After Dobbs v. Jackson, the Battle Shifts to Digital Privacy v. Surveillance
Since the recent reversal of Roe v. Wade — the landmark decision establishing a constitutional right to abortion — the vulnerabilities of reproductive health data and various other information stored on digital devices or shared through the Web have risen to the forefront.
Menstrual period tracking apps are an example of how technologies that collect information from users could be weaponized against abortions seekers. The apps, which help tens of millions of users in the U.S. predict when they’re ovulating, may provide evidence that leads to criminal prosecution in states with abortion bans, says Anton T. Dahbura, executive director of the Johns Hopkins University Information Security Institute. In states where abortion is outlawed, “it’s probably best to not use a period tracker,” he says.
Following the Dobbs v. Jackson ruling in late June that overturned Roe, even women who suffered a miscarriage could be suspected of having an abortion in some cases. While using these apps in anonymous mode may appear more secure, “data is notoriously difficult to perfectly anonymize,” Dahbura says. “Whether the data are stored on the user’s device or in the cloud, there are ways to connect that data to the user.”
Completely concealing one’s tracks in cyberspace poses enormous challenges. Digital forensics can take advantage of technology such as GPS apps, security cameras, license plate trackers, credit card transactions and bank records to reconstruct a person’s activities,” Dahbura says. “Abortion service providers are also in a world of risk for similar reasons.”
Practicing “good cyber hygiene” is essential. That’s particularly true in states where private citizens may be rewarded for reporting on women they suspect of having an abortion, such as Texas, which passed a so-called bounty hunter law last fall. To help guard against hacking, Dahbura suggests using strong passwords and two-factor authentication when possible while remaining on alert for phishing scams on email or texts.
Another option for safeguarding privacy is to avoid such apps entirely, but that choice will depend on an individual’s analysis of the risks and benefits, says Leah Fowler, research assistant professor at the University of Houston Law Center, Health Law & Policy Institute.
“These apps are popular because people find them helpful and convenient, so I hesitate to tell anyone to get rid of something they like without more concrete evidence of its nefarious uses,” she says. “I also hate the idea that asking anyone capable of becoming pregnant to opt out of all or part of the digital economy could ever be a viable solution. That’s an enormous policy failure. We have to do better than that.”
The potential universe of abortion-relevant data can include information from a variety of fitness and other biometric trackers, text and social media chat records, call details, purchase histories and medical insurance records.
Instead, Fowler recommends that concerned consumers read the terms of service and privacy policies of the apps they’re using. If some of the terms are unclear, she suggests emailing customer service with questions until the answers are satisfactory. It’s also wise for consumers to research products that meet their specific needs and find out whether other women have raised concerns about specific apps. Users interested in more privacy may want to switch to an app that stores data locally, meaning the data stays on your device, or does not use third-party tracking, so the app-maker is the only company with access to it, she says.
Period tracking apps can be useful for those on fertility journeys, making it easier to store information digitally than on paper charts. But users may want to factor in whether they live in a state with an anti-abortion stance and run the risk of legal issues due to a potential data breach, says Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
Consumers’ risks extend beyond period tracking apps in the post-Roe v. Wade era. “Anything that creates digital breadcrumbs to your reproductive choices and conduct could raise concerns — for example, googling ‘abortion providers near me’ or texting your best friend that you are pregnant but do not want to be,” Shachar says. Women also could incriminate themselves by bringing their phones, which may record geolocation data, to the clinic with them.
The potential universe of abortion-relevant data can include information from a variety of fitness and other biometric trackers, text and social media chat records, call details, purchase histories and medical insurance records, says Rebecca Wexler, faculty co-director of the Berkeley Center for Law & Technology. “These data sources can reveal a pregnant person’s decision to seek or obtain an abortion, as well as reveal a healthcare provider’s provision of abortion services and anyone else’s provision of abortion assistance,” she says.
In some situations, people or companies could inadvertently expose themselves to risk after posting on social media with offers of places for abortion seekers to stay after traveling from states with bans. They could be liable for aiding and abetting abortion. At this point, it’s unclear whether states that ban abortion will try to prosecute residents who seek abortions in other states without bans.
Another possibility is that a woman seeking an abortion will be prosecuted based not only on her phone’s data, but also on the data that law enforcement finds on someone else’s device or a shared computer. As a result, “people in one household may find themselves at odds with each other,” says K Royal, faculty fellow at the Center for Law, Science, and Innovation at Arizona State University’s Sandra Day O'Connor College of Law. “This is a very delicate situation.”
Individuals and corporate executives should research their options before leaving a digital footprint. “Guard your privacy carefully, whether you are seeking help or you are seeking to help someone,” Royal says. While she has come across recommendations from other experts who suggest carrying a second phone that is harder to link a person’s identity for certain online activities, “it’s not practical on a general basis.”
The privacy of this health data isn’t fully protected by the law because period trackers, texting services and other apps are not healthcare providers — and as a result, there’s no prohibition on sharing the information with a third party under the Health Insurance Portability and Accountability Act of 1996, says Florencia Marotta-Wurgler, a professor who specializes in online consumer contracts and data privacy at the NYU School of Law.
“So, as long as there is valid consent, then it’s fair game unless you say that it violates the reasonable expectations of consumers,” she says. “But this is pretty unchartered territory at the moment.”
As states implement laws granting anyone the power to report suspected or known pregnancies to law enforcement, anti-choice activists are purchasing reproductive health data from companies that make period apps, says Rebecca Herold, chief executive officer of Privacy & Security Brainiacs in Des Moines, Iowa, and a member of the Emerging Trends Working Group at ISACA, an association focused on information technology governance. They could also buy data on search histories and make it available in places like Texas for “bounty hunters” to find out which women have searched for information about abortions.
Some groups are creating their own apps described as providing general medical information on subjects such as pregnancy health. But they are “ultimately intended to ‘catch’ women” — to identify those who are probably pregnant and dissuade them from having an abortion, to launch harassment campaigns against them, or to report them to law enforcement, anti-choice groups and others in states where such prenatal medical care procedures are now restricted or prohibited, Herold says.
In addition to privacy concerns, the reversal of Roe v. Wade raises censorship issues. Facebook and Instagram have started to remove or flag content, particularly as it relates to providing the abortion pill, says Michael Kleinman, director of the Silicon Valley Initiative at Amnesty International USA, a global organization that promotes human rights.
Facebook and Instagram have rules that forbid private citizens from buying, selling or giving away pharmaceuticals, including the abortion pill, according to a social media post by a communications director for Meta, which owns both platforms. In the same post, though, the Meta official noted that the company’s enforcement of this rule has been “incorrect” in some cases.
“It’s terrifying to think that arbitrary decisions by these platforms can dramatically limit the ability of people to access critical reproductive rights information,” Kleinman says. However, he adds, “as it currently stands, the platforms make unilateral decisions about what reproductive rights information they allow and what information they take down.”
The Friday Five covers five stories in research that you may have missed this week. There are plenty of controversies and troubling ethical issues in science – and we get into many of them in our online magazine – but this news roundup focuses on scientific creativity and progress to give you a therapeutic dose of inspiration headed into the weekend.
Here are the promising studies covered in this week's Friday Five, featuring interviews with Dr. Christopher Martens, director of the Delaware Center for Cogntiive Aging Research and professor of kinesiology and applied physiology at the University of Delaware, and Dr. Ilona Matysiak, visiting scholar at Iowa State University and associate professor of sociology at Maria Grzegorzewska University.
Listen on Apple | Listen on Spotify | Listen on Stitcher | Listen on Amazon | Listen on Google
- Could this supplement help prevent Alzheimer's?
- Why you should care about smart senior towns
- Here's how to reverse being drunk
- Money can make you happy - if you're this type of person
- Personalized anxiety medicine
As a child, Wendy Borsari participated in a health study at Boston Children’s Hospital. She was involved because heart disease and sudden cardiac arrest ran in her family as far back as seven generations. When she was 18, however, the study’s doctors told her that she had a perfectly healthy heart and didn’t have to worry.
A couple of years after graduating from college, though, the Boston native began to experience episodes of near fainting. During any sort of strenuous exercise, my blood pressure would drop instead of increasing, she recalls.
She was diagnosed at 24 with hypertrophic cardiomyopathy. Although HCM is a commonly inherited heart disease, Borsari’s case resulted from a rare gene mutation, the MYH7 gene. Her mother had been diagnosed at 27, and Borsari had already lost her grandmother and two maternal uncles to the condition. After her own diagnosis, Borsari spent most of her free time researching the disease and “figuring out how to have this condition and still be the person I wanted to be,” she says.
Then, her son was found to have the genetic mutation at birth and diagnosed with HCM at 15. Her daughter, also diagnosed at birth, later suffered five cardiac arrests.
That changed Borsari’s perspective. She decided to become a patient advocate. “I didn’t want to just be a patient with the condition,” she says. “I wanted to be more involved with the science and the biopharmaceutical industry so I could be active in helping to make it better for other patients.”
She consulted on patient advocacy for a pharmaceutical and two foundations before coming to a company called Tenaya in 2021.
“One of our core values as a company is putting patients first,” says Tenaya's CEO, Faraz Ali. “We thought of no better way to put our money where our mouth is than by bringing in somebody who is affected and whose family is affected by a genetic form of cardiomyopathy to have them make sure we’re incorporating the voice of the patient.”
Biomedical corporations and government research agencies are now incorporating patient advocacy more than ever, says Alice Lara, president and CEO of the Sudden Arrhythmia Death Syndromes Foundation in Salt Lake City, Utah. These organizations have seen the effectiveness of including patient voices to communicate and exemplify the benefits that key academic research institutions have shown in their medical studies.
“From our side of the aisle,” Lara says, “what we know as patient advocacy organizations is that educated patients do a lot better. They have a better course in their therapy and their condition, and understanding the genetics is important because all of our conditions are genetic.”
Founded in 2016, Tenaya is advancing gene therapies and small molecule drugs in clinical trials for both prevalent and rare forms of heart disease, says Ali, the CEO.
The firm's first small molecule, now in a Phase 1 clinical trial, is intended to treat heart failure with preserved ejection fraction, where the amount of blood pumped by the heart is reduced due to the heart chambers becoming weak or stiff. The condition accounts for half or more of all heart failure in the U.S., according to Ali, and is growing quickly because it's closely associated with diabetes. It’s also linked with metabolic syndrome, or a cluster of conditions including high blood pressure, high blood sugar, excess body fat around the waist, and abnormal cholesterol levels.
“We have a novel molecule that is first in class and, to our knowledge, best in class to tackle that, so we’re very excited about the clinical trial,” Ali says.
The first phase of the trial is being performed with healthy participants, rather than people with the disease, to establish safety and tolerability. The researchers can also look for the drug in blood samples, which could tell them whether it's reaching its target. Ali estimates that, if the company can establish safety and that it engages the right parts of the body, it will likely begin dosing patients with the disease in 2024.
Tenaya’s therapy delivers a healthy copy of the gene so that it makes a copy of the protein missing from the patients' hearts because of their mutation. The study will start with adult patients, then pivot potentially to children and even newborns, Ali says, “where there is an even greater unmet need because the disease progresses so fast that they have no options.”
Although this work still has a long way to go, Ali is excited about the potential because the gene therapy achieved positive results in the preclinical mouse trial. This animal trial demonstrated that the treatment reduced enlarged hearts, reversed electrophysiological abnormalities, and improved the functioning of the heart by increasing the ejection fraction after the single-dose of gene therapy. That measurement remained stable to the end of the animals’ lives, roughly 18 months, Ali says.
He’s also energized by the fact that heart disease has “taken a page out of the oncology playbook” by leveraging genetic research to develop more precise and targeted drugs and gene therapies.
“Now we are talking about a potential cure of a disease for which there was no cure and using a very novel concept,” says Melind Desai of the Cleveland Clinic.
Tenaya’s second program focuses on developing a gene therapy to mitigate the leading cause of hypertrophic cardiomyopathy through a specific gene called MYPBC3. The disease affects approximately 600,000 patients in the U.S. This particular genetic form, Ali explains, affects about 115,000 in the U.S. alone, so it is considered a rare disease.
“There are infants who are dying within the first weeks to months of life as a result of this mutation,” he says. “There are also adults who start having symptoms in their 20s, 30s and 40s with early morbidity and mortality.” Tenaya plans to apply before the end of this year to get the FDA’s approval to administer an investigational drug for this disease humans. If approved, the company will begin to dose patients in 2023.
“We now understand the genetics of the heart much better,” he says. “We now understand the leading genetic causes of hypertrophic myopathy, dilated cardiomyopathy and others, so that gives us the ability to take these large populations and stratify them rationally into subpopulations.”
Melind Desai, MD, who directs Cleveland Clinic’s Hypertrophic Cardiomyopathy Center, says that the goal of Tenaya’s second clinical study is to help improve the basic cardiac structure in patients with hypertrophic cardiomyopathy related to the MYPBC3 mutation.
“Now we are talking about a potential cure of a disease for which there was no cure and using a very novel concept,” he says. “So this is an exciting new frontier of therapeutic investigation for MYPBC3 gene-positive patients with a chance for a cure.
Neither of Tenaya’s two therapies address the gene mutation that has affected Borsari and her family. But Ali sees opportunity down the road to develop a gene therapy for her particular gene mutation, since it is the second leading cause of cardiomyopathy. Treating the MYH7 gene is especially challenging because it requires gene editing or silencing, instead of just replacing the gene.
Wendy Borsari was diagnosed at age 24 with a commonly inherited heart disease. She joined Tenaya as a patient advocate in 2021.
Wendy Borsari
“If you add a healthy gene it will produce healthy copies,” Ali explains, “but it won’t stop the bad effects of the mutant protein the gene produces. You can only do that by silencing the gene or editing it out, which is a different, more complicated approach.”
Euan Ashley, professor of medicine and genetics at Stanford University and founding director of its Center for Inherited Cardiovascular Disease, is confident that we will see genetic therapies for heart disease within the next decade.
“We are at this really exciting moment in time where we have diseases that have been under-recognized and undervalued now being attacked by multiple companies with really modern tools,” says Ashley, author of The Genome Odyssey. “Gene therapies are unusual in the sense that they can reverse the cause of the disease, so we have the enticing possibility of actually reversing or maybe even curing these diseases.”
Although no one is doing extensive research into a gene therapy for her particular mutation yet, Borsari remains hopeful, knowing that companies such as Tenaya are moving in that direction.
“I know that’s now on the horizon,” she says. “It’s not just some pipe dream, but will happen hopefully in my lifetime or my kids’ lifetime to help them.”