Tracking your flow in the post-Roe period

Roe v. Wade, the landmark court decision of the Supreme Court of the United States protecting women’s right to choose to have an abortion, was overturned in late June 2022. Among many crucial concerns, the weaponization of period and fertility tracking apps has become a phenomenon that some data protection experts have been anxiously anticipating. This blog post will provide a brief overview of the legal status of abortions in the United States and discuss how this might affect the issues concerning privacy in period and fertility tracking apps.

Roe v. Wade and Dobbs v. Jackson Women’s Health Organization

In Roe v. Wade (1973), the Supreme Court ruled that state-level regulation that unduly restricts women’s access to abortion is unconstitutional. The Court held that the criminalization of abortions in Texas had been a violation of women’s constitutional right to privacy; a right implied in the guarantee of liberty in the Fourteenth Amendment’s due process clause. The significant decision invalidated many federal and state abortion laws, protecting women’s liberty to opt for abortion. Following the decision cases arose affirming the right, as well as strategic litigation attempts in order to overturn it. The attempts were largely unsuccessful, until now.

However, in 2022, the Supreme Court overturned Roe v. Wade as well as Planned Parenthood of Southeastern Pennsylvania v Casey (1992). These two cases had established and affirmed abortion as a constitutional right, until in late June, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. The Court’s conservative 6-3 majority, including the three Justices appointed by former President Trump, rejected the precedent establishing abortion as a constitutional right. Nearly half the states are expected to ban abortion following the decision as the authority to regulate abortion is returned “to the people and their elected representatives”.

Fertility and period apps

It is common knowledge that any app that collects sensitive data poses potential risks should the data end up in the wrong hands. Fertility and period tracking apps have emerged to assist women in keeping track of their menstrual cycle, which can at times provide valuable information to both the user and her healthcare providers. The emergence of such apps responded to a real need - nearly a third of American women have used them to have better control and understanding of their lives. Apps such as Flo, Glowing, and Clue allow their users to enter the start and end days of their periods, as well as information on their mood, methods of birth control, and so on. Period tracking apps thus collect, retain, and sometimes share data that can be very sensitive. Each app has an individual privacy policy, but even full GDPR compliance cannot protect the data if law enforcement authorities issue a legitimate request for it. Furthermore, online data marketplaces like Narrative have been found to offer user data from period tracking apps.[1] Motherboard found that location data firms sell detailed information relating to abortion clinic visits, and the New York Times revealed that FLO sells the data of its users. Maya and MIA, also popular period tracking apps, have been found to share data with Facebook.

This development is especially concerning as the data from period tracking apps could be used to target people in the states where abortions will be regulated more stringently. In a state that has criminalized abortions, prosecutors can subpoena the period tracking app on the prosecuted woman’s devices to collect information while building a case against her. Search history has already been successfully admitted as evidence to criminalize women seeking abortions, making it only a question of time until period tracking apps will be used in criminal cases against women.

Conclusion

While period tracking apps can be convenient, women in the US might need to be more careful about where they store their sensitive data. In the wake of alarming political developments, if one wants to err on the side of safety, it might be a good idea to turn to an old-fashioned paper calendar. This does not solve the larger problems that have led to this situation in which women have lost a well-established fundamental right, but might help them stay safe while protesting for them.

[1] The data concerns the devices that have installed the relevant menstrual cycle app.