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Could this data be used in a criminal prosecution?
The short answer is yes.
“It’s almost surreal that in some states using a period app could get you into trouble,” said McGraw. “But if an abortion is a crime, it could be accessed in building a case against you.”
This depends on where you live, but there are no federal protections against that happening from a privacy standpoint, she added. Last year, Sen. Ron Wyden (D-Ore.) introduced the Fourth Amendment Is Not For Sale Act, which would prohibit data brokers from selling personal information to law enforcement or intelligence agencies without court oversight. But the legislation has yet to make it to a vote.
Wyden told KHN he was “absolutely” worried about the chance that people who seek an abortion could be incriminated by their phone data.
“It is really an ominous prospect of women having their personal data weaponized against them,” said Wyden. “These big data outfits,” he said, “gotta decide — are they going to protect the privacy of women who do business with them? Or are they basically going to sell out to the highest bidder?”
In the absence of a federal law, if law enforcement does get a court-ordered subpoena, it can be difficult for a company to resist handing over data related to a specific case.
“Given the breadth of surveillance laws in the U.S., if a company collects and keeps information, that information is susceptible to being compelled by law enforcement,” said Amie Stepanovich, a privacy lawyer and vice president of U.S. policy at the Future of Privacy Forum. “They don’t necessarily have the ability to legally keep that information from law enforcement once the proper process has been undertaken.”
Still, even in states with strict abortion limits on the books, much depends on how those laws are structured. Last month, for instance, a murder charge against a Texas woman for a “self-induced abortion” was dismissed after the district attorney found it did not violate state law, which criminalizes providers performing abortions, not the patients.
If Roe v. Wade is struck down, 14 states have so-called trigger laws that would automatically go into effect and ban abortion outright or after set windows of time — for instance, six weeks or 15 weeks, according to a KFF analysis.
“It’s really complicated under the hood, but I don’t think people should blindly assume their data is safe from legal process,” Savage said. It can depend on the company’s approach to subpoenas, she added. Some will fight them while others will not.
Take Apple, for example, which repeatedly resisted unlocking iPhones for law enforcement in high-profile cases like the 2015 San Bernardino shooting. Data in Apple’s health app, which includes its period tracker, is “encrypted and inaccessible by default,” according to the company’s privacy policy. All the health data in the app is kept on a person’s phone, not stored on servers. But at the same time, Savage said, people who are in low-income communities don’t always have an iPhone because it is an expensive piece of equipment.
Ovia’s privacy policy says the company may give data to law enforcement if required by law or subpoena. The company, however, said in a statement that it has “never provided Ovia user data to any government, nor have we ever received any government requests for access to Ovia user data.” There is also an option in Ovia’s account settings to delete account data “entirely and permanently.”
Despite safeguards in place under the GDRP, period trackers based in Europe can still be subpoenaed as well, said Lee Tien, a senior staff attorney at the Electronic Frontier Foundation.
“Even [European Union] companies are subject to the U.S. legal process, though it would take longer,” said Tien. “The U.S. has mutual legal treaties with other countries, including E.U. countries, and law enforcement knows how to exchange information.”
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Has this kind of information been used by public officials or law enforcement before?
Officials holding anti-abortion views have leveraged period-tracking information in the past. In 2019, former Missouri state health director Dr. Randall Williams obtained a spreadsheet tracking the menstrual periods of women who visited Planned Parenthood in an effort to identify patients who had experienced an abortion that failed to terminate the pregnancy.
During the Trump administration, former refugee resettlement chief and anti-abortion activist Scott Lloyd admitted to keeping track of the menstrual cycles of teen migrants in an effort to stop them from getting abortions.
“We are now thinking of period trackers the way we’ve been thinking of facial recognition software for years,” Savage said.
Should you delete your period-tracking app?
Experts said it’s unlikely that a period-tracking app would be the sole piece of evidence used if someone were building a case against you for seeking an abortion.
“Frankly, I think if law enforcement or a civil investigator were trying to figure out who is having an abortion, there are probably several other venues that are more realistic or more immediately useful,” said Stepanovich. “They would likely get a dump of information for the relevant data,” she continued, “such as trying to get the location information of everyone that got dropped off close to an abortion center, which is a much smaller set of data, or getting people who called abortion hotlines at certain times.”
Stepanovich added that as long as someone is using a smartphone with any type of app on it there is a risk that data could be obtained and used as part of a criminal or civil prosecution. Bottom line: The only way to avoid risk altogether is to not use a smartphone.
But McGraw took a more cautious approach: “If I lived in a state where I thought that data might end up in the hands of law enforcement, I wouldn’t track [my period] at all.”
Ultimately, people who use period-tracking apps should be aware of the risk of using the technology while considering the benefit it brings to their life.
“You have to think about what you need in terms of period tracking,” said Tien. “You have to weigh and ask yourself, ‘How much does this convenience really matter to me?’”
Kaiser Health News is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.
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