[music]

Matt Katz: It's The Brian Lehrer Show on WNYC. Welcome back, everybody. I'm Matt Katz, reporter in the WNYC newsroom filling in for Brian today. Ever since the Supreme Court leak in May, there's been discussion about the digital privacy implications of a post-Roe United States. Now that the Dobbs ruling is official, some people have been shouting from the social media rooftops to delete personal period tracking apps in order to avoid possible criminal prosecution for ending a pregnancy.

With me now is Kashmir Hill, tech reporter at the New York Times and author of the recent article, "Deleting Your Period Tracker Won't Protect You", which outlines the shortcomings of such an approach. Kashmir, thank you so much for joining us. I appreciate it.

Kashmir Hill: Sure. Good to be here, Matt.

Matt Katz: It's such a interesting article. I learned so much about this world. I did not know what was happening up to this point when it comes to this issue. You begin your story with a real-life abortion privacy story that happened in Chicago pre-Roe. It illustrated the privacy concerns of the analog age and gives what is happening now a little bit of context. Do you mind retelling our listeners that story?

Kashmir Hill: Sure. This was a story about the Jane Collective, which was a group of women who was providing abortions before Roe v. Wade in apartment buildings to women who needed them. The police became aware of their activity and raided an apartment building while they were in the middle of giving women abortions. This is from The Story of Jane, a history written by one of the women who was in the collective.

They arrested seven of the women who were with the Jane Collective and basically put them into police vans to take them to the station. Two of the women had index cards in their purses with the names of patients and women interested in getting abortions. They didn't want that information to get into the hands of police and so one group of women basically tore the cards up into tiny, tiny pieces and the other group of women tore the cards up into tiny pieces and ate them just to ensure that the police didn't get the information.

Matt Katz: Wow. Today apps that track your periods are now seen as the new index cards. You describe following the overturning of Roe v. Wade tweets urging folks to delete their period tracking apps went viral, but your reporting found that in the past few years much more basic digital evidence has been used by prosecutors to criminalize people who had abortions or stillbirth. Things like text messages, right?

Kashmir Hill: Yes. I talked to Cynthia Conti-Cook, who is a technology fellow at the Ford Foundation and previously worked in one of the big public defender's offices in New York. She had basically looked at a collection of prosecutions of women already, pregnant women who lost their babies, who were prosecuted for feticide or for neglect of a dependent. She said that far more routine data gets used against women. Text messages that were sent saying basically, "I don't want to be pregnant. I want to get rid of this pregnancy. I'm buying abortion pills. I'm taking them."

Even Google searches for abortion medication in the case of a woman who had a stillbirth at home, according to her. Authority said, "No, we think that the baby was born alive and that you killed the baby." They downloaded everything that was on her phone and she, according to a local [unintelligible 00:04:06] report, also admitted that she had searched for abortion medication, but had said that she had not ultimately used it.

Matt Katz: Wow. Listeners, has the reversal of Roe v. Wade caused you to think twice about your digital footprint? Have you changed your behavior to enhance your privacy? Maybe you have questions for our guest, Kashmir Hill, tech reporter at the New York Times. Give us a call. 212-433-WNYC, 212-433-9692.

Kashmir, in essence, deleting your period tracking app only protects you so much. Our phones know so much about us, so that doesn't really solve the problem or give you full protection.

Kashmir Hill: It is possible that a period tracking app could have information that would get used against an individual. Let's say, if you're in a state that only allows abortions until six weeks and for whatever reason you've come under scrutiny by law enforcement, they could potentially take information from your period tracking app and say, "Hey, actually, you were eight weeks pregnant because here is the last time that you tracked your period."

It's not that this data could not be potentially used, it's just that it hasn't been used yet in a survey of the cases. The experts I talked to also don't think that there's-- hopefully, there's not going to be some dragnet search of everybody who's using period trackers and trying to find all the [inaudible 00:05:39] which I think was the concern that people were feeling when they were seeing those apps that were saying, "You must get rid of this. You must not have any evidence of your menstruation or your period because it could be used against you."

Matt Katz: For listeners who might think this is just a potentiality and this kind of thing might not happen, your article mentions the cases of two women, which are prime examples of how far digital surveillance can go to criminalize pregnant people. There was Purvi Patel who was convicted of feticide and neglect of a dependent in Indiana in 2015 after going to the hospital following a self-induced abortion and Latice Fisher faced the second-degree murder charge in Mississippi after a stillbirth in 2017.

In both cases, the women or their partners had sought out medical attention, which then led to criminal investigations, and online searches was part of the digital evidence that was used to build the cases against them. Those two instances really serve as an indication of where we could be going at a much larger scale, right?

Kashmir Hill: Yes. Part of the reason why I wanted to write the article is just to talk about this, how different the landscape is from the 1960s, early 1970s before Roe v. Wade. We just leave these digital trails without thinking about it, of our decision-making, of our choices, of our health histories. Just trying to think about that and how difficult that's going to make it for women who have unwanted pregnancies and are in places where there are pretty strict either bans or restrictions on the ability to get abortions. There's just going to be a lot more digital evidence than there was in the 1960s when people weren't carrying phones around or just regularly corresponding with everyone they know via text, rather, in less traceable ways.

Matt Katz: Could these techniques also be used for women who might choose to buy abortion pills online, if they live in states where abortion is illegal? That could also be something that investigators could track, I imagine.

Kashmir Hill: Yes. I think this is the big question because there are certain organizations that will deliver abortion pills no matter where you live and what the law is where you live. It seems like that might be where anti-abortion activist and law enforcement looks to try to prevent those kinds of uses of these medications to end pregnancies.

Cynthia Conti-Cook was saying email receipts and Google searches looking for those sites, women are probably going to need to think more about digital privacy and the services that they're using and consider more private messaging services. Signal is an example of an end-to-end encrypted app that has a feature where you can make messages disappear. There's private browsers like Tor that don't leave the same kind of traces on your computer. I just think this is hard for people to think about. It is fundamentally hard to be truly private and leave no trace in the kind of world that we live in now.

Matt Katz: You're listening to The Brian Lehrer Show. I'm Matt Katz, filling in for Brian today. If you're just joining us, we're speaking with Kashmir Hill, tech reporter at the New York Times, and the author of the article, "Deleting Your Period Tracker Won't Protect You". Listeners, has the reversal of Roe v. Wade caused you to think twice about the digital footprint that you leave behind? Have you changed your behavior to enhance your privacy when it comes to this kind of personal medical information? Do you use apps that track your period and are you now thinking twice about that? Maybe you have a question for our guests. Give us a call, 212-433-WNYC that's 212-433-9692. Kashmir, you reference geofencing as a method of surveillance. Can you explain what that is and how it's been used by anti-abortion activists in the past?

Kashmir Hill: Geofencing is basically the act of drawing a digital border around an area. We've seen this happen in the past around abortion. Some anti-abortion group wanted to target ads at women who might be going into a Planned Parenthood to redirect their attention to websites that offer alternatives. They geofenced a Planned Parenthood, which meant they created this digital border such that any smartphones that entered that area would be targeted with these ads.

They said that they had some success with that. Essentially it would be a way to potentially target ads and to potentially collect information about people that are in those areas because sometimes if you click on an ad, it reveals information about your phone and so it can send information back. We've also actually seen geofencing used by law enforcement, not in the context of abortion but they have used it for example with robberies that were happening.

There's serial robberies and they were able to circle the area where each robbery happened and they went to the cell phone provider and said, tell me which phones have been in these areas at this time because those are potentially our robbers. It's just this different way of using a time machine to look back and see where someone has been and when that people might not expect is possible, but is thanks to our wild modern technological age.

Matt Katz: Dan in Brooklyn wants to talk a little bit about that technology. Hey Dan, how are you? Thanks for coming on the,-- giving us a call.

Dan: I'm a physician and I've always been concerned about personal data that people put into their phones and how this might make trouble for them in the future. What you're doing here is in essence, you're taking someone who might have had access to birth control methods. The abortion issue never comes up, but with the incriminate himself or herself, excuse me, so freely on a telephone or the boyfriend, let's say incriminate her with his cell phone. These are, I think a unreal and somewhat hysterical things.

The cell phone is absolutely a horrible machine that the state can or the company whose cell phone you're using can use against you. This is a real issue and this should be discussed, but the issue of somebody tracking themselves on the cell phone but unable to track themselves with their birth control devices and therefore would be looking for an abortionist through the cell phone, it's like you're painting an image of the character at issue that is a little loose brain. You know what I mean?

Matt Katz: You're saying that this is not necessarily the top-of-line concern for people. You can use this technology and it's not going to be necessarily a major issue. Is that what you're saying?

Dan: For this data to be used by a prosecutor, it has to show intent and just because you put some data on the cell phone, that doesn't show intent. It doesn't mean that you're going to tell your cell phone the truth or anything that's your--

Matt Katz: Got understood

Dan: -other confessor-- The whole issue is that on the other hand, people who meticulously put all this data in cell phones and then forgets to take her birth control pills gets pregnant has to look for an abortionist, these are concoctions that make this law issue seem like a really scary thing, but in reality--

Matt Katz: Thanks Dan. I would say I guess, Kashmir that it's one piece of evidence that could be used. It is a real thing that in certain states people can go to prison for seeking to terminate their pregnancies and people who assist them in that regard can also now go to prison. It might not be the entirety of the case, but somebody's digital footprint can certainly be used by prosecutors and the evidence that you turned up in your reporting indicates that.

Kashmir Hill: I hate to make people overly paranoid and period trackers, there are millions of women who use them. Some women, I actually used them and wrote about it when I was trying to get pregnant because I was trying to find my fertile window to maximize the chances of getting pregnant. Women use them to get pregnant. Women use them to avoid pregnancy, to know when they're most fertile. Some people just use them to know when their next period is coming and I don't want women to feel afraid to use technology.

I think it's important to know what the risks are and to look at what information has been used so far and up until this point, we haven't seen evidence from period trackers being used to prosecute women. Obviously, the law is changing right now. I just think it's something women can think about and look at what has been used. What has been used has been Google searches for abortion medication, text messages to friends talking about an abortion or talking about the desire for an abortion or that a pregnancy is unwanted.

What Cynthia Conti-Cook said who's one of the experts who's looked really closely at this issue is that prosecutors, if they should decide to prosecute are looking for intent, how did a woman feel about a pregnancy? What did she want to do about it and all of this really depends on how zealous law enforcement is. One of my colleagues at the New York Times interviewed prosecutors in Texas, some of whom say they are going to enforce the ban. Some who say they don't really have a desire to stringently enforce the ban.

It really depends on whether law enforcement is out there looking for this information or not. It's early in this right now but in the past, what has been used has been text messages, Google searches, et cetera.

Matt Katz: Got it. We have a question from Kate in Bayville, New Jersey and you might be able to answer this question. Hey, there Kate.

Kate: How are you? Thank you for taking my call. I don't know if this has been asked and answered because I just tuned in. Both of my daughters, 13 and 19 use the Clue app to track their periods because they have wildly irregular periods. Is there a way to turn off the tracking or is that just part of the terms and conditions of using the app? Not the tracking, but for them to see that my daughter's personal information.

Matt Katz: Got it.

Kashmir Hill: The way that these apps and most apps tend to work is that your data is being housed in a central location. Clue is an interesting company because they're based in Europe and they told me that they would not provide data to law enforcement if they were asked and referred to the GDPR, which is European privacy regulations that has special protections around sensitive health data. They said they're not going to turn over any data to law enforcement.

Again just looking at what's happened in the past, it has not usually been law enforcement going to a company like Clue. If this happened, law enforcement would just go to the phone itself and try to get the data from there. I don't know of any particular method on Clue to delete past data in part because the way that these apps work is look at the past data, looking at the history of the menstruation to figure out what's going on to try to predict when you have in irregular period, when it's going to come.

As far as I know, there's not. One of the other period tracking apps, Flo, introduced an anonymous mode for period tracking. It really differs from app to app.

Matt Katz: You reported that it appears that there's been a increase in downloads of these period tracker apps like Clue after the reversal of Roe v. Wade. Why would that be?

Kashmir Hill: This really surprised me. I reached out to a company called Data AI, which tries to track app downloads very closely by looking at app store activity. They said that the downloading of period apps actually doubled compared to the weeks before it doubled in the week after the Dobbs decision came down, overturning Roe v. Wade. I'm not really sure why that is? I can speculate. I think it's possible that just seeing so many tweets about you should delete your period tracker, may have made people who weren't using a period tracker or aware of them and maybe made them want to try them.

I had some people in the article that I wrote in the New York Times, the comment section was very interesting and some of the people were saying, "I downloaded the period tracker and I'm a man," or "I'm a menopausal woman who doesn't get a period anymore because I want to create basically dirty data," like fake data in the system. This is a privacy protection method called data pollution where you're essentially trying to make the data useless for law enforcement if they did do some dragnet search.

Somebody else speculated that maybe this was people deleting their apps to delete the information in them and then re-downloading them. It's hard to say exactly why it happened, but it was really interesting to see the spike in downloads rather than the reverse.

Matt Katz: We have a caller Melanie in Loch Harbor, New Jersey who has a suggestion, for countering, all of this. Hey there, Melanie?

Melanie: Hi.

Matt Katz: Thanks for calling in.

Melanie: Yes Hello.

Matt Katz: Hi there?

Melanie: Yes, Hello. Can you hear me?

Matt Katz: I can hear you, Melanie, Can you hear us?

Melanie: Yes, I can.

Matt Katz: Thanks for calling in. What's your thought on this?

Melanie: Well, having been around, pre-Roe v Wade and having been involved in many demonstrations and marches over the years and seeing many, many less young women participating. This is the time for young women to get out in droves. This is something that they were given, they were handed to by this older generation and they have to fight for it again. I would suggest, put down your social tracking devices, whatever, and use a paper calendar, very simple. You can get them free from every charity you donate to sends you a calendar. Don't put your life out online, and you won't be subject possibly to a lot of the things like this.

Matt Katz: Thank you, Melanie. Kashmir., it's a good suggestion, but so much of our lives are conducted online that where are you going to put your doctor's appointment. Are you really going to pull out the old-school calendar? How are you going to message your friends? Are you really going to like send them a snail mail letter? It makes sense to go to take a more analog approach, but it also seems somewhat impractical, doesn't it?

Kashmir Hill: I was trying to think if I still have a paper calendar around my home. So much of modern life is just assessing your risk and depending, just thinking about how much data you want out there. We've been talking about protecting your data from law enforcement, but for a lot of women who get pregnant, there are other people they may be trying to protect their information from whether they're in an unhealthy relationship, they don't want their partner to know.

There might be somebody who knows the password for your phone, who can easily get in and get this information. It's a different risk assessment for every person. I think using a paper calendar is potentially a good idea. It just depends on who you're worried might have access to that information and who has access to the paper calendar. My whole life lives in a digital calendar, It's how I keep track of this interview. Keep track of my own period. It's hard to go backward.

Matt Katz: We have one more question for you, from Michael in Rockaway Park. Hi, Michael, Thanks for calling in.

Michael: Hi, thank you for taking my call, I'm wondering if HIPAA plays any role in this equation with data sharing seeing as how these are health apps and contain sensitive health information? Thank you.

Matt Katz: Do you know the answer to that Kashmir?

Kashmir Hill: I do. I'm so glad you brought up HIPAA. Thank you so much. A lot of people have this misconception that HIPAA, the health information portability privacy act, I think that's what it is.

Matt Katz: Sounds right.

Kashmir Hill: I might be wrong. People think that it applies to all medical data, but in fact, it only applies to certain medical facilities; hospitals, doctors' offices. It doesn't apply to all medical data.

If you provide your health data or medical data to an app, that's not covered by HIPAA, such as a period tracker, it has no protections under HIPAA. This is actually like medical privacy experts are really trying to get this into people's heads to spread this widely. If you are providing your health data to some third app, whatever it might be information about your heart rate, your period, just anything about your body, it is likely not protected. HIPAA really applies only to specific facilities, that routinely deal with medical information. Medical data is not inherently private or protected under US law.

Matt Katz: Thanks for all of this education on this issue. My guest has been a Kashmir Hill tech reporter at the New York Times. Really appreciate you coming on today, Kashmir. Thanks so much.

Kashmir Hill: Thank you.

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.