Data Privacy in a Post-Dobbs World
On June 24, 2022, the Supreme Court overruled Roe v. Wade.[1] Close to fifty years of precedent reversed, and individuals throughout the country entered a new legal landscape in which reproductive rights differed state to state. In preparation for the Dobbs decision, states implemented trigger laws to curtail access to abortion upon the Court’s reversal of Roe.[2] Since Dobbs, access to reproductive healthcare has significantly dwindled, as thirteen states now ban abortion.[3] Furthermore, states like Louisiana have implemented criminal convictions for individuals that either obtain or assist in abortion care.[4] May information on period tracking apps be used for such convictions, and how may this information be protected through the apps? Questions are now arising regarding period tracking apps, the data they store, and how that information may be used in states which plan to criminally prosecute individuals for abortion care.
On June 22, 2021, the Federal Trade Commission (“FTC”) announced a settlement with Flo, a period tracking application.[5] The FTC alleged “that despite promising to keep users’ health data private, Flo shared sensitive health data from millions of users of its Flo Period & Ovulation Tracker app with marketing and analytics firms, including Facebook and Google.”[6] Flo did not admit to guilt.[7] As part of the settlement, Flo agreed to ensure it did not misrepresent; “the purpose for which it (or entities to whom it discloses data) collect, maintain, use, or disclose the date; how much consumers can control these data uses; its compliance with any privacy, security, or compliance program; and how it collects, maintains, uses, discloses, deletes, or protects users’ personal information.”[8] Of note, Flo has about 43 million active users.[9]
As individuals navigate the ever-changing landscape of reproductive healthcare, one may wonder how to protect their private health information. When choosing between different period tracking applications there are a few options individuals may take into consideration, such as whether the information is stored locally, third party tracking, location tracking, and data tracking rights.[10] Additionally, one may consider data deletion rights and pseudonym accounts.[11] Another consideration is whether the application is developed in the United States or abroad, as data privacy laws and regulations differ across the globe. Specially, the European Union has stronger data privacy protection for consumers than the United States.[12] For example, a period tracking app based in the European Union likely has more data protection than applications created in the United States.[13]
Navigating these uncharted waters may be overwhelming, as individual’s may be inundated with how to choose which methods they use to track their menstrual cycles. In an ever-changing legal landscape, consumers should first research as to whether abortion is legal in their state and whether it may be criminalized. One data privacy aspect that may keep sensitive information safer is if the data is stored locally, as that means the consumer owns the data on the device.[14] When considering all of the available options, writing reproductive health information down on paper may be the safest option.[15] As abortion rights continue to change state by state, we may soon see how law enforcement and the courts handle this private information on period tracking apps. For now, taking control of how one’s personal data is shared is the first step to ensuring data privacy in a post-Dobbs world.
Footnotes
