May 20, 2022 – If Roe v. Wade is overturned, can criminal prosecutors or tech companies use smartphone data against someone?
Now that the future of U.S. abortion laws hangs in the balance, many women are questioning the degree of caution needed to keep their cyber activity confidential – especially period and fertility tracking apps, smartphone location data, and social media interactions.
Cybersecurity and legal experts say the answer largely boils down to one major issue: the right to privacy.
“There’s this notion of the expectation of privacy,” says Brad Malin, PhD, a professor of biomedical informatics, biostatistics, and computer science at Vanderbilt University in Nashville.
Malin says it’s directly related to bodily privacy that a person expects they have control of as part of their own environment.
According to Malin, this is “why this whole notion of Roe v. Wade at the present moment is really relevant. The right to privacy is mentioned about a dozen times within the law for the case.”
“This is why we don’t know what’s going to happen with Roe v. Wade, but it worries a lot of privacy professionals,” he says. “It leads down this slippery slope of if you don’t even have control over your own body, then with electronic communications … we might as well not even start.”
The Fourth Amendment of the U.S. Constitution protects people against unreasonable searches and seizures.
To acquire cyber data that could be used as evidence in courts in states where abortion is deemed a crime, prosecutors would still have to go through standard criminal procedures, says Anthony Michael Kreis, JD, a constitutional law professor at Georgia State University.
But the data they do get could still be used in court against someone who is suspected of having had an abortion or who “miscarried under circumstances law enforcement officers found suspicious,” Kreis says.
And there’s another possibility, he says: states holding women who end their pregnancies criminally or civilly responsible for “leaving their jurisdiction to obtain an abortion out-of-state.”
“That legal mechanism may abridge the constitutional right to travel, but it is not out of the realm of possibilities in a post-Roe America,” says Kreis.
But while many anti-abortion groups have said that criminalizing abortion or limiting access to contraception is not the end goal, “history is not promising here,” says Ellen Wright Clayton, MD, JD, a professor of pediatrics and professor of law at Vanderbilt University.
She refers to a recent proposal from lawmakers in Louisiana to classify abortion as homicide.
The bill didn’t get far in the House of Representatives, but the concern is warranted, says Clayton.
Period and Fertility Tracking Apps
Health information privacy laws, like the Health Insurance Portability and Accountability Act (HIPAA), do not protect information on period and fertility tracking apps.
Right now, there are no signs that people plan to use period and fertility tracking data to advance a pro-choice agenda, according to Adam Levin, JD, a cybersecurity expert and host of the podcast “What the Hack with Adam Levin.”
Still, a cycle tracking app “created by a company owned by an anti-abortion activist” is totally feasible, says Levin and Beau Friedlander, the co-host of Levin’s podcast.
If you want to ensure your data is safe from such meddling, you may want to delete your app, they say, noting that using the notepad feature on your smartphone could be a safer alternative, as could using old-fashioned pen and paper.
You don’t have to stop with period and fertility tracking apps, either.
For any apps you share personal information with, set privacy settings “as tightly as possible” – and reconsider using apps if these options are unavailable, Levin and Friedlander say.
“Make sure that company is not engaging in social or political activism that does not align with your politics.”
New York State Attorney General Letitia James also recently spoke on the topic, noting on May 13 that “people use fertility tracking apps and location services every day, but if they’re not careful their personal information can end up in the wrong hands.”
“With abortion rights in jeopardy, it’s more important than ever that everyone take their digital privacy seriously,” she said. “I urge everyone, especially those visiting abortion clinics or seeking abortion care, to follow the tips offered by my office and be more careful of the apps and websites they use.”
The New York State Attorney General’s Office recommends women use encrypted messaging when communicating about personal health information or behaviors, and to be careful about what they share on social media posts. The office also suggests turning off location and personalized advertising options on their smartphones.
Cellphone Location Data
Malin says there are several ways that location services could be used to track where a woman uses her smartphone. An app could track locations if someone grants permission through the app end user agreement, for example.
A second but less likely scenario would be the service provider tracking the pings coming off cellphone towers to find a smartphone.
So what recourse does a woman have if tracked by a third-party app?
“It’s a really tricky situation there because it depends on if the individual was put expressly in harm’s way,” Malin says. What’s more, tracking someone out in public is not prohibited in general.
“There’s a big difference between documenting what an individual does within a Planned Parenthood versus what they do outside of it,” he says.
Malin thinks it’s better that regulations protect all smartphone users rather than requiring each person to remember to turn off their location tracker and then turn it back on again. Also, it should be more of an opt-in situation – where app developers must ask permission to track app usage or location services – versus making each woman opt out.
Think Before You Share
Vindictive or untrustworthy partners and family members of women in abusive relationships could also be a cause of concern, says Kreis.
“Individuals within a woman’s closest circles could hold abortions over their head or threaten reporting them for reproductive health care or miscarriages,” he says.
It’s not uncommon for women to experience domestic violence after having an abortion, particularly if their partner was unaware they had the procedure, according to Clayton.
She says women should also be mindful of what they share on social media.
Clayton gives the example of a woman seeking advice on where to get a safe abortion or how to order certain medications.
“If someone goes online to look for that, that’s potentially dangerous.”
To read about what’s happening with Roe v. Wade and U.S. abortion laws, clickhere.