In the post-, there’s been a lot of understandable conversation around period privacy. Experts have warned that in an effort to crackdown on self-managed abortions—which are medically indistinguishable from miscarriages—law enforcement can and will subpoena information to be used as evidence of a terminated pregnancy. That includes data found in period tracking apps.
“In the states where abortion has been or will soon be banned, any pregnancy loss past an early cutoff can now potentially be investigated as a crime,” wrote Jia Tolentino in The New Yorker. “Search histories, browsing histories, text messages, location data, payment data, information from period-tracking apps—prosecutors can examine all of it if they believe that the loss of a pregnancy may have been deliberate.”
Previously, it was mostly providers who were prosecuted for offering abortion services. But as tech lawyer Kendra Albert notes in their viral Medium piece about digital surveillance, we’re in uncharted waters now that Roe v. Wade has been overturned. “We should live in a world where folks are not forced to trade off their ability to use tools to know their own bodies against either corporate or government surveillance, but unfortunately, we’re not quite there yet,” they wrote. “And in the meantime, making appropriate risk decisions depends on understanding the threats we face.”
The fear that the legal system will subpoena data from period trackers to prosecute people for having illegal abortions is understandable and valid: Law enforcement has pulled evidence from tech (like iPhones) when prosecuting criminal cases before. Plus, police forces have their own decrypting programs, which are used in all 50 states, per .
Cindy Duke, a physician and fertility expert, says there is already precedent for period apps sharing their data for marketing purposes. She points to tracking app Flo and Facebook as examples of companies that collect user data and share it with third parties. “The worry is that this data can get into the hands of law enforcement who—if they’re motivated enough—could then go in and search to see who’s had a missed period or pregnancy,” Dr. Duke says. “Oklahoma has this law in place where anyone can report you if they suspect you’ve had an abortion or you left to go out of state to have an abortion done. Your period tracking app can be subpoenaed as evidence.”
It sounds scary, but the good news is it’ll take a lot more than one missed period logged in your app to prosecute you. Here’s everything to know about your period tracking app after the fall of Roe v. Wade.
Can you be prosecuted based on your period tracking activity?
Yes and no. While experts agree that it’s possible, the chances of your app providing sufficient evidence on its own to prosecute a provider or patient is slim. “The thing about period tracking information is that it’s circumstantial,” Albert says. “There are plenty of reasons why people don’t update their period tracker—one of them might be pregnancy, but one of them might be they just forgot.”
However, what can be dangerous is your digital evidence as a whole: text messages, search queries, etc. Albert says courts are much more likely to use direct proof of intent to abort rather than period trackers. “In a criminal case, prosecutors have to be able to prove their case beyond a reasonable doubt,” Albert says. “It doesn’t mean it would never get introduced, but I think generally, if the evidence from your period tracker is the best evidence that a prosecutor has on you, that’s a pretty good position to be in.”
What are apps doing to protect users’ privacy?
Following the overturn of Roe v. Wade, a number of period tracking apps have publicly committed to being more transparent about how and where their data is being used. One of these, Stardust, rose to the top of the Apple app store for its strict privacy policies, which includes an encrypted wall between users and their personally identifiable information. “If the government issues a subpoena to find out about your menstrual tracking data, we will not be able to produce anything for them,” the company shared in a tweet.
“At Stardust, we rely on several third parties to provide some core features of our application,” Stardust founder Rachel Moranis tells Glamour. “While we believe our data security implementations offer strong enough protection for our users against a government subpoena of their cycle tracking data, we understand that some users wish for even greater measures. It is for this reason we are working on a feature to allow users to opt into ‘local only’ mode, which will allow them to use the application fully anonymously without account creation and without any written transactions to our or any third-party services.”
Since the fall of Roe, a number of period tracking apps, including Flo and Clue, have announced they’re also taking additional measures to protect their users’ privacy.
So, for people who do need to use the apps, what’s the safest thing to do?
While data-encrypted apps like Stardust do exist, Albert recommends period trackers that run specifically on your device and don’t place your data in the cloud, like Euki or Drip. “They are relatively basic apps that are meant to just provide you with that information locally,” explains Albert. “What that means is that a third-party provider can’t provide that information to law enforcement if they don’t have it.”
Adds Albert, “Folks are in a better position if the company that makes their period tracker is not in the United States and have committed to not responding to legal process related to abortions.”
