Are Period Tracking Apps a Privacy Issue?
Andrea Ford, University of Edinburgh and Laura Lázaro Cabrera, Privacy International
In late June, legislation that was interpreted as conferring the right to abortion in the US, Roe v Wade, was struck down, leaving the decision on the legality of the procedure to individual states.
Since then, half of US states have taken steps to ban or restrict abortions, which technically means any woman seeking the procedure could be prosecuted.
In the wake of Roe vs. Wade, viral messages quickly spread online, telling women to remove any period-tracking apps they were using.
But why are these apps a concern?
Julia Ravey spoke to Andrea Ford, a medical and cultural anthropologist at the University of Edinburgh…
Andrea- Many concerns have been raised since the news in the US. The concern is that the data on your app could be used as incriminating evidence, if you find yourself in a situation where you are being persecuted for having an abortion. That could include data on missed periods, abortions, miscarriages, irregular periods potentially. Phones in general and many apps track location data that could be incriminating if you visited an abortion clinic.
Julia- All of these concerns are valid. Do you think there is a possibility that the data could be used in this way?
Andrea- Yes. I think there are definitely valid concerns. Many app companies have stepped up to reassure, which is a good thing they’re acknowledging the concerns. However, there are many loopholes or different ways of interpreting privacy policies in legal jargon. Sometimes, if you’re protected in general, you’re not protected if you’re under criminal prosecution, because that’s a special set of rules. While it’s a good thing app companies often recognize this. I wouldn’t necessarily say it’s completely reassuring because there are plenty of ways to circumvent regulations and promises if the will to prosecute is there.
Julia- And the repeal of these laws comes at a time where we now have these devices essentially recording everything that we do. It’s very different from the world before Roe vs. Wade. Should people think about their data beyond period tracking apps?
Andrea: Yeah, I’m glad you asked about that because I think in a lot of ways, not just in relation to abortion, but privacy in general, period tracker apps have been this red flag. People have been concerned about them because the type of information you enter is quite intimate. But, they are just a canary in the coal mine in the sense that there is so much data collected and surveillance of different kinds embedded in the digital ecosystem that we live in. As I mentioned earlier, location data shared and stored by any number of other apps could be more incriminating in the legal situation.
Julia- From person to person, periods vary dramatically. People can have a regular period, but stress and incidents like that can disrupt periods. Do you think that using the time of someone’s period could be used to frame someone because of this large variance?
Andrea- Again, I think that comes down to a willingness to prosecute. There have been numerous historical examples where people have said they’ve had a miscarriage and been prosecuted for an abortion, and there’s just a gray area between the two. And if you look historically, the way similar experiences have been interpreted has really varied. So because there’s this inherent ambiguity to the thing, that’s why I say it all comes down to the will to prosecute. If some judicial body, jury, etc., insists on interpreting it in a certain way, that will matter much more than the actual data.
Julia: What would be your advice to someone tracking their period using an app?
Andrea- At this point I think it depends on where you live. I live in Europe and have a handful on the move for research purposes. But if I lived in many areas of the US, I wouldn’t. There are applications that store their data locally, instead of on servers. Those are safer. Although your real phone could be used as evidence in a prosecution situation. So if you’re worried, I’d tell you not to use an app. The kind of takeaway I’d love to leave with people is that considering your personal privacy is important and it’s part of a larger set of issues, and having conversations about those larger questions is very, very necessary right now.
Julia: For more information on how our data may be used in criminal proceedings, particularly in the Roe v. Wade annulment. I spoke with Laura Lazara Cabrera, a legal compensation from Privacy International who, as an organization, analyzes the exploitation of data by the government and organizations. He talked to me about the types of evidence that could be used to obtain a conviction in a criminal proceeding.
Laura: If you have indicated in your commitment to a period tracker app that you are pregnant or seeking or have had an abortion, that information is likely to be of interest to law enforcement authorities and, by extension, to the prosecution shows that he has actually submitted to said procedure. Of course, it’s not just about period tracking apps. You could have shared that kind of information with a variety of different actors. It’s about tracing his steps and seeing who he told and what kind of engagement those private companies are likely to have with law enforcement. In other words, what is the probability that they will pass on that information?
Julia- And how easy would it be to share the back? Let’s say you have an app on your phone and you agree to its privacy measures and have said that your data is protected in some way. In the case of criminal proceedings, can user privacy guidelines be overridden?
Julia- Have there been any examples of this in the proceedings? So, prosecution using data from an app to get a conviction.
Laura: We know that browsing histories have been used in the past in the context of criminal proceedings and the data processed by period tracking apps is something that could fall into the same category in terms of the types of evidence that could be. On the other hand, whether or not this is likely to be conclusive proof that someone has had an abortion is an entirely different question. But the real concern is that, combined with other evidence or in light of other information, this kind of data could be incriminating and put a person in a very difficult position to defend themselves.
Julia – Some of these period tracker apps are located in the EU, if a person in the US uses one of these apps, they would therefore be under EU data protection.
Laura- Absolutely. So the great thing about the General Data Protection Regulation, or GDPR as many of us know it, is that it has a really wide scope, including people based in the territory of the European Union, but also companies that they are based here. The great thing about GDPR is that it provides a pretty strong standard of protection for people in terms of the ways their data is processed. Of course, in the US, we don’t have such legislation. Each state has different types of legislation that may be applicable to data protection, but in the end, there is no single general federal legislation that addresses data protection.
Julia- So, in the United States, are you more vulnerable in these situations? What is the difference between EU and US privacy laws in terms of personal data protection?
Laura- The United States just doesn’t have that kind of legislation in general. There is some legislation that analyzes health data, but that legislation only applies to certain health care providers. That means that many of these organizations will follow the steps in terms of data protection standards in the US. Whereas, if you look at the EU, then it doesn’t matter whether or not it has obtained a license to provide a certain service, everyone is held to the same standards.
Julia: What would be your advice to someone who may be residing in one of these states right now where reproductive health is restricted in terms of tracking your period using an app, or just generally with your data on your 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 to adapt to the current information environment. Take this opportunity to go back to those applications that you have been using for a while, with which you have been sharing very intimate personal data. Review the privacy policies, make sure you are happy with those privacy policies. If not, try to find out what you can do to limit your interaction with the app, if you feel uncomfortable continuing to use the app, or exercise any data protection rights that may be included in the app.