Californians and other Americans were shaken last year when the Supreme Court overturned Roe v. Wade, sending women’s rights back five decades — and placing millions of American women at risk.
This occurred alongside a parallel crisis: the feeble state of online privacy, including among pregnancy and period tracker apps. This “femtech” software ostensibly helps women navigate ovulation, conception and pregnancy. While this software does do that, these apps are also deeply entwined with the unfettered data economy, which collects, shares and sells reams of personal information about people. This includes data like menstrual cycles, ovulation windows, sexual activity and doctors appointments — information that could indicate an abortion.
Right now, California policymakers are debating some of the most important legislation in a generation. In Sacramento and in local legislatures, our representatives are crafting bills about climate change, immigration and wealth inequality.
For that reason, it’s easy to overlook a seemingly modest bill now being considered in Sacramento: AB254.
AB254 doesn’t propose a grand new law. Instead, it revises California’s existing Confidentiality of Medical Information Act to protect a new subset of personal data: reproductive or sexual health information collected by apps and other digital services.
For this reason, AB254 is among the most important bills circulating that address women’s and reproductive health rights. It addresses real risks Californians face in a post-Roe America, where pregnancy and period tracking apps are ubiquitous and their data collection policies are abysmal.
Indeed, my nonprofit group, Mozilla, published in-depth research into 25 of the most popular pregnancy and period tracking apps in August, shortly after the Supreme Court decision. The findings were frightening: 18 of those apps failed to meet minimum standards for privacy and/or security. The vast majority of the apps have opaque privacy policies, grave security issues or share data widely with advertising and marketing firms. One app, Sprout Pregnancy, didn’t even have a privacy policy. And others, like Maya, share users’ information with Facebook. Lawsuits against these apps for privacy breaches aren’t uncommon.
Worst of all, these apps can potentially share that data with law enforcement. This could allow authorities to weaponize these apps to determine if users are pregnant, seeking abortion information or services, or crossing state lines to obtain an abortion. Mozilla research found only a handful of apps clearly articulate if and how they handle data requests from law enforcement — the rest did not. And this isn’t a theoretical problem: Last year, police in Nebraska used online data to investigate a teen’s abortion.
This fraught landscape is why AB254 is so important. Yes, it’s true that abortion isn’t under direct threat in California: In November, Californians voted to amend the state Constitution and enshrine the right to an abortion. Gov. Gavin Newsom has even encouraged women from states where abortion is illegal to travel to California for health care.
There are multiple ways AB254 can influence reproductive health rights nationwide.
California has tremendous market power. It’s likely that most of these apps would apply AB254’s mandate across all states; it can be too costly or technically difficult to tailor apps on a state-by-state basis. For decades, California’s progressive laws on climate and environmental protection have created a similar de facto national standard.
California is also a trendsetter in consumer data privacy. The California Consumer Privacy Act of 2018 — and the later California Privacy Rights Act of 2020 — was among the first online privacy laws in the U.S. and many states have used it as a blueprint for their own laws. Since 2018, the California laws have spurred Virginia, Utah, Connecticut and other states to take action on online privacy.
Never have I seen the two issues — women’s rights and digital rights — intersect quite like this. In an always-online country where reproductive health rights are under attack, California’s AB254 is a desperately needed response.
Ashley Boyd is vice president for global advocacy at Mozilla.
