HIPAA laws do not cover cycle tracking apps, which means, in theory, data collected by them could be used to prosecute violations of abortion laws in states where that medical procedure is illegal. There has been no indication that prosecutions of this kind will take place in states where abortions are illegal, and if there is an appetite for criminalization what thresholds prosecutors will set to trigger them.
The worry is legitimate. There is precedent for consumer data willingly submitted—in this case DNA from a genealogy test—being used in the prosecution of a murder case. That’s how the Golden State killer was finally brought to justice. Right now, the idea of an abortion law prosecution based on cycle tracking data seems dystopian because abortion as been federally protected for decades. The Handmaid’s Tale meme are not too far off the mark. Things could get very dark, and prosecutions would be a part of that. Bottom line: It’s not entirely outlandish for people living in states where abortion is illegal to be concerned about using a cycle tracking app.
It may be possible to restrict the way your data is shared, but that information will be buried in legalize in an app’s terms of service.
Another consideration has to do with the development company offering the cycle tracking app you use. Some companies may be just in the business of providing a service, while another may be in the business of enabling as many babies to be successfully propagated as possible. Companies with owners who push a conservative, sometimes even activist, agenda make news all the time. It’s entirely possible that there’s a cycle tracking app that was created by a company owned by an anti-abortion activist. If you use that app, and the laws support prosecution in the state where you’re using it, there’s a reasonable hypothetical to posit where an anti-abortion entrepreneur provides data to an activist prosecutor.
How do you avoid this as yet tenuous possibility? Don’t use the trackers. Use the notepad feature on your smartphone, or pen and paper. Very few people need to know your cycle information, and third party app is never one of them.
There is a silver lining here: Take this opportunity to practice better cyber hygiene. If you are using an app and are concerned about the way your information could be shared, do your homework. Read the reviews (and Terms of Service regarding third-party data sharing if you have a law degree). Search for stories about the developer. Set your privacy settings tight no matter what, and don’t use an app that doesn’t have privacy settings. Don’t overshare on social media. And when you are thinking about using an app that will have access to your sensitive personal information, make sure that company is not engaging in social or political activism that does not align with your politics and/or worldview.
