Rumored Apple Watch fertility tracking is a potential post-Roe nightmare

The new Apple Watch might come with women's health features, but is it the right time?

If credible rumors about the Apple Watch Series 8 are to be believed, Apple may soon (Sept. 7 to be exact) control intimate access to information about its users' wombs. But that information demands more secrecy than ever, and Apple's announcement could raise alarms if it doesn't handle this issue with unprecedented amounts of delicacy and sensitivity.

Rumors from the Wall Street Journal, and Apple experts Mark Gurman, and Ming-Chi Kuo say the new watch might include "women's health" features like fertility planning. It would be a natural progression from menstrual cycle tracking which was first introduced with WatchOS 6. But unlike cycle tracking which uses machine learning from your menstrual history, the fertility feature would use a sensor that measures the fluctuations in body temperature which correlate with a person's ovulation cycle. It's an exciting advancement that would join Apple Watch features that measure blood oxygen level, ECG, heart rate and sleep patterns.

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But following the Supreme Court decision to overturn Roe v. Wade, the issue of what big tech companies do with women's health data has never been more consequential. This summer, Facebook turned over private messages between a teenage girl and her mother to the authorities as evidence of breaking Nebraska abortion laws. Meta issued a statement saying there was no mention of abortion in the search warrant and that they were complying with an investigation of "alleged illegal burning and burial of a stillborn infant." But since we already know tech companies provide information to law enforcement that can put people behind bars, a world in which data-tracking of this sort leads directly to arrests and convictions for abortions is easy to imagine.

What companies are doing with your fertility data

"The biggest challenge in the reproductive rights space right now is the fact the data that's being gathered about you is not in your possession," said Dr. Jennifer King, a Privacy and Data Policy fellow at the Stanford Institute for Human-Centered Artificial Intelligence.

The data that you no longer own is vulnerable to hacking and data breaches. It can also be sold to third parties, with or without your knowledge. Last year, period tracking app Flo reached a settlement with the Federal Trade Commission for misleading users about where its data was being shared. Specifically, it told Facebook every time a user had their period or indicated that they wanted to get pregnant (per the Wall Street Journal.)

Modern gadgets tend not to store information of this nature locally on the device, and leave it at that. In cases like Amazon's Alexa, or with Google search queries, data goes into a server or the cloud and is stored rather than deleted. If Apple is going against the grain, and designing this hypotheticalfeature with local, encrypted data storage, rather than cloud storage "that's a huge improvement right there," said King.

And in fairness, Apple says the health features on the current Apple Watch protect user data in several ways: All health and fitness data is encrypted — apart from Medical ID which provides medical information to first responders without the need for a passcode. If you back up your health data in iCloud, it is end-to-end encrypted (Apple doesn't specify where it's stored if not backed up in iCloud.) If you use two-factor authentication, that datais also end-to-end encrypted. All of these features are accessed through the Health app, which also lives on your iPhone. But you can choose to sync your devices, which is inherently riskier.

In general, Apple's features and devices indicate a strong focus on user privacy. When you use Apple's voice assistant Siri, the audio is processed on your iPhone, unlike Alexa whose data is sent back to Amazon's servers. Apple's soon-to-debut iOS 16 comes with a feature called Safety Check which will allow users in domestic violence situations to quickly revoke access to their devices and data.

The long arm of the law can reach your device

Yet, even with stringent built-in privacy, there's still the issue of law enforcement being able to access your device. If they were trying to use this data as a way to understand your reproductive cycle, King said, "then we get into that fight around 'can they make me unlock my watch?' 'Can they make me unlock my phone?' 'Is there a way for me to just delete that data quickly with no trace?'"

When Roe v. Wade was overturned, a flurry of concern surrounded period tracking apps and how user data might be used to bring about criminal charges in states where abortion was banned or restricted. "Unfortunately, the lack of consumer privacy protections mean that risks extend far beyond the use of Apple watch functions or third-party apps," said Dr. Nicol Turner Lee, a senior fellow in Governance Studies and director of the Center for Technology Innovation at Brookings. "People could be incriminated in states where abortion becomes illegal for content in their search history, text messaging and more."

And so, period tracking apps have scrambled to assure users that their data is safe. Flo launched "Anonymous Mode" which removes any identifiable user information, Glow asserted that it has never and will never sell user data (although there's no specific mention of working with law enforcement), and Stardust announced that it was the "first recognized app to offer end-to-end encryption for all users."

Currently, no period tracking app has been asked to hand over its user data in a criminal investigation, meaning there's no legal precedent. But following fromthe recent example of Facebook being kept in the dark (supposedly) about the abortion-related nature of the evidence it turned over, there are loopholes.

"On a comparative level, Apple has already been doing a lot better than other third-party applications," said Turner Lee, who is also Editor in Chief of TechTank. "Their health data is 'encrypted and inaccessible by default,' and the company has had a past history of respecting user privacy and not unlocking iPhones for law enforcement purposes."

So while the risk is still there, Apple has a better track record of protecting its users.

But why track fertility information now?

Despite a climate of uncertainty over digital privacy and reproductive rights, tech companies are plowing ahead with technology that gathers biometric data. Amazon recently expanded its pilot to test palm-recognition payment technology in Whole Foods stores and Facebook wants to track your biometric data in the Metaverse, per the Financial Times.

Why? "Because you can," said King."It's a sensor in search of a solution, if you want to put it that way." And that solution generates lucrative data for companies and keeps users bound to those companies' products. But in a climate where something that was a right yesterday is a crime today, it may be time to rethink where we leave our digital mark.