Can this data be used in criminal prosecution?
Short answer: yes.
“It’s almost surreal that in some states, using a period app can lead to problems,” McGraw said. “But if abortion is a crime, it can be used in a case against you.”
It depends where you live, but there is no federal protection in terms of privacy, she added. Last year, Senator Ron Wyden (D-Oregon) introduced Fourth Amendment to the Prohibition of Sale Act, which prohibits data brokers from selling personal information to law enforcement or intelligence agencies without court oversight. But the law has not yet been put to a vote.
Wyden told KHN he was “absolutely” concerned about the possibility that people who want an abortion could be caught on their phone numbers.
“It’s a really ominous prospect that women’s personal data could be used against them,” Wyden said. “These big data organizations,” he said, “must decide if they will protect the privacy of the women who deal with them? Or are they basically going to sell to the highest bidder?”
In the absence of federal law, if law enforcement does receive a subpoena, it can be difficult for a company to opt out of sharing data related to a particular case.
“Given the breadth of US surveillance laws, if a company collects and holds information, that information can be coerced by law enforcement,” he said. Amy Stepanovic, privacy lawyer and vice president of US policy at the Future of Privacy Forum. “They do not necessarily have the ability to legally withhold this information from law enforcement once due process has been undertaken.”
However, even in states with strict legal restrictions on abortion, a lot depends on how these laws are structured. For example, last month a Texas woman was charged with murder for “spontaneous abortion.” was fired after the District Attorney determined that it did not violate a state law that criminalizes abortion, not patients.
If a Rowe vs. Wade is canceled, 14 states have so-called trigger laws that automatically come into force and prohibit abortions immediately or after set time intervals have passed – for example, six weeks or 15 weeks, according to KFF analysis.
“It’s really hard internally, but I don’t think people should blindly assume that their data is safe from a lawsuit,” Savage said. She added that this may depend on the company’s approach to subpoenas. Some will fight them and some won’t.
According to him, despite the security measures provided by the GDPR, period trackers can also be subpoenaed in Europe. Lee TienSenior Associate at the Electronic Frontier Foundation.
“Even [European Union] companies are subject to litigation in the US, although this will take longer,” Tien said. “The US has mutual legal treaties with other countries, including EU countries, and law enforcement knows how to share information.”
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Has this information been previously used by government officials or law enforcement agencies?
Anti-abortion officials have used period tracking information in the past. In 2019, former Missouri Health Director Dr. Randall Williams received spreadsheet Tracking the menstrual cycles of women attending Planned Parenthood to identify patients who had an abortion that did not result in a pregnancy loss.
During the Trump administration, former head of refugee settlement and anti-abortion activist Scott Lloyd admitted that track the menstrual cycles of teenage migrants in an attempt to prevent them from having abortions.
“Now we think about period trackers the same way we thought about facial recognition software for years,” Savage said.
Should I delete my period tracker app?
Experts have said it’s unlikely that a period tracking app will be the only evidence used if someone sues you for attempting an abortion.
“Honestly, I think if law enforcement or a civilian investigator was trying to find out who gets an abortion, there are probably a few other places that are more realistic or more useful,” Stepanovic said. “They will likely get a bunch of information for relevant data,” she continued, “for example, trying to get location information for everyone who was dropped off near an abortion center, which is a much smaller data set, or people who called at a certain time hotlines for abortions.
Stepanovic added that as long as someone uses a smartphone with any type of application installed on it, there is a risk that data can be obtained and used as part of criminal or civil prosecution. Bottom line: the only way to completely avoid risk is not to use your smartphone.
But McGraw took a more cautious approach: “If I lived in a state where I thought that the data could fall into the hands of law enforcement, I would not track [my period] generally.”
Ultimately, people who use period tracking apps need to be aware of the risks of using this technology, while also considering the benefits it brings to their lives.
“You have to think about what you need in terms of period tracking,” Tien said. “You have to weigh in and ask yourself: how important is this convenience to me?”
Kaiser Health News is a national health policy news service. It is an editorial independent program of the Henry J. Kaiser Family Foundation and not affiliated with Kaiser Permanente.