Why Do Data Companies Get to Profit Off My Period Cramps?

By: Mollie Turczyn

Data autonomy is premised on the ideology of having free control over your own actions, beliefs, and desires.[1] Generally speaking, autonomy provides a safe space for individuals to experiment with a set of choices instead of being confined to a singular result.[2] As such, individuals are able to think freely, form their own opinion, and make the choice that best aligns with their own belief system without fear of punishment.[3] Thus, autonomy is a key cornerstone of a democratic society.[4] Therefore, a democratic society is threatened when the government eliminates the set of choices to the point there is only one outcome to which an individual is confined.[5]

A clear example of the elimination of autonomy is the overturn of the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Org.[6] Today, in some states, pregnant individuals are confined to the path of giving birth even if that is not what the individual desires. The reality is, as of January 2025, 12 states have complete abortion bans with many other states having harsh restrictions and policies.[7] As a result, access to proper reproductive health care has declined.[8] And, reproductive health care involves not only pregnancy care, but anything related to the reproductive organs at any stage of life.[9] Access to this care is imperative for individuals to gain knowledge and receive treatment regarding contraception, sexual health, and menstrual health.[10]

Individuals have attempted to take back their autonomy in the little ways they have left. For example, individuals have felt empowered using menstrual tracking apps (“Mtracking apps”) to stay informed about their menstrual cycles to avoid the situation of being forced into an unwanted pregnancy.[11] Mtracking apps provide a way for individuals to track their fertility window, log symptoms, record sexual activity, and input menstruation days.[12]

However, these apps may provide a false sense of autonomy, as there is currently not a single comprehensive federal law that gives Americans control over their own data.[13] Instead, the United States takes a fragmented approach with various regulations for various kinds of information.[14] This approach leaves massive gaps in the protection of health data.[15] Because of this gap, the data entered into the Mtracking apps can be used against individuals.[16] While data from Mtracking apps have yet to be subpoenaed for abortion prosecution reasons, it is a strong possibility this could happen, as 67% of Mtracking apps share data for other legal obligations already.[17] This possibility seems even stronger considering that some states are attempting to implement laws that would classify an abortion as a homicide (some of which still impose the death penalty for homicide).[18] Moreover, 87% of Mtracking apps share the data collected with third parties and individuals have no control over what third parties use this data for.[19] Likewise, in a review of 23 of the most popular Mtracking apps, it was found that all of the apps allow for behavioral tracking and 61% allowed for location tracking.[20] This is concerning for individuals who were never even pregnant as irregularities in menstrual cycles and imperfect engagement with the app could be mischaracterized as an abortion.[21]

This data privacy concern is more far-reaching than the Mtracking app itself. For example, while an individual may not input abortion information in the Mtracking app, other apps on an individual’s phone can record their location at an abortion clinic.[22] Moreover, even if an individual merely searched on their web browser about abortions, that information could be used for predatory advertising or offer a way to report someone who has received an abortion. [23]

The fact of the matter is, Mtracking apps offer features that a piece of paper and pencil do not. They can remind individuals to take their birth control, notify them when they are ovulating, and predict their menstruation window. But, with no bodily autonomy, the decline of reproductive health care, and no data autonomy, individuals are placed in an extremely vulnerable position. With valid fear of a national abortion ban, having autonomy over data is crucial.[24] However, when it comes to protecting data, policymakers often think their task is to strike a balance between privacy and the needs of society, including national security. [25] Yet, this approach will achieve absolutely nothing—privacy will always lose against national security.[26]

It is time that the U.S. looks to other places such as the Europe Union to develop intelligible data privacy regulation.[27] For example, the EU enacted the General Data Protection Regulation (“GDPR”) which has become a global standard for data privacy.[28] One thing the U.S. can learn from the GDPR is that it provides a harmonized set of rules for data privacy.[29] This is something the U.S. needs because it would help to fill the gaps caused by America’s currently-fragmented regulatory landscape for data protection.[30] Also, while a few individual states in the U.S. have enacted laws to protect data, this creates confusion for businesses and consumers.[31] Alternatively, the U.S. also has the benefit of learning from the GDPR’s faults such as its incompatibility with artificial intelligence.[32] Ultimately, creating a single federal law to protect data has widespread benefits ranging from improving data management to ensuring individuals feel safe when keeping track of their health and receiving necessary medical treatment.[33]

 

[1] See Sofia Grafanaki, Autonomy Challenges in the Age of Big Data, 27 Fordham Intell. Prop., Media, & Ent. L. J. 803, 810 (2017).

[2] See id. at 811.

[3] See id.

[4] See id.

[5] See id.

[6] See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 142 S. Ct. 2228 (2022).

[7] Abortion in the U.S. Dashboard, KFF, https://www.kff.org/womens-health-policy/dashboard/abortion-in-the-u-s-dashboard/ (last visited Jan. 31, 2025).

[8] Aliza Adler et al., Changes in the Frequency & Type of Barriers to Reproductive Health Care Between 2017 & 2021, Nat’l Ctr. for Biotechnology Info. (Apr. 10, 2023) https://pmc.ncbi.nlm.nih.gov/articles/PMC10087056/.

[9] Reproductive Health, Nat’l Inst. of Env’t Health Sci. https://www.niehs.nih.gov/health/topics/conditions/repro-health (Jan. 3, 2025).

[10] See generally id.

[11] Bridget G. Kelly & Maniza Habib, Missed period? The significance of period-tracking applications

in a post-Roe America, Nat’l Ctr. for Biotechnology Info. (2023) https://pmc.ncbi.nlm.nih.gov/articles/PMC10494721/.

[12] See Breanna Mona, Flo Period Tracker: What to Know About the Popular App, Healthline (Jul. 31, 2024) https://www.healthline.com/health/flo-period-tracker.

[13] Data Privacy Laws.: What You Need to Know in 2025, Osano (Jan. 7, 2025) https://www.osano.com/articles/data-privacy-laws#:~:text=With%20an%20effective%20date%20of,mechanisms%2C%20sensitive%20data%2C%20and%20children’s.

[14] Cristina Pop, EU vs US: What Are the Differences Between Their Data Privacy. Law?, Endpoint Prot. (Nov. 15, 2023) https://www.endpointprotector.com/blog/eu-vs-us-what-are-the-differences-between-their-data-privacy-laws/.

[15] Kelly & Habib, supra note 11.

[16] Id.

[17] Paige Gross, Data privacy after Dobbs: Is period tracking safe?, Stateline (Jul. 26, 2024, 5:07 PM) https://stateline.org/2024/07/26/data-privacy-after-dobbs-is-period-tracking-safe/#:~:text=An%20app%20may%20automatically%20seek,that%20are%20hard%20to%20track.

[18] U.S. Repro Watch, Jan. 29, Ctr. for Reprod. Rts (Jan 29, 2025) https://reproductiverights.org/u-s-repro-watch-1-29-25/.

[19] Jiaxun Cao et al., “I Deleted It After the Overturn of Roe v. Wade”: Understanding Women’s Privacy Concerns Toward Period-Tracking Apps in the Post Roe v. Wade Era, Fed. Trade Comm’n https://www.ftc.gov/system/files/ftc_gov/pdf/10-Laabadli-Understanding-Womens-Privacy-Concerns-Toward-Period-Tracking-Apps-in-the-Post-Roe-v-Wade-Era.pdf (last visited Jan. 31, 2025).

[20] Id.

[21] Kelly & Habib, supra note 11.

[22] Rina Torchinsky, How period tracking apps and data privacy fit into a post-Roe v. Wade climate, NPR (Jun. 24, 2022, 3:06 PM) https://www.npr.org/2022/05/10/1097482967/roe-v-wade-supreme-court-abortion-period-apps.

[23] Id.

[24] Rebekah Sager, Republican lawmakers file misleading ‘born alive’ anti-abortion bills in House and Senate, The Pa Independent (Jan. 28, 2025) https://pennsylvaniaindependent.com/reproductive_rights/republicans-house-senate-born-alive-anti-abortion-misleading-bills/.

[25] See Grafanaki, supra note 1, at 824.

[26] Id.

[27] Caitriona Fitzgerald & Suzy Bernstein, Full of Holes: Federal Law Leaves Americans’ Personal Data Exposed, EPIC (Apr. 27, 2023)

https://epic.org/full-of-holes-federal-law-leaves-americans-personal-data-exposed/#:~:text=Full%20of%20Holes%3A%20Federal%20Law%20Leaves%20Americans’%20Personal%20Data%20Exposed,-April%2027%2C%202023&text=Today%2C%20the%20House%20Energy%20%26%20Commerce,Those%20gaps%20are%20massive.

[28] Daniel Castro, 5 Lessons the U.S. Can Learn from European Privacy Efforts, Gov’t Technology (Aug. 2019) https://www.govtech.com/policy/5-lessons-the-us-can-learn-from-european-privacy-efforts.html.

[29] Id.

[30] Kelly & Habib, supra note 11.

[31] Karen Schuler, Federal data privacy regulation is on the way — That’s a good thing, iapp (Jan. 22, 2021) https://iapp.org/news/a/federal-data-privacy-regulation-is-on-the-way-thats-a-good-thing.

[32] See Castro, supra note 28.

[33] See Schuler, supra note 31.