Fear, Uncertainty, and Period Trackers
By Kendra Albert, Maggie Delano, and Emma Weil.
You have probably been seeing a lot of scary news coverage about period tracker apps and databases, and you might be wondering whether or not you should be deleting your period tracking app. If you use a period tracker, but your threat model does not include the additional risks of say: helping other people get abortions, we don’t currently have evidence of imminent threats of large-scale preemptive investigation of you based on personal health app data. The biggest threat of criminalization is that a third party (like hospital staff or a relative) reports someone to the police for their pregnancy outcome — not that police find their period data in a database.
As researchers and a lawyer working at the intersections of technology, policy, and the law, we have years of experience about how individuals collect data about themselves, and how cell phone evidence is used in prosecutions. We can provide context about what you should expect if you currently use a period tracker. (Edited 6/27/22: You can read more details about our analysis and a bunch of the nuance/caveats in our companion explainer.)
TL:DR; Period trackers are not the primary form of digital evidence likely to be used in abortion prosecutions today. If tracking your period is useful to you, you don’t need to stop tracking your period, although you may choose to switch to an app that collects less data and stores it locally, discussed below.
First off, let’s note that there are two key scenarios for prosecutions of abortion that differ markedly in how period tracking information might be used. The first is the case where someone goes to an abortion clinic in a state where that is legal, and returns to a state where abortion is not legal, and is prosecuted for having an abortion out-of-state. The second is if a person has a self-managed abortion (via medication) and is prosecuted for that. These are different scenarios with different risk models. If a person went to a clinic, there may be a variety of evidence from the visit that would indicate their intention to get an abortion. But in the latter case, digital evidence that suggests pregnancy may be the only evidence available to prosecutors, because self-managed abortions are not medically distinguishable from miscarriages.
Prosecutions of self-managed abortions don’t just happen out of nowhere. As Kate Bertash, who runs the organization Digital Defense Fund, has been emphasizing on Twitter for weeks: when we have seen criminal prosecution of people for alleged abortions so far, they have been because someone (a third-party with relevant information) called the police. Usually, it is hospital staff or other individuals (including friends, partners, and relatives!) who know or are suspicious that someone has miscarried for “illegal” reasons. This can also happen at malicious “crisis pregnancy centers” that are run by anti-abortion ghouls. So far, people have been charged with crimes after miscarrying because of suspected drug use (e.g. meth) or suspected abortion medication, or after being the victim of physical violence. Black and Indigenous people of color and people in poverty are most likely to be scrutinized for their pregnancy outcomes, and many of the prosecutions have been of Black and Latina women, as Michelle Goodwin discusses in her book Policing the Womb: Invisible Women and the Criminalization of Motherhood.
Once police get involved in investigating the outcome of someone’s pregnancy, they will likely want to search the person’s cell phone. Thousands of law enforcement agencies across the country have access to cell phone search equipment, which can bypass many security features in order to extract all data from a phone (though there are ways to protect yourself, discussed below). These search tools are used routinely in all types of investigations, and can be the most convenient way for police to gather digital evidence about someone (instead of waiting for a subpoena or warrant to get data from a third party company, like a period tracking app — although a phone may reveal to police that someone has accounts on various services, to which they might then send legal demands).
In their investigation, police try to find evidence that someone intended to miscarry, or was otherwise endangering the viability of their pregnancy. This is because a medical abortion presents the same way as a miscarriage, and prosecutors must prove intent or willful endangerment of an embryo or fetus in order to convict someone (though being arrested at all is traumatizing and can cause severe health consequences). Prosecutors must be able to prove their case beyond a reasonable doubt — data from a period tracker app is not enough on its own to prove this, even if it’s relevant.
Taken together, this means the primary digital threat for people who take abortion pills is the actual evidence of intention stored on your phone, in the form of texts, emails, and search/web history. Cynthia Conti-Cook’s incredible article “Surveilling the Digital Abortion Diary” details what we know now about how digital evidence has been used to prosecute women who have been pregnant. That evidence includes search engine history, as in the case of the prosecution of Latice Fisher in Mississippi. As Conti-Cook says, Ms. Fisher “conduct[ed] internet searches, including how to induce a miscarriage, ‘buy abortion pills, mifepristone online, misoprostol online,’ and ‘buy misoprostol abortion pill online,’” and then purchased misoprostol online. Those searches were the evidence that she intentionally induced a miscarriage. Text messages are also often used in prosecutions, as they were in the prosecution of Purvi Patel, also discussed in Conti-Cook’s article.
These examples are why advice from reproductive access experts like Kate Bertash focuses on securing text messages (use Signal and auto-set messages to disappear) and securing search queries (use a privacy-focused web browser, and use DuckDuckGo or turn Google search history off). After someone alerts police, digital evidence has been used to corroborate or show intent. But so far, we have not seen digital evidence be a first port of call for prosecutors or cops looking for people who may have self-managed an abortion. We can be vigilant in looking for any indications that this policing practice may change, but we can also be careful to ensure we’re focusing on mitigating the risks we know are indeed already being used to prosecute abortion-seekers.
But should I stop tracking my period?
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. And in the meantime, making appropriate risk decisions depends on understanding the threats we face.
As we’ve discussed above, just tracking your period doesn’t necessarily put you at additional risk of prosecution, and would only be relevant should you both become (or be suspected of becoming) pregnant, and then become the target of an investigation. Period tracking is also extremely useful if you need to determine how pregnant you might be, especially if you need to evaluate the relative access and legal risks for your abortion options.
It’s important to remember that if an investigation occurs, information from period trackers is probably less legally relevant than other information from your phone. Therefore the most important thing to remember is that you should:
- Follow the Digital Defense Fund guidance on protecting yourself if you believe you might be pregnant.
- Never consent to searches of your phone if it’s at all feasible for you to refuse — police are required to get a warrant! Consent searches are inherently coercive and should be banned.
Given the minimal risk of period tracking being used as part of a prosecution, it does not make sense for most people who find period tracking useful to stop because of Dobbs. If you are not already tracking your period but would like to do so, experts recommend the Euki (iOS and Android), Drip (Android, iOS coming soon) and Apple Health apps (iOS only). These apps store your data only on your device, though Apple Health also has an option to store your data in iCloud (if you have a newer iPhone, Apple cannot provide this data to law enforcement).
If you are already tracking your period using another app, you can use what we discussed above to decide what sort of app you feel comfortable using, and whether you feel comfortable continuing to use your current app. In our companion explainer, we talk in a bit more detail about what the trade-offs are around the choices of using cloud services. One thing to keep in mind is that historical data about your menstrual cycle is relatively low risk, so it is probably okay to keep your old data if you’ve used an app before.
Bonus: Why Period Trackers?
It’s really understandable that so much of the post-Dobbs energy has focused on period trackers, because they’re a tool people trust with very sensitive information. Period tracker usage is also something that is actually within the control of folks who might become pregnant. In a situation where so much of the current state of the abortion landscape is outside the control of abortion-seekers, it may seem really appealing to be able to do SOMETHING. But in the context of criminalization, security is a function of community, not something that is perfectly controlled by an individual. Getting your friends on Signal and auto-deleting your groupchats where you might talk about buying abortion pills is a more useful step, but it’s also harder. As Zeynep Tufecki said in her NYT piece discussing privacy implications of Roe: “Frantic individual efforts to swat away digital intrusions will do too little.”
Additionally, as Kate Bertash has made clear, “period trackers might snitch on you” is a novel fear that caught media and public attention. But pregnancy outcome criminalization and cellphone consent searches are not new, and they primarily affect the most marginalized. And while it’s important to be aware of new threats, abortion providers have been organizing for decades to evaluate and manage risks, and can tell us what’s actually worth our energy.
Are you still concerned or want more specific information on issues with digital evidence? We have a more detailed explainer here. Also, always a good time to give to an abortion fund: https://abortionfunds.org/.
Thank you to Riana Pfefferkorn, Gennie Gebhart, and Kate Bertash for their review and comments.
