On May 2, a draft opinion of the US Supreme Court’s decision to strike down Roe v. Wade—thus permitting states to outlaw abortion—was leaked. Social media immediately filled with posts about the impact of this new reality. These concerns included the safety of our digital data.
Users who had downloaded period-tracking apps on their phones were urged to delete them. The most popular of these apps—Flo, based in the UK, and Clue, created in Berlin—are free to download and track not only your next period but also your most fertile days of the month. In fact, depending on the information entered, the apps can predict the intensity of your menstrual flow, even your specific PMS symptoms. The fear is that such apps can also reveal when you’ve missed a period—effectively pointing to a possible pregnancy. In a post-Roe world, app users were worried their personal cycle information could be used to prosecute them. This fear is based in fact. Even before Roe was overturned, browser history was vulnerable to investigation. When, in 2017, a Mississippi woman experienced an almost-full-term stillbirth at home, prosecutors used the search history on her phone as part of their pregnancy termination case against her—and a grand jury indicted her for second-degree murder. (The case was dropped three years later.)
But this is all happening in the States, right? Why are so many of my Canadian friends worrying about these same apps? Canada doesn’t have a criminal law restricting abortion in any way—abortion is completely decriminalized here. Nonetheless, Jennifer May Newhook, a mother of four, has already deleted her app. “Political moods seep across our border,” she tells me. “It would be silly to think it couldn’t happen here in Canada.” Arguably, Newhook is part of the most-affected demographic—in Canada and the US, about half of the women who have an abortion already have children. Newhook is not alone. Twenty-four-year-old Olivia Parsons had only just started using Flo when the news about Roe broke. “I think it’s naïve to turn a blind eye to what’s happening to the south, to think that these beliefs aren’t also held by a frightening number of powerful people here in Canada.”
Of the 119 Conservative MPs in Ottawa, eight-two are currently antichoice (compared to only four Liberals). While the 1989 Conservative bid to recriminalize abortion failed, it’s worth noting that under our last Conservative government, backbenchers were permitted to introduce private member bills and motions that restricted abortion rights—resulting in six antichoice motions between 2006 and 2014 alone. One of these, Bill C-484, passed second reading—and got Harper’s own vote despite his repeated promises not to reopen the abortion debate. (He also opposed the Order of Canada for the abortion rights activist Henry Morgentaler in 2008.)
For Newhook and Parsons, that history makes Conservative antichoice numbers feel like a constant threat. While period-tracking apps may not endanger abortion access in Canada yet, when you live with the possibility that your rights are not secure, every threat feels more active or acute. What is the actual risk of losing our right to a safe abortion?
Historically, it’s the absence of good data that causes harm. Information on intimate partner violence and sexual assault relies on first-person accounts, but issues with chronic underreporting (survivors may choose not to report violence out of fear for their own safety or because they harbour a lack of trust in the justice system) can lead to poor policy. Women have also largely been overlooked in health care research studies. In fact, it wasn’t until the 1990s that women were included in most studies. So it’s worrying to think that an app created to help us feel more knowledgeable and in control of our own health could instead be used to take our access to health care away.
Lisa Jean Helps is a criminal-defence lawyer in Vancouver—and one of the first Canadian experts I saw tweeting that same advice about data: delete your period apps now. “I see two issues here with the data,” she says. “The first issue is the apps themselves. Can your apps track you, can you be found? The other one is how law enforcement would use them.”
The short answer to her first question is yes, apps can track you, and yours probably are. App developers often include code that can allow the app to sell your location information directly to interested companies or to a middleman data broker, who will do the same. In May, Vice reported that US data broker SafeGraph was selling data related to users’ visits to clinics that provide abortions, including Planned Parenthood. The cost? An easy $160. The promise of anonymity—that what is sold is only anonymized aggregate data—is false. (According to a study published in Nature in 2019, 99.98 percent of Americans would be correctly reidentified using only fifteen demographic attributes. You probably shared fifteen attributes before you finished your first cup of coffee this morning.)
And law enforcement? “There’s this thing called a production order in criminal cases,” Helps says, “where what they can do is go in and apply for a de facto search warrant for records. It’s actually a lower standard than a search warrant for a house or a car. It compels that company to turn over data that they have.” Another concern is the physical phone itself. “Let’s say someone is arrested. You have a cellphone on you. If there’s reason to believe that information on that cellphone could—and the word is could—lead to evidence of a crime, you can get a search warrant for that phone. At that point, your data becomes incredibly vulnerable.”
How much does any of this apply to Canadians in the now? Our system is different, our abortion rights are more secure. Aren’t they? Well, yes and no. Abortion Rights Coalition of Canada (ARCC) is a national, feminist nonprofit, a coordinated “voice for choice” created with the understanding that abortion rights are still highly politicized in Canada. The organization aims to make sure our governments live up to their responsibilities where abortion rights are concerned and to guard against efforts to recriminalize the procedure.
Tasia Alexopoulos, social media manager and spokesperson for ARCC, has seen the warnings about these apps. While she makes it clear to me during our call that digital privacy is a big issue, she advises against panic. “I don’t know that it’s necessarily helpful to scare people by retweeting something that says, Delete your period app because the government is going to track you and charge you for having an abortion. I think, right now, that’s not useful, and it really has a chilling effect, because you’re leading with fear.”
Alexopoulos refers to the level of threat from the apps in Canada as “incredibly low.” The Canada Health Act mandates full funding and accessibility for medically necessary care, and all our provinces and territories have deemed abortion as medically necessary. “As we’ve just seen in the United States, laws are really vulnerable to political environments and ideologies,” she tells me. “Medical procedures shouldn’t be. So, where we are in Canada right now is a great place to be, legally speaking.” There is no criminal law to amend or overturn as governments come and go, and this actually protects our right to safe abortion across the board.
Helps agrees with Alexopoulos but drops a note of caution. In Canada, access to abortion has always been the greater problem—and because health care is actually controlled by the provinces, restricting access is an insidious way for antichoice voices to make their mark. And they don’t need access to menstrual cycle data to do it.
Most clinics in Canada are found in urban centres, making access to abortion difficult for those living in remote or rural areas: it’s not really accessible if you have to take two days off work to get there and pay for transportation, child care, and a hotel. But the best example of restricted access is in New Brunswick, where a provincial regulation limits funded surgical abortions to hospitals only—and only three hospitals in the province perform abortions at all: two in Moncton and one in Bathurst. As Alexopoulos, herself a New Brunswick resident, explains, “If you go to a clinic and you’re a New Brunswick resident with New Brunswick health care, you could be paying $600–$1,200 out of pocket for an abortion, no matter where you are.”
Despite the Canada Health Act mandate, and despite the fact that the province itself lists abortions as medically necessary, if a New Brunswick resident has only a clinic procedure available to them, provincial health care won’t foot the bill. “New Brunswick will not cover that cost,” says Alexopoulos. This regulation, according to ARCC, may be the only abortion restriction on the books in Canada; it has been accused by the federal government of violating the Canada Health Act. (The Canadian Civil Liberties Association is currently suing New Brunswick, calling the regulation unconstitutional.)
This is exactly the sort of thing, Helps warns, antichoice governments could do in Canada even if the right to abortion itself seems enshrined. The anxious buzz around period apps can be seen, at least here, as an indicator of a different fear—of an ideology against abortion that’s gained a kind of legitimacy thanks to the US Supreme Court. Her next warning seems to encapsulate the anxiety experienced by the other women in Canada I talked to—who share a real lack of trust that the system will protect us or prioritize our rights, come what may. It’s not so much the data as it stands—or what we think we’re putting out in the world. It’s what uses there might be for that data that we haven’t even thought of yet. “That’s always been the concern of those of us who deal with privacy law,” Helps says. “We don’t know how the technology is going to advance, and you don’t know what is going to be criminalized.”
Following the reversal of Roe v. Wade, the CBC reported that some residents of Montreal received graphic antiabortion flyers in their mailboxes—but flyers are nothing new. Similar mail has hit neighbourhoods in Toronto, Hamilton, London, and Calgary in recent years. More to the point was an August story from Chicoutimi, where a woman was denied emergency contraception, or the morning-after pill, by her pharmacist. The drug is usually an over-the-counter purchase in Canada and most effective when taken twelve to twenty-four hours after intercourse. The Jean Coutu pharmacist told her it was against his beliefs to give her the medication and that she could go to another pharmacy if she wanted it.
This kind of experience is actually what many people fear: a concrete, high-stakes translation of ideology to real lives. And that ideology, if given access to political levels, could exploit the difference between what’s legal and what’s available where abortion is concerned—just as it already has in New Brunswick. “We just need to make sure that the federal government and the provincial governments are abiding by the Canada Health Act,” says Alexopoulos. “And that’s one of the major flaws in Canada. They’re just not.”
Correction, December 8, 2022: An earlier version of this article stated that a New Brunswick law limits funded surgical abortions to hospitals. In fact, it is a provincial regulation that limits funded surgical abortions to hospitals. The Walrus regrets the error.