Could online or app data be used against women seeking abortions?

A Chandler attorney says online and tracking data could be subpoenaed in an abortion lawsuit.
Published: Jul. 8, 2022 at 8:01 PM MST
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PHOENIX (3TV/CBS 5) — Could a simple Google search about abortion lead to trouble with the law? Big tech companies are now facing questions about data privacy regarding internet searches or information stored in apps. If somebody suspects you got an illegal abortion, any of that could come to light in court, and now the White House is warning people of these possibilities.

So many people track their health on apps on their smartphones but tracking things like your menstrual cycle or when you’re ovulating could be a problem if it comes to an abortion lawsuit. “Cellphones, perhaps an Apple watch or a Fitbit watch, there are so many trackers that we use,” said Chandler attorney Tom Ryan.

They’re great for convenience, but now there’s a warning from the White House when it comes to using apps to track your menstrual cycle. “I wouldn’t say we’re directing people, but I think people should be really careful about that,” said Jennifer Klein, with the White House Gender Policy Council. The reason why is about protecting your privacy. The fear is women who live in states that criminalize abortion could face charges when seeking an abortion, and data from those apps or internet searches could be used as evidence against them.

“It definitely plays into Arizona women,” said Ryan. “There’s (sic) no exceptions for medical abortions. You could be subject to a subpoena if somebody found about out about that. And we have an attorney general Mark Brnovich who has indicated he’s going to go after, this no exceptions,” Ryan said.

Ryan said this affects many religious families in Arizona. “There are a lot of conservative women, evangelicals and Catholics who engage in ‘natural family planning.’ Natural family planning works because they can keep track of their body temperature and menstrual cycle,” Ryan said.

And many families use cell phone apps to track that. Once your data is subpoenaed, Ryan said it’s out there and it’s not likely you get it back. “If somebody turns you in, the next thing you know you’re in a lawsuit. Subpoenas are flying for your health care data. This is the danger for what’s going on here,” Ryan said.

Because laws are changing in many states over abortion right now, Ryan said we can expect to see a lot of lawsuits come about - including here in Arizona. “What rights of privacy do you have, and what rights of privacy do you lose when you’re pregnant? Those are issues that have not been resolved and there’s going to be a lot of litigation both in state court and federal court to answer those questions,” Ryan said.

Some tech companies and apps are trying to address this issue now. The app “Flo,” the leading menstrual cycle tracking app with more than 240 million users, announced an anonymous mode last week where users can enter data without adding their name or email. But Ryan said because all of this is so new, many big tech companies haven’t come up with a plan yet.