How tracking your menstrual cycles on an app can land you in jail

I am going to talk about menstruation, that monthly physical phenomenon that more than half of the population experiences for almost 40 years of their lives and which so repulses the other half. Calm down: I’m not going to get into the debate about cramps. I have enough with the puddles that I already step on.

Let me explain: I am going to talk about why bleeding every 28 days, more or less, is related to technology and criminal justice systems. I am going to talk to you about how we all have something to hide. The legal right to conceal ourselves from the gaze of others, what we call intimacy or privacy, makes perfect sense, because we can never know if we will end up living, from one day to the next in a police state–or in Gilead from The Handmaid’s Tale.

A few weeks ago, Politico published a 98-page bombshell from the heart of the US Supreme Court. The leak has filled the Republican party with anger, though, curiously, it is the main beneficiary of the draft opinion that is expected to be issued soon. The text details, in the caustic and derogatory language of the deeply conservative Justice Samuel Alito, the Supreme Court’s plans to annul the landmark 1973 ruling Roe v. Wade, which legalized abortion in the United States. Without getting into its technical guts, Roe v. Wade gave constitutional protection to the right to abortion. The leaked proposal removes that measure by granting states the power to regulate this issue within their territory.

If the Supreme Court overturns Roe v. Wade, more than 20 states–home to roughly half the US population–are likely to ban abortion in almost any circumstance. But there’s more. A recently approved law in Oklahoma takes as an example the Texan law which prohibits any interruption of pregnancy from the sixth week -”the heartbeat law,” going even further by prohibiting abortion from “the very moment of conception.” It plans to punish anyone who helps Oklahoma women access abortions in states where is legal. The Texas law, which seems to be inspiring the legislative fury of other Republican states, gives private citizens the power to report offenders.

The American Health Insurance Portability and Accountability Act (HIPAA) establishes the obligation to maintain professional secrecy around consultations related to the practice of an abortion. The obligation extends to health insurance companies and their managers. But apps and data titans don’t have the same responsibility. Millions of women use apps to track their menstrual cycles, recording and storing intimate data about their reproductive health. Since such data can reveal when menstruation stops and starts, ovulation and pregnancy, it could become evidence in states where abortion is criminalized.

A 2021 report from the International Digital Responsibility Council (IDAC) found that period trackers were sending unencrypted personal information or sharing data with third parties without fully disclosing it in their privacy policies (which no one reads anyway). The culprits included the menstruation app Flo, which boasts more than 100 million users. It reached an agreement with the Federal Trade Commission (FTC) after being investigated for sharing its users’ private data with Facebook and Google. The Ovia application shared some users’ aggregated family planning data with their employers. Also implicated was Natural Cycles, the first application authorised by the Food and Drug Administration (FDA) for birth control and which collects “sensitive information” linked to the identity of the user.

Vice’s Motherboard blog, for the low price of $160, bought data from SafeGraph that identified the origin of the people who visited more than 600 Planned Parenthood clinics over a period of a week and where they went next. The company SafeGraph has announced that it will not allow its clients to search for location data related to family planning centers, but nothing prevents them from being forced to provide it if requested by the prosecution or a judge.

Suddenly, US lawmakers have realized that the data economy is based on trading in individuals’ data and selling it to the highest bidder, which could well be the Texas prosecutor’s office or a radical right-wing group. Wherever data exists, someone is tempted to request it–and its owners can be obligated to deliver it.

California Democratic Congresswoman Sara Jacobs is trying to prevent this from happening. She has introduced the My Body, My Data bill, which would require companies to collect and retain only the reproductive health information that is “strictly necessary” to provide their services, unless they obtain the consumer’s explicit consent, giving users the right to demand that their information be deleted or that companies disclose how they are using the data. Separately, a group of five Democratic senators led by Massachusetts Senator Ed Markey has urged Apple and Google to ensure that third-party services in their app stores “do not employ data practices that threaten the well-being of anyone searching for abortion services.” Oregon Democratic senator Ron Wyden, along with 40 Democratic congresspeople, has sent a letter asking Google to “stop unnecessarily collecting and retaining customer location data” and prevent it from being used to identify people who have had abortions. That data collection could allow prosecutors of the most restrictive states to obtain orders to persecute, prosecute and imprison women who have had abortions inside or outside their state. Good luck with that, Ron.

Due to this legislative change, the information that a woman has stopped menstruating, has left her state and has begun menstruating again after a few weeks can be evidence of the commission of a criminal offence. We live blinded by our naivete. We take for granted that the welfare state, paid vacations, fundamental rights and the rule of law have always been there and that, whatever we do, they are indestructible. We believe that we deserve them because we’re good-looking, because we are worth it, because it is the least that humanity owes us. We imagine that rights are set in stone, immutable. We fail to realize that they are composed of fine, compacted sand, the product of the constant work and bloody struggle of the generations that preceded us. They are so weak that a couple of skillful swipes can dissolve them, sending their microscopic pieces into the wind.

Sometimes, to maintain those rights, we ought to return to the old story.