Click the link below to listen to this week’s episode of Culture Critically:
Contents:
- Show intro
- Story of the week: Twitter sues Elon Musk
- Main feature: Flo and Anonymous Mode
Full show script
Culture Critically script
Intro
Hello and welcome back to Culture Critically. We’re a podcast focusing on communication, media, technology, and popular culture, and how these impact the ways we think, know, and live.
I’m your host, James Gilmore, and I’m a professor of media and technology studies in Clemson University’s department of communication.
We’ve got a good one for you today. We’ll be continuing our discussion of pregnancy tracking apps in the wake of the decision to overturn Roe v Wade
As always, Culture Critically is focused on generative and provisional conversation about these ideas. My hope is to get us thinking and talking about important issues.
The Story of the Week
Twitter is suing Elon Musk for pulling out of his bid to acquire the company, setting up a legal battle that will shape the future of Twitter’s ownership and its operations
With reports in Wired indicating the company is “on autopilot” and “a mess,” we’re seeing one of the social media titans continuing to sit at a crossroads not just for its future ownership, but also potentially for its vision, growth, and long-term viability. https://www.wired.com/story/as-elon-musk-walks-twitter-workers-say-no-ones-in-charge/
This story will be playing out over months, I’m sure, and we’ll hope to cover it in more detail as we learn about the lawsuit, Musk’s response, and what pathways it will move through.
Main story: Flo and Anonymous Mode
If you missed our last episode, I talked briefly about the calls to delete period tracking apps as well as to request all data from your profile.
Flo, which has a userbase of nearly 250 million users, announced the launch of its new Anonymous Mode on June 30.
So let’s talk about
1: What Anonymous Mode is
2: Why it is necessary
3: What it indicates about the politics of this present crisis
Now, let me just start with the obvious: I am, indeed, a white man talking to you about women’s reproductive health. I acknowledge that’s problematic, to say the least. I was hoping to find a female-identifying colleague to join me on today’s podcast to take the lead on this discussion, but this podcast is still relatively new, and people’s schedules are difficult in the summer, and I’ve had a hard time attracting potential guests. I’m still working on it though!
If YOU listening—yes, you!—have some perspective and insight on this or any other issue, reach out to us. I’m @JamesNGilmore on Twitter and you can DM me directly if you’d like to come on the show and talk about your research, your insights, and your perspective on this or any other issue related to technology, media, and culture. That’s right, Culture Critically needs guests. It could be YOU!
So I apologize in advance if I’m unable to capture the complexity of this issue, especially for any of the women-identifying listeners. If I miss anything important, write me a correction and I’ll feature it in the next episode. I want to be sure I’m getting this as right as I can.
According to Flo’s June 30 press release, the new Anonymous Mode “deidentifies data on a deeper level by removing personal email, name and technical identifiers. In the event that Flo receives an official request to identify a user by name or email, Anonymous Mode will prevent Flo from being able to connect data to an individual”
Flo also notes the company “does not share or sell any health data with any other company”
As I mentioned on the last episode, Flo’s previous promises to protect data were misleading.
An FTC complaint alleged the following: : Flo, as early as 2016, “handed users’ health information out to numerous third parties, including Google, LLC; Google’s separate marketing service, Fabric…Facebook, Inc. through its Facebook Analytics tool…marketing firm AppsFlyer, Inc…and analytics firm Flurry, Inc….And Respondent took no action to limit what these companies could do with the users’ information. Rather, they merely agreed to each company’s standard terms of service. By doing so, Respondent gave these third parties the ability to use Flo App users’ personal health information expansively, including for advertising” https://www.ftc.gov/system/files/documents/cases/192_3133_flo_health_complaint.pdf
Flo settled this complaint, and according to the New York Times, one of the conditions of this settlement is that Flo must “obtain users’ consent before sharing their health details and ot obtain an independent review of its privacy practices” https://www.nytimes.com/2021/01/28/us/period-apps-health-technology-women-privacy.html
The company denied wrongdoing, and insisted it only used a vaguely defined “analytics” to improve user experience
So Flo has a specious track record with matching its claims about privacy to its actions. Flo did obtain a review of its privacy practices that did not find any current misrepresentations, and the company included quotes from that report in their June 30 announcement.
But what does any of this have to do with Roe v. Wade?
Flo—and apps like it, as well as most consumer-grade wearable fitness trackers—are not health devices. Their terms of service make that very clear, often for legal purposes.
As such, they aren’t covered by HIPAA, which has federal regulatory law governing how patient health data can be protected and transferred.
Flo, Fitbit, Apple, Samsung, these companies exist outside the protections from HIPAA because they aren’t, for the most part, associated with an actual doctor or hospital.
This can be confusing, because these companies regularly claim that in order for their products to provide the most accurate information, you need to disclose as much data as possible. And for women who are trying to gather actionable data about their own bodies for fertility purposes or to monitor any number of health conditions, or heck—just because they want to—it can be infuriating to learn that this data isn’t actually treated as federally regulated Health Data.
As Kayte Spector-Bagdady wrote on Twitter after the draft of the Supreme Court ruling leaked, “Your period information can be used to track if and when you got pregnant. And if and when you are no longer pregnant. And that information can have absolutely no protections for who gets it (and how they use it)” https://news.bloomberglaw.com/pharma-and-life-sciences/fertility-apps-bound-by-weak-disclosure-rules-in-post-roe-world
So because this data is not protected, law enforcement agencies could request Flo to release information related to your account if they are investigating you for potentially having had an abortion.
A recent Vox piece about this issue lays out how major companies like Google and Apple regularly comply with law enforcement requests for data, and do not see the data you provide them as deserving of legal protection if you are suspected of a crime. https://www.vox.com/recode/2022/7/6/23196809/period-apps-roe-dobbs-data-privacy-abortion
If this is coming as a surprise to you, it really shouldn’t. While not explicitly connected, much of this can easily be traced to the development of the US Patriot Act and the ways it legalized digital wiretapping through things like the PRISM program. The legalized investigation of digital data means that all of our traces can be used against us if we become a person of interest.
So what does this indicate?
First, let’s talk about self-tracking. The term has become somewhat popularized—at least it was a decade ago—to describe how we can use apps and devices to gather information about how much we move, what we eat, and various other elements of everyday life. I’ve published on this, as have dozens of others media and technology researchers. Gina Neff and Dawn Nafus’s book Self-Tracking, published in 2016, maps out the contours of what this industry looked like about six years ago now.
The problem with so-called “self-tracking” is that it’s largely a misnomer. It implies a system where you are tracking yourself. But that’s rarely the case. The work has been delegated, offloaded to some sort of computational system that analyzes data you provide it. Apple Watch activity data processes a variety of sensors to determine if you’ve met your move goals for the day, much as Flo analyzes the data you provide to make algorithmically determined analyses of your health.
“Self-tracking” as we currently define it is actually all about mediation, the use of a third party to analyze the data we collect—sometimes passively, sometimes actively inputting it—and having it make sense to us.
While these devices have been met with grand claims about the diffusion of health knowledge into everyday life, the democratization of medical tracking, about the ability to push science forward given how many millions of people contribute data to these systems, we should be cautious.
I think what’s important here is to recognize that self-tracking is actually a misnomer. Rather, we need to think about this as always-already an act of self-surveillance, where we willingly provide data to a variety of third parties
While we’ve sort of, I think, collectively accepted that companies like Google and Facebook are data extraction companies as much as anything else—that they are invested in surveillance capitalism, to borrow Zuboff’s concept—we need to do more to scrutinize the variety of health, wellness, and productivity apps that ask us to constantly input data.
Which gets us to 3: How this underscores the current politics. We are in a moment where juridical changes have suddenly shifted what is considered criminal activity and criminal behavior. If law enforcement agencies are investigating whether an abortion has taken place because it is a legally punishable act
An NPR story from July 11, for instance, details the practice of keyword warrants. https://www.npr.org/2022/07/11/1110391316/google-data-abortion-prosecutions
Keyword warrants allow law enforcement to “request information on everyone who has Googled specific search terms,” and these can be cross-referenced against Geofence warrants, which “seek information about every device that has crossed into a defined location in a specific period of time.”
If you can triangulate keyword searches, phone location, and health data provided to Flo, law enforcement can create lists of potential criminals, using nothing but data provided to smartphones, obtained through warrant requests, to prosecute women.
Currently, there’s a case in Colorado where an attorney has filed a motion to suppress evidence obtained from a keyword warrant, claiming it is antithetical to the Fourth Amendment. https://www.theverge.com/2022/7/1/23191406/denver-arson-google-keyword-warrant-challenge-constitutional-fourth-amendment-privacy
We’re in another moment, much like the Patriot Act 20 years ago, where the legitimation of data-based surveillance is coming to the fore.
The most infuriating part of this, of course, is that women should feel like they can trust a company to secure their data. And I’m not saying that Flo’s Anonymous Mode isn’t a step in the right direction. But we should be treating health and wellness data as intrinsically needing to be anonymized, not just encrypted. Anonymous should be a default position for building these apps, not something that is developed after settling a complaint with the FTC about privacy issues.
And in addition to the work being done to help secure reproductive rights and bodily autonomy for women, we need to push for even more legislation which can reduce, if not eliminate, keyword warrants and geofence warrants before they spiral out of control.
We can, ourselves, begin understanding self-tracking as a mode of self-surveillance, and do an audit on the kinds of data we are supplying, and whether we are encrypting and anonymizing that data sufficiently. This doesn’t change the systemic problem of data surveillance, but it might help protect us.
Imagine analog, handwritten ways to create these charts and perform the work of tracking.
Conclusion
Alright, that’s our show. Thank you for joining us on today’s episode of Culture Critically.
You can find us on social media, with rebranded accounts:
On Twitter, we’re @culturecriticly and on Instagram we’re @culturecritically
You can find me @JamesNGilmore
Thanks for listening and I look forward to being back with you soon.
