COLUMBUS, Ohio — Period tracking apps are raising privacy concerns for their users following Ohio's abortion ban — and many consumers reported deleting them.
Menstrual cycle apps are used to help millions of people understand and predict their periods. Since the state implemented the six-week abortion ban on Friday, some users, like Ohioan Angela Lin, say the application they have used for years has to go.
"It was because the privacy concerns that I started reading about with these menstrual tracking apps," Lin said. "Even more so now with the Dobbs ruling."
In a 6-3 decision, the Supreme Court sided with the conservatives in Dobbs v. Jackson Women’s Health Organization. Jackson Women’s Health Organization is the sole abortion provider in Mississippi, which sued Thomas Dobbs, the state’s chief health officer. The clinic sued in 2020 after legislation passed that would prohibit abortions after 15 weeks, with no exceptions for rape or incest.
Mere hours after that decision, Ohio implemented a six-week abortion ban that doesn't have an exception for rape or incest.
Back in 2017, a Mississippi woman named Latice Fisher was indicted for second-degree murder after she experienced a stillbirth. Prosecutors accused her of searching online for abortion medications, according to details in the SCOTUS brief.
"They used that to then prove that she had the intent to commit a crime," Bethany Corbin, privacy attorney, said.
FemTech, or female technology, lawyers cover services specifically focused on women’s health. Corbin is one of the attorneys that specialize in menstrual cycle apps.
"If law enforcement gets access to that reproductive health data, then they can use it to show, 'yes, this woman had an abortion here or she contemplated an abortion or she went to XYZ company and the only reason to go there is to get an abortion,'" she said.
Learning that her data could be subpoenaed by the government made her delete her app, Lin said.
"We have to be really careful, especially with the new knowledge that our personal data could be used against us in any future cases regarding abortion, the fact that prosecutors can subpoena the apps that are on our devices, including these menstrual trackers, and use that against us," she said.
Corbin shared that most likely all period trackers don’t fall under HIPAA privacy protections — but it's not just subpoenas that can reveal data.
"To a large extent, these FemTech companies can do whatever they want to with the data as long as they are being transparent about how they're using and disclosing it in their privacy policies," the attorney said.
But unlike other red states, Ohio’s abortion laws do not prosecute against the pregnant person.
Consumers can use these products, but abortion providers or advocates organizing services could be prosecuted for their online activity, Jessie Hill, a reproductive care lawyer, said.
"Even though the individual person who's pregnant is not subject to prosecution, that doesn't apply to people who might help them," Hill said.
She does want to give a warning to users, though.
"Just because the law doesn't say that people can be prosecuted for this conduct doesn't mean that prosecutors aren't going to try," the expert said. "There can be prosecutors who are maybe misinformed about the nuances of the law, who may be seeking to push the envelope, who still may try to initiate these prosecutions."
Even if the case is dismissed, once someone has been arrested, that could be a "difficult and damaging process," she said.
Cybersecurity could also become a larger concern, Corbin said.
"A hacker could identify some of that data, they could go to that individual woman and say, 'I've got your health data here, it shows that you had an abortion on X date and if you don't pay me money, I'm going to take that to law enforcement and they're going to come after and criminalize you," the attorney said.
Basically, it raises the stakes for ransom, she added.
"It's really heartbreaking," Lin said. "We have more resources that are at our disposal, but we have less rights than Americans 50 years ago."
Popular app Clue said since they are a European company, they are able to not disclose the information. Their full statement is below.
"We have received messages from users concerned about how their data could be used by US courts if Roe vs Wade is overturned. We completely understand this anxiety, and we want to reassure you that your health data, particularly any data you track in Clue about pregnancies, pregnancy loss or abortion, is kept private and safe.
Keeping Clue users’ sensitive data safe is fundamental to our mission of self-empowerment, and it is fundamental to our business model, too – because that depends on earning our community’s trust. In addition, as a European company, Clue is obligated under European law (the General Data Protection Regulation, GDPR) to apply special protections to our users’ reproductive health data. We will not disclose it."
After being accused of sharing user data with outside data analytics providers, while assuring the information would be kept private, Flo Health settled with the Federal Trade Commission in 2021, the FTC said. The site allegedly shared data with Facebook and Google, among others.
Since then, they have updated their privacy policy. In the wake of the Roe v. Wade decision, the team tweeted that they will be adding an anonymous mode so that no one can be identified.
However, they "may also share some of your personal data" if they are subpoenaed, their privacy policy said.
Apple Health stated that although they share with third parties, users can opt-out at any time. Data is also encrypted, their privacy policy said. However, they will comply with law enforcement and will review "all legal requests to ensure that there’s a valid legal basis for each request."
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