Many American women in recent days have deleted period tracking apps from their cellphones, amid fears the data collected by the apps could be used against them in future criminal cases in states where abortion has become illegal.
The trend already started last month when a draft supreme court opinion that suggested the court was set to overturn Roe v Wade was leaked, and has only intensified since the court on Friday revoked the federal right to abortion.
These concerns are not baseless. As with various other apps, cycle trackers collect, retain and at times share some of their users’ data. In a state where abortion is a crime, prosecutors could request information collected by these apps when building a case against someone. “If they are trying to prosecute a woman for getting an illegal abortion, they can subpoena any app on their device, including period trackers,” said Sara Spector, a Texas-based criminal defense attorney, and ex-prosecutor.
“But every company has their individual storage and privacy policy about how they use and how long they store data,” Spector added.
Cycle trackers are popular for a reason. Nearly a third of American women have been using them, according to a 2019 survey published by the Kaiser Family Foundation. They have helped make women’s lives easier in many ways, from family planning and detecting early signs of health issues to choosing the perfect time for a holiday.
A 2019 study published in the British Medical Journal (BMJ) found that 79% of health apps available through the Google Play store that were related to medicine, including apps that help manage drugs, adherence, medicines, or prescribing information, regularly shared user data and were “far from transparent”. But many of the big players have made progress over the past years.
Two of the most popular period trackers in the US, Flo and Clue, have more than 55 million users combined. The Berlin-based app Clue said it was “committed to protecting” users’ private health data and that it was operating under strict European GDPR laws. The company’s website says the app collects device data, event and usage data, in addition to a user’s IP address, health and sensitive data it may use for the purpose of improving the app, the services, and preventing abusive use of its service. But Clue does not track users’ precise location, and says it does not store sensitive personal data without a user’s explicit permission. The company also tweeted that it would have a “primary legal duty under European law” not to disclose any private health data and it would “not respond to any disclosure request or attempted subpoena of their users’ health data by US authorities”.
But just because data is being processed by a European company, doesn’t mean that it is entirely immune from US prosecution, said Lucie Audibert, a lawyer at Privacy International, a global NGO that researches, litigates and advocates against abuses of technology and data by governments and corporations.
“The fact that GDPR applies is not that relevant in this case. When it comes to a legitimate legal request from US authorities European companies usually comply. Also, a European company may be hosting data outside the EU, making it subject to different legal frameworks and cross-border agreements,” Audibert added. She also stressed that using a Europe-based app won’t protect women from the courts requesting data from them directly. But it can be a slightly better option than using a US-based one because US companies are more easily compelled to comply with American authorities and courts’ requests. Enforcement is more difficult against European ones.
Flo has come under fire for sharing its users’ data before. The company says on its website it only uses data “for research activities” and that it only uses “de-identified or aggregated data, which cannot be associated” with specific users. But an investigative piece by the Wall Street Journal has found that the app informed Facebook when a user was on their period or if they intended to get pregnant. In 2021, the Federal Trade Commission (FTC) reached a settlement with Flo. Under the settlement, Flo must undergo an independent review of its privacy policy and obtain user permissions before sharing personal health information. Flo did not admit any wrongdoing.
On Friday, Flo announced that it will soon be launching an “Anonymous mode” that can help keep users’ data safe in any circumstances.
The company did not respond to a request for comment.
A relatively new, astrology-focused period tracker, Stardust, became the most downloaded free app on iOS in the days after the supreme court’s decision. Stardust’s Twitter bio says it is a “privacy first period tracking app”. But as Vice News reported, the company stated in its privacy policy that if authorities ask for user data, it will comply, whether legally required to or not. It said that the data was “anonymized” and “encrypted”.
“We may disclose your anonymized, encrypted information to third parties in order to protect the legal rights, safety and security of the company and the users of our services; enforce our terms of service; prevent fraud; and comply with or respond to law enforcement or a legal process or a request for cooperation by a government or other entity, whether or not legally required,” their privacy policy stated as of Monday.
Following Vice’s request for comment, Stardust changed its privacy policy to omit the phrase about cooperating with law enforcement “whether or not legally required” to “when legally required”.
Stardust did not immediately respond to a request for comment.
Planned Parenthood encourages people to use their app Spot On. “People who want to track their periods and birth control always have the option to remain anonymous by using the Spot On app without creating an account,” the organization said in a statement. “This way, period or birth control data is only saved locally to a person’s phone and can be deleted at any time by deleting the app.”
Third-party apps are not the only option when it comes to period trackers. Apple has a built-in cycle tracker in its Health app that offers more privacy than most external apps. With just a few steps, one can turn off the storing of their health data in iCloud, and it also has the option to store the encrypted data on their computer or phone.
Evan Greer, deputy director of the non-profit advocacy group Fight for the Future, said the best way to protect sensitive health data was to only use apps that store data locally rather than in the cloud. “Because any app where a company [that could receive a subpoena] has access to their users’ data could make it vulnerable for a legal request.”
Eva Blum-Dumontet, a tech policy consultant, said, “It is normal that in times of concern, people are looking differently at technology and apps that we trusted.
“I think when there is a discourse around whether women should delete these apps, we have to think about why they use them in the first place,” Blum-Dumontet said. “These trackers help them manage menstrual cycle when they are experiencing pain.”
Blum-Dumontet stressed that instead of asking users to change their behaviors, “it is period trackers that should change their practices”.
“They should never have owned so much data in the first place. If they adopted practices like storing data locally and minimizing the data to what’s strictly necessary we wouldn’t be having this debate now. It’s not too late for them to do the right thing,” she said.
“The companies that have been making a profit out of women’s bodies need to think very carefully about how they will protect their users,” she continued. “They haven’t all been the best in the past when it comes to data sharing. The only way they 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,” she said. “If any of these apps will be used in court against their users, it will not be good PR for them.”
Melissa, a 27-year-old mother from Texas who is goingby only her first name to not jeopardize her employment, said she deleted the app because she fears that when she travels, her state could use her missed period data against her.
“I will miss using the app so much. I have used it for so many things, like tracking my ovulation or predicting my mood changes. Sometimes I wake up feeling irritable, and I don’t know why until my app tells me that this could be normal at this point of my cycle,” she added. Melissa also says she would have loved to use it for future conceptions, but now she can’t.
Although much of the warnings on Friday were focused on just period trackers these are not the only apps that can be used against users when it comes to criminal prosecution, experts warned.
“Google Maps or a random game on your phone could just as easily be weaponized against someone as a menstrual tracking app,” Greer said. “While we need to educate each other and take precautions, it’s not OK to put the responsibility solely on individuals. Companies and lawmakers need to act immediately to protect people.”
The concerns over period tracking data are part of a broader conversation about the amount of personal information smartphones collect. Women’s rights organizations all over the world are warning users to be more mindful of their digital presence, not just when it comes to period trackers.
Cycle tracking apps can be hugely useful for many women, said Jonathan Lord, UK medical director for MSI Reproductive Choices. “But all data can be used against you.”
According to Lord, this danger will remain until “we treat abortion like all other healthcare – regulated like all other medical procedures, but not criminalized”.
