On today's episode, our panel of experts explore the balance between femtech and privacy as it exists post-Dobbs. It was recorded on November 2, 2022.
In the aftermath of the leaked Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, warnings to period tracking app users went viral. The message? Ditch them immediately. Weeks later, a New York Times headline countered, “Deleting Your Period Tracker Won’t Protect You.” Join us for a panel discussion with academic, innovation, and advocacy experts who will explore how exactly such data is already or could be used – and misused. What privacy laws or legislation can be leveraged to protect FemTech users? And why does menstrual literacy – with or without tech tools – matter more than ever in our post-Dobbs reality?
Moderator: Melissa Murray, Frederick I. and Grace Stokes Professor of Law, NYU School of Law
Michael Weinberg 0:01
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law.
On today's episode, our panel of experts explore the balance between Femtech and privacy as it exists post-Dobbs. It was recorded on November 2, 2022.
Michael Weinberg 0:30
Hello, everyone, I am Michael Weinberg. I am the Executive Director of the Engelberg Center here at the law school, one of the fantastic co hosts, co sponsors of this event. I want to thank you all so much for joining us for this important discussion and a discussion that is really timely, but one that there has been, I would say a great deal of information and discussion online, but not always a great deal of expertise in that discussion. And so we have a really fantastic panel today to discuss these issues, and discuss them with depth and with with real information, which I think is really key to what we are doing and what you're trying to do here. I will step away almost immediately. But I do want to introduce Professor Melissa Murray, who will be our moderator today. Professor Murray is the Frederick and Grace Stokes professor of law here at NYU. She is the sponsor, the faculty director of the Birnbaum Women's Leadership Network, another one of the fabulous co sponsors of this event. And I mean, she's like all over the press and all over, you know, if you are if you're online, you're seeing her, I don't know, maybe her spiritual home is the strict scrutiny podcasts I'm sure all of you already subscribed to. But we are in very, very fantastic hands right now. And so Professor Murray, I will hand things over to you.
Melissa Murray 2:00
Thank you, Michael, you may have gilded the lowly too much and said. Thank you. I'm Melissa Murray. I'm absolutely thrilled to be moderating this event. At four years, I have argued that feminism and tech are actually compatible. Not everyone has believed me, but I knew that it would happen. And I'm so glad that the engelberg Center and the BW LN and the Bretton Woods Center as well as the students sponsors have come together to convene this really important discussion and such a timely discussion for this particular moment on FEM tech and privacy. striking the balance in a postdoc reality could not come at a more urgent time, as we are thinking about the dominance of tech in our lives and the dissipation of rights in our lives. So this is really a fantastic opportunity to think about all of these things in concert, and we could not have a more capable panel of experts to help us navigate these issues. So I'm going to ask each panelist to go down the line and introduce themselves and say a little bit about where you come from and the work that you're doing.
Caitlin Gerdts 3:05
Great. Hi, everyone. Oh,
Melissa Murray 3:08
it's not working. I think they're all there. They're all working.
Caitlin Gerdts 3:12
Hello. Yeah, there we go. Okay, fantastic. Hi. My name is Caitlin Gertz. My pronouns are she her I'm the Vice President for Research at a nonprofit called Ibis reproductive health. We are a research nonprofit that advances reproductive health choices and bodily autonomy worldwide. And I am visiting New York from Berkeley, California today.
Salomé Viljoen 3:41
Alright, I'm pretty loud. But okay. Yeah.
Hi, I'm Salomé Viljoen. And I'm an assistant professor at the University of Michigan Law School. And my research really focuses on exactly these issues. So I focus on data and data governance, the political economy of information, and I'm really interested in sort of changing the register of how we think about those problems from sort of an interpersonal like, I'm, this is like a private issue. That surveillance is sort of a private violation issue and really thinking about it more as sort of a social structural issue. And fun point of fact, when I was in law school, I was like, super into feminist legal theory and found my way to tech issues, sort of through that intellectual tradition. Yeah.
Ambreen Molitor 4:25
Hi, everyone. I'm Ambreen Molitor, I use she her pronouns, and I'm the National Director of Innovation at Planned Parenthood. I think most folks know what Planned Parenthood is, but in the event that you don't it is a nonprofit dedicated to providing access to sex education, sexual health and reproductive rights, as well as health care of itself and sexual and reproductive health. I'm here in the angle of innovation, we talk and work on a lot of things around abortion rights and things like that, but particularly my focus and this conversation will be about a The period and birth control tracking app that we have created, which is about six years old, called Spot on.
Jennifer Weiss-Wolf 5:07
Hi, everybody. I'm Jennifer Weiss Wolf. I'm the Executive Director of the Birnbaum Women's Leadership Network. And I am so I've dreamt of doing a panel like this since, I don't know, many, many years. But but I've only arrived here at the Law School this past summer in August. I came here from the Brennan Center for Justice, where I was vice president and women and democracy fellow. And unlike my fellow panelists, I am not an expert in privacy technology. But I am an expert in menstruation and the law. If you wondered if there was such a person who did that or cared about that, that would be me. So I have lots to say, especially about period tracking apps, menstrual literacy and how that all ties together with the new reality that we live in post jobs as we think about technology. So thank you all for coming.
Melissa Murray 5:55
Okay, so let's get right into it. And maybe as a bit of level setting, as many of you know, on June 24 of this year, the Supreme Court announced its much anticipated decision in Dobbs versus Jackson Women's Health Organization. That decision upheld Mississippi HB 1510, which was a law that prohibited abortion at 15 weeks, I'm plainly unconstitutional under the extant law. But that's why the court went further to overrule those extent, jurisprudence, those extant cases overruling Roe versus Wade and Planned Parenthood versus Casey, one of the immediate fallouts of jobs was the whole question of the criminalization of pregnancy. So to the extent that states now have the authority to limit access to abortion at earlier and earlier in pregnancy that were the question is like, who is seeking an abortion or who has terminated a pregnancy and that may have huge ramifications for miscarriage management and lots of other aspects of reproductive health. And as the national advocates for pregnant women have noted, it means that pregnant women are more likely to be surveilled and to be closely surveilled as they navigate their pregnancies. And that has raised red flags about the kind of work our digital footprints can play in the process of surveilling individuals. And we send out a lot of information every day, we move around, we have GPS monitors on us, because we carry them in our pockets and in our purses, and many of us actually use apps that are intended to sort of track reproductive functions, including period trackers. And in fact, the New York Times right after Dobbs had a headline that said, deleting your period tracker won't protect you, whereas others had advised us to immediately delete our period tracker. So again, in this landscape where everything seems unsettled, and there is no clarity about what is the appropriate way to make use of tech and what tech can actually expose us to legal liability. What's the right answer here? Should I be deleting my period checker? This is a hypothetical question. I'm a 40 year old woman. What do you think?
Caitlin Gerdts 8:03
So I want to ground us in the fact that as as we contemplate what digital surveillance looks like, in a post dobs reality, row was never enough in the first place for black and brown and indigenous communities. reproductive freedom and bodily autonomy has never been guaranteed in this country. Existing threats, law enforcement, surveillance, digital surveillance, have existed for these communities and so many others for far too long. But let me be clear, people's digital data, their text messages, their search histories, all of the the easter eggs that you were just talking about, have absolutely entered into, into the the criminal record for folks who have been criminalized for self managed abortion, and I'll use the term self managed abortion probably a lot today. And when I say that, I mean, anything that a person does to terminate a pregnancy without clinical supervision. Primarily, though, in this country right now, when we talk about self managed abortion, we talk about self managed abortion with medications, which is medically safe, but of course, legally risky. So, postdocs, the scope of criminalization, I think, is unknown. It will certainly most certainly extend beyond self managed abortion beyond self managed medication, abortion, to include anything from potentially information provision, to you know, supporting somebody to cross state line, so we really have no idea. But to date, I think it is really important to remember that the precipitating event for any digital data that have been entered into criminal cases around abortion have been The result of someone, a person who someone told about their need for an abortion or and I want to articulate this very clearly medical providers who they went to, to seek help or care, who then reported them to law enforcement, who of course, then have the ability to seize devices.
Melissa Murray 10:24
So let me just interject here. So the first step, before we even get into the question of what data can be disclosed or could put you at risk, simply confiding to a friend relative, or to a healthcare provider can trigger reporting requirements on the part of the physician or healthcare provider, or can simply be an opportunity for that person to divulge that information. And that could in turn, set the authorities into looking at your digital footprint.
Caitlin Gerdts 10:54
Yeah, but let's also be very clear that there is no legal requirement that anyone disclose anything about their abortion to a medical provider and, and reporting requirements are around abortion. That is, that's not legally required by medical practitioners. So my colleagues at if when how the lawyering project, are really doing a lot of work with medical practitioners right now. So that they understand their obligation is to protect and care for their patients, not to report them to the police.
Melissa Murray 11:30
So celebrate, we actually have a number of laws that are intended to protect our personal data from use that we do not sanction. So how can these laws sort of counteract the prospect of the authorities using our digital footprints? And are there certain things we ought to be wary of, or certain kinds of data are more susceptible to being disclosed than others?
Salomé Viljoen 11:53
Yeah, before I do a quick run through of the laws and some bills that are in front of Congress right now, though, I don't know how they're gonna go. But I think what makes information really fascinating subject to study as an academic, but like a really hard one to get your head around is that we're really tempted to think about information in terms of category of information. But in terms of risks, or valence risks, it's much more helpful to think of it not as like a binary yes, no, like, this is the kind of information that can tell on me. And this is the kind of information that can't, but really a sliding scale of how difficult and expensive it would be to derive a sensitive insight from the existing information that exists about me in the world. So I mean, in this context, I like to say that like pregnancy will tell on you. And it's sometimes in ways that you have no idea could do that.
Melissa Murray 12:50
So like if you were wandering around Washington Square Park, and you were pregnant, and you wound up going to the public restroom, like four or five times as you might do if you were pregnant, the fact that your GPS tracker noted like, wow, in the space of an hour, she visited the restroom four times, that must mean because she was pregnant at that time.
Salomé Viljoen 13:08
Yeah, exactly. These sorts of insights can be derived from you. I've spoken. This is unverified but are spoken to people who work at data analytics companies who have told me that it is now possible to and in retrospect is not that surprising to me, because in the first trimester of your pregnancy, your hormones are doubling every two to three days. But your it they can with some reliability, figure out that someone is in the first trimester of pregnancy, on the basis of the changes in the habits of their TV viewing habits on smart TVs, you can buy a pixel on a smart TV at scale, observe patterns of how people's viewing activity. And when you note a particular type of transformation, that can be an indication that you start
Melissa Murray 13:49
watching the Hallmark Channel.
Salomé Viljoen 13:54
Or like the second anything violent happens to like a puppy or a child, you're like, stop. I mean, I don't know, they didn't tell me exactly what the indications are. But the whole point is that you're going through a profound physiological transformation and the information that's data fIying, extremely sensitive indicators of your life are going to pick that up. But the whole point is that they're not going to pick that up from like your individual data just alone. They're also they're making those insights against population features that they're picking up from other people. The reason they know that my change TV viewing habits is an indicator of pregnancies because they've been able to pick that signal up at scale.
Melissa Murray 14:29
So are there actual bills that can help limit their ability to sort of aggregate all of these data and make draw these conclusions?
Salomé Viljoen 14:38
So there are a few bills. And I'll just preface by saying, you know, I think what's difficult about this is that you really have to thread a needle. You you work in the reproductive health space in the technology industry. I mean, you want to be able to sort of limit bad uses of information, but we don't want to end up with the kinds of laws that for closed the capacities or, you know, public health advocates or people who are trying to expand access to in vitro fertilization to non traditional families not to have access to the information and the research that they need in order to effectuate other important public health goals. So, you know, those are always sort of the the needles you're trying to thread. So I mean, in that space, you know, I'll sort of quickly run down two bills and give my high level thoughts about which ones I think are better and why. So one is the my body my data bill, and the other is the Oh, my gosh, what's it called, it's about the Fourth Amendment. Fourth Amendment is not for sale act. Yeah. And I'll just say, at a high level I, I'm I'm a bigger fan of the Fourth Amendment is not for sale act, because it explicitly sort of tries to thread this needle. So it's very explicitly about preventing information, sensitive information, landing in the hands of law enforcement or other security agencies for these types of purposes. But it sort of does two things that I think are really good. It focuses on the access of this type of information by particular entities that we have concerns about accessing this kind of information, but it doesn't prevent the collection or the use of this information at all, which is really important when, you know, counter groups or public health agencies and or NGOs who are trying to use this information for you know, maternal and neonatal health reasons, also need to gain access to that information.
Melissa Murray 16:30
So I'm bringing you sort of intervene here with Planned Parenthood spot on period tracking app. So you know, this was obviously developed for the purpose of assisting in reproductive health and perhaps even making reproductive health more accessible to individuals. How are you thinking about this now on this new change landscape?
Ambreen Molitor 16:51
Yeah, it's so interesting. I also would like to, if there's time would like to answer your first question of, should you delete your period tracking app as someone that overseas? As you can imagine, actually, my answer is a little bit different. But um, so I won't say in the question of how, how have we thought about it? And how has it changed? It's interesting, six years ago, before this was a conversation mean, a mainstream conversation, this was already a conversation in our lab, which is, how do we create something that's ethical, and design something that's accessible, that means it had to be free and cannot connect to any bank accounts. So you could not you could download it, but you didn't have to purchase something for an upswing to say, like, Please connect to my bank account for that dollar 99 feature, we had to make it accessible in terms of being able to make it multilingual, we also made it accessible in terms of since the beginning we've have, we have over two and a half million downloads, many of them are anonymous users, you do not need to have an account to access the period tracking app. So for six years, people have been using it, we have no idea who they are. And we do not intend to change that most, especially now. But we thought about these things. Data privacy was something we've been thinking about, since the beginning of how we designed tech, which was, it's interesting, because tech in its infancy was really the the celebration of it was around personalization. And now what's happening is really interesting, it's actually the ownership of data is not in the user's hands, right, the personalization piece was cool, because you could be like, through all this data, I can create the experience that I want, and it shifted from, I don't have any control of my data, or I'm very afraid of who else has control of my data. And so I think that's something that we built in from the beginning, which has made us like, very much a success story. In this moment, too. We've seen several 1000s of people that have downloaded spot on saying, I appreciate the fact that it's anonymous, I'm so glad it's not linked to a bank account of mine, I'm so glad there's no third parties, like there's no sign in with Facebook or any of or, you know, with with meta essentially, in any shape, or form. And I think that helps people feel like there is layers of anonymity. The other thing is, you know, it's on your app. So if you have to delete it, you can. And we also we've, since the beginning, we've had an opportunity for you to backup your data. So you can delete the app still contain and have a file with you handy that has all of the information provided. And you own that and you get access to it. There's also opportunities where people sometimes ask, Can I share it with my doctor? Can I share with my partner that's happening less so in this moment that that option is still like something we take very critically and are very cynical and careful about when and if that request is offered. The other thing just going back to the question of like, Should you delete your period tracking app? I think there was a you know, a lot we were falling a lot of the conversation that was happening on Tik Tok and a lot of influencers, influencers. Were saying, delete the app start tracking on pen and paper. I think the fear goes back to what you were mentioning, which is the community around you, as the person that will tell on you, you will not go to the government and say please criminalize me this is you know, so I think the other thing to be careful is, just because it's a piece of technology, it's not a piece of technology, or because it is a piece of technology does not mean someone will or will not have access. So if you have it on pen and paper, you need to trust that person that's living with you that can access your drawers will also not be giving it away in some case. So I just I bring that up, because I want to make sure that it's not a digital or analog conversation, it's just that who has information about you and who can obtain it becomes something you need to think about. And everyone has a different decision that you need to make about that.
Melissa Murray 20:57
So Jennifer Ambreen, has just said something that, you know, is really, to me, kind of a paradox, like when social media kind of emerged, it was clearly understood as a way of bringing us all together sort of uniting us making, you know, bonds that were perhaps invisible, more visible, identifying connections between individuals that might otherwise go unnoticed. But now, in this new landscape, there is, I think, an incentive to further isolate. Right. And so, how do we balance this? What are you seeing on the ground in terms of activism? How are people thinking about this landscape and the fact that many of these new more restrictive abortion laws are actually intended to isolate the pregnant person from a community of support?
Jennifer Weiss-Wolf 21:44
I think what what Ambreen just said about digital or analog that that's sort of like resonating through my head right now, because there's something that lands in between digital, digital and analog, which is in which is education, which is literacy, which is the knowledge that we have. And I think the thing that I fear the most is that so many people are lacking just basic one on one literacy about how their bodies work, how pregnancy happens.
Melissa Murray 22:14
I'm sorry, can we call out Texas governor? Yeah,
Jennifer Weiss-Wolf 22:16
well, that's where I'm going here.
Melissa Murray 22:18
Are you there? God, me, Greg Abbott. I don't know how periods work. Yes.
Jennifer Weiss-Wolf 22:22
Are you there? God, it is. Greg Abbott. And and your question about activists, I was gonna say it's actually not the activists that I'm alarmed by, but it's our state leaders, whether it's legislators or executives, bring in Greg Abbott, the day that just about a year ago, when Texas law SB eight went into effect, right, right, September 1. And then I think that two days later, or three days later was when the Supreme Court issued its shadow docket, ruling that it was not going to act and leave the law intact. Our friend Greg Abbott stood on the steps of the State House in Texas and announced that the people of Texas need not fear, because the law was not that restrictive, because after all, it gave people six weeks to obtain an abortion. So he conflated six week ban with six weeks to get an abortion, whether he was purposefully dim, whether he was lying. I mean, who knows who cares, he was putting out misinformation that I worry deeply that the vast majority of people also believe, and not to put anybody on the spot here. But basically, pregnancy is counted from the date of the last menstrual period. So on the date of the missed menstrual period, a person is at best four weeks pregnant, that could be more because that would presume they had a perfect 28 day cycle. So in a state that has a six week ban, like Texas had at the time, that means on the date that they discover they're pregnant, at best, they are four weeks pregnant, which means at best, they have a two week window to get an abortion. That's that's life or death, or in jail or arrested or not information for people to know. So bringing it back to the digital versus analog, the thing that I've worried about as a menstrual advocate, having talked to many, many a state legislator who is equally either dim or liar, like Governor Abbott, and how little they seem to know about menstruation, I worry terribly about that in between window and how we're taking care of ourselves how we're protecting ourselves. If we're using an app as a crutch, like CliffsNotes, and we're not really learning what that means, you know, getting our hands dirty with really understanding how our bodies work. And again, that is core to what's happening in every state
Melissa Murray 24:51
is part of the sort of, I guess, lack of menstrual or reproductive literacy. You know, is that the product of so much of this being shrouded If we don't talk about miscarriage, we don't really talk about early pregnancy until it becomes visible. I mean, like, No, I've never talked about this. But I actually, with my first child, I didn't realize I was pregnant for about three months, because I was writing a paper to be submitted to him. I was like, No, you're falling asleep all the time. You should take a pregnancy test and literally did not know. Well,
Jennifer Weiss-Wolf 25:21
I would take similarly as, as a person who has been involved in the reproductive health movement, the better part of my professional and adult life. I didn't I knew I was pregnant on my first pregnancy, but I didn't know how it was counted. So as sort of like a religious, you know, tradition, we're not I wasn't going to tell people till after the first trimester, and I remember the doctor. I said, Oh, sweet. I'm like six weeks pregnant. And they said, No, you're 10. And I thought, like, wow, I kept a secret for four weeks. Like that was like, it was like bonus time. But that was when I learned that fact.
Melissa Murray 25:51
Is that because we just don't talk to you like one we don't have sex ed, in most states are like sex ed that we do have is abstinence. Right? And so that is part of it. But even among adults, we don't really talk about this aspect of reproduction.
Ambreen Molitor 26:05
Well, I can, I can. Well, I worry about this, because I think there's the sex education part is just the way whether you know what, however state policy is decided, it is not really embedded into your everyday life. So it's either a one on one time conversation or a series of conversations, you have a finite period of time. But your family planning and your sexual and reproductive health journey is kind of like infinite, right. And so I think what I building on to Jennifer's case, what I fear is the paranoia, and the stigma that's being built around tracking will prohibit people individually from understanding and proactively understanding their bodies at the right time. I am very afraid of the chronic conditions that will rise because people who have PCOS or endometriosis, or pregnancies will not know this until very late, late in the stage, especially pregnancies, when you don't find out until you're like six weeks or 12 weeks pregnant, which is very normal to, you know, understand and figure that out very early on. The other thing I worry about is the implicit implications of Women's Health Research. I mean, you have read many headlines about the COVID vaccine and the trials where they purposefully did not invite women into those trials. Because we have too many variables, we're breastfeeding, we're pregnant, we're on menopause, like, so we're humans, you know, that is part of the human makeup. And that's a big population you need to take care of in a global pandemic. And so I worry about the fact that if we do not have women's health data available to us at the moment, we need it, we will be left behind in terms of how we can move forward and having responding to chronic conditions responding to global pandemic pandemics. And I think that is detrimental for our future and our health in a very serious way. And so for me, I think sex education can completely be part of the classroom. But it starts with the individual and making sure they feel confident and understanding their patterns and recognizing irregularities sooner rather than later. And that is, you know, I fear for the future of a lot of people that have menstrual cycles for that reason.
Melissa Murray 28:24
So, Caitlin, to this point, like, you know, we are trying to thread the needle, because we need this information for innovation on lots of different levels. And yet, we don't want the information to be used in a deleterious fashion. You've been working, as I understand it on an app called Yuki, that is also a period tracker. So in what ways have you tried to sort of toggle between these two competing interests that just sort of thread the needle? Finally?
Caitlin Gerdts 28:51
Yeah. So I'm an epidemiologist by training, I did not think that I was getting into app building. But I have had the distinct honor of working with a number of different abortion accompagnement groups around the globe. And they provide information and support to people who are calling them self managing their own abortions. And we worked with one particular group in Indonesia about 10 years ago. And they just were overwhelmed with the volume of calls and had, you know, a very small volunteer staff and all of the people who were calling them at that point had smartphones, so they wanted to design a smartphone app. And as we were working with them, we heard a lot from people in the United States, saying, you know, hey, it would be really interesting to have a smartphone app that had information about abortion on it here too. So as a group of public health researchers, we did a study and we talked to people across the country, really diverse range of ages and languages and races and ethnicities. And we heard this thing that Ambreen is talking about that People wanted all of the information about their sexual and reproductive health and lives in one place in the same place that they use to track their cycles. One of the things that we heard over and over was that people did not like the predictive features, they felt like the apps on the market, were making assumptions about who they were, what kind of sex they were having, what their cycles were like, they didn't want any of it, they wanted to be able to tailor it on their own. And they did not want to have to sign up or give their data to anybody else. Like you said, they wanted full control. And so we worked with a group called Women help women who provide information and access to self managed abortion globally, to design and develop an app called Yuki is free, it is on Android and Apple, you should download it. And it has no back end. And I want to say, you know, in the in the development process, we heard a lot from people about their privacy and security concerns. This is in 2017. And we were talking to folks who were worried then about law enforcement about digital surveillance about partners or family members or parents having access to what was on their phone. And so up exists, it has information about abortion, it has the protocol to be able to self manage your own abortion. And it also enables you to be able to track your information without tracking any data. I also want to say we built in with the help of some folks here at NYU, thinking about some of our privacy and digital security pieces we built in even though all of the data that anybody would store on the phone is is just native on the phone, we built an automatic data deletion features like signal has. So you can delete your data all at once you can set an automatic data deletion schedule, you can go in and wipe it and if somebody were to possess your phone and you had an automatic data deletion set, it would just wipe I think right now to one other thing to say is that, you know, our search histories or text messages are all at risk. And with Yuki you don't have to go to Google, you can just look up all of the information that you need to know about abortion, and there are all kinds of resources on the app without needing to, you know, be concerned about your search history or sending a text message to a friend.
Melissa Murray 32:35
So to that point, Solemate. Again, what kinds of data you know, should we be fearful of? What kinds of practices should we be really thinking about how we engage? I search on Amazon all of the time. And you know, sometimes it's like really esoteric, if like, My son needs a Halloween costume. I'll be like, you know, cleavers, or you know, hockey masks or something. And like, maybe I'm a serial killer, I don't know. But if someone looking at that search, like they could draw all kinds of conclusions like, how will we should we be about third party apps like Amazon? Like, can they disclose our search histories to the government? Are there any efforts made or propose to limit the ways in which some of these online real retailers and search engines like Google can actually offer up what our digital lives look like to the authorities?
Salomé Viljoen 33:29
Yeah, so again, pregnancy will tell on you and like everything you do. So we do have their there are certain laws that sort of restrict direct disclosure from technology companies, you know, electronic communications providers, to law enforcement, EPA, being the main one, but then also we have FISA, which is the Foreign Intelligence Services Act. And there are some limits and restrictions to what they can do. The problem is that the way the digital economy actually works, law enforcement doesn't have to go directly to those companies, they can go to third parties, data brokers, who by up and collect a lot of that data from these major technology companies, they sort of
Melissa Murray 34:12
just like Cambridge Analytica,
Salomé Viljoen 34:14
it's sort of like Cambridge Analytica, it's like Ventile, there was like a big story about the Immigration Customs. You don't know data brokers exist in like the back end b2b like deep down the stock ecosystem, you do not interact with them. They know everything about you. And the laws that we do have that would restrict like a Google or an Amazon or your verizon, right from directly handing over all of that information to law enforcement does not basically they can go they can have a contractual relationship with Ventile, a Data Broker, that data broker can turn around, bundle all of the insights that they get from everyone from all of these websites and sell it to law enforcement. And so, this is sort of when I you know, oftentimes when I'm in rooms and People are like, talking about restricting government collection of information and like, the police don't have to get it from the DMV. They can buy it from data brokers, like everyone else buys location data. So I think a big effort right now is to try to close in this loophole, which is that a lot of extremely sensitive information is just freely available on the private market for law enforcement to purchase directly from these providers. Also,
Melissa Murray 35:24
Jennifer, let me pose this question to you. We met with Vice President Harris earlier in the year, I think in June. And, you know, we talked about what sorts of interventions the federal government could make. This was in anticipation of dogs, no one knew what we knew what would dogs up but in anticipation, and we talked about a lot of different things. But it occurs to me after after hearing about the sort of data aggregators, the private data aggregators. Could you pass a law? Like, would it make sense to pass a law that would prohibit any state or local agency in receipt of federal funding from using those funds for purchasing from a private data aggregator information of this type?
Jennifer Weiss-Wolf 36:03
That's a really interesting proposal.
Melissa Murray 36:05
I actually I just make maybe I should be a congressman.
Jennifer Weiss-Wolf 36:10
I mean, when we and when we met with the Vice President back in June, it was interesting, because these were all the questions that were on the table. And, and we talked about some of the the legislative proposals that are still underway, and HHS at this point, has already taken on some like building, you know, creating some of the interventions in terms of ensuring the FTC has adequate oversight, and, and all of that. So, you know, it's small steps, whether they're, I mean, I think the Fourth Amendment for is not for sale act is probably the most sweeping and comprehensive of the legislative proposals that are on the table. But at that meeting, I was still beating that menstrual literacy drum, which I've always kind of beat and take a step away from technology, which, again, is not to say that technology is the the problem. But that all of the solutions can't be focused just on protecting us from technology, when there are ways we can learn to exist with with our data and with the realities of our bodies, you know, in ways that that potentially get around some of these privacy concerns and issues. And I'm happy to sort of share with some of the proposals we put that I shared with them. And they were also made up, by the way. And in fact, one of the Cle pieces is this op ed that I wrote, which is another made up proposal, but that's how proposals that's held. But the idea I had there was that and this is swinging back to I think some of what Ambreen was talking about before, which is the language and most of you mentioned the isolation, the lack of education, if we can't rely on the state and the government to provide adequate or accurate sex education, what are some of the other ways we can get in the back door to provide information that people just need to know that they know about their bodies to protect themselves? So the one that's in the Cle reading was this, just this this idea that occurred to me that we through through regulatory agencies through the FDA in particular, we we mandate that certain information just about the safety of menstrual products be provided to consumers of those products, and thinking that that's a captive audience, people who menstruate are likely to become people who become become pregnant, that we use that as the medium through which we can educate people. So just like the FDA requires information about toxic shock syndrome, the FDA or any other agency could require any of this information about how early weeks of pregnancy are counted, other things to know or be flagged about your body so that you at least have that knowledge and whether there's a gap between the data that you consume purposefully apps or otherwise, and Yikes, very dystopian pregnancy will tell on you. I don't know that it answers that. But in any event, yeah, I think there are there there's there's a host of creative legislative proposals that we haven't yet even brought to the table that we can be talking about,
Melissa Murray 39:06
like I can imagine, you know, requiring states for example, who receive block grants for TANF or other programs like state level Medicaid, that you actually have to have a sex ed program that talks about menstruation literacy, and you don't have to talk about you want to stay on your abstinence only thing I guess. But you you actually affirmatively have to provide some kind of content about menstruation.
Jennifer Weiss-Wolf 39:30
It's possibility. Yeah, I mean, the possibilities are actually kind of endless, just like the menstrual policy arena. And that maybe is a conversation for another day, what kinds of menstruation policies have risen to the fore in the United States and around the world. The way that I've always framed that is is if a law affects somebody who men straights, well, then it can address menstruation and guess what the law of every law like traffic laws, every law affects people who menstruate because here we all are walking around the street. I'm not one of them anymore, either. before, but but in any event, yes. So the the answer is yes, we should be creatively looking at every single way we interface with humans and humans of reproductive age and think about how this information and education can be brought to them through perhaps, you know, backdoor or less conventional ways, because sex ed is Ambreen also pointed out happens at a very distinct point in time, it's not that you're carrying this this wide arc of information with you always, sometimes you don't pay attention to it till you really need it. So meeting people where they're at is, is my advocacy direction. But I think it's critically important that we all be thinking about the technology we actively use and the technology that
Melissa Murray 40:45
follows us. We're going to open it up to questions. I have one more question by just again, if you would like to ask a question, we have a microphone over here. And you can just sort of queue up if you'd like. i What is the most important intervention that we could make right now to both secure individual data, but also make the data that needs to be available for innovation and other things that we would find valuable available to those who would use it properly? Question to the whole panel.
Ambreen Molitor 41:20
I can start, I think the best thing we could do is set everyone up with the questions you can answer yourself. So the the decision about you know, whether it's digital or analog or where you're going, I think if you have the questions to make herself become aware of the things that will impact you or the repercussions, I think that's the best thing we could do. For you know, if we get to this place where we have bills that safeguard us to the worst scenario, which is we don't and that's kind of where we live right now, no matter where the pendulum swings. And no matter where it goes, many decades from now, you are armed, just as you were when we were all excited about tech 20 years ago, with the idea that you have control over your data, and you can personalize the experience. And you can make those choices. Versus now I feel like people are very afraid because they don't have that control. So I would say like, arm everyone with questions they know they need to ask in order to be able to answer, should I do this? Or should I not do this? Or do I need to clear my cookies? Or do I need to like delete an app or, you know, these sorts of conversations of like, exactly where can I sign out on Google Map? Like these things are? You know, it's the multitudes are in mountains. But if you armed them with questions, I think that's a helpful start.
Salomé Viljoen 42:42
Yeah, I think to build on that, which is really important point, I think, for me, it's getting very clear on like, the things that at least in theory, were there and an option on the market available to me, I could actually control and minimize and like, make the risk adjustment, risk choice. That's right for me on those things. And the things that like, just for better or for worse, and I often am this person pointing out for worse, like, we're just in it together. Like there are just certain ways that AI control is great, but like a lot of actually how information is used to make decisions about people like don't reduce to anything I have any control on. And at least they think if people have clarity about that, we can rely on thoughtful app designers like better basal body temperature, I've looked for basal body temperature thermometers that aren't come automatically uploaded with an app and I could not find one. So those are IoT, those those, there's like a whole range of IoT, but like separating out like where are the places in our, as we like exist in the world as potentially fertile people. Where we in theory could be providing people an opportunity to say I want to self track and self track only, and pushing for options that allow me to do that in a way I can trust and control. And what just are the class of questions where like, it's not my body, my data, it's our bodies, our data, and I just, they just aren't going to require a collective solution where we can push for those sorts of solutions. But getting clear on where that distinction is, is I think, difficult but extremely necessary for any kind of concrete step forward.
Caitlin Gerdts 44:18
I like this direction. And I think I mean, given that there's so much commodification of all of our data, all of our information, it does seem like in this post dobs reality where you know, people in half of the country do not have legal access to abortion. One of the things that we can and must do is ensure that not only information about menstruation and basic such sex education, but information about abortion and your options and how and where to access them are available through you know, nonprofit resources, resources, like up resources that people can trust that are not collecting are commodifying their data I think That's a responsibility of the field. And, you know, I don't know, our healthcare system is broken now, but really should be the responsibility of the federal government also. So I do think that having those kinds of resources available that people can go to and not have to worry about what's happening to their, you know, whether or not they're cookies, or whether or not their search history is being tracked, make sure that they can go to reliable resources, and have access to information that is life saving information. And then we can deal with the rest of the commodification.
Jennifer Weiss-Wolf 45:32
I love I love all three of those answers, actually, because I'm thinking about arming oneself thinking about it fully as a collective. And, and I would say, you know, it's interesting, because before even I started having these conversations with with folks in this space, I was, you know, again, I beat this kind of old school drum. And I don't anymore, I can see it in a more nuanced way. But I would say that, especially, you know, when the leak decision came down, and these tweets went viral, delete your app, don't delete. And then even that New York Times headline was so sensationalistic, it's like, it's like everyone. Willis, I heard you saying earlier that you were sort of you know, accused of the sky is falling when you were making the predictions that that all rightfully came true. Over a decade ago, and anyone calling us hysterical or out of line for having these concerns, doesn't can't read the future, we we are entering really uncharted territory. So just having these conversations and acknowledging it's a collective, and acknowledging that it's important to educate ourselves and acknowledging that we exist in a data world, we cannot eliminate our digital footprints. All of that is part of of our hopefully, you know, utopian, not dystopian future where, where we create some some solidarity and opportunities for for progress.
Melissa Murray 46:49
Excellent. Are there questions from the audience? Yes, over here, do you want to use a microphone?
Unknown Speaker 47:00
Hi. Um, so as a lot of people here, I'm a thrill. And people, eventually I'm gonna treat me like a lawyer for all kinds of things, even though I'm going to be a corporate lawyer. But I was wondering if there is concrete advice you guys would give for someone that wants, you know, wants to get an abortion, and doesn't want to live a footprint? Is there ways that it confused the system or anything that I could say to that person, that would be actually helpful?
Melissa Murray 47:33
So what kind of legal advice could you give to someone seeking an abortion that would not necessarily open you up to liability and maybe confound the system? A little?
Ambreen Molitor 47:47
Oh, my God, I'm not a lawyer. Oh, my God, oh, my God. Okay, here's what I'm gonna do practical advice is what Yeah, I will say, I'm gonna say this from a perspective of a friend and not a lawyer, if that's okay, because I am not a lawyer. So I will say the advice you would give your friend if they're looking or seeking for an abortion is to do equal parts digital and analog. So if you can call versus search, if you can, if you need to look for the locate, leave your phone, at home, if you are, if you need to figure out on a map where this clinic is, sign out of Google Maps, find the location, and then go there. I think there's opportunities where you can get like paper, in terms of the steps you need to take. So essentially, try to figure out the balance of the digital trail that you're going to leave and be mindful of the analog trail that you're also going to leave it goes back. I mean, I say I, I'm sorry that I'm a broken record. And I'm repeating myself, but like, there's going to be an analog and digital trail and leave a bigger analog trail as much as possible. But you will need Digital no matter what, when you use digital sign outs, if you're using Google Chrome Sign Out of your browser, if you're using map sign out immediately. I also will say I know Google is doing their their part in terms of when you sign out, or even if you are signed in. They automatically grayed out if you are in a clinic, like they can detect and they will grayed out and they will not like do that. I know there are cynical people out there that are like I can tell that this person doesn't either, you know, just sign out. Just sign out.
Salomé Viljoen 49:30
I mean to this, sorry. Did you want to go now? Go ahead. All right, to this point, like, again, as I think I started my comments on there's no, you are now 100% going to leave zero digital trace there is recreating that digital trace requires more sophisticated data analysis, more expensive datasets, more committed people trying to trace you back so you can make it like you can raise the cost. I think like again, not not legal advice. Just a person who reads a lot about privacy stuff right? So, go to a library, open up Duck, duck, go find the information you need. They're closed, empty the history, which I think DuckDuckGo will do for you automatically print out what you need from the library. And take that leave your phone at home, like public libraries. Yeah, everyone can
Caitlin Gerdts 50:18
go to them. Yeah, I think some of those practical pieces like DuckDuckGo, like download signal if you're going to continue to your friends on signal, but you know, I think limiting, you know, and let's just say there's a we're we live in a divided country. So depending on where you are, depends on what kind of advice, not legal advice one would give. But I do think just going back to the principle of, you know, not sharing information that you don't need to share, making sure that people you are sharing information with are people that you trust. And I would recommend that people go to the digital Defense Fund, which has some really excellent digital resources for privacy around abortion. I would also recommend, I already said this, but colleagues if when how, who have a lot of legal resources for folks who are worried about the risk of criminalization in this new post ops world, and then especially for folks who are considering self managing with medications, the m&a hotline is m and a hotline, they are a 24 hour service, and they can help provide accurate evidence based information for people who need to know what's going on, or what's going to happen. I would just say, you know, searching, yes, there's a wide world of digital resources, but really trying to find and make sure that you're aware of the reliable ones that you're not just leaving sort of a trail. So DuckDuckGo is great, but going to places like the National Network of abortion funds for funding resources, if one how for legal resources. And I need an A for literally searching for other abortion options, which once you are there, it does not collect any data at all. So that's I need an a.com. So
Melissa Murray 52:15
that's all incredibly helpful advice. I actually have to say, I don't think I've ever felt more alarmed. Like the kind of advice that you're giving is the way in which domestic terrorists talk about how they communicate with each other. Yeah, that's right on signal, don't leave a trail go to a library. Yeah. I mean, that's where we are, we're being treated like terrorists within our own country.
Caitlin Gerdts 52:40
Yeah, and I mean, this has been happening, of course, for so many communities for so long. And now I think it's something that we're all facing. And you know, so many of these laws, we talked about the idea of isolating the pregnant person. That's what the laws are intending to do. They are intending to criminalize the people around them and isolate the pregnant person.
Melissa Murray 53:05
Other questions? Over here, and if you want to queue up, we can also do that.
Salomé Viljoen 53:14
By thank you guys, for this panel. It's pretty amazing and terrifying at the same time. I wanted to hear your thoughts about using litigation as a tool here. And in particular, I'm thinking about consumer class action litigations against flow health, for sharing data with Facebook and Google, you know, interesting statutes like wiretapping and injunctive relief to delete the downstream data. And just you know, what
Melissa Murray 53:40
you're thinking on that is?
Salomé Viljoen 53:44
Okay. Yeah, I mean, my my answers are like, the most important thing was sort of the click, question clarification. But if it was like concrete change, I would make two laws, it would be any I mean, a huge problem in privacy right now is that we don't have in almost any of them. private rights of action, and the ones that have been working over time to discipline companies that are collecting information or breaking privacy promises. So there is the consent decree with flow. FTC dissented. Cre, I don't I'm I imagine that people have been bringing private rights of action under state laws. I mean, Illinois biometric Information Privacy Act, PIPA has been working over time. But, you know, again, I think advocating for private rights of action in the privacy laws that are under consideration now are like a huge to me like a huge ask. Of course, in the federal contracts, a little bit of a wrinkle is like post TransUnion standings not looking great, which is why I think really focusing on getting those types of laws passed at the state level is huge. That's where my litigation insight ends. So I will turn to some of the other people. I
Melissa Murray 54:53
think that the caveat about TransUnion is really apt in the federal context. I mean, everything I think is shifting to state level Oh, yeah. Activism and jurisprudence and legislation. Yeah. Another question.
Unknown Speaker 55:07
Hi. Okay. So firstly, thank you for, you know, all being here. I'm the Mitra. And to be honest, like, I hope my question does not come off as ignorant at all, like, I'm starting to learn about it. But more and more, and it's kind of confusing, and I hear contradicting things everywhere. So one question clarification on when you say the data brokers, like from my understanding all this data is aggregated information, so they wouldn't be able to identify a singular person? Is that the case? Or is it not? Because it makes it sound like it's not the way that you refer to it? So I just wanted to like understand, how much could someone actually find like me, for instance?
Salomé Viljoen 55:40
Yeah, so it depends on the data broker and what information they're collecting. So they do aggregate information. But part of what that means is that they're aggregating like location tracing information of 10s of 1000s of people. And so some of how that can be used is, and it depends, like some of that information that data brokers can repackage is going to connect it to a unique identifier that is a reliable indicator review. Some of what they're selling is not so it's just in mass location information. But again, individual like what can it be used to identify you is not a question of like, oh, it's attached to the like, unique ID identifier, the identifier of my device, like, you can be reliably identified by just combining different sources of information about you. So if a Data Broker were to sell an entity or a collection of data brokers work to sell and entity, information about people who are eating meals in Washington Square Park, people who had enrolled in the class of NYU Law between these sets of years, people who are likely to be like, you know, women between the ages of 20 and 30, like, come and combine all of those data sets, they could pretty reliably identify you. So, yes,
Unknown Speaker 56:53
and in the context of actually having an app so that, you know, like tracking your period, though, for not selling that data, then theoretically, they no one's gonna know. Right?
Ambreen Molitor 57:02
And I find those two questions like the first question of what you could do, and unlike the question of data identifiers, so I will say common idea identifiers that data brokers try to map into his IP address. So like, on your desktop, you normally have I'm getting so super tech, non technical, I'm sorry. But like, your desktop and your mobile device are, they have IP addresses. So that's one indication of how they can thread the needle, as you said, the, the other one is email. So if you sign in to something, have an email, or if you are moving around and your IP can be connected, I think that those are two like very common ways that data brokers connect the dots.
Unknown Speaker 57:46
Sorry. I'm sorry. And to get into like the nitty gritty, I don't know if you'd like also know that I'm also in like, data. That's like my feeling. That's why I'm just trying to figure out Sure, I know like from my students, I there's no way I could identify some Oh, human, like, for certain things of what I'm like, analyzing, but obviously, there's ways to do that. And I'm just curious, like, if, because I'm also creating like an app around teaching educational resources to young kids learn about puberty, and specifically when it's hard period and all. But the question is coming up a lot around period tracking, and I just, I'm trying to figure out like the best way to go about it. If we don't sell like, even if they had, let's say the email, right, they're still not able to go in and like access what I'm doing within the app work. And so this is where
Ambreen Molitor 58:26
I like, yeah, illegal.
Salomé Viljoen 58:29
It depends on how the apps are built, and how the data is being stored and where the data is being stored and where the data is being stored.
Ambreen Molitor 58:35
So I would say for those
Unknown Speaker 58:36
who if it's like Firebase, and like, I'm using that and then AWS Yeah, maybe
Melissa Murray 58:40
you should also take this offline. And yeah, sorry, sorry. Like, super. I'm sorry. No, no, no, this is getting like I like I want to get in on your app. It sounds like it's Sorry, that was like, these are great questions about how they operate and whether it be pinpointed. I just
Unknown Speaker 58:56
really wanted to understand it fully. Because like, I don't understand, like, where it's going when people are getting assessed. I wanted to,
Melissa Murray 59:00
we want to talk to you later. And again, invest in your app. Okay.
Unknown Speaker 59:04
Thanks. Great. Go ahead. Sorry. Hi, thank you all so much for being here. I'm curious. So you named a few resources that sound really incredible, like Yuki is one of them. You talked about I need an A? Are you guys aware of any like websites or apps that are impersonating these apps in order to try to collect data?
Caitlin Gerdts 59:24
Yes, yes, yes. I mean, you know, crisis pregnancy centers have been impersonating abortion clinics since the advent of abortion Christianity. So, I mean, it's really hard like Google has made some pledges to try to flag whether or not a something that is advertising on Google actually provides abortion or not. I will say our field has been trying to do some research and it's not great. So I mean, there are The Untold Stories of people going to Google trying to find an abortion provider and ending up at a crisis pregnancy center. But not even just, you know, on Google, like they are actively advertising in communities trying to reroute people from finding abortion clinics. So, yes, there are they're all over all over the internet, I don't yet know. And
Melissa Murray 1:00:29
that's only a matter of time
Caitlin Gerdts 1:00:31
terrifying. But yes, I am sure that there will be a website that is going to try to impersonate I need an A abortion. finder.org is also a reliable resource to find abortion clinics. They're different entities, but both are good. And again, the national network of abortion funds can both help to connect people with clinics and funding. Alright, one last question, and then we'll wrap up.
Unknown Speaker 1:00:58
Hi, thank you so much for coming. Given that you all come from the very specific femtech environment. How do you think it looks like after the US I mean, in terms of fundraising, or investment for research, or even liability for these apps that provide information? And are helpful resources for most woman? What do you think it looks like for you all, like in a specific,
Melissa Murray 1:01:26
so are we going to see an uptick in investment in FinTech? And I'll add another layer on to that, you know, one of the critiques of big tech has been the sort of appalling levels of diversity, certainly among the leadership, and is that going to change? Should it change now that some of the not some, but many of the issues facing big tech actually impact communities of color impact women and other underrepresented groups? I mean, is this something that has to be part of the dialogue with big tech right now?
Ambreen Molitor 1:02:00
I can try to answer that question. So I would say inter I can only speak to Planned Parenthood, because I have that level of visibility. So to answer precisely your question, it was around what does what does, like funding and the support look like? I will say funding has been in general for Planned Parenthood has been healthier. You know, like, I think many people are supporting the fight. Many people are supporting the advancements of the products that we're building. But I think it's because we are telling the story of like, you're not connected to big tech. Right. And so I think, in terms of what we're hearing in the VC space, is, I think what is happening there is that they're taking very precautious measures around understanding the data implications, right. So the investment is there. But I think they're being very, very, it's pausing in terms of why we're, it's advancing to. So I think, for our from my side, like spot on, has gained literally hundreds of 1000s of downloads, that investments are in there. But I think it's because we're telling both of those stories of like, we're supporting the advocacy. And, you know, we're the advocates of this, but we're also the technologists behind it, and we're doing it in a very ethical manner. So similar to you, I'm certain, there's more drawn attention and support for that, than ever before. And I think that I think if you design ethically from the start, you're going to end up in a very successful space, I think where it's gonna get hard, longer term is the revenue piece. Right? So how do you sustain this when you're relying on finite funding, like VCs and partnerships and things like that? So I think that's where, from my perspective, and I don't know, if you share that,
Jennifer Weiss-Wolf 1:03:53
well, that might also be the entry point for philanthropic funding to I mean, there's been sort of massive philanthropic investment in the national legal strategy around reproductive rights. And given that that is also on the shift, I think, going forward, that might be a very wise pivot for for national philanthropy.
Caitlin Gerdts 1:04:12
Yeah, I mean, what in my hopeful moments, I think, you know, maybe this is a moment where them tech and different tech companies can take data collection seriously, we can have some laws that help to regulate. And you know, we can encourage companies like Facebook to encrypt their messages, there's no reason they need to have access to that information. And then in my more cynical or realistic moments, I feel like, you know, the the idea of a return on investment for this kind of technology product is just driving the industry and I was at a meeting the other day where a venture capital person said something like, you know, invest in FinTech. It's good In business, for you know, this, like the idea of reproductive rights is good business. So like, let's get in and there was no no conversation around data privacy and security. It's just this is a moment. So let's harness the moment which is why
Melissa Murray 1:05:12
a woman should have been in the room. She was a woman. Oh, no more women. more women, more people of color, or trans people, everyone. Again, I actually do think this is a space where greater diversity among division decision makers would actually be really impactful. Right. This has been an amazingly enlightening, Slightly depressing most of the discussion. Thank you so much for joining us. Thank you for coming as far as some of you did to join us we really appreciate it. Thank you. Please join me in thanking this fantastic you can follow the work of both the BW LN and the engelberg center on our webpages. They're all linked to NYU is webpage. We don't collect cookies, I think you're safe. Thank you
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