Online health data could be used to prosecute abortion, experts say

Published: Jul. 4, 2022 at 6:08 AM MST
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(CNN) - In the wake of the Supreme Court’s decision to overturn Roe v. Wade, experts warn that data collected from fertility apps and Google searches could be used to prosecute abortion.

“There is no difference in the data from your reproductive choices and the pair of shoes you looked at online. It’s treated exactly the same in the law right now, and that’s what the problem is,” director of federal affairs for Electronic Frontier Foundation India McKinney said.

As states tighten their abortion laws, prosecutors could go after people seeking an abortion or those helping them by subpoenaing data linked on fertility apps, period trackers and on internet searches.

Companies currently sell that kind of data, mainly to advertisers, because it is profitable.

“Data brokers. Law enforcement buy information from them all of the time. It could be used to incriminate us for women and girls who obtain abortions in violation of state laws and it can be used to land people in jail,” McKinney said.

Fertility and period tracking apps have some of the most sensitive reproductive information.

Since Roe v. Wade was overturned, Flo, a period tracking app which says they have 240 million users, announced an “anonymous mode,” where users will be able to limit their personal information. Members are encouraged to reach out to the company if they want their historical data removed.

Elina Berglund Scherwitzl, founder and CEO of Natural Cycles, also spoke about anonymous mode for the app.

“We are making sure that our anonymous mode at Natural Cycles will be impossible for us to connect the personal data and the sensitive data. This will be encrypted,” she said.

Natural Cycles is a subscription, FDA-cleared birth control app.

“We have very sensitive data on unintended pregnancies, but we are very much in control of that analysis and of that data,” Scherwitzl said.

CNN reached out to nearly a dozen big techonology companies about how they would handle data requests through subpoenas and warrants from law enforcement targeting abortion-seekers, and some did not respond at all or directly to the question.

Apple says health data is encrypted when two-factor authentication is enabled. Meta says “we comply with government requests for user information only where we have a good-faith belief that the law requires us to do so.”

“They could fight warrants in court, but if the warrants are upheld, they’re gonna be ordered to comply,” University of Virginia law professor Danielle Citron said.

Some legal experts do not belive that even “anonymous mode” data is fully protected and say the only way to fully protect privacy is through federal law limiting the data companies collect, store and sell.

“There’s a lot of panic right now, and I think rightfully so about the feeling and the ability to trust and expect that the information about most sensitive information about our bodies and our relationships and our health is ours,” Citron said.

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