By: Alexandra Evarts
Apple, Inc. launched its newest Apple Watch, the Apple Watch Series 8, at its annual iPhone conference in September. Using the Apple Watch Series 8, users will now be able to track their fertility through wrist temperature data. With the launch of this new fertility tracking feature coming just a few months after the Supreme Court’s decision to overturn Roe v. Wade, Apple must confront concerns from privacy experts and consumers about how fertility data could be used by law enforcement to penalize those seeking or assisting with an abortion. Already, technology companies like Meta, Flo – a period tracking app – and others have faced public criticism for their handling of private user fertility data and information. Experts argue that technology companies have relatively few options to challenge valid orders from a judge for user data, even companies like Apple that have demonstrated a strong commitment to user privacy.
Millions of women around the world are now using fertility tracking apps to track their menstrual cycles – tools useful to women whether they are planning for, or seeking to avoid, a pregnancy. These apps typically require users to manually enter a range of menstrual cycle and sexual health information into an app. Once this data is entered, the app uses machine learning to help predict key dates throughout a menstrual cycle, including a women’s ovulation window. The Apple Watch Series 8 takes digital fertility tracking one step further. In addition to allowing users to enter their menstrual cycle data manually, Apple Watch Series 8 uses wrist temperature data to detect a women’s biphasic shift, which is the increase in temperature that often occurs after ovulation. The company’s advanced algorithms use wrist temperature data and logged cycle data to estimate the day ovulation likely occurred. After wearing the watch for two cycles, users will receive a notification on their Apple Watch or iPhone alerting them of when ovulation is most likely to next occur. This is a critical window of time for women seeking to avoid or plan for pregnancy. Ultimately, fertility tracking apps contain some of the most personal and intimate details about a person’s sexual and menstrual health – including whether or not a pregnancy has begun or stopped.
In the wake of Dobbs v. Jackson Women’s Health Organization and the overturning of the nearly 50-year federal right to abortion access established in Roe v. Wade, privacy experts are concerned about how user data contained in fertility tracking apps such as Apple’s Series 8 Watch could be used to prosecute abortions in states where abortion is illegal or severely restricted. For example, in August of 2022, it was reported that police officers in Nebraska used Facebook messages to prosecute an illegal abortion. After investigating a woman who had allegedly helped her daughter dispose of her stillborn baby, police officers sent a warrant to Facebook requesting the woman’s private messages between her and her daughter. Facebook complied with the warrant, handing over messages confirming that the 17-year-old aborted her baby at 23 weeks. Under Nebraska law, abortion is illegal after 20 weeks. Meta claimed that they didn’t know what the information requested through the warrant would be used for, but experts argue that technology companies have relatively few options to resist complying with valid warrants. Most have longstanding policies of complying with warrants that are legal and valid in the jurisdictions where they reside.
Apple has repeatedly demonstrated that it takes user data privacy incredibly seriously. As quoted by Craig Federighi, Apple’s senior vice president of Software Engineering, “[p]rivacy has been central to our work at Apple from the very beginning”. Apple has established a policy for resisting and challenging requests from law enforcement that lack a valid legal basis, or that the company considers “to be unclear, inappropriate, or overly broad.” However, the company has not commented on how it might respond to an abortion-related warrant or subpoena for user data. While Apple confirms that it is particularly careful with health-related data, with abortion no longer protected under federal law, it is unclear how Apple will be able to challenge warrants from law enforcement in states where abortion is constitutionally illegal or severely restricted.
Federal laws and regulations addressing law enforcement access, specifically to fertility app data, which do not currently exist, may help to protect companies like Apple and other fertility tracking apps resist warrants for fertility data. Additionally, a bipartisan measure recently introduced in Congress, the American Data Privacy and Protection Act could, if passed, address some of these thorny privacy concerns. Federal privacy laws, specifically those related to fertility data from digital apps, are critical for those advocating for stricter privacy protection for fertility data, especially since health data input into most period-tracking apps isn’t subject to the Health Insurance Portability and Accountability Act, which regulates how health providers and other entities must treat patients’ data.
While Apple’s new Watch provides women seeking to plan for or prevent a pregnancy with another useful tool for fertility tracking, it remains to be seen how Apple will be able to withhold sharing users’ intimate data from law enforcement. As states where abortion is illegal begin to prosecute individuals for illegal abortions, technology companies like Apple will have to confront the tension between complying with valid warrants for abortion-related investigations and protecting user data. Given the range of viewpoints represented by Apple users, Apple may be disinclined to actively challenge or publicly oppose such valid warrants. Litigation over the next several years will bring clarity to these sensitive issues.
Student Bio: Allie Evarts is a second-year student at Suffolk University Law School. She is a staff writer for the Journal of High Technology Law. Allie worked at two technology startup companies prior to law school, and received a Bachelor of Science Degree in Environmental Science, with a concentration in Natural Resource Planning and Policy, from the University of Vermont.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
