By CHHS Extern Quinn Conlan
Photo Credit: Getty Images
Since the landmark decision Dobbs v. Jackson Women’s Health Organization was released on June 24, 2022, everyone, from Congress to the FTC to the White House, is talking about data privacy and digital surveillance. Reproductive health and wellness apps track a person’s menstruation cycle and ovulation windows as well as predict upcoming cycles. With no constitutional right to an abortion, can the data in these apps be used to prosecute a person for seeking an abortion?
The current landscape of protections for health data ultimately leads to the conclusion that the best way to protect your reproductive health data is to not digitize it. Free-to-use apps make their profit off of user data, consequently that data is their most valuable asset. Beyond digital-free tracking with pen and paper, each user must assess the risk of using a period tracking app for themselves.
Some companies have introduced “Anonymous Mode” where the person who input the data cannot be identified by the company. Therefore, if the company is subpoenaed, they are unable to truthfully tie the data to any individual. (Though anonymized data is not as anonymous as you think.)
Beyond the data stored within the apps themselves, there are many other ways your privacy is at risk digitally. For example, through “geofencing”, where police can identify all cellphones in a given area at a given time. This poses a serious threat to people seeking an abortion because they can be geographically tracked to a clinic, health care provider, or other pro-abortion site even when they are not physically seen entering or leaving the facility. Other data, such as search engine history or unencrypted text messages (like your phone’s SMS messaging) could also put a person at risk of prosecution for seeking an abortion; or even in some States, helping someone find safe medical resources for an abortion.
One immediate legislative solution to protect users’ data would be for Congress to pass a law that protects app users’ health and wellness data from investigation. In June, the My Body, My Data Act was introduced in Congress by Rep. Sara Jacobs of California. The bill tasks the FTC with enforcing privacy protections for reproductive and sexual health apps. Another bill introduced in June by Sen. Elizabeth Warren of Massachusetts, the Health and Location Data Protection Act, would ban the sale or transfer of health data with some limited exceptions. Until these introduced bills become law, however, health and wellness data in apps continues to be at risk of sale, transfer, or subpoena.
Surveillance concerns in the US have only intensified since Edward Snowden’s infamous leak of NSA activity in 2013, and the overturning of Roe v. Wade by the Supreme Court will be seen as yet another evolution in Americans’ fight for privacy. Privacy has continued to erode as more and more Americans data is collected digitally, sometimes for no planned purpose. While this decision raises health and wellness data privacy concerns specifically, it should also act as a warning to Americans that data privacy and protection in general is paramount to upholding liberty.