Period trackers help users monitor their menstrual cycles by logging details like period dates, ovulation, sexual activity, and symptoms. These apps can risk reproductive information by storing data that reveals a user's reproductive health, including potential pregnancies and terminations. For example, they collect information on missed periods, changes in cycle patterns, sexual activity, and any signs of pregnancy, which can hint at abortions or miscarriages. This data can be highly sensitive and, if accessed, can be used to infer personal reproductive choices.
Roe v. Wade was a pivotal 1973 Supreme Court case that legalized abortion across the United States, recognizing a woman's constitutional right to privacy and her ability to choose an abortion. In 2022, the Supreme Court overturned this decision, ending almost 50 years of federally protected abortion rights. This change had a major impact on reproductive health information and access to care.
According to a study published on the topic of how the reversal of Roe v Wade impacts Canada, “The reversal of Roe v Wade has ended the federal right to an abortion and given states the authority to set their own abortion policies, meaning that these laws now vary widely; women in some states will have access to abortion care and those in others will not.”
The availability of accurate abortion information varied widely, and some states even criminalized seeking abortions altogether. As a result, many people faced legal risks, reduced access to safe services, and increased barriers to making informed reproductive health decisions.
According to a study by Bethany Boylan, published in Heinonline, “With the eradication of the protections ensured by Roe, the security of one's online information has come into question, particularly relating to those nongovernmental services not required to adhere to state and federal privacy laws.”
The fall of Roe raises concerns about the security of online information, especially data held by nongovernmental services not bound by strict privacy laws. Period tracking apps, used by millions of American women, are now under scrutiny as potential tools for prosecuting abortions. Although there is no documented use of this data for prosecuting feticide yet, the possibility looms large.
Roe's protections, rooted in the right to privacy, meant that before viability, decisions about abortion were left to a woman and her physician. Post Dobbs, however, many states have enacted "trigger laws" that banned abortion immediately upon Roe's reversal. These laws define abortion broadly, often from the moment of conception, and make exceptions only for medical emergencies.
The historical surveillance of abortion involved tracking and prosecuting through confessions and cooperation from healthcare providers. Today, digital tools like period tracking apps add a new dimension to this surveillance. Information from these apps could potentially be used in legal cases against women seeking abortions, leading to fears about digital privacy and self-incrimination. Legal experts and privacy advocates suggest deleting these apps and using non-digital methods to track menstrual cycles to avoid potential legal consequences.
This development is predicted to have far-reaching implications, for abortion and other reproductive health areas like in vitro fertilization (IVF), birth control, and Plan B. The Fifth Amendment's protection against self-incrimination may become a legal shield in this context, as personal data from these apps could be seen as self-reported and thus protected.
The Biden Harris Administration, through the Office for Civil Rights at the U.S. Department of Health and Human Services, announced a new rule to enhance privacy for reproductive health care under HIPAA. This rule, titled "HIPAA Privacy Rule to Support Reproductive Health Care Privacy," prohibits the disclosure of protected health information (PHI) related to lawful reproductive health care to prevent its use against individuals seeking such care.
The rule was developed in response to privacy concerns following the overturning of Roe v. Wade and received nearly 30,000 public comments. It mandates that healthcare providers, health plans, and clearinghouses sign an attestation ensuring PHI related to reproductive health is not used to investigate or impose liability. Additionally, these entities must update their Notice of Privacy Practices to reflect compliance with the new rule.
See also: Biden Harris issues rule supporting reproductive health care
A report by the Federal Trade Commission (FTC) discussed the issues of heightened concern after Roe was overturned, focusing on the practices of period tracking apps. The FTC filed a complaint against Flo Health Inc., the most downloaded period tracking app in 2022, accusing the company of sharing users' sensitive health data with Facebook, Google, AppsFlyer, and Flurry despite explicitly telling users they would not. This resulted in a settlement and the introduction of an "Anonymous" mode in the app, although research indicates that deidentification measures are rarely reliable. Additionally, the FTC charged another period tracking app, Premom, for deceiving users about their data practices by disclosing health data to third parties.
A study involving 183 women from states with varying abortion laws highlights that data sharing with law enforcement is a concern. Most participants feel uninformed about mitigating privacy risks and are generally unaware of how Roe's overturn affects their reproductive privacy. They call for better user control over data and more transparency from app companies and law enforcement. This study aims to address these privacy concerns by investigating women's privacy knowledge and expectations for privacy enhancing features in period tracking apps.
See also: HIPAA Compliant Email: The Definitive Guide
The FTC's function is to protect consumers and promote competition by preventing anticompetitive, deceptive, and unfair business practices.
PHI includes any information about health status, provision of health care, or payment for health care that can be linked to an individual.
Secure communication helps protect abortion data by ensuring that sensitive information remains confidential and is not accessed or intercepted by unauthorized parties.