PERIODS FOR PROFIT AND THE RISE OF MENSTRUAL SURVEILLANCE.

• Author: Gilman, Michele Estrin
• Position: Symposium Conference: Are You There Law? It's Me, Menstruation

Abstract

Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people's personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in several ways. Menstruators lose control over their personal data and how it is used. Some of these uses can potentially disadvantage women in the workplace, insurance markets, and credit scoring. In addition, these apps can force users into a gendered binary that does not always comport with their identity. Further, period trackers are sometimes inaccurate, leading to unwanted pregnancies. Additionally, the data is nearly impossible to erase, leading some women to be tracked relentlessly across the web with assumptions about their childbearing and fertility. Despite these harms, there are few legal restraints on menstrual surveillance. American data privacy law largely hinges on the concept of notice and consent, which puts the onus on people to protect their own privacy rather than placing responsibility on the entities that gather and use data. Yet notice and consent is a myth because consumers do not read, cannot comprehend, and have no opportunities to negotiate the terms of privacy policies. Notice and consent is an individualistic approach to data privacy that envisions an atomized person pursing their own self-interest in a competitive marketplace. Menstruators' needs do not fit this model. Accordingly, this Essay seeks to reconceptualize Femtech within an expanded menstrual justice framework that recognizes the tenets of data feminism. In this vision, Femtech would be an empowering and accurate health tool rather than a data extraction device.

INTRODUCTION

The technology industry has recognized that periods are profitable. However, these profits do not flow to menstruators; (1) rather, they enrich private businesses. Period trackers, or smartphone apps that help menstruators monitor their cycles, are a primary driver of "Femtech," a term covering a variety of tech tools to help women manage their reproductive health. (2) The Apple app store alone offers over 1,000 period trackers, and the booming Femtech industry is expected to be worth $50 billion by 2025. (3) In addition to period trackers, the Femtech sector includes a "smart" birth control case designed to improve pill taking habits; a fertility tracking app that measures basal temperature to predict fertility; a digital sensor that tracks pregnancy contractions; a breast pump that digitally measures and records milk production; a pelvic floor trainer that sends biofeedback data to a mobile app as women perform kegel exercises; and an app for menopausal symptom management. (4)

The rhetoric surrounding Femtech centers on empowerment through knowledge of the self. A popular period tracker called Clue promises "a scientific and fluff-free way to learn about your body." (5) Similarly, Flo pitches itself as a "one-stop solution for all things female health and well-being." (6) Inventors and investors tout Femtech's attention to women's health issues, which have long been sidelined, underfunded, and understudied by the mainstream health care sector and researchers. Indeed, the first iteration of Apple's health tracking app in 2014 offered no menstrual tracking features whatsoever, thus reflecting Silicon Valley's male dominance over tech design and production. (7) By contrast, Femtech promises to help women manage their reproductive health, including periods, fertility, pregnancy, childbirth, and menopause.

However, the feminist rhetoric does not match the reality. The tech industry's profit motive, unconstrained by a neoliberal (i.e., individualistic and market-driven) legal framework failing to regulate personal data, skews Femtech incentives away from women's needs and toward a surveillance paradigm that is counter to menstrual justice. Despite its participatory ethos, Femtech can oppress menstruators in several ways: it deprives them of control over their personal data; it generates data that can be used to discriminate; it lacks adequate data security; it is inaccurate; it enforces a harmful gender binary; and it reinforces stigmas against menstruation. In this way, it is counter to menstrual justice. To date, the menstrual justice movement has largely focused on oppression faced by menstruators in the analog world of workplaces, schools, prisons, and stores. (8) Menstrual justice is defined by its goal "to identify, reduce and remedy harm from structural oppression of menstruators while supporting their multidimensionality, inclusion, dignity, liberty and equitable treatment through law, policy and practices and in collaboration with other social justice movements." (9) To fully achieve these objectives, the menstrual justice movement needs to recognize the oppression imposed by menstrual surveillance and to incorporate the lessons and activism of data feminists. Accordingly, this Essay describes the oppressive harms of Femtech; analyzes the lack of legal recourse; and asserts the need for the menstrual justice movement to align with data feminists to harness technology to benefit menstruators.

1. The Menstrual Surveillance Model

   Most period trackers do not charge users money; rather, they earn profits by selling user's data to advertisers and other industries interested in assessing women. To access period trackers, users typically turnover not only demographic data such as name, birthday, and email address, but also deeply personal information, such as their sexual positions and practices; moods and feelings; and indicators such as the physical characteristics of menstrual flow or the quality of cervical mucus. The apps are programmed to incentivize users to constantly enter additional information, such as by rewarding users with access to special features. (10) One study of ten popular apps, including period trackers, found that the apps were sending information including gender, age, IP addresses (a unique indicator linked to a networked device), GPS locations, and user behavior to at least 135 companies involved in advertising and behavioral profiling, ranging from Big Tech platforms such as Amazon and Facebook, to small companies in the targeted ad industry. (11) In this profit model, women perform the invisible labor of providing data for male-dominated corporate interests. (12)

   Femtech is part of a much larger web of "surveillance capitalism," in which "human experience [is] free raw material for translation into behavioral data." (13) In 2021, the Federal Trade Commission settled allegations that Flo--a period and fertility tracking app used by more than 100 million consumers--was sharing its user's data with outside data analytics companies including Facebook and Google despite promising users that their data would remain private. (14) In 2020, the Washington Post wrote that a fertility app called Premom was sending users' personal data to three Chinese companies engaged in targeting advertising. (15) That same year, California's Attorney General settled a case with Glow, another period and fertility tracking app, after it found that the app was allowing third-party access to user information without the user's consent. (16) Further, Glow had major security flaws that "stalkers, online bullies, or identity thieves" could use to harm users. (17) These and many other investigations demonstrate that menstruators do not control their data...