How telling your menstrual cycles to an app can land you in jail

I am going to talk to you about menstruation, that lunar physical fact that more than half of the population suffers for almost 40 years of their lives and that the other half is so repulsed by. Calm down, I’m not going to get into the debate about the painful casualties for this concept, I have enough with the puddles that I already step on.

I reformulate. I am going to talk about why bleeding every 28 days, more or less, is related to technology, movement control and the establishment of criminal sanction systems. In short, I am going to talk to you about how we all have something to hide and that this right to legally hide ourselves from the gaze of others, what we call intimacy or privacy, makes perfect sense because we never know if we will end up living, from one day to the next. in a police state. Or in the Gilead of The Handmaid’s Tale.

A few weeks ago, Political published a 98-page bombshell from the heart of the US Supreme Court, a leak that has filled the Republican party with anger, which is, curiously, the main beneficiary of the draft sentence that is expected to be published before the summer. The text details, in the caustic and derogatory language of the deeply conservative Justice Samuel Alito, the Supreme Court’s plans to annul the landmark 1973 ruling, Roe v. Wade, who legalized abortion in the United States. Without getting into its technical guts, what Roe v. Wade was to give constitutional status to the right to abortion, and what the leaked proposal does is remove that consideration by sending the states the power to regulate this issue within their territory.

If the Supreme Court overturns Roe v. Wade, more than 20 states – home to roughly half the US population – are likely to ban abortion rights in almost any circumstance. But not only. A recently approved law in Oklahoma, which takes as an example the Texan law (which prohibits any interruption of pregnancy from the sixth week -“the heartbeat law”-) and which goes further (prohibits abortion from “the very moment of conception” ) plans to punish anyone who helps Oklahoma women to have abortions abroad, in a state that is legal. The Texas Law itself, which seems to be inspiring other Republican states in their legislative fury, empowers private citizens to denounce offenders.

The American Health Insurance Portability and Accountability Act (HIPAA) establishes the obligation to maintain professional secrecy regarding consultations related to the practice of an abortion, an obligation that extends to health insurance companies and their managers. But apps and data titans don’t have the same obligation. Millions of women use apps to track their menstrual cycles, recording and storing intimate data about their reproductive health. Since such data can reveal when menstruation stops and starts, ovulation and pregnancy, it could become evidence in states where abortion is criminalized.

A 2021 report from the International Digital Responsibility Council (IDAC) found that period trackers were sending unencrypted personal information or sharing data with third parties without fully disclosing it in their privacy policies, which no one reads either. This would be the case of the Flo menstruation app, with more than 100 million users, who reached an agreement with the Federal Trade Commission (FTC) after being investigated for having promised to keep the data of its users protected and then share them with Facebook. and Google. Or Ovia, which shared some users’ aggregated family planning data with their employers. Or Natural Cycles, the first application authorized by the Food and Drug Administration (FDA) for birth control, which collects “sensitive information” linked to the identity of the user.

Another example: Vice’s Motherboard blog, for the ridiculous amount of 160 dollars, bought from SafeGraph data that allowed identifying the origin of the people who visited, for a week, more than 600 Planned Parenthood clinics (clinics where abortions are performed). ) and where they went next. The company SafeGraph has announced that it will not allow its clients to search for location data related to family planning centers, but nothing prevents them from being forced to provide it if requested by the prosecution or a judge.

Suddenly, US lawmakers have realized that the data economy is based precisely on trading in individuals’ data, selling it to the highest bidder, which could well be the Texas prosecutor’s office or a radical right-wing group. And as soon as data is collected, the temptation to request it appears. And the obligation to deliver it, too. How much better it would be if that fact had never existed except in the mind of every woman who does the math to know when it’s her turn to wear bad.

California Democratic Congresswoman Sara Jacobs is trying to prevent this from happening and has introduced the bill My body, my data that would require companies to only collect and retain reproductive health information that is “strictly necessary” to provide their services, unless they obtain the explicit consent of a user, giving users the right to demand that their information be deleted or for companies to disclose how they are using the data. Separately, a group of five Democratic senators led by Massachusetts Senator Ed Markey has urged Apple and Google to ensure that third-party services in their app stores “do not employ data practices that threaten the well-being of anyone searching abortion services. For his part, the Democratic senator from Oregon, Ron Wyden, along with 40 Democratic congressmen, has sent a letter asking Google to “stop unnecessarily collecting and retaining customer location data” and prevent it from being used to identify people who have had abortions, with the risk that the prosecutors of the most restrictive states obtain orders to persecute, prosecute and imprison women who have had abortions inside or outside their state. Good luck with that, Ron.

And so, suddenly, a legislative change means that knowing if a woman has stopped menstruating, has left her state, and has returned to menstruate after a few weeks can be evidence of the commission of a criminal offence. We live immersed in a galvanized Adamism. We take for granted that the welfare state, paid vacations, fundamental rights, the rule of law have always been there and that, whatever we do, they are indestructible. That we deserve them for our pretty face, because we are worth it, because it is the least that humanity owes us. Rights are made of titanium and we can rub them as much as we want. We do not want to know or we do not know, because nothing that has preceded us exists or is important, that they are a compaction of fine sand product of the constant work and bloody struggle of the generations that preceded us. So weak are they that a couple of skillful swipes dissolves them and their microscopic pieces are lost in the wind like the tears of a replicant.

Sometimes maintaining these rights deserves us to return to the old account.

Dove Llaneza She is a lawyer, essayist and ikebanaka. She has a degree in Law from the Complutense University and a Diploma in Higher European Studies from the College of Europe in Bruges. She has been practicing as a lawyer, auditor and drafter of standards in Spain, Europe and the USA. She is the author of ‘Datanomics’ (Planeta-Deusto) and the novel ‘Appetite for risk’ (Books.com)

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