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Are period tracking apps a privacy concern?
Andrea Ford, University of Edinburgh & Laura Lazaro Cabrera, Privacy International

In late June, a law that was construed as granting the right to have an abortion in the US – Roe vs. Wade – was overturned, leaving decisions on the legality of the procedure for each state.

Since then, half of US states have made moves to ban or restrict abortion, which technically means any woman who seeks the procedure can be prosecuted.

After Roe vs Wade, a viral message quickly spread online, telling women to delete any period tracking app they were using.

But why is this app a concern?

Julia Ravey talks to Andrea Ford, a medical and cultural anthropologist at the University of Edinburgh…

Andrea- There have been many concerns that have arisen since the news in the US. The concern is that the data in your app could potentially be used as incriminating evidence, if you were in a situation where you were mistreated for having an abortion. So that it can contain data about late menstruation, abortion, miscarriage, potential for irregular menstruation. Cell phones in general, and many apps, track location data which can be burdensome, if you visit an abortion clinic.

Julia- All these concerns are valid. Do you think there is a possibility the data could be used in this way?

Andrea- Yes. I think there must be a valid concern. Many app companies have stepped in to reassure, which is good because they’re aware of the concerns. However, there are many loopholes or different ways to interpret a privacy policy in legal jargon. Sometimes if you are protected in general, you are not protected if you are under criminal prosecution, because that is a specific set of rules. While it’s good that app companies are often aware of this. I wouldn’t say that’s entirely convincing because there are plenty of ways to circumvent rules and promises if there’s a will to sue.

Julia- And this law was overturned, it came at a time when we now have this device that basically records everything we do. This is very different from the pre-Roe versus Wade world. Do individuals need to think about their data beyond just a period tracking app?

Andrea- Yes, I’m glad you asked about that because I think, in many ways – not just related to abortion – but in privacy in general, period tracker apps have become this red flag. People get worried about them because the type of information you enter is quite intimate. However, they are just a Canary in a coal mine in the sense that there is so much data being collected and surveillance of various kinds fed into the digital ecosystem in which we live. As I mentioned earlier, the location data shared and stored by a number of other apps may actually be more burdensome in court situations.

Julia- From person to person, periods vary dramatically. People can have regular periods but stress and such events can change periods. Do you think that using someone’s period time can be used to incriminate someone because of this huge variation?

Andrea- Again, I think it depends on the desire to sue. There are many historical examples where people have said they had miscarriages and were sued for abortions, and there is only a gray area between the two. And if you look historically, the way similar experiences have been interpreted has varied greatly. So since there is an inherent ambiguity in that, that’s why I say it depends on the desire to sue. If some judiciary, jury, etc., were determined to interpret it in some way, that would be far more important than the actual data.

Julia- What’s your advice for someone tracking their period using an app?

Andrea- At this point, I think it depends on where you live. I live in Europe and I have a little trip for research purposes. But if I lived in a lot of US territory, I wouldn’t. There are apps that store your data locally, not on the server. It’s safer. Although your actual phone can be kept as evidence in a prosecution situation. So if you’re worried, I’d say don’t use the app. The kind of takeaway I want to tell people is that considering your personal privacy is important and it’s part of a larger set of issues and having conversations about those bigger questions is really needed right now.

Julia- To learn more about how our data can be used in criminal proceedings, specifically in the overthrow of Roe versus Wade. I spoke with Laura Lazara Cabrera, legal balancer with Privacy International who, as an organization, looks at the exploitation of data by governments and organizations. He told me about the types of evidence that might be used to obtain a conviction in criminal proceedings.

Laura- If you have indicated in your engagement with a period tracking application that you are pregnant or that you are seeking or have had an abortion, then that information may be of interest to law enforcement authorities and, by extension, prosecution to demonstrate that you have indeed had the procedure like that. Of course, this is not just a period tracker app. You can share that kind of information with a variety of different actors. It’s all about retracing your steps and seeing who you tell and what kind of involvement the private company might have with law enforcement. In other words, how likely are they to pass on that information?

Julia- And how easy is it to share it back? So let’s say you have an app on your phone and you agree to their privacy act and they have come out and said, your data is protected in some way. In the case of criminal proceedings, can the user privacy guidelines be changed?

Laura- Privacy policies will usually have an exception, or at least they should when this happens, that law enforcement will be able to access some of that data or at least that they will provide some of the data to law enforcement once the law enforcement has made. valid request. But sometimes the problem is that these are not clearly marked in the privacy policy so people may ignore them. I think everything that is happening in the US should encourage users to reconsider the terms of their engagement with private companies and take a look at the privacy policies if any.

Julia- Are there any examples of this in the proceedings? So, the prosecution uses the data from the app to get the punishment.

Laura- So we know that tracing history has been used in the past in the context of criminal proceedings and the data processed by a period tracking app is just something that could fall into the same category in terms of the types of evidence that may be present. Then again, whether that might be conclusive evidence of someone having had an abortion is a very different question altogether. But the real concern is that when combined with other evidence or based on other information, this type of data can be incriminating and put a person in a very difficult position to defend themselves.

Julia- Some of these period tracking apps are EU based, whether someone in the US uses one of these apps, they are therefore under EU data protection.

Laura- Of course. So the great thing about the general data protection regulation, or GDPR as we know it, is that it has a very wide range of applications, which includes people based in the EU region, but also companies based here. The good thing about GDPR is that it provides a pretty strong standard of protection for people when it comes to how their data is processed. Of course in the US, we don’t have such a law. Every state has different types of laws that may apply to data protection but, ultimately, no single federal law addresses data protection.

Julia- So in the US, are you more vulnerable in this situation? What is the difference between EU and US privacy laws when it comes to protecting personal data?

Laura- USA has no such laws in general. There are several laws that address health data, but those laws only apply to certain healthcare providers. So that means many of these organizations will be following loopholes in terms of data protection standards in the US. Though, if we look at the EU, then it doesn’t matter whether you have a license to provide certain services or not, everyone has the same standards.

Julia- What’s your advice for someone who might be based in one of these states right now where reproductive health is restricted in terms of tracking their periods using apps, or just in general with their data on their phone?

Laura- I would tell them to treat everything that happened as a result of Roe v Wade as a wake-up call and try and adapt to today’s information environment. Take this as an opportunity to get back to the app you’ve been using for a while, with whom you’ve been sharing, very intimate personal data. Review the privacy policy, make sure you are satisfied with the privacy policy. If not, try and find out what you can do in terms of limiting your engagement with the app, if you don’t feel comfortable continuing to use it or exercising any data protection rights that may be included in the app.

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