If the Supreme Court overturns Roe v. Wade, it’s estimated that 28 states would likely restrict abortion in coming months, which would affect half of the country’s women and girls. (Such restrictions would affect men and nonbinary people as well.) On Twitter, some users have warned people to stop using apps to track their menstrual cycles. “If you think that your data showing when you last menstruated isn’t of interest to those who are about to outlaw abortion, whew do I have a wakeup call for YOU,” wrote Elizabeth C. McLaughlin in a popular thread.
If you’ve been following data privacy, you already know that our data is “of interest” to a lot of people—especially those who want to sell you things. Apps sell data to third parties, who then feed up targeted advertisements; for instance, if an advertiser knows you’ve downloaded an app designed to track cycles for pregnancy reasons, they might show you more baby product ads. According to a Financial Times analysis, knowing someone is in her second trimester of pregnancy is worth about 220 times more than the average person’s data.
Targeted ads are one thing, but McLaughlin’s thread suggests menstruation data could be weaponized against users. If Roe is overturned, could menstruation app data really fall into the hands of “those who are about to outlaw abortion”? If so, how? And how, exactly, could that data be used against users?
First, it’s important to understand the extent of the data these apps collect from users. Apple Health and Garmin include period tracking among their functions, but stand-alone apps like Clue and Flo often include more detailed features, especially if users upgrade to paid versions. Though the apps’ features vary, all allow users to record the days they’re menstruating and offer predictions about when their next cycle might begin. Most ask users for some basic identifying information, like their birthdate, and offer them the opportunity to record information about symptoms they’re experiencing as well as their menstrual flow, sexual activity, and even mood. Some ask about other factors that might affect menstrual cycles and symptoms, like whether you are pregnant or lactating, and offer a space for users to add their own notes. Others, like Premom (the name of this app was a choice), are designed to track not only menstruation but fertility windows and pregnancy progression. Users can upload photos of their ovulation test strips for the app to analyze, and participate in forums where they discuss personal details.
Many users might not realize how much personal data these app companies are keeping on record. For instance, when an employee at the London-based nonprofit Privacy International sent requests to five menstruation apps to receive copies of the data she’d entered into the app, she discovered the companies knew a lot about her. The menstrual app Flo sent back her answers to questions about how often she gets a Pap test, how often she masturbates and how easy it is for her to reach orgasm, and how long she’s been trying to conceive, among other intimate details. “It was a surprise seeing that much information was collected, and so much of it was sent off to third parties,” says Laura Lazaro Cabrera, a legal officer at Privacy International who contributed to the report. The team also entered notes to themselves in the Flo app and discovered that those notes, too, were sent verbatim back to them. That was worrying to Cabrera: “For things like days per cycle, you expect that kind of data to be stored—but for diary entries, you’d think that’s locally stored, because what use is that to them?” Rather than keeping private notes on users’ phones, the app still beams the information to the company’s central server.
Any data these apps have about you could, in theory, also be available to authorities.
Currently, such data might not have much utility to them, but if Roe v. Wade is overturned, that could change. Experts say that in a post-Roe world, it’s likely we’ll see more charges brought against people who have abortions or whose behavior might have contributed to a miscarriage or stillbirth. In such cases, app data could be to establish when a person became pregnant, and show when they became aware of that pregnancy or when they began experiencing symptoms leading up to a pregnancy loss. Some apps, like Flo, ask things like whether the user smokes or how often they drink alcohol; that data could also be of interest to a prosecutor trying to charge someone with endangering a fetus.
There have been hundreds of such cases since Roe v. Wade was established in 1973, but many cases have been dismissed because the ruling prevents states from prosecuting people for abortions and in utero deaths. “When Roe goes away, there’s nothing to prevent states from prosecuting people as part of anti-abortion or murder and manslaughter statutes,” attorney Nina Ginsberg says. Some states are already laying the groundwork for this kind of prosecution; in the wake of news about the draft Roe decision, Louisiana advanced House Bill 813, which declares that a fetus’s rights to “human personhood” from the “moment of fertilization.” That bill would only outlaw any abortion, but it also effectively criminalizes miscarriage; a person carrying a fetus could be charged with that fetus’s death, should anything happen to them in utero.
So, yes—it is possible menstrual app data could be used to prosecute people. But just because it’s possible doesn’t mean it will become common. For one, it might be cumbersome for law enforcement to obtain that data. In a statement to Slate, popular app Clue said it is “obligated under European Law (the General Data Protection Regulation, GDPR) to apply special protections to our users’ reproductive health data. We will not disclose it.” While the GDPR’s Article 9 does prohibit processing of personal or health data “concerning a natural person’s sex life,” there’s also an exemption made for cases where “processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity.” If U.S. authorities subpoenaed a European app like Clue for a user’s data, it’s unclear if it would have to comply—and at the very least, Clue’s statement makes it sound like it’d be willing to put up a fight.
Plus, there are easier ways of gathering evidence. “The types of digital data that have been used in court thus far suggest it’s going to be much more simple digital info used against us,” says Cynthia Conti-Cook, a civil rights attorney and technology fellow at the Ford Foundation. “It’s going to be info from [our] own devices, often words we have typed into the screen, info we ourselves have been involved with co-creating.”
Google searches, texts, and your web history would likely paint a fuller picture of your life than the date of your last period. If prosecutors are trying to charge people for having abortions, or behaving in ways that would have led to a miscarriage, they would need to establish intent (e.g., Googling “abortion clinic near me”) or evidence of your behavior, which they might find in texts or photos.
The extent to which authorities will actually charge people with pregnancy-related crimes if Roe is overturned is still unknown, but it’s likely your identity will play a role in whether you’re targeted. In an analysis of more than 400 cases where pregnant women were prosecuted, most of the women were “economically disadvantaged,” and of the 360 cases for which race was known, 59 percent were women of color. In a post-Roe world, people of color with the fewest resources will likely continue to be disproportionately targeted for pregnancy-related charges. That overlaps with people who are already being surveilled by the state in some way, says Conti-Cook: “These are people who already have to report to the state, whether for family and child protective services, to substance abuse programs, to a case worker for probation or parole—these are people already in the dragnet of mass incarceration, who will be further prosecuted because digital evidence is already in the state’s hands.” Unfortunately, data on the socioeconomic status of menstrual app users is scarce, but with the ubiquity of smartphones, some of the people at highest risk for facing prosecution may also use menstruation apps. However, I’d wager that the heaviest users—those with the means to pay for things like ovulation strips, and the time to carefully log data or participate in forums—are less likely to be targeted for charges.
Whether or not you delete menstruation apps is ultimately a personal choice, and whether these apps are willing to cooperate with authorities is yet to be seen—but these individual actions are a weak defense against a huge systemic issue. If Roe is overturned, app data will be just a drop in the bucket of all the data that could be used to charge people with pregnancy-related charges. Perhaps a prosecutor or data broker won’t know the exact date of your last period, but they’ll have the legal power to subpoena other private data. “The problem with abortion being criminalized is that abortion is criminalized—that comes with all the power to enforce criminal procedure and the obtain information that a prosecutor wants to see,” says Conti-Cook. Even if all app companies stand united in denying subpoenas for user data, it’s unclear on what grounds they would be able to fight those requests; if abortion is illegal, and a person is charged with the crime of having one, there’s little legal recourse. As Conti-Cook puts it, “This is not a tech solution—the problem is that we’ve criminalized health care.”