The U.S. Supreme Court鈥檚 on June 24, 2022, to overturn Roe v. Wade, a ruling that established the constitutional right to abortion in the United States in 1973, will potentially result in restricting the legal status of abortions. The consequences of the decision have been mapped and widely discussed ever since a draft of the decision was leaked earlier this year. One of its many effects is that American women have begun deleting their period tracking applications in fear of having the data collected by technology companies and used against them in states where abortions will or have already become illegal. If a woman鈥檚 application indicates that her period stopped and then suddenly started, this could prompt investigators to subpoena the application and build their case.
This blog examines the negative role technology companies are currently playing in handling sensitive data related to reproductive rights after the overturning of Roe v. Wade and what their role ought to be.
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Flo, Clue and Stardust 鈥� How Technology Companies Have Responded
Period tracking companies have taken this opportunity to profit off women鈥檚 bodies. Amid the current fear after the overturned decision, they have offered a false sense of privacy; in fact the downloading of these applications has听 since the decision. commented that the companies with the most downloads to their applications after the judgment were those that released public statements supporting women鈥檚 privacy in the aftermath of the ruling, regardless of the company鈥檚 history or privacy policy.
The leading period tracking company, Flo, shared their support on the day of the decision by stating women 鈥淒ESERVE the right to protect [their] data鈥� and launching their new 鈥淎nonymous mode鈥� that eliminates personal information from their accounts. These words, however, are meaningless considering the company鈥檚 history with sharing its users鈥� data. A investigation found that in 2019 Flo was providing Facebook information as to when women were on their period or intended to get pregnant. As a result, in 2021, the Federal Trade Commission reached a with Flo, although the company did not admit to any wrongdoing. As well, while Flo has yet to provide any details regarding the Anonymous mode, one cannot help but wonder why its regular application does not promise this level of privacy, whether personal information can be permanently deleted and whether prosecutors subpoenaing the application can track women through their IP addresses. Despite these concerns and despite Flo鈥檚 downloads being on the for months prior to the ruling, they gained numerous users after their statement.
Clue, another period tracking application, published a after the decision, emphasizing that users should switch to their application since they are under the world鈥檚 strictest privacy law, the European GDPR, and will not have to respond to any U.S. subpoenas. While this is promising, highlighted the fact that Flo is also headquartered in Europe where similar laws should have applied and still failed. The also clarified that European companies will usually comply with a U.S. legal request.
Stardust quickly became the most downloaded application a day after the decision, with its user attraction stemming from the company鈥檚 promise to . It only took three days for to point out Stardust鈥檚 privacy policy鈥檚 unusual wording, stating that they would comply, 鈥渨hether legally required to or not鈥� to authorities asking for user data. Only after Vice News had made this public did Stardust change their policy from 鈥渨hether or not legally required鈥� to only 鈥渨hen legally required.鈥� even discovered that Stardust shares its users鈥� phone numbers with a third-party analytic company, but Stardust has yet to publicly address this matter.
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Geofencing and Video Games鈥� Beyond Period Tracking Applications
It is important to remember that period tracking applications are only one of the many ways that investigators cooperate with technology companies to gather information on women seeking illegal abortions. Vice News鈥� reported that information from a data broker about phones that had been carried to physical Planned Parenthoods locations over the course of a week can be purchased for only $160. A process called 鈥済eofencing鈥�, where data brokers create a digital border and target a specific area, allows data purchasers to see where the women came from before, how long they stayed, and where they went afterwards. Any application that tracks a phone鈥檚 location can help geofencing, with NPR giving the example of a women sitting in the waiting room of a clinic and playing a on their phone, which is collecting data on them. The low price offered for such information will not only be used by investigators issuing subpoenas, but also be an incentive for citizens in Texas given the new , which offers a $10,000 鈥榖ounty鈥� to anyone who successfully sues people linked to abortions.
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How Technology Experts Have Responded
The recommendations made by technology experts towards women demanding greater online privacy in the aftermath of the decision have disproportionately places a burden on the latter.
For example, a professor at Carnegie Mellon, Jason Hong, women should opt for paid applications since they are less likely to track users. This monetarily penalizes women for wanting additional privacy and assumes the company will not track them for extra profits. Similarly, Flo鈥檚 Anonymous mode punishes women that remove their personal information by them from certain features like the chat function.
Evan Greer, Director of Fight for the Future, a non-profit advocacy group, women use a period tracking application that stores their data locally, as this creates a higher legal bar for the police, requiring a warrant from the user instead of a subpoena from the company. However, requesting a warrant on locally-saved information is not impossible, as shown by the widely noted case of , where investigators took possession of a woman's phone in order to go through her search history relating to pregnancy-terminating medicine. They ended up charging her with second-degree murder.
University of Edinburgh research fellow, Andrea Ford, that the most reliable option for women to regain full control of their privacy would be to track their cycle on a piece of paper the good old-fashioned way 鈥� 鈥淚f you want to be safe, use a paper calendar.鈥� At the same time, this option would come at a cost, too. Technology, in particular period tracking applications, have given women a platform to track their mood, monitor their health, and discuss their concerns with other women online, which cannot be achieved with the same accuracy on paper. Depriving women of these available options is not the way this problem should be addressed.
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How Technology Companies Should Have (and Can Still) Respond
It is time that the lack of online privacy women have regarding their reproductive health be addressed, not by putting the responsibility on them, but rather on technology companies. Eva Blum-Dumontet, a tech policy consultant in London, in an article for the , stated that technology companies 鈥渟hould never have owned so much data in the first place. If they adopted practices like storing data locally and minimizing the data to what鈥檚 strictly necessary we wouldn鈥檛 be having this debate now. It鈥檚 not too late for them to do the right thing.鈥�
The , a non-profit organization in Washington, suggests technology companies should work to implement privacy policies that include minimal user data, guidelines for refusing overbroad informational requests, and reporting the number of surveillance demands both publicly and to the user in a timely manner. As well, companies should collaborate with the legal system to create an act that limits what personal information can be shared and disclosed to third parties, similar to the Health Insurance Portability and Accountability Act. Currently,听companies are听 under this Act, when in reality it only applies to hospitals, health care centres, and insurance companies.
The solution of technology companies taking accountability and working towards creating a new privacy policy framework will be beneficial for themselves and their users as it will create a mutual trust. Blum-Dumontet noted that 鈥渢he only way [technology companies] can survive in this market, the only way they can make themselves trustworthy is by improving their privacy policy and giving users more control over their data... [I]f any of these apps will be used in court against their users, it will not be good PR for them.鈥�
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Conclusion
The overturning of Roe v. Wade has the public questioning the role technology companies should play when handling women's health information. Companies need to stop releasing public statements that misinform women about their personal data and start implementing better privacy policies that limit the intake of such information. This will create a privacy structure that will be better equipped to answer new questions that are arising each day. For example,听 have agreed to cover the costs of rides users need to receive an abortion, but can their locations be tracked? What will happen to companies like who agreed to cover the relocation costs of women seeking abortions? Will health-care initiatives continue to provide Plan B and, if so, will it be tracked? Can have their user data subpoenaed for conversations pertaining to abortions?