have experienced the following phenomenon: You look at something online—a hotel, a flower delivery service, a course at a local college—and the next thing you know, ads for that thing follow you around the internet for the next week.

A watch you looked at now pops up next to your Facebook feed; an ad for a coffee machine you researched on Amazon now lurks on your favorite news sites. And maybe, after researching cars online, it seems that Toyota knows whenever you visit a lot, and sends ads to your phone as you walk through the dealership’s doors.

This is all part of the new landscape of digital advertising, where marketers can tailor their ads to very specific groups of consumers by compiling “personas” based on the thousands of shards of data we all create as we go about our activities online.

While theoretically anonymous, these marketing personas are surprisingly accurate. Marketers likely know your age, gender, occupation, education level, marital status, and—if you have GPS enabled on your phone and are logged into apps that track you—where you live, work, and travel.

What Flynn realized is that he could use the same technologies to infer that a woman might be seeking an abortion, and to target her for ads from anti-choice groups.

“We can reach every Planned Parenthood in the U.S.,” he wrote in a PowerPoint display sent to potential clients in February. The Powerpoint included a slide titled “Targets for Pro-Life,” in which Flynn said he could also reach abortion clinics, hospitals, doctors’ offices, colleges, and high schools in the United States and Canada, and then “[d]rill down to age and sex.”

“We can gather a tremendous amount of information from the [smartphone] ID,” he wrote. “Some of the break outs include: Gender, age, race, pet owners, Honda owners, online purchases and much more.”

Flynn explained that he would then use that data to send anti-choice ads to women “while they’re at the clinic.”

In his sales PowerPoint, Flynn said that he had already attempted to ping cellphones for RealOptions and Bethany nearly three million times, and had been able to steer thousands of women to their websites. The price tag for one of Copley’s campaigns, he said, was $8,000.

Flynn initially agreed to speak with Rewire for this story, but did not respond to multiple follow-up emails and phone calls. Much of this report is based on materials that he sent to people he believed to be potential clients. Numerous messages seeking comment from management for RealOptions went unanswered; Jennifer Gradnigo, a spokesperson for Bethany Christian Services, confirmed that they have used Copley’s services and “appreciate their ideas,” but declined to discuss specific campaigns.

Not everyone who received Flynn’s pitch emails was impressed. One recipient contacted Rewire after speaking with Flynn, and expressed horror at what Flynn told her he was able to do on behalf of anti-choice clients.

“I felt disgust, and I felt protective of these women who are going to seek sensitive medical services at a time when they’re vulnerable,” said the recipient, who is a social worker at a Northern California adoption agency. Rewire agreed to withhold her identity due to her fears of retaliation from anti-choice activists.

“They’re being spied on by this capitalist vulture who is literally trying to sell their fetuses,” she said. “To do this to women without consent is predatory and it’s an invasion of her privacy, and unethical.”

In emails and PowerPoint presentations sent in early March, Flynn claimed to have reached more than 800,000 18-to-24-year-old women on behalf of RealOptions, and to have sent more than 2,000 of those women to RealOption’s website.

Rewire obtained three examples of the ads that Flynn said he had sent to young women’s phones on RealOptions’ behalf.

The ads are typical of CPCs.

They ask, “Pregnant?” or “Abortion?” and then include statements like “It’s your choice. You have time… Be informed” and “Get the facts first.”

GeoFencing Pregnant Ad

Like most CPCs, the claim that RealOptions provides “facts” about abortion is deceptive. While that language may lead women to believe they could obtain abortion care at RealOptions, in federal tax filings, the organization explains its mission as: “empowering and equipping women and men to choose life for their unborn children through the love of Jesus Christ in accordance with his word regarding the sanctity of human life.”

According to its website, RealOptions has received funding from the radical Christian group Focus on the Family. The organization was founded in 1981 by Marion and Tom Recine, fervent Christians who in a video posted to their website refer to the “many, many, many women who’ve come to Jesus because of the [RealOptions] centers.”

Flynn also says that he has targeted 140 abortion clinics on behalf of Bethany Christian Services over the past few months, and that 10,000 people clicked on the ads for Bethany that he sent to smartphones in those clinics, directing them to a “dedicated resource centers landing page.”

Bethany is the nation’s largest adoption agency, with assets of more than $45 million in 2014, according to the most recent available figures. The chain has faced accusations of pressuring birth moms to continue pregnancies against their will, of abandoning mothers who change their minds and decide not to go through with adoptions, and other abuses.

The social worker who received Flynn’s pitch deck told Rewire she was alarmed that Flynn had succeeded in reaching so many women on behalf of his anti-choice clients.

“He’s doing it and it’s working and it’s probably really impacting human trajectories,” she said. “It changes human lives to be funneled into a system like this.”

Advertising Is Now a System of Surveillance

Although it is now ubiquitous, mobile digital advertising is a relatively new phenomenon, only as old as the sophisticated smartphones on which it relies. As a result, laws and the regulators who enforce them are lagging behind when it comes to the many possible ways that bad actors can abuse smartphone advertising.

In terms of federal laws, many either don’t apply to Flynn’s conduct, or would allow it, according to Chris Hoofnagle, a professor at the University of California, Berkeley’s School of Law, and School of Information.

“Privacy law in the U.S. is technology- and context-dependent,” Hoofnagle said. “As an example, the medical information you relay to your physician is very highly protected, but if you go to a medical website and search for ‘HIV’ or ‘abortion,’ that information is not protected at all.”

In other words, it’s almost certain that the Health Insurance Portability and Accountability Act, known as HIPAA, would not apply.

The other limitations, such as they are, come from two sets of laws. The Federal Trade Commission (FTC) and state attorneys general can prevent advertisers from sending false and misleading ads; they can also stop advertisers from lying about what information they are tracking and what they plan to do with it once collected.

The FTC did not reply to Rewire’s questions in time for the publication of this story. However, the commission does not have jurisdiction over nonprofits, so it is highly unlikely that it could take action in this case.

The second set of laws concern user consent. Companies like Verizon and AT&T, known as carriers, are required to get affirmative consent before using “Customer Proprietary Network Information” gleaned through cellphone towers—including call records and location—for marketing. Apps don’t use network information, but rely instead on the GPS built into phones. They also need to obtain affirmative consent to collect and use information for marketing.

Obtaining that consent is easier than many consumers may think.

“The reality of this stuff is that no one’s asking what marketers will do with their information when they click, ‘I Agree,’ when an app asks if it can use their location,” Hoofnagle said. “If one consents to that tracking, and consents for it to be used for advertising purposes, that’s pretty much the end of the story.”

Certainly, most people wouldn’t imagine that by agreeing that, say, Yelp, Snapchat, Tinder, or the New York Times could use their location, that marketers could then use the same information for the very different purpose of figuring out whether they are seeking sensitive medical services.

Hoofnagle says that such use is perfectly legal, as long as companies don’t lie about what information they’re collecting—even if those disclosures are buried in fine print.

For his part, John Flynn is confident that his campaign is within legal bounds.

“I have worked with pharma, medical recruitment and many others where we mobile geo-fenced medical centers without a problem,” he wrote in an email to a potential client. “Bethany’s campaign targeted just medical centers and there was [sic] no issues. RealOptions in the San Jose area is presently targeting colleges and medical centers without issue.”

In the absence of robust legal limitations in the United States, advertisers have organized into self-regulatory bodies to police themselves, acutely conscious that examples of egregious privacy violations could spark a public backlash, and lead consumers to block ads and to opt out of targeted marketing.

Lindsay Hutter, a spokesperson from the Direct Marketing Association (DMA)—a New York-based group that represents direct marketers—said in an email statement to Rewire:

A key pillar of DMA’s work is to ensure that data-driven marketers conduct their work on an ethical basis, respecting the private information of consumers. This is particularly true for sensitive medical information about particular individuals, the use of which for marketing purposes without permission is against DMA’s Ethical Guidelines. Any location-based marketing should be opt-in, with the consumer notified that marketing offers are being presented due to their location.

Hutter did not provide a direct reply to our questions as to whether targeting women who might be seeking abortion care on behalf of anti-choice groups would be in violation of DMA’s guidelines.

It would, however, violate Facebook’s standards, according to Tom Channick, a company spokesperson.

“Our policies prohibit ads that make implications, directly or indirectly, about a user’s personal characteristics, including medical condition or pregnancy,” Channick said. “Deceptive or misleading advertisements are also prohibited.”

Flynn claims that he has a “relationship” with Facebook that allows him to “place mobile and digital ads in Facebook pages,” but Channick said the company could find no record of Flynn or his company ever using their platform.

Calling Flynn’s campaigns “really objectionable,” Hoofnagle said that these kinds of practices are toxic to the digital advertising industry, as well as the platforms—like Google and Facebook—that depend on advertising dollars.

He said this example drives home the fact that the nature of advertising has fundamentally transformed with the rise of the internet, and as smartphones have become ubiquitous.

“Advertising is a system of surveillance now,” Hoofnagle said. “It used to be billboards and television. Now it’s surveillance.”

Extremists Could Use Women’s Phones to Learn Their Names and Addresses

Surveillance has long played a central—and deadly—role in the efforts of anti-choice activists to intimidate women out of accessing abortion care, and to stop providers from making it available.

In the late 1990s, an anti-choice extremist created a website called the Nuremberg Files—in reference to Nazi Germany—which was a list of the names and addresses of doctors who provided abortions. Operation Rescue maintained a site called “Tiller Watch” that monitored the doctor’s whereabouts until he was murdered in the spring of 2009. Extremists have published “Wanted” signs with photographs of abortion providers. Activists in Texas stalk people entering local clinics, noting their physical appearance and license plates, hoping to determine which women went through with their abortion and whether anyone changed their mind, as well as to identify clinic workers. Many providers around the country report having been followed on their way to and from work.

Sasha Bruce, senior vice president of campaigns and strategy at NARAL Pro-Choice America, says that tagging the cellphones of women who go to abortion clinics falls within the pattern of intimidation.

“Intimidation frankly is the lowest threshold—that quickly turns to violence,” Bruce said. “That’s part of what’s troubling about this. There’s a real incitement that this information can contribute to.”

Bruce said she was alarmed in particular because Flynn was not just collecting information about what women looked at online, but also about their physical locations.

“If you have the smartphone ID, and then you can tie that to a location outside of the clinic, let’s say a home, that’s a real security threat,” Bruce told Rewire. “I worry about the extension of that—the desire of anti-choice activists to know who these staffers are, and who the women are.”

To be clear, there is no evidence to suggest that Flynn or his clients have or want to use geo-fencing to learn the real identities of women seeking abortion. But experts told Rewire that the potential for others to abuse the technology is a cause for alarm. In keeping with the view that transparency fosters security, Rewire has chosen to outline the ways this tracking could be misused.

In theory, when marketers gather information about individual smartphone users through methods like geo-location, that data is anonymized, meaning that it is not attached to a person’s name, but rather to a unique number known as an “advertising ID.” That is the number associated with the particular copy of the operating system that each of us has downloaded onto our smartphone. If you use a Google phone, your operating system is Android; for iPhone users, it’s your copy of iOS. Much of what you do on your phone can be associated with that advertising ID.

In most cases, marketers want to collect data from millions of potential customers, said John Deighton, a professor of marketing at Harvard Business School, in an interview with Rewire. The more data they have, the more ads they can send, which enhances their database.

“What your story is drawing to my attention is that these same surveillance technologies can be used at a much more micro scale,” he said. “You could imagine outright illegal use of geo-targeting: for example, geo-targeting a rich person’s house and getting an alert when they leave home.” That could, say, lead to high-tech burglary.

“Once you start realizing you can target desirable individuals, instead of being a big data function it becomes about tiny data,” Deighton said.

But if all of the data that marketers collect is supposed to be anonymized, how could bad actors—including anti-choice extremists—figure out the actual identities of the people they track?

The dirty secret of digital marketing is that it is in fact relatively easy to find out the real identities that are attached to our online IDs, according to experts who spoke with Rewire.

The most obvious way is simply to ask people for that information.

Both RealOptions and Bethany Christian Services require a person’s name and contact information in order to receive information online. Once a woman enters her name, email, home address, phone number, or ZIP code, that information is tied to her advertising ID, and Flynn could potentially marry that ID to all data associated with it and store it in what he calls his databank.

There are, however, plenty of less aboveboard methods to learn the name attached to an anonymous ID.

Any site or app that uses a profile with your name and any other information—Facebook, dating services, banking apps—can link your device, and your advertising ID, to the real you.

Legitimate services would not hand over personally identifying information willingly, but there are many instances of such information being made widely available. The cyber attack on Ashley Madison, the dating site for married people seeking extramarital partners, resulted in the release by hackers of the personal information of 32 million of the site’s users, revealing the potential for profile-based sites to be targeted.

Even without sophisticated hacks on established sites, bad actors can use techniques known as “social engineering” to learn the personal identities associated with advertising IDs.

For instance, if an anti-choice group wanted to learn the identity of women seeking abortions, instead of sending them ads for CPCs, they could send ads that seemed unrelated to abortion—for a competition to win $500, or for help with student loans—that tricked women into entering their names, email addresses, and any other information required by the form. Any woman who filled out the form would have unwittingly handed her name to anti-choice activists.

That would allow anti-choice groups to literally see women’s whereabouts in real time, said digital marketing experts who spoke with Rewire anonymously because they were not authorized to speak with the press. They described marketing software that allows them to see targeted individuals’ locations, the same way you can see yourself as a blue dot on a smartphone map. If certain people were seen at an abortion clinic regularly—say, during work hours—Flynn or his clients might even be able to infer that they work there.

“That’s what scares me about your story,” said Deighton. “Now we have an incentive to track people that isn’t the usual big data incentive.”

The question naturally arises: What can abortion providers and the women they serve do to fend off these digital affronts?

The simplest measure Planned Parenthood, or any other abortion provider, could take is to tell patients to leave their smartphones at home or in the car. If that isn’t possible or practical, the best advice is to turn off their GPS and log out of all apps before they come to a clinic.

It’s a simple step, but one that many people either won’t or don’t take, said Cooper Quintin, a technologist at the Electronic Frontier Foundation (EFF), a San Francisco-based organization dedicated to preserving fundamental rights in the age of technology.

“The way we need to fight back against this is by blocking these things that are tracking who we are and where we are and what things we’re looking at,” Quintin told Rewire. EFF considers location-based tracking to be a serious threat to privacy.

“Right now, there’s this big ideological debate about ad-blocking. What’s missing from that debate is the idea of blocking things that are tracking you. Tracking people and building up these databases of what they read online, where they go in the real world, linking their online behaviors to their offline purchases and real world behavior—these things can have real-world effects, and this is a horrific example of how this can affect people in a way that’s much more important than seeing some annoying or creepy ads that follow you around.”

Editor’s Note: Watch our video for info on how to avoid location-based tracking.