A Vicious Cycle: Yes, Your Fertility and Cycle Tracking Apps Can Be Weaponized Against You in Court

By: Sarah E. Hunt and Meghan S. Bishop

In the popular murder mystery podcast, To Live and Die in LA, the host (Neil Strauss) and a private investigator helped crack a 2018 murder case by accessing valuable information on the suspect’s phone. Google tracked nearly every mile of road the suspect drove and every gas station in which he stopped. The investigators were able to retrace footsteps he took the day of the crime—and, spoiler alert—the information ultimately took them to the victim’s grave.

While smartphone data has successfully convicted murderers and criminals in court, and this sounds like a win for justice, we shouldn’t get too excited. The cost of data surveillance is much greater than a violation of constitutional rights: it can lead to wrongful convictions. If private information that is gathered by tech companies and handed over to the courts can be used to convict criminals, it can also be used to convict innocent people.

Women in particular should be aware that a new app poses a serious threat to them in court: Apple Watch’s new menstrual tracking feature, Cycle. This app allows women to track their menstruation, related symptoms, and sexual activity in order to identify regular symptoms, predict future periods, and spot fertility windows. Most people don’t consider what the government might do with their app data, let alone that this private information may be used in criminal proceedings.

If a woman is raped and presses charges against her attacker, the information on the fertility tracking app combined with location and other data collected by the phone could be used as evidence in the criminal proceeding. Say the victim didn’t record her rape in the app, accidentally recorded it on the wrong day, recorded her rape as sexual intercourse rather than noting it as rape, or didn’t accurately report the date, time, or location of the rape? This could be used against her credibility.

Another unfortunate scenario in which a woman’s fertility app data may be used against her in court is if she has a miscarriage and is falsely accused of abortion. Several states passed heartbeat bills and abortion bans in 2019.  Three states criminalized doctors performing abortions, leading some to worry that pregnant women themselves may one day be exposed the criminal liability for abortion in the United States. In cases where the government prosecutes a woman’s physician, her privacy may be violated if the fertility app data — including sensitive details about her sexual activity — is subpoenaed. Apple has pledged that the data collected by the app will be encrypted and they will not sell it to third-parties, but this pledge protecting a woman’s privacy does not extend to the courtroom.

Say an abusive partner wants a miscarriage criminally investigated for the purposes of harassing his former partner, or to have an excuse to see her in court. If the accused woman didn’t mark “miscarriage” on her fertility app and that data is seized in court, how much more easily might her doctor or herself be criminally or civilly liable for abortion? Will she then have to prove it was a miscarriage and not a black-market abortion?

HIPAA, which provides protections over people’s health information, can apply to apps in some cases, such as Apple’s Cycle, when a physician is involved in monitoring the data. Patients are frequently unprotected by HIPAA in court because a valid court order will compel a company to provide the woman’s health information, even over her objection. HIPAA often gets written off in disclosures to use electronic options for information sharing, too, so depending on the privacy policy of your fertility tracking app, HIPAA may not apply even if your doctor is involved in your use of the data. If HIPPA can’t even protect a woman’s reproductive data privacy in court, current legal boundaries are minimal at best.

The moral question is not whether or not we like using smartphone data to convict the bad guys. If we could possibly keep it to that, surveillance might be a lot less controversial. The moral question is where to draw the line on mass state surveillance of female fertility. Under what other circumstances can Apple be forced to share this data with governments? Women should not have to fear that using technology to inform decisions about reproduction could be used against them and expose them to legal liability, drag intimate details of their reproductive life into open court, or be used against them by governments with fertility agendas – whether it is a pro-natalist state like Hungary promoting childbearing or the inverse, a population-control state like China, enforcing its two-child policy.

Fertility and cycle tracking apps provide important information to women about an essential part of their health, but each woman must weigh for herself whether the increased risks of privacy breach or criminal liability are worth the benefits of using the app. Until women have legal protections in the courtroom from the abuses of government and corporate data surveillance, they should consider opting-out of fertility applications or at least using a fertility app that does not require the creation of an account with personal identifying information.

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